Jones v. King

Case: 23-50850 Document: 66-1 Page: 1 Date Filed: 08/01/2025

United States Court of Appeals

for the Fifth Circuit

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No. 23-50850

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Matthew Jones; Ysidro Renteria; William L. Jones Carr,

Plaintiffs—Appellees/Cross-Appellants,

versus

Amber M. King; Chris H. Busse; Brandon W. Jones,

Defendants—Appellants/Cross-Appellees.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:22-CV-30

______________________________

Before Higginbotham, Willett, and Ho, Circuit Judges.

Don R. Willett, Circuit Judge:

Loving County in the heart of Texas’s Permian Basin is the least-

populous county in the continental United States. (It was, fittingly, the last

county in America to report a case of COVID-19.) But what it lacks in

population, it makes up for in petroleum. Sitting atop some of the nation’s

richest oil and gas reserves, this patch of West Texas—where pump jacks

outnumber people—has long been home to bitter feuds among powerful

families vying for political control over a massive tax base swollen by sky-high

land values.

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Three registered Texas voters allege that three local officials—a

justice of the peace, a sheriff, and a constable—orchestrated a vengeful

scheme to punish them as “personal and political adversaries.” The facts are

striking: Plaintiffs reported for jury duty only to be arrested and accused of

falsely claiming eligibility by not actually residing in Loving County. Beneath

it all lies a deeper battle over election integrity. Plaintiffs cast their votes in

Loving County, but officials insist they don’t live there. The officials contend

they were merely enforcing Texas voter-eligibility rules and reining in non-

residents who are skirting those rules in order to sway elections. Plaintiffs, by

contrast, call it “lawfare,” plain and simple—an abuse of law enforcement to

settle political scores in a county where near-perfect turnout means elections

are often decided by a handful of votes. In their telling, the arrests were a

voter-roll ruse—a retaliatory scheme dressed up as voter enforcement,

designed to silence dissent and avenge long-simmering personal and political

grievances. Weighty though they are, those voter-eligibility disputes—what

counts as “residency” and who may vote where—are not before us.

This case turns, instead, on a narrower yet no less consequential

question: judicial immunity. Plaintiffs sued under § 1983, alleging that their

arrests violated a host of constitutional rights. The district court granted

judicial and quasi-judicial immunity on some claims but denied judicial

immunity for actions tied to what Plaintiffs call a sham jury proceeding. Both

sides now appeal. The officials seek reversal of the district court’s denial of

judicial immunity for the jury proceeding. Plaintiffs, on cross-appeal, contest

the court’s grant of immunity on other claims. We agree with the officials:

presiding over the jury proceeding was a judicial act shielded by absolute

judicial immunity. As for Plaintiffs’ cross-appeal, we lack jurisdiction to

review those claims at this interlocutory stage.

We thus REVERSE in part (due to judicial immunity) and

DISMISS in part (due to lack of jurisdiction).

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I

At the pleadings stage, we accept all well-pleaded facts as true and

view them in the light most favorable to the plaintiffs. 1

The complaint alleges the following:

Loving County is Texas’s least-populous county, home to fewer than

60 residents. A recent surge in oil and gas drilling has driven county revenue

to historic highs. Unsurprisingly, the battle for local political control has

intensified.

The parties here are, by all accounts, “personal and political

adversaries.” On one side are the plaintiffs—Matthew Jones, Ysidro

Renteria, and William Carr—all registered voters in Loving County. On the

other, are three local officials: Justice of the Peace Amber King, Sheriff Chris

Busse, and Constable Brandon Jones. 2 This case is but the latest chapter in

their long-running feud.

According to the complaint, the alleged conspiracy began in 2022,

when Judge King informed the county clerk that she needed a jury “for an

upcoming trial” and summoned a panel of prospective jurors. Plaintiffs

joined other registered voters in a meeting room inside the courthouse annex.

No case was called. There were no court reporters, no parties, and no counsel

present.

Judge King addressed the group and told them that anyone not

“qualified” to serve could leave voluntarily. She warned that those who

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1

Davis v. Tarrant County, 565 F.3d 214, 217 (5th Cir. 2009) (quotations and citation

omitted).

2

For clarity, we refer to Matthew Jones as “Jones” and Brandon Jones as

“Constable Jones.”

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remained without being “qualified jurors” would be referred to the district

attorney for aggravated perjury—a third-degree felony—and held in

contempt of court. No one left.

The group was then sworn in, pledging to answer Judge King’s

questions about their “service and qualifications as a juror” truthfully. Judge

King asked the panel about their age, literacy, citizenship, criminal history,

and residency. Each confirmed their eligibility, including being a resident of

Loving County.

Judge King then declared it had “come to [her] attention [that] there

are several jurors”—namely, Plaintiffs—“who are not residents” of Loving

County. Because they had not left at the outset of voir dire, Judge King held

them in contempt and ordered them jailed for obstruction of justice.

Constable Jones and a deputy sheriff escorted Plaintiffs into the hallway.

They were handcuffed, jailed for five hours, and disqualified from jury

service in Loving County.

Plaintiffs then filed suit. They allege that the officials orchestrated

these events in calculated retaliation for Plaintiffs’ political opposition—thus

violating, and conspiring to violate, a range of constitutional rights. The

officials moved to dismiss, invoking judicial and quasi-judicial immunity.

The district court granted the motion in part and denied it in part. The

court held that Judge King was entitled to judicial immunity for issuing

contempt orders but not for conducting the jury proceeding. It likewise

extended quasi-judicial immunity to Sheriff Busse and Constable Jones for

executing those contempt orders. The court dismissed all related claims. In

sum, the only claims are those arising from the jury proceeding. The officials

appealed the district court’s refusal to dismiss certain claims, and Plaintiffs

cross-appealed the dismissal of others.

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II

We begin with the officials’ primary appeal—one squarely within our

jurisdiction. 3 They contend the district court erred in two respects: (1) in

declining judicial immunity to Judge King for presiding over the jury

proceeding, and (2) in refusing to dismiss the conspiracy claim in its entirety.

We review both arguments de novo. 4

A

The officials argue that Judge King is entitled to judicial immunity for

her role in presiding over the jury proceeding. We agree.

“It is well established that judges enjoy absolute immunity for judicial

acts performed in judicial proceedings.” 5 Indeed, “immunity applies even

when the judge is accused of acting maliciously and corruptly.” 6 There are

two—and only two—circumstances in which immunity yields: 7 when a judge

acts outside her judicial capacity, 8 or when she acts in the clear absence of all

jurisdiction. 9

No party argues that Judge King acted without jurisdiction. The only

question, then, is whether her actions were judicial in nature.

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3

See Diaz v. Cantu, 123 F.4th 736, 743 (5th Cir. 2024) (citing Holloway v. Walker,

765 F.2d 517, 521–22 (5th Cir. 1985)).

4

See id. at 746; see also Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996).

5

Mays v. Sudderth, 97 F.3d 107, 110 (5th Cir. 1996) (citation omitted).

6

Pierson v. Ray, 386 U.S. 547, 554 (1967); see also Phan v. Hanen, No. 23-20598,

2024 WL 3593902, at *1 (5th Cir. July 31, 2024) (unpublished) (“Judicial immunity also

applies to acts alleged to have been done corruptly.”).

7

See Davis, 565 F.3d at 221.

8

Mireles v. Waco, 502 U.S. 9, 11 (1991).

9

Id.

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An act is not judicial simply because it is performed—or even

commonly performed—by a judge. The law distinguishes “between judicial

acts and the administrative, legislative, or executive functions that judges

may on occasion be assigned by law to perform.” 10 Admittedly, that line can

be hard to draw. 11 But our cases provide a familiar, four-factor test: 12 whether

the challenged act (1) is a “normal judicial function,” (2) “occurred in the

courtroom or appropriate adjunct spaces,” (3) is “centered around a case

pending before the court,” and (4) “arose directly out of a visit to the judge

in [her] official capacity.” 13 Notably, these factors are “broadly construed in

favor of immunity.” 14

Still, the inquiry is not rigid. 15 Courts need not march through all four

factors if one “overarching point” resolves the matter. 16 Some acts are

“clearly” judicial—or so “inextricably linked” to judicial acts that no further

analysis is needed. 17 The “touchstone” is whether the judge is “resolving

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10

Davis, 565 F.3d at 221 (quotations and citations omitted); see also Forrester v.

White, 484 U.S. 219, 227 (1988).

11

Davis, 565 F.3d at 221.

12

See Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005) (citation omitted); see also

McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972).

13

Ballard, 413 F.3d at 515 (citation omitted).

14

Id.

15

Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993) (“In some situations,

immunity is to be afforded even though one or more of the McAlester factors is not met.”);

see also Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985) (“Nor are the factors to be

given equal weight in all cases; rather, they should be construed in each case generously to

the holder of the immunity and in the light of the policies underlying judicial immunity.”).

16

Daves v. Dallas County, 22 F.4th 522, 539 (5th Cir. 2022) (en banc).

17

Id.

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disputes between parties” or “authoritatively adjudicating private rights.” 18

And the hallmark of a judicial act is the “exercise [of] a discretionary

judgment.” 19

Here, Judge King was engaged in a traditional judicial function that

called for discretionary judgment. Judicial immunity thus applies.

For context, jury qualification generally unfolds in three stages. First,

is the jury-pool stage, where prospective jurors are pulled from public

records—typically voter registrations or driver’s licenses 20—and qualified

by clerks and other non-judges using basic statutory criteria: age, citizenship,

criminal history, and residency. 21

Second comes the venire stage. A subset of the jury pool is summoned

to court and assembled in a general jury pool or general assembly. 22 There, a

judge presides over a fresh round of questions and hears excuses and requests

for exemptions. 23 Importantly, the general assembly is not yet tied to a

specific case. 24

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18

Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435–36 (1993) (quotations and

citation omitted).

19

Id. at 436 (quotations and citation omitted).

20

See Tex. Gov’t Code Ann. § 62.001.

21

See id. §§ 62.001, 62.0132, 62.0142, 62.0145, 62.114; Tex. Code Crim. P.

art. 35.03–.04.; see also United States v. Leslie, 783 F.2d 541, 554 (5th Cir. 1989).

22

Jasper v. State, 61 S.W.3d 413, 422–23 (Tex. Crim. App. 2001).

23

Id.

24

Id.; see also Leslie, 783 F.2d at 554.

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Third is the voir dire stage. At that point, eligible jurors are assigned

to a particular case, and the parties—through their attorneys—probe for

case-specific disqualifiers such as bias or conflicts of interest. 25

The parties agree that Judge King was operating at the second stage:

presiding over a general assembly. The question is whether that function is

judicial in nature. We hold that it is.

When presiding over the general assembly, a judge qualifies jurors and

hears exemptions and excuses. 26 Plaintiffs contend this is administrative, not

judicial. They focus on the qualification component, arguing that because the

statutory criteria are fixed, there’s no room for discretion: a “prospective

juror either satisfies the statutory criteria, or he does not.” That may be true

for statutory qualifications and exemptions. 27 But excuses are different.

Judges are “not restricted to excusing prospective jurors for enumerated

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25

Jasper, 61 S.W.3d at 423; See also Leslie, 783 F.2d at 554.

26

Jasper, 61 S.W.3d at 422–23; see also Tex. Gov’t Code Ann. § 62.110; Tex.

Code of Crim. Proc. art. 35.03. The statutes are not a model of clarity as to whether

the exemptions and excuses are heard during the general assembly stage or only at the final

voir dire stage. However, the case law makes clear that “a judge presiding over a general

assembly is assigned for the purpose of considering excuses from prospective jury members

and determining whether any of the prospective jury members are eligible for statutory

exemption.” Moore v. State, 999 S.W.2d 385, 399 (Tex. Crim. App. 1999); see also Chambers

v. State, 903 S.W.2d 21, 29 (Tex. Crim. App. 1995) (rejecting the idea that the trial judge

must rule on excuses and disqualifications himself because they “had been ruled upon by

the central jury room judge”); Wells v. State, 611 S.W.3d 396, 428 (Tex. Crim. App. 2020)

(“General assembly members are qualified on their ability to serve, and exemptions and

excuses are heard and determined by the judge presiding over the general assembly—or by

ʻthe court’s designee’ in a case other than a capital felony case, pursuant to the plan adopted

by the county commissioner’s court. Prospective jurors who are not disqualified, exempt,

or excused are then divided into trial panels and sent to the individual courts trying the

cases.” (citation omitted)); Butler v. State, 830 S.W.2d 125, 131 (Tex. Crim. App. 1992)

(“Thus, the power to grant an excusal from jury service (pursuant to Article 35.03) inheres

to the trial judge from the first assemblage of the array until the juror is, at last, seated.”).

27

Jasper, 61 S.W.3d at 423 n.4.

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exemptions only.” 28 They may excuse a juror for any excuse they find

“sufficient.” 29 And the decision is inherently discretionary, made “case by

case.” 30 For example, in Leberta v. State, the Court of Appeals held that a

judge did not abuse his discretion in excusing a juror because the juror “might

need to leave town if her mother had serious problems.” 31 In other words,

hearing excuses from jury service is a classic judicial function involving the

exercise of quintessential judicial discretion. And presiding over a general

assembly—where that discretion may be exercised—is a judicial act.

That a “court designee,” rather than a judge, may preside over a

general assembly does not undermine this conclusion. 32 The focus of the

judicial-act inquiry is on the “nature of the function performed, not the

identity of the actor who performed it.” 33 That some judicial acts can be

delegated to non-judges does not make them non-judicial. 34 When a court

designee presides over the general assembly, his discretion to grant excuses

is “functionally comparable to those of judges.” 35 Indeed, Texas law bars

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28

Id. at 423.

29

Tex. Gov’t Code Ann. § 62.110(a); Tex. Code of Crim. Proc. art.

35.03 § 1; see also Jasper, 61 S.W.3d at 424 (“We have repeatedly held that a trial court has

broad discretion to excuse prospective jurors for good reason under article 35.03.”).

30

Jasper, 61 S.W.3d at 423 n.4.

31

770 S.W.2d 828, 830 (Tex. App. 1988).

32

See Tex. Gov’t Code Ann. § 62.110(b); Tex. Code Crim. Proc. art.

35.03 § 2.

33

Forrester, 484 U.S. at 229.

34

See Davis, 565 F.3d at 222, 224; see also Antoine, 508 U.S. at 436 (recognizing

that judicial immunity can be “extended to officials other than judges”).

35

Antoine, 508 U.S. at 436 (cleaned up). We also observe that a “court designee”

is not simply any person a judge chooses to designate on a particular day. Instead, designees

are appointed only pursuant to a plan recommended by a majority of the district and

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designees from presiding over general assemblies in capital felony cases—

reserving that role to judges alone. 36 If this were purely administrative, that

distinction would make little sense. The distinction underscores that while

presiding over a general assembly may be delegated to non-judges in some

cases, this responsibility is reserved exclusively to judges when the stakes are

highest.

The district court did not address the “hearing excuses” aspect of the

role. Instead, it relied solely on Ex Parte Virginia, 37 where a judge was denied

immunity for compiling a list of potential jurors, something the Court

deemed “a ministerial act.” 38 But that case involved the first stage of jury

selection—the mechanical compilation of names from public rolls—not the

second stage, where a judge hears individual excuses. 39 That key distinction

makes Ex Parte Virginia inapposite.

True the record does not show that Judge King heard or granted any

excuses while presiding over the general assembly. 40 But that is beside the

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criminal district judges of a county and approved by the commissioners court of the county.

See Tex. Gov’t Code Ann. § 62.110(b), § 62.011(a).

36

Tex. Code Crim. Proc. art. 35.03 § 2.

37

100 U.S. 339 (1879). In so doing, the district court expressly parted ways with the

report and recommendation prepared by the magistrate judge, in which the magistrate

judge concluded that Ex Parte Virginia was “too dissimilar” from this case.

38

Id at 348–49.

39

Id.; see also Davis, 565 F.3d at 225 (describing the judge’s act in Ex parte Virginia

as “compiling a list of qualified jurors”).

40

The dissent focuses on what Judge King actually did—confirming statutory

qualifications—and concludes this was “plainly administrative.” Post at 16. But that

misframes the inquiry. As the Supreme Court has stressed, the touchstone is not whether

discretion was exercised in a particular instance, but whether the function is “judicial in

nature.” Mireles, 502 U.S. at 13. Presiding over a general assembly of prospective jurors—

even when applying objective criteria—falls squarely within that judicial role. Judges don’t

shed immunity simply because a task involves fixed statutory standards; countless judicial

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point. As the Supreme Court has repeatedly emphasized, “the relevant

inquiry is the nature and function of the act, not the act itself”—nor whether

a particular discretion was exercised on a particular day. 41 Just as a trial judge

is immune for presiding over a trial even if no rulings are made, a judge is

immune for presiding over a general assembly even if no excuses are granted.

The remaining judicial-act factors reinforce this conclusion. 42 The

proceeding took place in a courthouse annex—an appropriate adjunct

space—and it arose directly out of a visit to Judge King in her official

capacity. 43 The last factor is whether the act centered around a case pending

before the court. 44 According to the complaint, Judge King called the jury

pool “for an upcoming trial,” though no specific case was identified. This

factor likely favors Plaintiffs.

In sum, three of the four factors support a finding of judicial immunity.

And under settled precedent, the factors must be considered broadly in favor

of immunity. 45

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acts, from approving plea agreements to entering default judgments, involve yes-or-no

determinations under bright-line rules. What matters here is that Judge King was

performing an act historically and functionally reserved for the judiciary: qualifying a venire

and hearing excuses under Texas law—a process that inherently calls for case-by-case

judgment. Absolute immunity attaches to the act of presiding, not to whether a particular

hearing was ho-hum.

41

Mireles, 502 U.S. at 13 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)).

42

Plaintiffs describe the normal-judicial-function factors as “primary and

dispositive” and relegate their discussion of the three remaining factors to a short footnote.

43

See Ballard, 413 U.S. at 515.

44

Id.

45

Id. See Malina, 994 F.2d at 1124–25 (holding that issuing a contempt citation was

a judicial act because it satisfied three of the four factors).

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B

In addition to alleging direct violations of their constitutional rights,

Plaintiffs also brought a conspiracy claim under § 1983, alleging that the

officials conspired to deprive them of those rights.

Although § 1983 permits conspiracy claims, such claims are “not

actionable without an actual violation of section 1983.” 46 Put differently,

where a defendant is entitled to immunity for the alleged constitutional

violation, he cannot be liable for conspiring to commit that same violation. 47

The officials raise two issues related to the conspiracy claim. First,

they express concern that although the district court granted them immunity

for actions related to the contempt orders and dismissing the corresponding

claims, it failed to dismiss the conspiracy claim arising from the same

conduct. We acknowledge the concern but find it unwarranted. By granting

immunity for the contempt-related conduct, the district court necessarily

dismissed any conspiracy claim tied to that conduct—even if its ruling did

not state so explicitly. 48

Second, the officials contend that the district court should have

dismissed the conspiracy claim premised on the jury proceeding because

Judge King is entitled to immunity for that conduct. The district court

allowed that portion of the conspiracy claim to proceed solely because it

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46

Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990).

47

Id.; see also See Hale v. Townley, 45 F.3d 914, 921 (5th Cir. 1995).

48

To be clear, we are not affirming the district court’s dismissal of the conspiracy

claim premised on the contempt orders; we merely acknowledge that the dismissal

inevitably flows from the district court’s grant of immunity over those actions. Whether

these conspiracy claims should be dismissed ultimately depends on whether the officials are

properly entitled to immunity for the underlying contempt orders. And as explained in the

next section of this opinion, we lack jurisdiction to reach that question.

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denied judicial immunity for Judge King’s role in conducting the jury

proceeding. But as explained above, we conclude that Judge King’s conduct

in presiding over the jury proceedings was a judicial act entitled to absolute

immunity. Accordingly, we agree with the officials that the conspiracy claim

premised on the jury proceeding is no longer viable and must be dismissed. 49

III

On cross-appeal, Plaintiffs raise two challenges to the district court’s

grants of immunity. They argue: (1) Judge King is not entitled to judicial

immunity for issuing the contempt orders; and (2) Sheriff Busse and

Constable Jones are not entitled to quasi-judicial or qualified immunity for

executing those orders. But we lack jurisdiction to review those claims at this

stage and must therefore dismiss the cross-appeal.

Ordinarily, grants of immunity are not immediately appealable

because they may be fully and effectively reviewed upon entry of final

judgment. 50 Plaintiffs urge us to exercise pendent appellate jurisdiction. But

that doctrine applies only in “rare and unique” circumstances. 51 Indeed, we

have identified just four scenarios in which pendent jurisdiction is

appropriate: (1) where “some issue in the properly brought interlocutory

appeal . . . necessarily disposes of the pendent claim”; (2) where “addressing

the pendent claim will further the purpose of officer-immunities by helping

the officer avoid trial”; (3) where the “pendent claim would be otherwise

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49

See Hale v. Townley, 45 F.3d at 921.

50

See Thompson v. Betts, 754 F.2d 1243, 1246 (5th Cir. 1985); see also Comstock Oil

& Gas Inc. v. Alabama & Coushatta Indian Tribes of Texas, 261 F.3d 567, 571 (5th Cir. 2001).

51

Escobar v. Montee, 895 F.3d 387, 392 (5th Cir. 2018) (quotations and citation

omitted).

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unreviewable”; and (4) where the pendent and properly raised claims

“involve precisely the same facts and elements.” 52

None of those scenarios applies here. The officials’ appeal concerns

judicial immunity for presiding over the jury proceeding. Plaintiffs’ cross-

appeal concerns judicial, quasi-judicial, and qualified immunity for actions

related to contempt orders. Though the two sets of claims arise from the

same dispute, they do not involve “precisely the same” facts or legal

elements. Indeed, the differences—both factual and legal—between the jury-

proceeding issue and the contempt-orders issue led the district court to treat

them as distinct, analyzing them in separate sections of its ruling. 53 Nor does

the resolution of the lead appeal necessarily resolve any issue raised in the

cross-appeal. To the contrary, Plaintiffs seek to subject the officials to trial—

precisely the outcome the immunity doctrines are designed to prevent. And

because the challenged rulings are “capable of being fully and effectively

reviewed after final judgment,” 54 there is no risk of unreviewability that

might otherwise warrant pendent jurisdiction.

In sum, this is not one of the rare cases in which pendent jurisdiction

is proper. Accordingly, we lack jurisdiction to review Plaintiffs’ cross-appeal

in its current, interlocutory posture. 55

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52

See id. at 392–93.

53

See Gros v. City of Grand Prairie, 209 F.3d 431, 437 (5th Cir. 2000) (declining to

find pendent jurisdiction for claims that were treated separately by the district court and

had unique elements and facts).

54

Club Retro, LLC v. Hilton, 568 F.3d 181, 214 (5th Cir. 2009) (citation omitted).

55

We recognize, given our conclusion that Judge King receives immunity for the

jury proceeding, that there may be little left for the district court to do when this case is

returned to it. Nevertheless, “we may not expand our appellate jurisdiction for efficiency’s

sake.” Pickett v. Tex. Tech Univ. Health Scis. Ctr., 37 F.4th 1013, 1028 (5th Cir. 2022)

(quotations and citation omitted); cf. Utah v. Su, 109 F.4th 313, 321 (5th Cir. 2024) (“Yet

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* * *

This case may well be, as Plaintiffs contend, a bare-knuckled episode

of political lawfare in the nation’s least-populated county. Abusing judicial

power to settle political scores is no small matter—and if true, it is plainly

ignoble. But however troubling the allegations, qualifying a venire is a judicial

act, and judicial acts are shielded by judicial immunity. The remedy for

abusing that power lies not in § 1983 but in the voting booth.

Controlling precedent compels us to (1) REVERSE the district

court’s denial of judicial immunity to Judge King for presiding over the jury

proceeding, and (2) DISMISS Plaintiffs’ cross-appeal for lack of

jurisdiction.

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efficiency and economy—valuable, no doubt—have never been pursued at all costs, at least

in our legal system.”). Because the order granting immunity was not a final order and

pendent jurisdiction does not apply, we lack jurisdiction and must dismiss this appeal. See

United States v. Powell, 468 F.3d 862, 863 (5th Cir. 2006); see also 21 Turtle Creek Square,

Ltd. v. N.Y. State Teachers’ Ret. Sys., 404 F.2d 31, 32 (5th Cir. 1968).

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James C. Ho, Circuit Judge, dissenting:

Judge Amber King allegedly abused the juror qualification process in

order to arrest and jail three long-time political adversaries. This is a

textbook case of “lawfare”—“an abuse of law enforcement to settle political

scores”—as the majority rightly acknowledges. Ante, at 2.

But the majority concludes that Judge King is entitled to judicial

immunity. I disagree. Like the district court, I would deny judicial immunity

and allow the case against Judge King to proceed to trial.

Judicial immunity hinges on “the nature of the act.” Davis v. Tarrant

County, 565 F.3d 214, 222 (5th Cir. 2009) (quoting Mireles v. Waco, 502 U.S.

9, 12 (1991) (per curiam)). To determine whether judicial immunity applies,

we examine “the precise act” at issue. Id. We “look to the particular act’s

relation to a general function normally performed by a judge.” Malina v.

Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993). See, e.g., id. at 1123–24

(denying judicial immunity where judge directed a police officer “to

unofficially summon” a citizen to court because the judge was “upset” that

the person had “honked his horn” at him while driving).

Judge King qualified a venire by confirming the age, literacy,

citizenship, criminal history, and residency of prospective jurors. This

required no exercise of judicial discretion or judgment. Judge King qualified

the venire in the same manner that court clerks qualify a jury pool—by

confirming basic eligibility requirements. See Tex. Gov’t Code

§ 62.001(b), (k) (tasking county and district clerks with excluding “persons

exempt from jury service” from “jury wheel” due to age, literacy,

citizenship, criminal history, and residency); id. at § 62.002 (same); id. at

§ 62.0145 (“if a written summons for jury service . . . is undeliverable, the

county or district clerk” or “bailiff” “may remove the person’s name from

the record of names for selection of persons for jury service”). See also Tex.

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Case: 23-50850 Document: 66-1 Page: 17 Date Filed: 08/01/2025

No. 23-50850

Code Crim. P. art. 35.03 (except for capital felony cases, “the court’s

designee may hear,” “determine,” and “discharge” prospective jurors on

“excuse[s] offered for not serving as a juror, including any claim of an

exception or lack of qualification”).

So Judge King’s actions were plainly administrative, rather than

judicial, in nature. I would therefore affirm the denial of judicial immunity.

Accordingly, I respectfully dissent.

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