Robert W. Holzwarth v. Belinda Beek

Affirmed and Memorandum Opinion filed October 17, 2006

Affirmed and Memorandum Opinion filed October 17, 2006.

In The

Fourteenth Court of

Appeals

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NO. 14-05-00070-CV

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ROBERT W. HOLZWARTH, Appellant

V.

BELINDA BEEK, Appellee

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Cause No. 03-69721A

M E M O R A N D U M O P I N I O N

Robert

W. Holzwarth appeals a summary judgment in favor of Belinda Beek on the grounds

that the trial court erred in granting summary judgment (1) without adequate

time for discovery, (2) on absolute immunity, and (3) on limitations grounds.

We affirm.

I. Factual and Procedural Background

On

January 12, 1996, appellant was convicted of aggravated sexual assault.

Appellee, Belinda Beek, was a prosecutor assigned to prosecute appellant = s case. Appellant alleges that prior

to his criminal trial, two attorneys, Lawrence Wilson and Craig Eiland, filed a

civil suit against appellant and others for actions occurring on the night he

committed the sexual assault. Appellant alleges that at the time of his

criminal trial, Eiland and Wilson had conspired with Beek to conceal the fact

that a civil suit had been filed. According to appellant = s second amended petition, Beek

represented to the trial court during appellant = s criminal trial that no civil suit

had been filed against appellant. Appellant contends that he later discovered

the suit had been filed, but he had not yet been served. He further contends

that Beek, Wilson, and Eiland conspired to conceal this fact so the complainant

would not be cross-examined during the criminal trial.

On

December 29, 2003, appellant filed a civil suit against Beek, Wilson, and

Eiland alleging his civil rights had been violated because he was deprived of a

fair trial through the concealment of the civil suit. Beek filed a motion for

summary judgment contending she is entitled to absolute immunity and the

statute of limitations barred appellant = s cause of action. The trial court

granted summary judgment and severed Beek from the lawsuit, making the judgment

final and appealable.

In four

issues, appellant contends the trial court erred in granting summary judgment

because he was not allowed adequate time for discovery, Beek failed to show as

a matter of law she was entitled to absolute immunity, and the discovery rule

precludes summary judgment based on the statute of limitations.

II. Standard of Review

To

prevail on a motion for summary judgment, the movant must establish the absence

of a genuine issue of material fact and that she is entitled to judgment as a

matter of law. T ex. R. Civ . P.

166a(c); Rhone‑Poulenc, Inc. v. Steel , 997 S.W.2d 217, 222 (Tex.

1999). In reviewing a trial court = s decision on a motion for summary

judgment, we take as true all evidence favorable to the non‑movant, and

we make all reasonable inferences in the non‑movant = s favor. KPMG Peat Marwick v.

Harrison County Hous. Fin. Corp. , 988 S.W.2d 746, 748 (Tex. 1999). When a

trial court = s order granting summary judgment does not specify the ground or grounds

relied on for the ruling, summary judgment will be affirmed on appeal if any of

the theories advanced are meritorious. State Farm Fire & Cas. Co. v.

S.S. , 858 S.W.2d 374, 380 (Tex. 1993).

III. Adequate Time for Discovery

In his

first two issues, appellant contends he was not given adequate time for

discovery before the trial court granted Beek = s summary judgment motion. A

no-evidence summary judgment cannot be granted prior to the passage of an

adequate time for discovery. Tex. R.

Civ. P. 166a(i); Crow v. Rockett Special Util. Dist. , 17 S.W.3d

320, 328 (Tex. App. C Waco 2000, pet. denied). This time restriction does not

apply to a traditional motion for summary judgment. Tex. R. Civ. P. 166a(b); Crow , 17 S.W.3d at 328 .

In her

motion for summary judgment, Beek sought judgment as a matter of law based on

absolute immunity and the statute of limitations. Beek did not seek summary

judgment under the no-evidence standard. Therefore, the trial court was not

required to permit adequate time for discovery before granting the motion. See

Moorehouse v. Chase Manhattan Bank , 76 S.W.3d 608, 612 (Tex. App. C San Antonio 2002, no pet.).

Appellant = s first and second issues are overruled.

IV. Absolute Immunity

In his

third issue, appellant contends the trial court erred in granting summary

judgment based on absolute immunity. Appellant argues that when Beek stated

appellant had not been sued, she was not acting in her capacity as an advocate

for the State, but was acting in furtherance of a conspiracy with the lawyers

who had filed the civil suit. Appellant argues Beek, Wilson, and Eiland

conspired to violate his civil rights by concealing the civil suit during his

criminal trial. Beek argues that her conduct during appellant = s criminal trial was within her

prosecutorial function; therefore, appellant = s claims are barred. While

initiating a prosecution and presenting the State = s case, the prosecutor is immune from

a civil suit for damages. Imbler v. Pachtman , 424 U.S. 409, 431

(1976). Immunity is premised on the concern that harassment by unfounded

litigation would cause a deflection of the prosecutor = s energies from her public duties,

and the possibility that she would shade her decisions instead of exercising

independence of judgment required by the public trust. Id. at 423 .

Appellant contends Beek is limited to the defense of qualified immunity. The

Supreme Court, however, specifically rejected that argument, finding the threat

of civil rights suits would A undermine performance of his duties @ if a prosecutor had qualified

immunity. Id. at 425 . A prosecutor = s absolute immunity extends to

activities intimately associated with the judicial phase of the criminal

process. Id. at 420 B 21; Oden v. Reader , 935 S.W.2d 470, 474 (Tex. App. C Tyler 1996, no writ).

In this

case, it is important to consider the claim that appellant has made against

Beek concerning her role in the criminal trial. Acts undertaken by a

prosecutor in the course of her role as an advocate for the State are entitled

to the protections of absolute immunity. Buckley v. Fitzsimmons , 509

U.S. 259, 269 (1993). In determining whether a prosecutor is absolutely immune

from suit, we examine the nature of the function performed, not the identity of

the actor who performed it. Id. at 269 . Appellant contends that in

response to a motion in limine concerning civil suits, Beek told the trial

court that no civil suit was pending against appellant. The conduct alleged is

within her prosecutorial function. It is an act that is intimately associated

with the judicial phase of the criminal process. See Burns v. Reed , 500

U.S. 478, 479 (1991) (finding prosecutor was absolutely immune for

participating in probable cause hearing, but no immunity for giving legal

advice to police). Because Beek was absolutely immune from a civil rights suit

based on the described actions in appellant = s criminal trial, appellant = s third issue is overruled.

In its

judgment, the trial court did not specify on which grounds it granted summary

judgment. Because we have determined that the trial court = s summary judgment can be affirmed on

the theory of absolute immunity, we need not address appellant = s fourth issue on the statute of

limitations.

The judgment

of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum

Opinion filed October 17, 2006.

Panel consists of Chief Justice

Hedges and Justices Yates and Seymore.