law-judicial immunity | derived judicial immunity | judicial-proceedings-privilege immunity
JUDICIAL IMMUNITY OF JUDGES, JUDICIAL OFFICERS, DERIVED JUDICIAL
derived judicial immunity provides broad protection. "Once an individual is cloaked with derived judicial
immunity because of a particular function being performed for a court, every action taken with regard to
that function—whether good or bad, honest or dishonest, well-intentioned or not—is immune from suit.
Once applied to the function, the cloak of immunity covers all acts, both good and bad." Ramirez v.
Burnside & Rishebarger, L.L.C., No. 04-04-00160-CV, 2005 Tex. App. LEXIS 6065, at *5 (Tex. App.-San
Antonio Aug. 3, 2005, no pet.) (mem. op.) (citing B.K. v. Cox, 116 S.W.3d 351, 357 (Tex. App.-Houston
[14th Dist.] 2003, no pet.)). REHABWORKS, LLC v. Flanagan, Tex: Court of Appeals, 3rd Dist., Austin 2009
HOUSTON CASELAW ON DERIVED JUDICIAL IMMUNITY
A person entitled to derived judicial immunity receives the same absolute immunity from liability for
acts performed within the scope of his jurisdiction as a judge. Dallas County v. Halsey, 87 S.W.3d 552, 554
Judicial immunity can attach to certain non-judges because the policy reasons for judicial immunity--
protection of individual judges and of the public's interest in an independent judiciary--are also implicated
when judges delegate their authority, appoint another to perform services for the court, or allow another to
otherwise serve as an officer of the court. Id. In those circumstances, the immunity attaching to the judge
follows the delegation, appointment, or court employment. Id. The person acting in such a capacity thus
also enjoys absolute immunity, which is known as derived judicial immunity. Id.
Texas uses a "functional approach" to determine whether someone is entitled to derived judicial immunity.
Id. at 556-57. The "functional approach looks to whether the person seeking immunity is intimately
associated with the judicial process" and whether "that person exercises discretionary judgment
comparable to that of the judge." Id. at 554 (citing Delcourt v. Silverman, 919 S.W.2d 777, 782 (Tex. App.--
Houston [14th Dist.] 1996, writ denied)). The functional approach focuses on the nature of the function
performed, not the identity of the actor, and considers whether the court officer's conduct is like that of the
delegating or appointing judge. Id. at 555.
Radoff contends that, as a court-appointed receiver acting within the scope of his authority, he is entitled
to derived judicial immunity. We agree. "Like a court-appointed bankruptcy trustee acting within his
authority as trustee, a court-appointed receiver acts as an arm of the court and is immune from liability for
actions grounded in his conduct as receiver." Rehabworks, LLC v. Flanagan, No. 03-07-00552-CV, 2009
WL 483207 (Tex. App.--Austin 2009, pet. denied) (mem. op) (citing Clements v. Barnes, 834 S.W.2d 45,
46 (Tex. 1992) (court-appointed bankruptcy trustees acting within scope of authority entitled to derived
judicial immunity); Alpert v. Gerstner, 232 S.W.3d 117, 130-31 (Tex. App.--Houston [1st Dist.] 2006, pet.
denied) (court-appointed receiver entitled to derived judicial immunity for all acts authorized by court, but
not for breach of fiduciary duties); Spigener v. Wallis, 80 S.W.3d 174, 183 (Tex. App.--Waco 2002, no
pet.) (characterizing court-appointed receiver as agent of court)).
"Once an individual is cloaked with derived judicial immunity because of a particular function being
performed for a court, every action taken with regard to that function--whether good or bad, honest or
dishonest, well-intentioned or not--is immune from suit. Once applied to the function, the cloak of immunity
covers all acts, both good and bad." Id. (citing Ramirez v. Burnside & Rishebarger, L.L.C., No. 04-04-
00160-CV, 2005 WL 1812595 (Tex. App.--San Antonio Aug. 3, 2005, no pet.) (mem. op.)).
Here, the turnover order was issued by a Harris County justice court. It recited that "whereupon the Court's
review of the papers herein on file, [the Court] became of the opinion that [Houston Reporting] holds and is
entitled to collect upon a true, final, valid and subsisting judgment against Defendant-in-Judgment,
VERONICA L. DAVIS . . . ." The Court accordingly ordered that
HENRY RADOFF, . . . be and is hereby appointed Receiver to serve after posting bond in the sum of $100
and taking the oath of office , in this case pursuant to the Texas Turnover Statute, with all the power and
authority to take possession of all non-exempt property of Respondent VERONICA L. DAVIS, that is in the
actual or constructive possession or control of Respondent VERONICA L. DAVIS, including but not limited
to all property incidental to or associated with the daily operation of Respondent VERONICA L. DAVIS . . .
including but not limited to all cash, . . . drafts and checks, monies on deposit in financial institutions,
financial accounts (bank accounts), certificates of deposit, money market accounts, accounts held by any
third party, . . . that is in the actual or constructive possession of Respondent VERONICA L. DAVIS; and to
pay the proceeds to the Receiver to the extent required to satisfy said judgment, but not to exceed the full
amount awarded under the judgment (or balance due if the judgment has been partially satisfied) which
amount includes principal, attorney's fees and prejudgment interest, together with postjudgment interest
and costs and the amount of attorney's fees awarded herein; . . .
On appeal, Davis complains that Radoff took actions violating the turnover order. Specifically, Davis
alleges that the order does not allow Radoff to seize property from the Bank but that he instead only may
receive property from Davis, that he must act in tandem with the constable or sheriff, and that he was
required to hold a hearing to determine the amount of money Davis needed to live on and to provide for
her dependents. Davis also appears to allege that Radoff seized exempt assets and that he improperly
seized her assets without providing a certified copy of the turnover order to the Bank.
However, as set out above, the turnover order in this case is extremely broad. The order granted Radoff
the explicit power to perform the acts that form the basis of Davis's complaints--to locate and take control
of any cash she had deposited in bank accounts and to use that money to satisfy the underlying default
judgment against her. Davis's petition does not allege any acts by Radoff except those performed in his
capacity as receiver, and those acts are within the bounds of the turnover order.
Davis's argument regarding Texas Civil Practice and Remedies Code section 64.052 is also unsuccessful.
Section 64.052 allows suits against receivers "in their official capacity" to be brought in a court of
competent jurisdiction without permission of the appointing court. Tex. Civ. Prac. & Rem. Code Ann. §
64.052 (Vernon 2008). It is, in essence, a venue provision that has "the effect of making receivers subject
to the general venue statute and thereby served the convenience of the public by abolishing the common-
law rule that only the court appointing the receivers should have jurisdiction and venue on suits brought
against the receiver." Carson v. Hilley, 484 S.W.2d 457, 460 (Tex. App.--Fort Worth 1972, no writ). Section
64.052 does not enlarge or restrict the causes of action that may be asserted against a receiver, nor does
it abrogate a receiver's derived judicial immunity for acts taken within the scope of his receivership. See, e.
g., Rehabworks, LLC v. Flanagan, No. 03-07-00552-CV, 2009 WL 483207 (Tex. App.--Austin 2009, pet.
denied) ("We have already concluded that derived judicial immunity shields a court-appointed receiver
from suit in this case, where the receiver acts as an arm of the court and the suit is based on actions taken
within the scope of the receiver's authority.").
Accordingly, we conclude that the trial court properly granted summary judgment on Radoff's motion for
summary judgment as a matter of law on his defense of derived judicial immunity.
Davis v. West (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)(derived judicial immunity) (turnover
relief, void vs voidable order, existence of fiduciary duty, sufficiency of notice of summary judgment
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-08-01006-CV Veronica Davis v. James A. West, Henry V. Radoff,
Houston Reporting Services & Prosperity Bank, Inc..
Appeal from 149th District Court of Brazoria County
Trial Court Judge: Hon. Robert E. May
Bosch v. Armstrong (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Jennings)
(suit barred by judicial communications tort immunity, absolute privilege for communications in legal court
proceeding, sanctions for baseless claim)
AFFIRM TC JUDGMENT:
Before Justices Jennings, Alcala and Higley. Opinion by Justice Jennings
Yigal Bosch v. Mark S. Armstrong and Paul Bailiff and Squire, Sanders & Dempsey L.L.C.
Appeal from 280th District Court of Harris County
Trial Court Judge: The Honorable Tony Lindsay
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