Opinion

Reversed and Rendered and Opinion filed August 26, 2004

Reversed

and Rendered and Opinion filed August 26, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01049-CV

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G.W. TWILLIGEAR, JR., FORMER COUNTY JUDGE OF

REAL COUNTY, TEXAS AND W.B. SANSOM, CURRENT

JUDGE OF REAL COUNTY, TEXAS, INDIVIDUALLY

AND IN THEIR OFFICIAL CAPACITIES, Appellants

V.

JOYCE COLE CARRELL, INDIVIDUALLY AND AS

DEPENDENT ADMINISTRATRIX OF THE ESTATE

OF PEARL MATSON HEAD, DECEASED, Appellee

___________________________________________________________________

On Appeal from the Probate Court

Galveston County, Texas

Trial Court Cause No. 65,344‑A

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O P I N I O N

G.W. Twilligear, Jr., and W.B.

Sansom, the former and current County Judges of Real County, Texas,

respectively, (collectively, the A judges @ ) appeal the trial court = s denial of their motions for summary

judgment [1]

on the grounds that the doctrines of judicial and sovereign immunity protect

them from liability under section 671(d) of the Texas Probate Code beyond the

amounts of their official bonds. [2] We reverse and render judgment in favor of

the judges.

Background

Joyce Cole Carrell, individually [3]

and as Dependent Administratrix of the Estate of Pearl Matson Head, Deceased,

filed suit against the judges in both their official [4]

and individual capacities for negligence and gross negligence in failing to

adequately oversee expenditures from a guardianship account so as to require a

sufficient bond for a guardian ad litem. [5] As relevant to this appeal, the judges filed

motions for summary judgment claiming judicial and qualified immunity, [6]

which the trial court denied.

Standard

of Review

A traditional summary judgment A shall be rendered forthwith @ if the motion and summary judgment

evidence show that there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law on the issues expressly set

out in the motion or response. Tex. R. Civ. P. 166a(c). In reviewing a summary judgment ruling, we

take all evidence favorable to the nonmovant as true and resolve every doubt,

and indulge every reasonable inference, in the nonmovant = s favor. Provident Life & Accident Ins. Co. v.

Knott , 128 S.W.3d 211, 215 (Tex. 2003).

Judicial

Immunity

Judges acting in their official

judicial capacity have immunity from liability and suit [7]

for judicial acts performed within the scope of their jurisdiction. See Dallas County v. Halsey , 87 S.W.3d

552, 554 (Tex. 2002). [8] This immunity extends to actions that are

done in error, maliciously, and even in excess of the judge = s authority. See Stump v. Sparkman , 435 U.S. 349,

356-57 (1978). It is overcome only for

actions that are: (1) nonjudicial, i.e. , not taken in the judge = s official capacity; or (2) taken in

the complete absence of all jurisdiction.

Mireles v. Waco , 502 U.S. 9, 11-12 (1991).

Whether an act is judicial (or

nonjudicial) for this purpose is determined by the nature of the act, i.e. ,

whether it is a function normally performed by a judge, [9]

as contrasted from other administrative, legislative, or executive acts that

simply happen to be done by judges. Forrester

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

Judicial acts include those performed by judges in adjudicating, or

otherwise exercising their judicial authority over, proceedings pending in

their courts. [10] Conversely, nonjudicial acts include other

tasks, even though essential to the functioning of courts and required by law

to be performed by a judge, such as: (1) selecting jurors for a county = s courts; (2) promulgating and

enforcing a code of conduct for attorneys; and (3) making personnel decisions

regarding court employees and officers. See

id . at 228-31.

In this case, because the actions

required of probate judges under section 671 are directly related to conducting

the guardianship proceedings pending in their courts, they are both judicial

acts and within the jurisdiction of the probate judges by whom they are

required; and are, thus, protected by judicial immunity. [11] Accordingly, the judges = first issue is sustained, and we

need not reach their other grounds for challenging the denial of their motions

for summary judgment. The judgment of

the trial court is reversed, and judgment is rendered that the judges have no

liability for failing to perform their duties under section 671 beyond whatever

liability can be found, if any, on their bonds, as expressly provided in that

section. [12]

/s/ Richard

H. Edelman

Justice

Judgment rendered and Opinion filed

August 26, 2004.

Panel consists of Justices Edelman,

Frost, and Seymore.

[1] See

Tex. Civ. Prac. & Rem. Code Ann.

' 51.014(a)(5), (8) (Vernon Supp. 2004) (allowing

interlocutory appeals of orders denying motions for summary judgment based on

an assertion of immunity by an officer or employee of the state or a political

subdivision).

[2] There

is thus no issue before us in this appeal as to the judges = alleged liability on their official bonds

under section 671, but only as to their alleged liability above the

amounts of those bonds.

[3] It is

not apparent from our record what standing Carrell has to sue individually.

[4] The

county judge of each county is the presiding officer of the county = s (constitutional) county court. Tex.

Const. art. V, ' 16; see id. '

15. In counties that have no statutory

probate court, the (constitutional) county court has probate jurisdiction,

concurrent with the statutory county court(s), if any. See Tex.

Prob. Code Ann. ' 4 (Vernon 2003); Tex.

Gov = t Code Ann. ' 25.0003(d), (e) (Vernon 2004).

[5] Section

671 of the Texas Probate Code provides:

(a) The

court shall use reasonable diligence to determine whether a guardian is

performing all of the duties required of the guardian that pertain to the

guardian = s ward.

(b) The

judge, at least annually, shall examine . . . the solvency of the bonds of the

guardians of the estates.

(c) If

after examining the solvency of a guardian = s bond under this section a judge

determines that the guardian = s bond is not sufficient to protect the ward or the ward = s estate, the judge shall require the

guardian to execute a new bond.

(d) The

judge shall notify the guardian and the sureties on the bond as provided by

law. If damage or loss results to a

guardianship or ward because of gross neglect of the judge to use reasonable

diligence in the performance of the judge = s duty under this section, the judge

shall be liable on the judge = s bond to those damaged by the judge = s neglect.

Tex. Prob. Code Ann. ' 671(a)-(d) (Vernon 2003).

[6] Real

County also filed a motion for summary judgment and a plea to the jurisdiction

based on immunity, claiming that it was entitled to appear as the real party in

interest in a suit against the County Judge in his official capacity and to

thereby defend its interest in the litigation.

On appeal, the County also seeks a determination of its right to so

appear in the lawsuit. However, we do

not address that issue because: (1) the record is unclear as to whether, or on

what grounds, the trial court ruled on it; (2) it is inadequately briefed on

appeal; and (3) it is unnecessary to our disposition of the appeal.

[7] Mireles

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

[8] However,

judicial immunity is not a bar to prospective injunctive relief against

a judicial officer acting in a judicial capacity or to attorney = s fees for obtaining such relief. Pulliam v. Allen , 466 U.S. 522, 542-44

(1984).

[9] Mireles ,

502 U.S. at 12 .

[10] Mireles ,

502 U.S. at 13 (holding that ordering police officers to use excessive force in

bringing a lawyer into court was a judicial act); Forrester , 484 U.S. at

227 ( A When applied to . . . acts involved in resolving

disputes between parties who have invoked the jurisdiction of a court, the

doctrine of absolute judicial immunity has not been particularly controversial. @ ).

[11] To

support her position that the duties imposed by section 671 are not judicial

acts, Carrell cites Heyn v. Mass. Bonding & Ins. Co. , 110 S.W.2d

261, 264-66 (Tex. Civ. App. C Dallas 1937, writ dism = d

w.o.j.). However we find no guidance in

that opinion because: (1) the issue of a nonjudicial duty was addressed only in

the context of a constitutional separation of powers challenge, and no issue of

judicial immunity was involved; and (2) the lawsuit was against only the surety

on the judge = s official bonds and solely for recovery on those

bonds. Id . at 262, 264-66. Carrell also cites Bernardoni and

Pritchard as establishing that a judge = s

liability under section 671 exceeds the amount of his bond. See Bernardoni v. Holman , 177 S.W.2d

321, 322 (Tex. Civ. App. C Galveston 1944, writ ref = d); Tarrant

County v. Pritchard , 89 S.W.2d 1028, 1028 (Tex. Civ. App. C Fort Worth 1935, writ dism = d). However, no

such conclusion logically follows from the holdings of those cases, as Carrell

contends, that actions against a judge for breach of official duties are

governed by the two-year statute of limitations pertaining to negligence and

breach of statutory duty, rather than the four-year period applicable to a suit

on a written instrument, such as a bond.

See Bernardoni , 177 S.W.2d at 322 ; Pritchard , 89 S.W.2d at

1028 . Nor is Carrell = s position supported by the imposition of personal

liability against the county judge in Pritchard , whose liability was for

not remitting to the County enough of the delinquent fees he had

collected. See Pritchard , 89

S.W.2d at 1029 . No issue of judicial

immunity was addressed in that opinion, nor would any have presumably applied

as the act of accounting for and remitting fees to the County was nonjudicial.

[12] We also

deny Carrell = s motion to strike portions of the judges = reply brief because the assertions in that brief were

not material to our disposition of the appeal.