Davis v. Tarrant County, Tex.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 8, 2009

No. 07-11223 Charles R. Fulbruge III

Clerk

LAWRENCE PATRICK DAVIS

Plaintiff-Appellant

v.

TARRANT COUNTY TEXAS; SHAREN WILSON, Honorable, in

Individual and Official Capacity; WAYNE SALVANT, Honorable,

in Individual and Official Capacity; ELIZABETH BERRY, Honorable,

in Individual and Official Capacity; MIKE THOMAS, Honorable,

in Individual and Official Capacity; MOLLEE WESTFALL,

Honorable, in Individual and Official Capacity; EVERETT YOUNG,

Honorable, in Individual and Official Capacity; SCOTT WISCH,

Honorable, in Individual and Official Capacity; GEORGE

GALLAGHER, Honorable, in Individual and Official Capacity;

ROBERT K GILL, Honorable, in Individual and Official Capacity;

JAMES WILSON, Honorable, in Individual and Official Capacity;

JEFF WALKER, Honorable, in Individual and Official Capacity

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

Before BENAVIDES, SOUTHWICK, and HAYNES, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

Appellant Lawrence Patrick Davis, a criminal defense attorney who

practices primarily in Tarrant County, Texas, filed this suit because the Tarrant

County criminal district judges denied his application to be included on the list

No. 07-11223

of attorneys eligible for court appointment in felony cases in Tarrant County,

known as “the wheel.” Davis sued the district judges hearing felony cases in

Tarrant County and the presiding judge of the Eighth Judicial Administrative

Region (collectively, the “defendant judges”) in both their individual and official

capacities, and Tarrant County, under 42 U.S.C. § 1983, asserting that the

establishment and implementation of the county policy for the appointment of

counsel to represent indigent defendants and the denial of his application

violated the due process and equal protection clauses of the Fourteenth

Amendment and the due process clause of the Fifth Amendment.

The district court granted the motions to dismiss filed by the defendant

judges and Tarrant County on the grounds: (1) that the defendant judges were

immune from suit in their individual capacities because they were acting in their

judicial capacities when they established and implemented the appointment

policy and denied Davis’s application; (2) that the defendant judges were

immune from suit in their official capacities under the Eleventh Amendment;

and (3) that Tarrant County was not liable as a matter of law because the

defendant judges were acting on behalf of the state of Texas, not Tarrant

County. The district court did not address the alternative grounds for dismissal

raised in the motions to dismiss, including that Davis had failed to allege any

violation of a protected property right or liberty interest and that the defendant

judges were entitled to qualified and legislative immunity.

Davis appealed, arguing: (1) that the defendant judges’ acts were not

judicial in nature; (2) that the Eleventh Amendment did not bar his request for

prospective declaratory relief; and (3) that Tarrant County was liable for the

defendant judges’ actions because the Texas Fair Defense Act, passed in 2001,

makes the defendant judges county policymakers. An amicus brief was

submitted by the Texas Fair Defense Project (“TFDP”) in support of Davis’s

position that the defendant judges acted as county policymakers and that

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Tarrant County may be held liable for the defendant judges’ actions in

establishing and implementing the appointment policy.

For the reasons stated below, we AFFIRM.

I. Standard of Review

A district court’s grant of a motion to dismiss is reviewed de novo, using

the same standard as the district court. See Frank v. Delta Airlines, Inc., 314

F.3d 195, 197 (5th Cir. 2002). In ruling on a motion to dismiss, a court “accepts

all well-pleaded facts as true, viewing them in the light most favorable to the

plaintiff.” Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008).

“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough

facts to state a claim to relief that is plausible on its face.” Id. (internal

quotations omitted).

II. Background

A. Davis’s Application for Felony Court Appointments

On June 1, 2005, Davis submitted an application to be included on the

Tarrant County felony court appointment wheel. His application was denied on

August 1, 2005. On October 28, 2005, Davis’s attorney sent a letter to the

Tarrant County criminal district judges asking for an explanation of the denial

and requesting a hearing. The judges did not respond to the letter. On June 2,

2006, Davis sent another letter to the judges asking for an explanation of the

denial of his application and requesting a hearing. The judges did not respond

to the second letter.

Davis alleges that the judges denied his application to be included on the

felony court appointment wheel because he did not have good personal

relationships with the judges, he was not part of the judges’ “good ol’ boys”

network, and the judges were trying to exclude qualified attorneys from the

wheel in order to increase the conviction rate and clear the criminal court’s

docket.

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No. 07-11223

B. The Texas Fair Defense Act

In 2001, the Texas Fair Defense Act (the “Act”) was passed. The Act

substantially revised Article 26.04 of the Texas Code of Criminal Procedure,

which governs the procedures for the appointment of counsel. Prior to January

1, 2002, when the Act went into effect, Article 26.04 provided that decisions

regarding the appointment of counsel would be made by individual judges on a

case-by-case basis. Article 26.04 stated:

Court shall appoint counsel

(a) Whenever the court determines that a defendant charged

with a felony or a misdemeanor punishable by imprisonment is

indigent or that the interests of justice require representation of a

defendant in a criminal proceeding, the court shall appoint one or

more practicing attorneys to defend him. . . .

Tex. Code Crim. Pro. Ann. art. 26.04 (Vernon 1989).

The 2001 amendment established a much more detailed procedural regime

for the appointment of counsel in criminal cases that requires judges in each

county to establish standardized countywide procedures. The 2001 amendment

provides that the countywide policy may be based on the establishment of a

public appointment list, the appointment of a public defender, the creation of an

“alternate program,” or simply allowing judges to appoint attorneys from any

county in the court’s administrative judicial region. The text of Article 26.04

following the 2001 amendment provides in relevant part:

Procedures for Appointing Counsel

(a) The judges of the county courts, statutory county courts, and

district courts trying criminal cases in each county, by local rule,

shall adopt and publish written countywide procedures for timely

and fairly appointing counsel for an indigent defendant in the

county arrested for or charged with a misdemeanor punishable by

confinement or a felony. . . . A court shall appoint an attorney from

a public appointment list using a system of rotation, unless the

court appoints an attorney under [those subsections addressing the

appointment of the public defender, the creation of a countywide

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No. 07-11223

alternative program, or a judge’s ability to appoint a counsel from

any county in the court’s administrative judicial region]. The court

shall appoint attorneys from among the next five names on the

appointment list in the order in which the attorneys' names appear

on the list, unless the court makes a finding of good cause on the

record for appointing an attorney out of order. An attorney who is

not appointed in the order in which the attorney's name appears on

the list shall remain next in order on the list.

Tex. Code Crim. Pro. Ann. art. 26.04 (Vernon 2009). Article 26.04 sets out a

number of requirements for the countywide procedures, such as that they

authorize only the judges of the county courts, statutory county courts, and

district courts trying criminal cases in the county, or the judges’ designee, to

appoint counsel for indigent defendants in the county; that they ensure that

appointments are allocated among qualified attorneys in a manner that is fair,

neutral, and nondiscriminatory; and that the judges specify the objective

qualifications necessary for an attorney to be included on the public appointment

list. Id.

C. The Tarrant County Appointment Policies

In order to comply with the Texas Fair Defense Act, the judges of the

Tarrant County criminal district courts published a set of guidelines for felony

court appointments. The guidelines in effect at the time Davis applied for felony

court appointments in Tarrant County in June 2005 stated that appointments

were to be made from a rotating list of the names of eligible attorneys, arranged

according to the chronological date of receipt of an approved application, and

that an attorney was to receive one defendant per rotation on the appointment

list. The guidelines set out mandatory general qualifications for attorneys who

sought criminal court appointments. These qualifications appear to be mostly

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No. 07-11223

objective, e.g., being a member in good standing of the state bar who maintains

a principal office in Tarrant County.1

On April 24, 2006, the Tarrant County criminal district court judges

issued the Tarrant County District Courts Felony Court-Appointment Plan (the

“Plan”), which superseded the existing guidelines for felony court appointments.

The Plan was signed by Judges Sharen Wilson, Wayne Salvant, Elizabeth Berry,

Mike Thomas, Bob Gill, Everett Young, James Wilson, Scott Wisch, and George

Gallagher, and was approved by Jeff Walker, the Presiding Judge of the Eighth

Administrative Judicial Region. The Plan provides that a qualified attorney will

be appointed to each indigent defendant based on a rotating felony appointment

wheel consisting of the names of qualified attorneys approved by a majority of

the district judges hearing criminal cases, and that each qualified attorney will

be appointed to represent one indigent defendant per rotation through the

wheel. The Plan allows judges or their designees to deviate from the rotation

system and appoint an attorney who is specifically qualified under the Plan on

an ad hoc basis upon a finding of good cause to deviate from the rotation system.

The Plan, like the superseded guidelines, imposes mandatory general

qualifications for attorneys seeking appointments. The Plan states: “A critical

review of the quality of representation actually provided by attorneys applying

to be on the wheel is a factor in providing high quality representation to indigent

1

The general qualifications also included having a functioning fax machine and email

address and some means of regularly receiving phone messages, filing a sworn application for

appointments approved by the district judges with the Coordinator of Attorney Appointments,

notifying the Coordinator of any matter that would disqualify the attorney from receiving

appointments and filing an annual compliance update, and appearing in cases to which the

attorney has been appointed and representing indigent clients that the attorney has been

appointed to represent. The guidelines also imposed minimum qualifications for appointments

in specific categories of cases, such as “State Jail Felony” and “Second and Third Degree

Felony and Motion to Revoke or Adjudicate Community Supervision.” These qualifications

related to the number of cases in the relevant category that the attorney had been involved

with, the number of years the attorney had been licensed to practice, and the attorney’s board

certifications and CLE training.

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No. 07-11223

defendants. In addition to the objective criteria outlined herein, the statutes of

the State of Texas provide for a subjective review of the qualifications of the

attorneys applying for inclusion on the wheel. . . . The establishment of this

system of qualifications confers to no attorney a property interest in receiving

felony court-appointments.” The specific qualifications required to receive

appointments in certain categories of felony cases appear to be essentially

identical to those in the superseded guidelines, but the Plan includes additional

“objective” general qualifications to receive appointments, such as consistently

demonstrating commitment to providing effective assistance of counsel and

quality representation to criminal defendants; consistently demonstrating

professionalism, proficiency, and reliability in representing criminal defendants

and in dealing with the courts and opposing counsel; and being of sound mind,

as well as good moral and ethical character.2

III. Standing

Davis challenges both his rejection under the Tarrant County guidelines

in effect at the time he applied for felony court appointments in June 2005 and

the establishment and implementation of the 2006 Plan, which superseded the

existing guidelines. The defendant judges contend that Davis lacks standing to

bring a claim based on the adoption of the 2006 Plan because his application for

inclusion on the Tarrant County felony court appointment wheel was submitted

and denied under the superseded guidelines before the Plan was adopted in

2006, and he has failed to file another application.

2

The additional “objective” qualifications also include: being familiar with Texas law;

not having been sanctioned by a court for failure to appear or for any type of unprofessional

or abusive conduct; maintaining a listing in the telephone directory; promptly responding to

communications from the court; maintaining the capacity to access the court’s electronic filing

system; and promptly contacting individuals who the attorney has been appointed to

represent.

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No. 07-11223

The district court did not base its ruling on Davis’s lack of standing to

challenge the adoption of the Plan, but standing is a jurisdictional requirement

and may be raised at any time. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231

(1990). In order to satisfy the standing requirement of an “actual or imminent”

injury, a plaintiff generally must submit to the challenged policy before pursuing

an action to dispute it. See, e.g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163,

166–71 (1972) (holding that plaintiff who had never applied for membership

lacked standing to challenge fraternal organization’s discriminatory membership

policies); Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 388 (5th Cir.

2003) (holding that plaintiff lacked standing to challenge waiver policy because

he failed to apply for waiver services); Madsen v. Boise State Univ., 976 F.2d

1219, 1221 (9th Cir. 1992) (“[A] plaintiff lacks standing to challenge a rule or

policy to which he has not submitted himself by actually applying for the desired

benefit.”). However, strict adherence to this general rule may be excused when

a policy’s flat prohibition would render submission futile. LeClerc v. Webb, 419

F.3d 405, 413 (5th Cir. 2005) (citing Ellison v. Connor, 153 F.3d 247, 255 (5th

Cir. 1998)).

Davis does not clearly articulate his response to the defendant judges’

standing argument, but it appears that he speculates that his application would

have been rejected if he had reapplied under the Plan due to his rejection under

the superseded guidelines. Such speculation is not sufficient to show that

applying under the Plan would have been futile. See United Indus., Inc. v.

Eimco Process Equip. Co., 61 F.3d 445, 449 (5th Cir. 1995) (holding that evidence

of futility was insufficient because it amounted to nothing more than a

pessimistic belief that it was not worth attempting to compete for a project);

Pucket v. Hot Springs School Dist. No. 23-2, 526 F.3d 1151, 1162 (8th Cir. 2008)

(holding that plaintiffs lacked standing because “there was no allegation or

evidence that a request by the plaintiffs to reinstate busing of Bethesda students

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No. 07-11223

after § 13-29-1.2 became effective would have been futile”); cf. Ellison v. Connor,

153 F.3d 247, 255 (5th Cir. 1998) (holding that it would have been futile for

plaintiffs to apply for permits because they had been sent a letter specifically

stating that the permits would be denied); Moore v. U.S. Dep’t of Agric., 993 F.2d

1222, 1222–1224 (5th Cir. 1993) (holding that white farmers did not have to

complete an application to participate in a Farmers Home Administration

program when the FMHA told them that the program was closed to whites);

Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir.

1996) (holding that application for sign permits would be futile when city had

sued plaintiffs to remove signs, and ordinance “flatly prohibited” the signs).

Davis has standing to challenge only his rejection under the Tarrant

County guidelines in effect at the time he applied for felony court appointments

in June 2005. He lacks standing to challenge the establishment and

implementation of the 2006 Plan.

IV. Claims Against the Defendant Judges in their Individual

Capacities

A. The Legal Standard for Judicial Immunity

A judge generally has absolute immunity from suits for damages. Mireles

v. Waco, 502 U.S. 9, 9–10 (1991) (citations omitted). Judicial immunity is an

immunity from suit, not just the ultimate assessment of damages. Id. at 11

(citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The Court described the

purposes served by judicial immunity in Forrester v. White, 484 U.S. 219 (1988):

[T]he nature of the adjudicative function requires a judge frequently

to disappoint some of the most intense and ungovernable desires

that people can have. . . . If judges were personally liable for

erroneous decisions, the resulting avalanche of suits, most of them

frivolous but vexatious, would provide powerful incentives for judges

to avoid rendering decisions likely to provoke such suits. The

resulting timidity would be hard to detect or control, and it would

manifestly detract from independent and impartial adjudication.

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No. 07-11223

Id. at 226–27 (citation omitted).

There are only two circumstances under which judicial immunity may be

overcome. “First, a judge is not immune from liability for nonjudicial actions,

i.e., actions not taken in the judge’s judicial capacity.” Mireles, 502 U.S. at 11

(citations omitted). “Second, a judge is not immune for actions, though judicial

in nature, taken in the complete absence of all jurisdiction.” Id. (citations

omitted). Allegations of bad faith or malice are not sufficient to overcome

judicial immunity. Id.

“When applied to the paradigmatic judicial 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,”

but “attempting to draw the line between truly judicial acts, for which immunity

is appropriate, and acts that simply happen to have been done by judges” has

proven to be a more difficult task. Forrester, 484 U.S. at 227. In determining

whether a particular act performed by a judge is entitled to absolute immunity,

a court must draw a “distinction between judicial acts and the administrative,

legislative, or executive functions that judges may on occasion be assigned by

law to perform.” Id.; see also Huminski v. Corsones, 396 F.3d 53, 75 (2d Cir.

2005) (“At the margins, it can be difficult to distinguish between those actions

that are judicial, and which therefore receive immunity, and those that happen

to have been performed by judges, but are administrative, legislative, or

executive in nature.” (citations omitted)). Although administrative decisions

“may be essential to the very functioning of the courts,” such decisions have not

been regarded as judicial acts.3

3

See Forrester, 484 U.S. at 229 (holding that a judge’s demotion and discharge of a

court employee were administrative acts not protected by judicial immunity); In Ex parte

Virginia, 100 U.S. 339, 348 (1880) (holding that a judge’s preparation of an annual list of

individuals eligible to serve on grand juries was not a judicial act covered by judicial

immunity); Morrison v. Lipscomb, 877 F.2d 463, 465–66 (6th Cir. 1989) (finding that a chief

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No. 07-11223

“[W]hether an act by a judge is a ‘judicial’ one relate[s] to the nature of the

act itself, i.e., whether it is a function normally performed by a judge, and to the

expectations of the parties, i.e., whether they dealt with the judge in his judicial

capacity.” Mireles, 502 U.S. at 12 (quoting Stump v. Sparkman, 435 U.S. 349,

362 (1978)) (internal quotation marks omitted). “[T]he relevant inquiry is the

‘nature’ and ‘function’ of the act, not the ‘act itself.’ In other words, [a court

should] look to the particular act’s relation to a general function normally

performed by a judge . . . .” Id. at 13 (citation omitted). This circuit has adopted

a four-factor test for determining whether a judge’s actions were judicial in

nature: (1) whether the precise act complained of is a normal judicial function;

(2) whether the acts occurred in the courtroom or appropriate adjunct spaces

such as the judge’s chambers; (3) whether the controversy centered around a

judge’s declaration of a moratorium on the issuance of writs of restitution was an

administrative, not judicial, act, because the moratorium was a general order not connected

to any particular litigation that did not alter the rights and liabilities of any parties and only

instructed court personnel on how to process the petitions made to the court, and that

immunity did not apply); McMillan v. Svetanoff, 793 F.2d 149, 155 (7th Cir. 1986) (“Hiring and

firing of employees is typically an administrative task. . . . The decision to fire the plaintiff

did not involve judicial discretion; in other words, the judge did not utilize his education,

training, and experience in the law to decide whether or not to retain plaintiff. The

administrative act of firing the plaintiff will not assist the judge in interpreting the law or

exercising judicial discretion in the resolution of disputes.”); Goodwin v. Circuit Court, 729

F.2d 541, 549 (8th Cir. 1984) (county judge’s decision to transfer hearing officer not “official

judicial act” but rather “administrative personnel decision”); Lynch v. Johnson, 420 F.2d 818,

820 (6th Cir. 1970) (holding that county judge was not performing a judicial act when, while

serving ex officio as the presiding officer of a county “fiscal court,” the judge forcibly removed

and jailed a member of the fiscal court because it was not an “ordinary judicial tribunal” and

instead could best be characterized as a body through which the “affairs of the county are

managed” with powers that are “legislative and administrative” in nature); Lewis v.

Blackburn, 555 F. Supp. 713, 723 (W.D.N.C. 1983) (holding that a judge’s appointment of

magistrates is a ministerial act), rev’d on other grounds, 759 F.2d 1171 (4th Cir. 1985); see also

Supreme Court of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 731 (1980) (holding that

the Supreme Court of Virginia was acting in a legislative, not a judicial, capacity when it

issued a Bar Code governing the actions of attorneys, because “propounding the Code was not

an act of adjudication but one of rulemaking”); Richardson v. Koshiba, 693 F.2d 911, 914 (9th

Cir. 1982) (screening decisions by judicial selection panel comprised of judges involve

“executive” acts).

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No. 07-11223

case pending before the court; and (4) whether the acts arose directly out of a

visit to the judge in his official capacity.4 Ballard v. Wall, 413 F.3d 510, 515 (5th

Cir. 2005) (citing Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir. 1993)).

These factors are broadly construed in favor of immunity. Id. (citing Malina, 994

F.2d at 1125).

B. Analysis

The district court found that the defendant judges’ acts were judicial

because the appointment of counsel is a judicial act. The appointment of counsel

for indigent defendants in criminal cases is a normal judicial function. See, e.g.,

Birch v. Mazander, 678 F.2d 754, 756 (8th Cir. 1982) (“[T]he acts complained of

consist of the acceptance of a plea and the appointment of counsel. Clearly,

these are functions normally performed by a judge.”); Davis v. State of N.Y., No.

90 Civ. 6170 (MBM), 1991 WL 156351, at *2 (S.D.N.Y. Aug. 6, 1991) (“The

appointment of counsel is a judicial act.” (citations omitted)); Edwards v. Hare,

682 F. Supp. 1528, 1531–33 (D. Utah 1988) (refusing to distinguish between the

clearly judicial act of determining that a particular defendant has the right to

court-appointed counsel and the process of connecting an indigent criminal

defendant with a court-appointed attorney—the “mechanics” of obtaining

counsel); Lewis v. County of Lehigh, 516 F. Supp. 1369, 1370–71 (E.D. Pa. 1981)

(“The judges’ involvement . . . constitutes solely the exercise of their judicial

functions—appointing attorneys to represent indigent defendants. . . .”).

4

Amicus argues that this court should apply the six-factor standard set out in

Cleavinger v. Saxner, 474 U.S. 193, 201–02 (1985) (citing Butz v. Economou, 438 U.S. 478, 512

(1978)), for whether an actor’s role is analogous to that of a judge. That test is used to

determine whether a nonjudicial actor’s conduct is entitled to quasi-judicial immunity.

Although there are some obvious parallels between the inquiries into whether the acts of a

judge and the acts of a public official who is not a judge are “judicial” in nature, these are

distinct inquiries. See, e.g., Mireles, 502 U.S. at 11; Forrester, 484 U.S. at 227; Ballard, 413

F.3d at 515. Nonetheless, in light of the parallels between the underlying nature of the

inquiries, the analysis in quasi-judicial immunity cases may prove persuasive in the

traditional judicial immunity context, as discussed in greater detail below.

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No. 07-11223

However, the alleged wrongful act in this case does not concern the appointment

of counsel in a specific suit by the judge presiding over that suit, but rather the

selection of applicants for inclusion on a rotating list of applicants eligible for

court appointments pursuant to a countywide policy.

The advocates on both sides of this issue find some support for their

positions in the case law. Several courts have specifically held that a judge’s acts

in creating and implementing a plan or policy for the appointment of counsel,

and not simply the appointment of counsel in a particular case, are judicial in

nature. In Hawkins v. Walvoord, 25 S.W.3d 882 (Tex. App. 2000), the court held

that (1) judges’ ratification of a plan that required attorneys to either accept

court appointments to represent indigent criminal defendants or pay a yearly fee

and (2) judges’ appointment of an attorney under that plan, were judicial acts

entitled to absolute judicial immunity. Id. at 891. Similarly, in Roth v. King,

449 F.3d 1272 (D.C. Cir. 2006), the D.C. Circuit held that judges acted in a

judicial capacity in creating a family-court attorney panel system and selecting

attorneys for inclusion on a panel. Id. at 1286–87. In Roth, the chief judge of

the Superior Court of the District of Columbia issued an administrative order

creating a committee to recommend panels of designated and approved attorneys

to represent indigent parties. Id. at 1277. Prior to the creation of the

committee, superior court judges appointed counsel from a list of volunteers who

had not been subjected to any sort of screening process. Id. Based on

applications submitted by attorneys and evaluations submitted by superior court

judges, the committee issued a report that recommended a list of attorneys for

inclusion on the panels. Id. at 1277–78. The chief judge issued an

administrative order establishing the attorney panels in accordance with the

committee’s recommendations. Id. at 1278. The D.C. Circuit found that the

creation of the panel system and the selection of attorneys for inclusion on the

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No. 07-11223

panels were judicial, not administrative, acts, and were protected by judicial

immunity. Id. at 1286–87.

In a recent unpublished opinion on judicial immunity, Dunn v. Kennedy,

No. 07-50548, 2008 WL 162855 (5th Cir. Jan. 17, 2008), this court held that a

judge’s decision to remove an attorney from a court appointment list was a

judicial act. Id. at *1. The Dunn court based its holding in part on the fact that

“the governing Texas statute ‘authorize[s] only the judges,’ or the judges’

designee, to appoint counsel for indigent defendants in the county and to adopt

and publish written procedures for the timely and fair appointment of counsel,”

id. (quoting Tex. Code Crim. Pro. Ann. art. 26.04 (Vernon 2006)), and that “the

appointment of counsel to represent indigent defendants is a function normally

performed by a judge acting in his judicial capacity,” id. (citing Roth, 449 F.3d

at 1286–87; Hawkins, 25 S.W.3d at 891). The Dunn court also based its holding

on the fact that there was no allegation that the judge made the decision to

remove the attorney anywhere other than in the courthouse building, that the

decision centered around a case pending in court inasmuch as the attorney’s

removal was based on his conduct stemming from his representation of indigent

defendants before the court, and that the decision arose from a visit to the judge

in her official capacity, as the attorney’s practice before the court and submission

of payment vouchers were all directed toward the judge in her official capacity.

Id. (citing Ballard, 413 F.3d at 515–18).

There is also authority supporting the proposition that decisions regarding

which attorneys to include on a court appointment list, as opposed to decisions

regarding appointment in a particular case, are administrative, not judicial, in

nature. In Mitchell v. Fishbein, 377 F.3d 157, 174 (2d Cir. 2004), the Second

Circuit was confronted with the question of whether a state-court screening

committee’s decision to remove an attorney from a panel of attorneys certified

to serve as court-appointed counsel for indigent defendants was entitled to

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No. 07-11223

quasi-judicial absolute immunity. As the defendant judges point out, Mitchell

concerned the issue of quasi-judicial absolute immunity—the doctrine under

which a private actor may be afforded the absolute immunity ordinarily accorded

judges acting within the scope of their jurisdiction if the private actor’s role is

functionally comparable to that of a judge or if the private actor’s acts are

integrally related to an ongoing judicial proceeding—not judicial immunity.

However, because “immunity is justified and defined by the functions it protects

and serves, not by the person to whom it attaches,” Forrester, 484 U.S. at 227,

the Mitchell court’s analysis of whether a nonjudicial actor’s acts were judicial

for the purpose of assessing quasi-judicial immunity cannot be said to be

completely inapplicable to the immunity issue presented in the instant case,

especially in light of the fact that Mitchell extensively cited judicial immunity

cases in its analysis. In assessing whether the committee’s decisions were

integrally related to a judicial proceeding, the court drew heavily on several

judicial immunity decisions:

Functions that might be deemed integrally related to the

judicial process when undertaken in the context of a particular case

may be viewed as administrative when they are undertaken outside

that context, and “[a]dministrative decisions, even though they may

be essential to the very functioning of the courts, have not . . . been

regarded as judicial acts,” Forrester v. White, 484 U.S. 219, 228, 108

S. Ct. 538, 98 L.Ed.2d 555 (1988). For example, a judge has been

held to have absolute immunity from a claim of conspiracy to

empanel an all-white jury in a particular criminal trial, see White v.

Bloom, 621 F.2d 276, 279-80 (8th Cir.), cert. denied, 449 U.S. 995,

101 S. Ct. 533, 66 L. Ed.2d 292 (1980), but to have no such

immunity from a claim of racial discrimination in the preparation

of general jury lists to affect all future trials, a job that was

“ministerial,” see Ex parte Virginia, 100 U.S. (10 Otto) 339, 348, 25

L. Ed. 676 (1879). In the latter case, the judge had the

responsibility of “prepar[ing] annually a list of such inhabitants of

the county . . . ‘as he shall think well qualified to serve as jurors,

being persons of sound judgment and free from legal exception,’” id.

at 349 (Field, J., dissenting), a task that “might as well have been

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committed to a private person as to one holding the office of a

judge,” id. at 348 (majority opinion).

The Committee’s job of formulating a list of attorneys deemed

qualified to represent indigent defendants accused of crimes, and its

additions to or deletions from that list, bear a marked similarity to

the Ex parte Virginia judge’s responsibility for compiling a list of

qualified jurors. The Committee’s decisions are not related to any

particular criminal prosecution. The 18-B Panel exists so that

judges may select attorneys from the list who will both provide

future representation to indigent defendants and receive

compensation for those services. But, as discussed above, in any

given case, the court may appoint an attorney who is not on the

18-B Panel. Further, even the Committee’s rejection of Mitchell's

individual application did not affect any particular case, for the

Committee's letter of rejection stated that Mitchell was to continue

to “handle to conclusion” any matter to which he was then assigned.

Mitchell, 377 F.3d at 174. The Mitchell court viewed the act of formulating a list

of attorneys deemed qualified to represent indigent defendants as an inherently

administrative act, regardless of whether the actor was a judge or not. It

analogized this act to the preparation of an annual list of individuals eligible to

serve on grand juries, which the Supreme Court in Ex Parte Virginia, 100 U.S.

339 (1880), found not to be a judicial act entitled to judicial immunity when

performed by a judge. The Ex Parte Virginia decision rested on the following

reasoning:

The duty of selecting jurors might as well have been committed to

a private person as to one holding the office of a judge. It often is

given to county commissioners, or supervisors, or assessors. In

former times, the selection was made by the sheriff. In such cases,

it surely is not a judicial act, in any such sense as is contended for

here. It is merely a ministerial act, as much so as the act of a sheriff

holding an execution, in determining upon what piece of property he

will make a levy, or the act of a roadmaster in selecting laborers to

work upon the roads. That the jurors are selected for a court makes

no difference. So are court-criers, tipstaves, [and] sheriffs [ ]. Is

their election or their appointment a judicial act?

Ex Parte Virginia, 100 U.S. at 348.

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After considering the applicable legal standard, the authorities that

support each of side of the immunity question in this case, and the underlying

purpose of the judicial immunity doctrine, we believe that the act of selecting

applicants for inclusion on a rotating list of attorneys eligible for court

appointments is inextricably linked to and cannot be separated from the act of

appointing counsel in a particular case, which is clearly a judicial act, and

therefore that the judges’ acts at issue in this suit must be considered to be

protected by judicial immunity. We disagree with the Mitchell court that the act

of selecting qualified attorneys for inclusion on an appointment list can be

rigidly separated from the act of appointing an attorney in a particular case.

The appointment process must be viewed holistically. In this case, the selection

of applicants for inclusion on the list and the actual appointment of attorneys in

specific cases occur as part of an appointment process that cannot be divided in

a principled way into judicial and administrative acts. In light of the fact that

the defendant judges have very limited discretion in deciding which attorney to

appoint in a specific case—they may only deviate from the rotation system for

good cause—decisions about which attorneys should be placed on the wheel

functionally determine which attorney actually will be appointed in a particular

case. Also, the nature of the decision of whether to select an applicant for

inclusion on the appointment wheel and the decision of whether to appoint an

attorney in a particular case are essentially identical; in both situations, the

judge must assess an attorney’s competence and ability to effectively represent

clients before the court. Although the selection decision is not made in the

context of a specific suit, the decision will presumably be made based upon an

attorneys’ conduct in other cases before the court. Indeed, courts have not

strictly limited judicial immunity to actions taken in the context of a specific

lawsuit, and at least one court has found that acts taken completely outside the

context of a specific adjudication are properly classified as judicial and protected

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No. 07-11223

by absolute judicial immunity. See Sparks v. Character & Fitness Comm., 859

F.2d 428, 434 (6th Cir. 1988) (finding that actions taken by the Kentucky

Supreme Court and its Committee on Character and Fitness in denying an

applicant admission to the state bar were judicial acts to which absolute

immunity applied). The Supreme Court has held that the related doctrine of

prosecutorial immunity, which is justified by a similar rationale and governed

by similar rules, may apply to acts made outside the context of a specific lawsuit

when the acts are “directly connected with the conduct of a trial” and

“necessarily require legal knowledge and the exercise of related discretion.” See

Van De Kamp v. Goldstein, 129 S. Ct. 855, 858–64 (2009) (holding that

prosecutorial immunity barred suit against a district attorney and his chief

assistant for failing to: (1) establish an information system containing potential

impeachment material about informants to ensure that deputy district attorneys

complied with their constitutional obligation to disclose agreements with

informants who testify at trial; and (2) adequately train or supervise deputy

district attorneys concerning their obligation to disclose such information).

Ultimately, the acts at issue in this case involve the performance of duties which

are intimately connected to a judge’s adjudicatory role, and are therefore judicial

in nature.5 See Ballard, 413 F.3d at 515.

The district court properly dismissed the claims against the defendant

judges in their individual capacities.

V. Claims Against Tarrant County

The district court found that Davis had failed to state a claim against

Tarrant County because the defendant judges acted on behalf of the state of

Texas, not Tarrant County. Davis and the TFDP assert that the defendant

5

The defendant judges clearly had jurisdiction to select applicants for inclusion on a

rotating list because they were acting pursuant to an explicit statutory grant of authority in

establishing and implementing a policy for the appointment of counsel in Tarrant County.

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No. 07-11223

judges acted on behalf of Tarrant County in selecting applicants for inclusion on

the rotating list of attorneys eligible for felony court appointments in Tarrant

County because they were policymakers for Tarrant County under the Texas

Fair Defense Act.

Municipal liability under 42 U.S.C. § 1983 requires proof of (1) a

policymaker; (2) an official policy; and (3) a violation of constitutional rights

whose “moving force” is the policy or custom. Rivera v. Houston Indep. Sch.

Dist., 349 F.3d 244, 247 (5th Cir. 2003) (citing Piotrowski v. City of Houston, 237

F.3d 567, 578 (5th Cir. 2001)). The policymaker must have final policymaking

authority. Id. (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108

(1988)). “[W]hether a particular official has final policymaking authority is a

question of state law.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)

(citation and internal quotation marks omitted). Municipal liability cannot be

sustained under a theory of respondeat superior. Rivera, 349 F.3d at 247 (citing

Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997);

Piotrowski, 237 F.3d at 578). “[T]he unconstitutional conduct must be directly

attributable to the municipality through some sort of official action or

imprimatur; isolated unconstitutional actions by municipal employees will

almost never trigger liability.” Piotrowski, 237 F.3d at 578.

We have held that under Texas law, “[a] local judge acting in his or her

judicial capacity is not considered a local government official whose actions are

attributable to the county.” Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995)

(citations omitted); see also Clanton v. Harris County, Tex., 893 F.2d 757, 758

(5th Cir. 1990) (“Texas district judges act for the state in appointing counsel for

indigent criminal defendants, and the county is not responsible under § 1983 for

their actions in this regard.”); Hamill v. Wright, 870 F.2d 1032, 1037 (5th Cir.

1989) (stating that “Texas law makes only state court judges responsible for

appointing attorneys for indigent criminal defendants” and “[a] county can

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exercise no authority over state court judges, as the latter are not county

officials”); Clark v. Tarrant County, 798 F.2d 736, 744 (5th Cir. 1986) (stating

that Texas district judges “are undeniably state elected officials”). As discussed

above, the act of selecting applicants for inclusion on a rotating list of attorneys

eligible for court appointments is inextricably linked to and cannot be separated

from the act of appointing counsel in a particular case, which is clearly a judicial

act under Texas law. See Clanton, 893 F.2d at 758; Hamill, 870 F.2d at 1037.

Because the defendant judges acted in their judicial capacities in selecting

applicants for inclusion on the rotating list of attorneys eligible for felony court

appointments in Tarrant County pursuant to their obligations under the Texas

Fair Defense Act, Tarrant County may not be held liable for those acts.

VI. Claims Against the Defendant Judges in their Official Capacities

The district court dismissed Davis’s claims against the defendant judges

in their official capacities on the ground of Eleventh Amendment immunity.

Texas judges are entitled to Eleventh Amendment immunity for claims asserted

against them in their official capacities as state actors. Warnock v. Pecos

County, Tex., 88 F.3d 341, 343 (5th Cir. 1996); Holloway v. Walker, 765 F.2d 517,

519 (5th Cir. 1985).

Davis has asserted a claim for prospective declaratory relief, and the

Eleventh Amendment does not bar claims for prospective relief against state

officials acting in their official capacity. See Edelman v. Jordan, 415 U.S. 651,

664 (1974); Ex Parte Young, 209 U.S. 123, 155–56 (1908); Nelson v. Univ. of Tex.

at Dallas, 535 F.3d 318, 321–22 (5th Cir. 2008); Brennan v. Stewart, 834 F.2d

1248, 1252 (5th Cir. 1988). Davis’s claim for prospective declaratory relief

against the defendant judges in their official capacities is not barred by the

Eleventh Amendment. However, Davis’s claim for prospective declaratory relief

is moot because the Tarrant County guidelines in effect at the time he applied

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for felony court appointments in June 2005 are no longer in effect, and Davis

lacks standing to challenge the current policy.

VII. Conclusion

Davis has standing to challenge only his rejection under the Tarrant

County guidelines in effect at the time he applied for felony court appointments

in June 2005. His claims against the defendant judges in their individual

capacities are barred by the doctrine of judicial immunity. Davis’s claims

against the defendant judges in their official capacities are barred by the

Eleventh Amendment. Davis has failed to state a claim against Tarrant County

because the defendant judges acted in their judicial capacities in selecting

applicants for inclusion on the rotating list of attorneys eligible for felony court

appointments in Tarrant County. Accordingly, the judgment of the district court

is AFFIRMED.

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