law-judicial-proceedings-privilege immunity ("absolute" privilege)

law-judicial-proceedings-privilege immunity | judicial immunity | derived judicial immunity |

JUDICIAL PROCEEDINGS IMMUNITY (ABSOLUTE PRIVILEGE)

Generally, the immunity afforded by the absolute privilege means that any statement made in the trial
of any case cannot constitute the basis for a defamation action, regardless of the negligence or
malice with which it is made. Bird v. W.C.W., 868 S.W.2d 767, 771 (Tex.1994); James v. Brown,
637 S.W.2d 914, 916 (Tex.1982); Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909,
912 (1942). This privilege extends to any statement made by the judge, jurors, counsel, parties, or
witnesses, and attaches to all aspects of the proceedings, including statements made in open court,
pre-trial hearings, depositions, affidavits, and any of the pleadings or other papers in the case.
James, 637 S.W.2d at 916-17.

Although the privilege has been a part of Texas law for over 100 years, it has only recently been applied to
out-of-court statements by attorneys, as long as the statement is made preliminary to or in connection with a
judicial proceeding. Russell v. Clark, 620 S.W.2d 865, 869 (Tex. App.-Dallas 1981, writ ref'd n.r.e.) (holding
letter from defendant, who was an attorney, sent to plaintiff's investors seeking evidence for use in pending
litigation was privileged). Thus, underRussell, there are multiple components to the absolute privilege: (1)
that the act to which the privilege applies must bear some relationship (2) to a judicial proceeding in which
the attorney is employed, and (3) the act must be in furtherance of that representation. 620 S.W.2d at
869;see also Thomas v. Bracey, 940 S.W.2d 340, 343 (Tex.App.-San Antonio 1997, no writ)(interpreting
Russell to find an out-of court statement privileged).

An absolutely privileged communication is one for which, due to the occasion upon which it was made, no civil
remedy exists, even though the communication is false and was made or published with express malice. See
Bird v. W.C.W., 868 S.W.2d 767, 771-72 (Tex.1994);James v. Brown, 637 S.W.2d 914, 916 (Tex.1982);
Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942). This doctrine has been firmly
established in 257*257 Texas for well over one hundred years. See Runge v. Franklin, 72 Tex. 585, 10 S.W.
721, 723 (1889). The absolute privilege applies to communications related to both proposed and existing
judicial and quasi-judicial proceedings. James, 637 S.W.2d at 916-17; Reagan, 166 S.W.2d at
912-13;Randolph v. Jackson Walker L.L.P., 29 S.W.3d 271, 278 (Tex.App.- Houston [14th Dist.] 2000, pet.
denied); Attaya, 962 S.W.2d at 239.

A proceeding is quasi-judicial in nature if it is conducted by a governmental executive officer, board, or
commission that has the authority to hear and decide the matters coming before it or to redress the
grievances of which it takes cognizance. Attaya, 962 S.W.2d at 239; Hernandez v. Hayes, 931 S.W.2d 648,
651 (Tex.App.-San Antonio 1996, writ denied); McAfee v. Feller,452 S.W.2d 56, 57-58
(Tex.Civ.App.-Houston [14th Dist.] 1970, no writ). Even communications made in contemplation of or
preliminary to a quasi-judicial proceeding are privileged if they concern a matter that the quasi-judicial body
is authorized to investigate and decide. Reagan,166 S.W.2d at 913; see also Attaya, 962 S.W.2d at 238-39;
Rose v. First Am. Title Ins. Co.,907 S.W.2d 639, 641-42 (Tex.App.-Corpus Christi 1995, no writ); Putter v.
Anderson, 601 S.W.2d 73, 75, 77 (Tex.Civ.App.-Dallas 1980, writ ref'd n.r.e.) (all holding that private citizen's
complaint may be first step in quasi-judicial proceeding if governmental entity has duty or authority to
investigate and resolve same). Such communications stand "on the same footing [regarding] libel as do
communications made in a court of justice." Reagan, 166 S.W.2d at 913.

The public policy behind the application of the absolute privilege to judicial proceedings is that the
administration of justice requires full disclosure from witnesses, unhampered by fear of retaliatory suits for
defamation. James, 637 S.W.2d at 917. Similarly, the rationale for extending the absolute privilege to
statements made during quasi-judicial proceedings rests in the public policy that every citizen should have
the unqualified right to appeal to governmental agencies for redress "without the fear of being called to
answer in damages" and that the administration of justice will be better served if witnesses are not deterred
by the threat of lawsuits. Attaya, 962 S.W.2d at 239 (quoting Parker v. Holbrook, 647 S.W.2d 692, 695 (Tex.
App.-Houston [1st Dist.] 1982, writ ref'd n.r.e.)). The absolute privilege is intended to protect the integrity of
the process and ensure that the quasi-judicial decision-making body gets the information it needs. Id.
Whether an alleged defamatory statement is related to a proposed or existing judicial or quasi-judicial
proceeding, and is therefore absolutely privileged, is a question of law. Reagan, 166 S.W.2d at 912;
Randolph, 29 S.W.3d at 278; Thomas v. Bracey, 940 S.W.2d 340, 343 (Tex.App.-San Antonio 1997, no
pet.). All doubts should be resolved in favor of the communication's relation to the proceeding. Randolph, 29
S.W.3d at 278; Thomas, 940 S.W.2d at 343.

HOUSTON CASELAW

Bosch v. Armstrong (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Jennings)
(suit barred by judicial communications tort immunity, absolute privilege for communications in legal court
proceeding, sanctions for baseless claim)
AFFIRM TC JUDGMENT:
Before Justices Jennings, Alcala and Higley. Opinion by Justice Jennings
01-08-00847-CV
Yigal Bosch v. Mark S. Armstrong and Paul Bailiff and Squire, Sanders & Dempsey L.L.C.
Appeal from 280th District Court of Harris County
Trial Court Judge: The Honorable Tony Lindsay

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