Opinion

Affirmed and Opinion filed August 28, 2003

Affirmed and Opinion filed August 28, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00591-CV

____________

B. K., INDIVIDUALLY AND AS NEXT

FRIEND OF T.K., C.K., P.K., AND N.K., MINORS , Appellant

V.

LYNN JACOB COX, INDEPENDENT

EXECUTRIX OF THE ESTATE OF MICHAEL DENNIS COX, DECEASED, AND BAYLOR COLLEGE OF

MEDICINE , Appellees

On Appeal from the Probate Court Number Three

Harris County, Texas

Trial Court Cause No. 310529-402

O

P I N I O N

Appellant

Barbara K., individually and as next friend of T.K., C.K., P.K., and N.K.,

filed this negligence suit against the independent executrix of the estate of

Michael Dennis Cox and Baylor College of Medicine [1]

based on their alleged failure to report

suspected child abuse of her children that they allegedly discovered

while performing psychological examinations ordered by a Harris County district

court. The trial court granted appellees = motion for summary judgment based

on derived judicial immunity. Although

the claims Barbara raises are slightly different from those raised in Delcourt , we affirm because the case is controlled

by the absolute immunity doctrine we discussed in Delcourt . [2] This doctrine includes both judicial immunity

and derived judicial immunity. [3]

I.

Factual and Procedural Background

Barbara

filed for divorce from her husband, Larry.

The case was assigned to the 257th District Court. Initially Larry was allowed unsupervised

visits with his children; however, at some point Barbara petitioned the court

to suspend Larry = s unsupervised contact with the

children because she was concerned about possible sexual misconduct by

Larry. In response to Barbara = s

concerns, the judge ordered Dr. Michael Cox of the Baylor College of Medicine

to perform psychological evaluations and examinations of Barbara and Larry and

their children. The court = s

order stated that Cox and Baylor were to act as an extension of the court in

performing these evaluations and examinations:

It is ORDERED that Dr. Michael Cox, Baylor Pilot Program,

Baylor College of Medicine,, [sic] Department of Psychiatry, 1 Baylor Plaza,

Houston,, [sic] Texas 77030 . . . is appointed as an extension of the Court as

the evaluating pychologist for evaluation and

examination of Larry . . . Barbara . . .

and the children the subject of this suit. . . .

. . .

It is ORDERED that all written reports prepared by Dr.

Michael Cox setting out his findings, including results from all tests made, if

any, diagnosis, conclusions and observations shall be submitted directly to the

Court.

In

an affidavit the judge of the 257th District Court filed in connection with

this lawsuit, the judge testified as follows: (1) Baylor College of Medicine

created the Baylor Pilot Program in cooperation with the Court to provide A lower-cost

mental health evaluations @ ; (2) the Court and the Baylor Pilot

Program intended to have Ph.D psychology interns at

Baylor College of Medicine perform evaluations with Dr. Cox = s

oversight, with Dr. Cox and these interns functioning as an arm of the Court

and under the Court = s order; (3) the Court appointed Dr.

Cox and the Baylor Pilot Program to assist it in investigating, evaluating, and

assessing the mental and emotional condition, including allegations of sexual

abuse, of this family; and (4) Dr. Cox and the employees, agents, or servants

of Baylor College of Medicine involved in the evaluation of the family did so

to assist the Court in the integral judicial process of investigating,

evaluating, and assessing the family members = mental and emotional condition.

Dr.

Cox assigned intern Suman Rao

to help him evaluate Barbara, Larry, and the children. In the summer of 1998, Rao

interviewed all members of the family.

During these interviews, two of

the children told Rao about events which led her to

believe that Larry was behaving inappropriately with the children. Rao prepared a

report to the judge recommending that Larry have no visits with T.K. and only

supervised visitation with the other three children. However, Rao left

Baylor suddenly, and the draft report was never sent to the court.

About

eight months later, in March of 1999, Barbara notified Dr. Cox that at least

two of her children had made outcries that Larry had sexually assaulted

them. After interviewing the children,

Dr. Cox made his first report to Children = s Protective Services ( A CPS @ )

and told the court about the situation, recommending that Larry be ordered not

to see the children until the matter was investigated. The court followed the recommendation,

ordering Larry not to see the children.

CPS investigated the reports and concluded that there was reason to

believe that the sexual abuse had occurred.

Because

of the long delay between the time Rao first became

aware of Larry = s inappropriate behavior and the

time that Barbara informed the experts that Larry was abusing their children,

Barbara sued the independent executrix of Dr. Cox = s estate ( A Cox

Estate @ ),

Baylor College of Medicine, Suman Rao ,

and Larry. She alleged that Dr. Cox and

Baylor were negligent because they did not report Larry = s

suspected child abuse to CPS. [4] Barbara alleged that Rao

told Dr. Cox in the summer of 1998 convincing evidence existed that Larry had

committed various acts of sexual abuse against the children. Barbara alleged that Dr. Cox ordered Rao to call CPS, but that Rao

left Baylor College of Medicine without contacting CPS. Barbara alleged that these acts by Cox and

Baylor caused the children to continue to be subjected to their father = s

sexual abuse from the summer of 1998 through March of 1999. In her petition, she did not assert that the

defendants knowingly failed to report any suspected child abuse, and she did

not allege they violated any criminal statute.

The

Cox Estate and Baylor moved for summary judgment, alleging that they were

entitled to absolute immunity from suit because the conduct in issue occurred

while they were functioning as an arm of the court. The trial court granted this motion and

entered a final judgment.

II.

Issues Presented for Review

On

appeal, Barbara asserts the following issues for review:

(1) Did

the trial court err in granting summary judgment based on judicial immunity?

(2) Is

the failure to report suspected child abuse a judicial act?

(3) Is

the statutory duty to report suspected child abuse mandatory or discretionary?

(4) If

mandatory, are appellees entitled to judicial

immunity as a matter of law such that they are exempt from their mandatory

statutory and professional duties to report suspected child abuse?

(5) If

discretionary, does a fact issue exist as to whether appellees

acted reasonably and in good faith so as to defeat summary judgment?

(6) Does

judicial immunity extend to criminal acts and omissions?

(7) Does the existence of statutory immunity

(which does not apply to the failure to report suspected child abuse) preclude

the application of judicial immunity?

III.

Standard of Review

The trial court granted summary

judgment based on the affirmative defense of derived judicial immunity. The

summary judgment was proper only if the movants

conclusively established each element of this defense. See Science Spectrum, Inc. v. Martinez ,

941 S.W.2d 910, 911 (Tex. 1997). In reviewing this summary judgment, we take as

true all evidence favorable to Barbara and indulge every reasonable inference

in her favor. Id . IV.

Analysis

A. Did

the trial court err in granting summary judgment based on derived judicial

immunity?

1.

Rao , Baylor, and Cox were entitled to derived

judicial immunity.

Barbara = s

first issue is that Rao , Baylor, and Cox were not

entitled to derived judicial immunity.

She recognizes the significance of the court appointing Cox and Baylor

and recognizes that at least some of what they did was A intimately

associated with the judicial process. @

Thus, Barbara acknowledges that Texas protects non-judges who have been

appointed by a court as an arm of the court when (1) their function is

intimately associated with the judicial process, and (2) they exercise

discretionary judgment like a judge. See Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002). This

approach to immunity is called the functional approach. See id. ; Delcourt v. Silverman , 919 S.W.2d 777 , 781 B 83 (Tex. App. C Houston [14th Dist.] 1996, writ

denied). But Barbara claims Cox and Baylor are not protected C even

though appointed by the court to function as an arm of the court C because

they strayed from their judicial function when they failed to report suspected

child abuse. [5] This argument reveals a fundamental

misunderstanding of the functional approach to absolute immunity.

Generally,

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 C whether good or bad, honest or dishonest,

well-intentioned or not­ C is immune from suit. Halsey, 87 S.W.3d at 554 . Once applied to

the function, the cloak of immunity covers all acts, both good and bad. See id . at 555 (stating that A as applied in Texas, the functional

approach in applying derived judicial immunity 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 @ ). The whole either

is protected or it is not. See id . at 554 B 55. So, here, if Cox and Baylor were entitled to

derived judicial immunity for any part of their psychological evaluations, they

were entitled to it for all parts. We have already held that a

psychiatrist appointed to evaluate members of a family was entitled to derived

judicial immunity. See Delcourt , 919 S.W.2d at 781 B 83.

We concluded this for the following reason:

When a court appoints a mental health professional to

examine the child and the parents in a custody proceeding, the professional is

acting as a fact finder for the court.

The court relies on the professional to provide information essential to

the decision‑making process.

Without the protection of absolute immunity, such professionals would

be, at the very least, reluctant to accept these appointments. This would in turn inhibit judges from

performing their duties.

Id . at

783. In fact, Delcourt

involved the very same judge and a similar order to the one we have in this

case. See id . at 779, 781 B 83.

In

Delcourt , to determine whether the

court-appointed psychiatrist was entitled to immunity, we looked to affidavit

testimony from the appointing judge and affidavit testimony from the psychiatrist. Here, we have the same type of testimony. [6] The trial judge testified by affidavit that A Dr.

Cox, Dr. Rao , and the employees, agents, or servants

of Baylor College of Medicine who aided them in their evaluation of [the

family] did so for the purpose of assisting the Court in the integral judicial

process of investigating, evaluating, and assessing the [family members = ]

mental and emotional condition pursuant to the Court = s

order. @ In short, Dr. Cox, Dr. Rao ,

and their colleagues were to help the trial judge perform a judicial function

of evaluating this family in an effort to determine custody issues. The only other question to ask in determining

if immunity attaches was if Rao , Cox, and Baylor were

acting within the scope of this appointment when they allegedly neglected to

report suspected child abuse. Rao = s affidavit establishes that they

were within the scope of the order because their acts C whether

negligent or not C related to the family = s

evaluation. See Delcourt , 919 S.W.2d at 783 .

Barbara did not controvert this evidence in the trial court. Therefore, the trial court did not err in

holding that the Cox Estate and Baylor were immune from suit.

Thus,

the Cox Estate = s and Baylor = s

summary-judgment evidence conclusively proved that they were entitled to

absolute immunity. We overrule issues

one, two, and five.

2. Possible

violation of statutes imposing criminal liability does not negate derived

judicial immunity in a suit by a private citizen.

In

spite of this evidence of immunity, Barbara claims that the doctrine of

judicial immunity did not shield the Cox Estate and Baylor from suit because

(1) Cox and Rao violated statutory duties C which

impose criminal liability C by not reporting suspected child

abuse, (2) the duty to report suspected child abuse is mandatory and not

discretionary, and (3) the statutory immunity given in section 261.106 of the

Texas Family Code overrides judicial immunity.

As with her earlier assault on the doctrine of judicial immunity, these

arguments misinterpret and misapply the doctrine.

Barbara = s

first issue, whether judicial immunity continues to protect court-appointed

psychiatrists when they have violated a statute imposing criminal liability for

a failure to act, is flawed because she applies a general rule C no

judicial immunity from criminal liability C to a specific situation to which it

does not apply C a suit brought by a private

citizen.

The

broadest rule that controls our decision was announced in Pruitt v. Turner

in a dissenting opinion approved by the Texas Supreme Court. See Pruitt v. Turner , 336 S.W.2d 440,

444 (Tex. Civ . App. C Waco

1960) (Wilson, J., dissenting), rev = d 342 S.W.2d 422 (Tex. 1961) (approving Justice Wilson = s

dissenting opinion). There, the dissent

announced the guiding rule:

It was a settled principle at the very foundation of

well‑ordered jurisprudence that every judge, whether of a higher or lower

court, in the exercise of the jurisdiction , conferred on him by law, had

the right to decide according to his own free and unembarrassed convictions,

uninfluenced by any apprehension of private prosecution.

Pruitt , 336

S.W.2d at 444 (Wilson, J., dissenting) (underlining added).

For this case, the key point in this quote is that the judge

is free from private prosecution.

Therefore, in Pruitt , a litigant could not sue the judge for

failing to empanel a jury in a case. See Turner v. Pruitt , 342 S.W.2d 422, 423 (Tex. 1961) .

That is a mandamusable act, not subject to

private suit. See id . This same concept adheres when criminal acts

are alleged. So, a judge accused of

conspiring with others to issue an injunction in violation of a plaintiff = s civil rights cannot be sued in a

civil rights action; however, the private individuals who allegedly conspired

with the judge C and who were not engaged in a judicial

function and merely acted as private citizens C could be sued in a civil rights

action by the individuals. See Dennis

v. Sparks , 449 U.S. 24 , 26 B 29, 101 S. Ct. 183 , 185 B 87, 66 L. Ed.2d 185 (1980). The judge, though immune from private suit,

is not immune from criminal prosecution by a state or federal agency. See Dennis ,

449 U.S. at 27 B 31, 101 S. Ct. at 186 B 88. Applying the rule here, the trial judge below C and the court-appointed psychiatrists

who proved that they were functioning as an arm of the court C are immune from private prosecution

by a private citizen. However, if they

violated a criminal law, they are not immune from criminal prosecution by the

government.

Some cases using the functional approach have held that

certain administrative functions of judges are not part of the judicial

function and therefore are outside the scope of judicial immunity. See, e.g. , Forrester v. White ,

484 U.S. 219 , 108 S. Ct. 538 , 98 L. Ed.2d 555 (1988) (holding judge not able to

invoke judicial immunity in ' 1983 damages action against him for employment decision made

in the exercise of his administrative functions). However, the case before us

today does not involve nonjudicial , administrative

functions, and cases such as Forrester only reinforce the principle that

judges or those whom they appoint are entitled to absolute immunity for alleged

acts and omissions during the performance of functions intimately associated

with the judicial process. See id .,

484 U.S. at 224 B 26, 108 S. Ct. at 542 B 43.

Common law derived immunity might be unavailable if a statute

provided Barbara with a statutory claim for damages against the Cox Estate and

Baylor. We have not found C and Barbara has not cited us to C any authority holding that section

261.101of the Texas Family Code or any other statute provides Barbara with a

statutory damage claim against the Cox Estate and Baylor on the facts of this

case. In short, even if Cox and Baylor

violated sections 33.008 and 261.101 of the Texas Family Code, Barbara has not

shown that these statutes override the common law immunity to which Cox and

Baylor have shown themselves to be entitled.

3. Possible

violation of a mandatory duty does not negate derived judicial immunity.

We now turn to the second reason Barbara claims immunity does

not shield the Cox Estate and Baylor C the duty to report suspected child

abuse is mandatory, not discretionary. In support of this claim, Barbara cites

numerous A official immunity @ cases. Official immunity cases do not apply to

judicial immunity; judicial immunity and official immunity are two completely

different doctrines.

Judicial immunity lends immunity for acts taken in a case

before a court. [7] Judicial immunity is an absolute immunity

from private action for all acts C good or bad C in a case. It applies to judges and those appointed by

judges to perform judicial, discretionary functions. For those appointed by a court to assist it,

immunity attaches only if they are performing judicial, discretionary

tasks.

Official immunity applies to government officials. Official

immunity is not absolute; the actor must act in good faith, and the act must be

discretionary. [8]

Courts also use different analyses to determine if the judge

or government official is immune from suit.

As we explained earlier, when judicial immunity is claimed, Texas courts

use the functional approach to decide if immunity attaches. That approach looks to the task the

individual is assigned by the court. If

the task is intimately involved with the judicial process and involves judicial

decision-making and discretion, immunity attaches. We do not parse the individual acts C interviewing the individuals,

deciding that an issue of abuse exists and allegedly failing to report

suspected abuse C within the general assignment and scrutinize them for proper

behavior. Any general assignment or

function intimately related to the judicial process is protected; any part of

the general assignment, or function, that is part and parcel of the function is

protected. We do not inquire about

reasonableness; we do not inquire about

good faith. We do not ask whether the

alleged wrongful conduct was discretionary.

See Forrester , 484 U.S. at 224 , 108 S. Ct. at 542 (stating

that A under

[the functional] approach, we examine the nature of the functions with which a

particular official or class of officials has been lawfully entrusted, and we

seek to evaluate the effect that exposure to particular forms of liability

would likely have on the appropriate exercise of those functions @ );

Halsey, 87 S.W.3d at 555 (stating that A as applied in Texas, the functional

approach in applying derived judicial immunity 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 @ ); Delcourt ,

919 S.W.2d at 782 ( A [u] nder the functional approach,

courts determine whether the activities of the party seeking immunity are

intimately associated with the judicial process . . . [ i ]n

other words, a party is entitled to absolute immunity when the party is acting

as an integral part of the judicial system or an > arm of the court = @ ).

As we said before, once an individual is cloaked with derived judicial

immunity because of a function being performed for a court, all the actions

intimately connected with that process C whether good or bad, honest or

dishonest, well-intentioned or not, criminal or not C are cloaked with immunity.

The inquiry in official immunity cases is quite

different. There the focus is not the

actor = s general function, but the specific

act in question. It delves into the

specific act at issue and asks if it was discretionary. It looks at the alleged wrongful conduct and

asks if the actor was well-intentioned and acted in good faith. See City of Lancaster v. Chambers , 883

S.W.2d 650, 653 (Tex. 1994).

Although

at some point in the inquiry both types of immunity ask if the act (for

official immunity) or function (for judicial immunity) was discretionary, or

involved discretion, the similarity stops there. Thus, official immunity cases do not apply to

a judicial immunity case because they employ the wrong analysis. Therefore, we overrule issues three, four,

and six, all based on an assumption that official immunity cases apply to

derived judicial immunity.

B. Does

the statutory immunity under section 261.106 of the Texas Family Code override

the common-law derived judicial immunity?

In her seventh issue Barbara argues that the existence of

statutory immunity under section 261.106 of the Texas Family Code shows that

the Legislature intended to abolish common-law derived judicial immunity and

replace it with this statutory immunity.

See Tex.

Fam Code ' 261.106. We disagree.

Section 261.106 grants immunity from civil or criminal liability to a person

acting in good faith who reports or assists in the investigation of a report of

alleged child abuse or neglect or who testifies or otherwise participates in a

judicial proceeding arising from a report, petition, or investigation of

alleged child abuse or neglect. Tex. Fam Code '

261.106(a). This statutory immunity also

extends to an authorized volunteer of the Department of Protective and

Regulatory Services or a law enforcement officer who participates at the request

of that department in an investigation of alleged or suspected child abuse or

neglect or in an action

arising from an investigation if the person was acting in good faith and in the

scope of the person = s responsibilities. Tex. Fam

Code '

261.106(b).

In construing a statute, our objective is to determine and

give effect to the Legislature's intent.

See Nat = l Liab . & Fire Ins. Co. v. Allen , 15 S.W.3d 525, 527 (Tex.

2000). If possible, we must ascertain

that intent from the language the Legislature used in the statute and not look

to extraneous matters for an intent the statute does not state. Id .

If the meaning of the statutory language is unambiguous, we adopt the

interpretation supported by the plain meaning of the provision's words. St. Luke = s Episcopal Hosp. v. Agbor , 952 S.W.2d 503, 505 (Tex.1997).

We must not engage in forced or strained construction; instead, we must yield to the plain sense of

the words the Legislature chose. See

id .

Barbara cites no authorities directly on point. She does cite a Texas Supreme Court case in

which the court held that the Medical Liability and Insurance Improvement Act

intended to abolish the common-law discovery rule regarding the claims to which

it applies. See Morrison v. Chan ,

699 S.W.2d 205, 208 (Tex. 1985). We find

that the language of section 261.106 of the Texas Family Code unambiguously

provides statutory immunity for certain persons who assist in the investigation

of a report of alleged child abuse or neglect or who participate in a judicial

proceeding arising from a report, petition or investigation of child abuse;

however, we find no intent in the unambiguous language of this statute to

abolish common-law derived judicial immunity. See

Tex. Fam Code '

261.106. We conclude that the statutory privilege

granted by section 261.106 serves a different purpose than derived judicial

immunity and that the Legislature, by enacting this statute, did not intend to

abolish derived judicial immunity. See

Laub v. Pesikoff , 979

S.W.2d 686 , 690 n.2. (Tex. App. C Houston [1st Dist.] 1998, pet.

denied) (holding that section 261.106 of the Texas Family Code does not abolish

or modify the absolute, common-law, judicial-communications privilege because

the statute serves different purposes).

Accordingly, we overrule Barbara = s seventh issue.

V.

Conclusion

The

Cox Estate and Baylor conclusively proved facts showing their entitlement to

derived judicial immunity under Texas common law, and Barbara did not raise a

genuine issue regarding any of the facts material to this defense. The

focus of our derived-judicial-immunity analysis is on the nature of the

function performed by Dr. Cox and Baylor, not on the alleged criminality of a

specific act or omission allegedly committed while performing that function. The

existence of a duty to report suspected child abuse under section 261.101(b) of

the Texas Family Code and criminal sanctions for the knowing violation of this

duty do not prevent Dr. Cox and Baylor from asserting derived-judicial-immunity

from civil liability in this case. We conclude that the statutory immunity provided by

section 261.106 does not abolish common-law derived judicial immunity. Under the functional approach, we hold that the trial

court correctly granted summary judgment based on derived judicial

immunity. See Halsey, 87 S.W.3d

at 554 B 57; Delcourt , 919

S.W.2d at 781 B 83. Accordingly, we overrule Barbara = s first global issue challenging this judgment and all

sub-issues.

/s/ Wanda

McKee Fowler

Justice

Judgment rendered and Opinion filed

August 28, 2003.

Panel consists of Justices Yates,

Hudson, and Fowler.

[1] They were not

the only defendants, but they are the only defendants relevant to this appeal.

[2] See Delcourt v. Silverman , 919 S.W.2d 777 , 781 B 83 (Tex. App. C Houston

[14th Dist.] 1996, writ denied).

[3] See Dallas

County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002).

[4] Barbara

alleged that this failure to act violated sections 33.008 and 261.101 of the

Texas Family Code.

[5] Barbara

separates her argument into two parts, first that their failure to report was

not a judicial act and second that Cox and Baylor do not receive immunity

simply because they are A court appointed. @ We

answer both of these claims in our discussion below.

[6] We have no

affidavit from Dr. Cox because he died between the time of the events in this

case and the lawsuit.

[7] Typically it

is described as immunity in cases over which the court has jurisdiction. But, if a case was filed in a court, even if

the court ultimately decided it had no jurisdiction over a case, judicial

immunity would protect the judge = s

actions before the case was dismissed.

[8] Obviously, a

judge qualifies as a governmental official, but judges need not resort to

official immunity because judicial immunity is broader.