Opinion
No. 05-13-00378-CV
2013-09-10
TODD PRUETT, Plaintiff-Appellant, v. HON. SUSAN HAWK AND MARK STOLTZ, Defendants-Appellees
BRIEF OF DEFENDANTS-APPELLEES GREG ABBOTT Attorney General of Texas KAREN D. MATLOCK Law Enforcement Defense Division Chief DANIEL T. HODGE First Assistant Attorney General DAVID A. HARRIS Assistant Attorney General DAVID C. MATTAX Deputy Attorney General for Defense Litigation ATTORNEYS FOR DEFENDANTS-APPELLEES
On Appeal from the 193RD District Court, Dallas County, Texas
(Cause No. DC-12-07463)
BRIEF OF DEFENDANTS-APPELLEES
GREG ABBOTT
Attorney General of Texas
KAREN D. MATLOCK
Law Enforcement Defense Division Chief
DANIEL T. HODGE
First Assistant Attorney General
DAVID A. HARRIS*
Assistant Attorney General
DAVID C. MATTAX
Deputy Attorney General for Defense Litigation
ATTORNEYS FOR DEFENDANTS-APPELLEES
*Counsel of Record
Oral Argument Waived
IDENTITY OF PARTIES AND COUNSEL
Appellee would certified that the persons designated below is a complete list of the parties, attorneys, and any other person who has any interest in the outcome of this lawsuit: Plaintiff
Todd Pruett
Kerrville State Hospital
721 Thompson Dr.
Kerrville, TX 78028
Defendants:
Honorable Mark Stoltz, District Judge
265th Judicial District
Frank Crowley Courts Building
133 N. Industrial, LB 30
Dallas, TX 75207
Honorable Susan Hawk, District Judge
291st Judicial District
Frank Crowley Courts Building
133 N. Industrial, LB 30
Dallas, TX 75207
Appellees' Counsel:
David A. Harris
State Bar No. 09056800
Law Enforcement Defense Division
Office of the Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Phone No. (512) 463-2080
Fax No. (512) 495-9139
STATEMENT REGARDING ORAL ARGUMENT
Appellees contend that the law in this area is well settled. Appellees do not believe that oral argument is necessary.
TABLE OF CONTENTS
| IDENTITY OF PARTIES AND COUNSEL | i |
| STATEMENT REGARDING ORAL ARGUMENT | ii |
| TABLE OF CONTENTS | iii |
| INDEX OF AUTHORITIES | iv, v |
| STATEMENT OF THE CASE | 2 |
| ISSUES PRESENTED | 3 |
1. Did the trial court err in granting Appellee's Motion to Dismiss?
| STATEMENT OF FACTS | 3 |
| ARGUMENT AND AUTHORITIES | 4 |
| PRAYER | 7 |
| CERTIFICATE OF COMPLIANCE | 8 |
| CERTIFICATE OF ELECTRONIC FILING | 9 |
| CERTIFICATE OF SERVICE | 10 |
INDEX OF AUTHORITIES
| CASES | PAGE |
| City of Austin v. Ender, 30 S.W.3d 590, 593 (Tex.App.--Austin 2000, no pet.) | 5 |
| City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex.App.--Austin, 1998, no pet.) | 5 |
| Curbo v. State of Texas, Officer of the Governor, 998 S.W.2d 337 (Tex.App.--Austin 1999, no pet.) | 5 |
| Dallas County v. Halsey, 87 S.W.3d 553, 554 (Tex. 2002) | 4 |
| Director of the Dept. of Agriculture v. Env't Printing Indus. Ass'n of Texas, 600 S.W.2d 264, 265 (Tex. 1980) | 6 |
| Edwards v. Balisok, 117 S.Ct. 1584, 1589 (1997) | 7 |
| Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997) | 6 |
| Forrester v. White, 484 U.S. 219 (1988) | 4 |
| Gregg County v. Farrar, 933 S.W.2d 769, 777 (Tex. App. --Austin 1996, no writ) | 6 |
| Grounds v. Tolar Indep. School Dist., 707 S.W.2d 889, 891 (Tex. 1986) | 6 |
| Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372 (1994) | 7 |
| Janik v. Lamar Consol. Indep. Sch. Dist., 961 S.W.2d 322, 324 (Tex.App.--Houston [1st Dist.] 1997, writ denied) | 6 |
| Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.App.--Austin 1994, writ denied) | 5 |
| Mireles v. Waco, 502 U.S. 9, 13 (1991) | 4 |
| Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) | 4 |
| Texas Department of Public Safety v. Petta, 44 S.W.3d 575 (Tex. 2001) | 6 |
| Twilligear v. Carrell, 148 S.W.3d 502, 504 (Tex. App.--Houston [14th Dist. 2004, pet. denied) | 4 |
STATUTES, RULES AND CODES:
| 7 |
No. 05-13-00378-CV
TODD PRUETT,
Plaintiff-Appellant,
v.
HON. SUSAN HAWK AND MARK STOLTZ,
Defendants-Appellees
On Appeal from the 193RD District Court, Dallas County, Texas
(Cause No. DC-12-07463)
BRIEF OF DEFENDANTS-APPELLEES
TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:
NOW COMES Defendants-Appellees("Appellees"), by and through the Attorney General for the State of Texas, and makes and files this their Brief in response to the Brief filed by Plaintiff-Appellant("Appellant"). In support of the lower Court's ruling, Appellees would respectfully show the following:
I.
STATEMENT OF THE CASE
Appellant has failed to provide the Court with a proper Statement of the Case. The record establishes the following: Appellant filed suit against Appellee Stoltz (C.R., pgs.9-14). Appellee Stoltz filed an Answer (C.R., pgs.17-19). Appellee Stoltz filed his Motion to Dismiss (C.R. 20-26). The trial judge heard this motion on his submission docket and granted judgment in favor of Appellee Stoltz on August 21, 2012 (C.R., pgs. 48). Approximately one month later the trial court entered an order consolidating this case with Pruett v Stoltz , DC-12-08997 (C.R. pgs 64). The pleadings from the case that had been pending in the 160th District Court are not part of the this record. Appellees Stoltz and Hawk are attaching an appendix that contains pertinent pleadings. Document 1 is a copy of the Register of Actions in Pruett v. Pittman. Document 2 is the Answer filed by Appellees Hawk and Stoltz. Document 3 is the Motion to Dismiss filed by Appellees Hawk and Stoltz. After this Motion was filed, the two cases were consolidated. Appellees gave notice of the hearing on their Motion to Dismiss (C.R. pgs. 126-127). On February 8, 2013, the trial court entered an Interlocutory Judgment in favor of Appellees (C.R. pgs. 170). On February 28, 2013, Appellant gave Notice of Appeal (C.R. pgs. 184). On March 11, 2013, Appellees filed their Motion to Sever (C.R. pgs. 185-188). On April 16, 2013, the trial court heard the Motion to Sever on its submission docket, and severed the cause of action against Appellees (C.R. pgs 260).
The actual style of the case is Pruett v. Pittman.
II.
ISSUES PRESENTED
1. Did the trial court err in granting Appellee's Motion to Dismiss?
III.
STATEMENT OF FACTS
Appellant's primary issue both in the trial court below and on appeal is that he was not allowed to appear in person at the hearing and present evidence. He does not understand that judicial immunity goes to the trial court's jurisdiction, and said immunity would have mandated dismissal even if all of Appellant's allegations were true. In fact, the trial judge decided Appellee Stoltz's first Motion to Dismiss on its submission docket (C.R., pgs. 48). A review of the "Issues Presented" portion of Appellant's Brief reflects that Plaintiff is continuing to complain about rulings Appellees made in his underlying criminal case. As judicial officers, Appellees are entitled to judicial immunity. Any claim against them in their official capacities are barred by sovereign immunity, and any potential individuals claim would be barred by judicial immunity.
V.
ARGUMENT AND AUTHORITIES
Appellees filed a Motion to Dismiss asserting their entitlement to various immunities. Judicial immunity was asserted, and is available to Appellees. Texas law is clear that "judges acting in their official judicial capacity have immunity from liability and suit for judicial acts performed within the scope of their jurisdiction." Twilligear v. Carrell, 148 S.W.3d 502, 504 (Tex. App.--Houston [14th Dist. 2004, pet. denied), citing, Dallas County v. Halsey, 87 S.W.3d 553, 554 (Tex. 2002). "This immunity extends to actions that are done in error, maliciously, and even in excess of the judge's authority." Id., citing, Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). The immunity is overcome "only for actions that are: (1) non-judicial, i.e., not taken in the judge's official capacity; or (2) taken in the complete absence of all jurisdiction." Id, citing, Mireles v. Waco, 502 U.S. 9 (1991). "Whether an act is judicial (or non-judicial) for this purpose is determined by the nature of the act, i.e., whether it is a function normally performed by a judge, as contrasted from other administrative, legislative, or executive acts that simply happen to be done by judges." Id., citing, Forrester v. White, 484 U.S. 219 (1988). Under Texas law, "judicial acts include those performed by judges in adjudicating, or otherwise exercising their judicial authority over, proceedings pending in their courts." Id., citing, Mireles, 502 U.S. at 13. Signing a bench warrant and ruling on pending motions are clearly judicial actions. Appellant's suit against Appellees is for action they took in deciding the underlying criminal case and applying the Code of Criminal Procedure. Even if they were in error, or acted improperly, they had jurisdiction, and were performing judicial actions. Accordingly, Appellant's suit was barred by judicial immunity.
In the alternative, Appellees are entitled to sovereign immunity. A plea to the jurisdiction is the appropriate procedural vehicle to challenge the trial court's subject matter jurisdiction. City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex.App.--Austin, 1998, no pet.). Additionally, when a lawsuit is barred by sovereign immunity, dismissal with prejudice for want of jurisdiction is proper. Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.App.--Austin 1994, writ denied). The jurisdiction of a trial court over the subject matter of the case is determined from the good-faith factual allegations contained in the plaintiff's pleadings. Curbo v. State of Texas, Officer of the Governor, 998 S.W.2d 337 (Tex.App.--Austin 1999, no pet.). The plaintiff must allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. City of Austin v. Ender, 30 S.W.3d 590, 593 (Tex.App.--Austin 2000, no pet.). Pleadings relevant to a review of a plea to a jurisdiction include amended petitions, the plea to the jurisdiction, and responses filed in connection with a defendant's plea to the jurisdiction. Ender, Id.; Janik v. Lamar Consol. Indep. Sch. Dist., 961 S.W.2d 322, 324 (Tex.App.--Houston [1st Dist.] 1997, writ denied).
"Sovereign immunity, unless waived, protects the State of Texas, its agencies and its officials from lawsuits for damages, absent legislative consent to sue the State." Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997); Director of the Dept. of Agriculture v. Env't Printing Indus. Ass'n of Texas, 600 S.W.2d 264, 265 (Tex. 1980). This immunity encompasses the dual principles of immunity from suit and immunity from liability. Federal Sign, 951 S.W.2d at 405. Immunity from suit bars a suit against the State or its agencies unless the State expressly gives consent to the suit. Id. When a plaintiff brings a suit based on a statutory cause of action, the statutory provisions are mandatory and exclusive and must be complied with in all respects or the action is not maintainable due to lack of subject matter jurisdiction. Grounds v. Tolar Indep. School Dist., 707 S.W.2d 889, 891 (Tex. 1986); Gregg County v. Farrar, 933 S.W.2d 769, 777 (Tex. App. --Austin 1996, no writ).
Appellant's allegations are that Appellees acted improperly in ruling on motions and signing orders. These are "information allegations" and information allegations are controlled by Texas Department of Public Safety v. Petta, 44 S.W.3d 575 (Tex. 2001). Appellant has not, and cannot, show a valid waiver of sovereign immunity. The trial court properly dismissed Appellant's cause of action for lack of subject matter jurisdiction.
It is obvious that Appellant's vague claims are nothing more than a collateral attack on the underlying civil case. As such, they are barred by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). The Supreme Court has held that a prisoner's claim for damages is not cognizable under 42 U.S.C. § 1983 if a judgment for him would "necessarily imply" the invalidity of his commitment or sentence unless he can demonstrate that the commitment or conviction has previously been invalidated. Heck, 512 U.S. at 487, 114 S.Ct. at 2372. The United States Supreme Court has determined that a Plaintiff cannot even collaterally attack a prison disciplinary proceeding in a 1983 case. Please see Edwards v. Balisok, 117 S.Ct. 1584, 1589 (1997). In the instance action, Appellant has not shown this Court that an appellate court has found any error in the determination of the underlying criminal case. Accordingly, Appellant's claim is also barred by sovereign immunity.
VI.
PRAYER
Appellees requests that this Court affirm the trial court's dismissal of Appellant's suit.
Respectfully submitted,
GREG ABBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
DAVID C. MATTAX
Deputy Attorney General for Defense
Litigation
KAREN D. MATLOCK
Law Enforcement Defense Division Chief
_________________
DAVID A. HARRIS
Assistant Attorney General
State Bar No. 09056800
P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 463-2080
Fax No. (512) 495-9139
ATTORNEYS FOR DEFENDANT
APPELLEES
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(i)(3), undersigned counsel certifies that this brief complies with the type-volume limitations.
1. Exclusive of the portions exempted by Tex. R. App. P. 9.4(i)(3), this brief contain 1033 words printed in a proportionally spaced typeface. (In the alternative, for briefs prepared in monospaced typeface, you may certify the number of lines of text used.)
2. This brief is printed in a proportionally spaced, serif typeface using Times New Roman 14 point font in text and Times New Roman 12 point font in footnotes produced by WordPerfect software.
3. Upon request, undersigned counsel will provide an electronic version of this brief and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits, may result in the Court's striking this brief and imposing sanctions against the person who signed it.
_________________
DAVID A. HARRIS
Assistant Attorney General
NOTICE OF ELECTRONIC FILING
I, DAVID A. HARRIS, Assistant Attorney General of Texas, do hereby certify that I have electronically submitted for filing a true and correct copy of the above and foregoing Brief of Defendants-Appellees in accordance with the CaseFileXpress System for the Court of Appeals for the Fifth Judicial District on September 10, 2013.
_________________
DAVID A. HARRIS
Assistant Attorney General
CERTIFICATE OF SERVICE
I, DAVID A. HARRIS, Assistant Attorney General, do hereby certify that a true and correct copy of the above and foregoing Brief of Defendants-Appellees has been served by placing same in the United States mail, postage prepaid, Certified Mail, Return Receipt Requested, on this the September 10, 2013., addressed to: Todd Pruett
Kerrville State Hospital
721 Thompson Dr.
Kerrville, TX 78028
_________________
DAVID A. HARRIS
Assistant Attorney General
No. 05-13-00378-CV
TODD PRUETT,
Plaintiff-Appellant,
v.
HON. SUSAN HAWK AND MARK STOLTZ,
Defendants-Appellees
On Appeal from the 193RD District Court, Dallas County, Texas
(Cause No. DC-12-07463)
APPENDIX TO BRIEF OF DEFENDANTS-APPELLEES
GREG ABBOTT
Attorney General of Texas
KAREN D. MATLOCK
Law Enforcement Defense Division Chief
DANIEL T. HODGE
First Assistant Attorney General
DAVID A. HARRIS*
Assistant Attorney General
State Bar No. 09329490
DAVID C. MATTAX
Deputy Attorney General for Defense Litigation
P.O. Box 12548
Austin, Texas 78711-2548
(512) 463-2080/Fax (512) 495-9139
ATTORNEYS FOR DEFENDANTS-APPELLEES
*Counsel of Record
Oral Argument Waived
INDEX OF APPENDIX
| A copy of Register of Actions in Pruett v. Pittman (Pages 1-3) | 1 |
| Defendant Mark Stoltz and Susan Hawk's Original Answer (Pages 1-3) | 2 |
| Defendant Mark Stoltz and Susan Hawk's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Pages 1-5) | 3 |
APPENDIX 1
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REGISTER OF ACTIONS
CASE NO. DC-12-08997
TODD PRUETT vs. MICHAEL PITTMAN, MDet al
OTHER PROFESSIONAL
Case Type: MALPRACTICE
OTHER PROFESSIONAL
Subtype:LIABILITY
Date Filed: 08/10/2012
Location: 193rd District Court
RELATED CASE INFORMATION
Related Cases
DC-12-07463 (CONSOLIDATION)
PARTY INFORMATION
| DEFENDANT COLLINS, DOMINIQUE | Lead Attorneys TODD SELLARS Retained 214-653-6704(W) |
| DEFENDANT HAWK, SUSAN | DAVID A HARRIS Retained 512-463-2080(W) |
| DEFENDANT PITTMAN, MICHAEL, MD | EDWARD P QUILLIN Retained 972-386-6664(W) |
| DEFENDANT STOLTZ, MARK | DAVID A HARRIS Retained 512-463-2080(W) |
| PLAINTIFF PRUETT, TODD D | Pro Se |
EVENTS & ORDERS OF THE COURT
| 09/19/2012 | DISPOSITIONS ALL OTHER DISPOSITIONS (Judicial Officer JORDAN, JM) Vol./Book 526L, Page 953, 1 pages | Served Returned Served Returned Served Returned Served Returned | 09/14/2012 09/18/2012 08/21/2012 08/28/2012 08/21/2012 08/28/2012 08/21/2012 08/28/2012 |
| 08/10/2012 08/10/2012 08/10/2012 | OTHER EVENTS AND HEARINGS ORIGINAL PETITION (OCA) ISSUE CITATION AFFIDAVIT INABILITY TO PAY WILL NOT CONTEST | ||
| 08/15/2012 | CITATION - SHF 5 PITTMAN, MICHAEL, MD STOLTZ, MARK HAWK, SUSAN COLLINS, DOMINIQUE | ||
| 08/21/2012 | 1ST DUE DELIGENCE ATTEMPT - SHF SERVED THRU DALLAS COUNTY DA OFFICE | ||
| 08/21/2012 | 1 ST DUE DELIGENCE ATTEMPT - SHF SERVED AT 9:11 AM RO708 | ||
| 08/21/2012 | 1 ST DUE DELIGENCE ATTEMPT - SHF SERVED AT 2:40PM RO708 | ||
| 08/21/2012 | 1ST DUE DELIGENCE ATTEMPT - SHF UNABLE TO LOCATE | ||
| 08/28/2012 09/07/2012 09/07/2012 09/07/2012 | ORIGINAL ANSWER - GENERAL DENIAL ORIGINAL ANSWER - GENERAL DENIAL MOTION - DISMISS NOTE-CLERKS DEF JUDGMENT SUBMITTED |
| O9/14/2012 | 2ND DUE DELIGENCE ATTEMPT-SHF SERVED AT 9:20AM RO708 |
| O9/19/2012 | MOTION - MISCELLANOUS M/AMEND CIVIL ACTION |
| 10/04/2012 10/10/2012 10/10/2012 | ORIGINAL ANSWER - GENERAL DENIAL MOTION - DISMISS NOTE-CLERKS |
| ORDER FOR DEF MOTION TO DISMISS SUBMITTED TO ADMIN | |
| 11/08/201 2 11/16/2012 | NOTICE OF HEARING / FIAT Special Exceptions (8:30 AM) (Judicial Officer GINSBERG, CARL) CONSOL W/12-7463-L |
| 02/08/2013 | Motion - Dismiss (9:00 AM) (Judicial Officer GINSBERG, CARL) (CONSOL W/12-7463) |
FINANCIAL INFORMATION
| PLAINTIFF PRUETT TOD D | ||
| Total Financial Assessment | 584.00 | |
| Total Payments and Credits | 0.00 | |
| Balance Due as of 08/27/2013 | 584.00 | |
| 08/10/2012 | Transaction Assessment | 32.00 |
| 08/13/2012 | Transaction Assessment | 252.00 |
| 08/28/2012 | Transaction Assessment | 150.00 |
| O8/28/2012 | Transaction Assessment | 75.00 |
| 09/19/2012 | Transaction Assessment | 75.00 |
Civil District Information Search Results
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Location: All District Civil Courts Help
Record Count: 6
Search By: Party Exact Name: on Party Search Mode: Name Last Name: Pruett First Name: Todd Case Status: All Sort By: Filed Date
| Case Number | Style | Filed/Location | Type/Status |
| DC-12-07463 | TODD PRUETT vs. BROOK BUSBEE, et al | 07/05/2012 193rd District Court | OTHER (CIVIL) OPEN |
| DC-12-08997 | TODD PRUETT vs. MICHAEL PITTMAN, MDet al | 08/10/2012 193rd District Court | OTHER PROFESSIONAL M CLOSED |
| DC-12-14518 | TODD PRUETT vs. LISA CLAYTON, MD | 12/12/2012 193rd District Court | OTHER (CIVIL) OPEN |
| DC-13-07304 | TODD PRUETT vs. MARK STOLTZ | 07/02/2013 193rd District Court | OTHER (CIVIL) CLOSED |
| DC-13-07953 | TODD PRUETT vs. MARK STOLTZ | 07/17/2013 193rd District Court | OTHER (CIVIL) CLOSED |
| DC-13-08112 | TODD PRUETT vs. LUPE VALDEZ | 07/18/2013 14th District Court | OTHER (CIVIL) OPEN |
APPENDIX 2
CAUSE NO. DC-12-08997-H
TODD D. PRUETT, Plaintiff,
v.
DR. MICHAEL PITTMAN, et al., Defendants,
160th JUDICIAL DISTRICT
DEFENDANT MARK STOLTZ AND SUSAN HAWK'S ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Judges Mark Stoltz and Susan Hawk (hereinafter referred to as "Defendant Judges'"), by and through their counsel of record, the Attorney General of Texas, and makes and files this Original Answer. In support thereof, Defendant Judges respectfully show as follows:
1. That Defendant Judges preside over district courts in Dallas County, Texas. Plaintiff's suit against them are for actions taken by Defendant Judges while disposing of a case in which Plaintiff was a participant. Plaintiff is complaining of actions taken by Defendant Judges in disposing of a case pending in their court while acting in their "official and judicial" capacities. Defendant Judges assert their entitlement to judicial immunity and sovereign immunity which are absolute immunities from both suit and damages. In accordance with these immunities. Defendant Judges assert that they are entitled to have the Motion to Dismiss that is being filed contemporaneously with this Answer heard before Plaintiff is allowed to conduct any discovery.
2. That in the alternative, Defendant Judges would specially except Plaintiff's Petition in its entirety for reason that it is vague, unintelligible, and does not state a claim. Defendant Judges would ask that in the unlikely event their Motion to Dismiss is denied that Plaintiff be required to replead a cause of action against them specifying what they did or failed to do in something other than a judicial capacity or official capacity which in any way caused damage to Plaintiff.
3. That further, in the alternative, Defendant Judges deny generally the material allegations of Plaintiff's Petition, demands strict proof thereof, and say that this is a matter of jury decision.
WHEREFORE, PREMISES CONSIDERED, Defendant Judges pray judgment of the Court.
Respectfully submitted,
GREG ABBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
DAVID C. MATTAX
Deputy Attorney General for Defense Litigation
KAREN D. MATLOCK
Assistant Attorney General
Chief, Law Enforcement Defense Division
_________________
DAVID A. HARRIS
Assistant Attorney General
Attorney-in-Charge
State Bar No. 09056800
P. O. Box 12548, Capitol Station
Austin, Texas 78711
512.463.2080 / Fax 512.495.9139
ATTORNEY FOR DEFENDANTS
NOTICE OF ELECTRONIC FILING
I, DAVID A. HARRIS, Assistant Attorney General of Texas, do hereby certify that I have electronically submitted for filing a true and correct copy of the above and foregoing Defendant Mark Stoltz and Susan Hawk's Original Answer in accordance with the CaseFileXpress System for Dallas County Judicial District on September 7, 2012.
_________________
DAVID A. HARRIS
Assistant Attorney General
CERTIFICATE OF SERVICE
I, DAVID A. HARRIS, Assistant Attorney General of Texas, do hereby certify that a true and correct copy of the above and foregoing Defendant Mark Stoltz and Susan Hawk's Original Answer has been served by placing the same in the United States mail, certified return receipt requested, postage prepaid on this the 7th day of September, 2012, addressed to Plaintiff: Todd D. Pruett, # 11085024
Dallas County Jail
500 Commerce Street
Dallas, TX 75202
Todd Sellars
Assistant District Attorney
411 Elm Street, 5th Floor
Dallas, TX. 75202-3384
CMRRR - 7008-0500-0001-5046-9449
_________________
DAVID A. HARRIS
Assistant Attorney General
APPENDIX 3
CAUSE NO. DC-12-08997-H
TODD D. PRUETT, Plaintiff,
v.
DR. MICHAEL PITTMAN, et al., Defendants.
160th JUDICIAL DISTRICT
DEFENDANT MARK STOLTZ AND SUSAN HAWK'S MOTION TO DISMISS FOR
LACK OF SUBJECT MATTER JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant Judges Mark Stoltz and Susan Hawk, by their counsel, the Attorney General of Texas, file Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction. In support thereof, Defendant Judges respectfully offer the following:
I.
NATURE OF CASE
That Defendant Judges preside over criminal courts in Dallas County Texas. Plaintiff's suit against them are for actions taken by Defendant Judges while disposing of a case in which Plaintiff was a participant. In other words. Plaintiff is complaining of actions taken by Defendant Judges in disposing of cases pending in their court while acting in their "official and judicial" capacities. Defendant Judges assert their entitlement to judicial immunity and sovereign immunity which are absolute immunities from both suit and damages.
II.
MOTION TO DISMISS
A. Standards for a Plea to the Jurisdiction.
A plea to the jurisdiction (or, in this case, a motion to dismiss for lack of subject matter jurisdiction) challenges the court's power to determine the subject matter of the controversy. Axtell v. University of Tex.. 69 S.W.3d 261, 263 (Tex. App.—Austin 2002, no pet.). Immunities and privileges that defeat a cause of action are properly the basis of a plea to the jurisdiction and, where necessary, the court is to consider evidence to determine the plea. Texas Dept. of Parks &Wildlife v. Miranda, 133 S.W.3d 217,226 (Tex. 2004)(sovereign immunity); Diocese of Galveston-Houston v. Stone, 892 S.W.2d 169,176-77(Tex. App. —Houston [14th] 1994, orig proceeding)(ecclesiastical privilege). If the pleadings affirmatively negate the existence of jurisdiction, the trial court may grant the plea without permitting the plaintiff an opportunity to amend. Miranda, 226-27. When the plea is based on jurisdictional facts, such as contained in the transcript of the hearing, the trial court is to grant the plea and dismiss the case if the evidence is undisputed or fails to raise a fact issue on the jurisdictional issue. Miranda, 227-28.
B. Judge is Entitled to Judicial and Sovereign Immunity.
Texas law is clear that ''judges acting in their official judicial capacity have immunity from liability and suit for judicial acts performed within the scope of their jurisdiction." Twilligear v. Carrell, 148 S.W.3d 502, 504 (Tex. App.—Houston [14th Dist. 2004, pet. denied), citing, Dallas County v. Halsey. 87 S.W.3d 553,554 (Tex. 2002). "This immunity extends to actions that are done in error, maliciously, and even in excess of the judge's authority." Id., citing, Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). The immunity is overcome "only for actions that are: (1) non-judicial, i.e.. not taken in the judge's official capacity; or (2) taken in the complete absence of all jurisdiction." Id. citing, Mireles v. Waco, 502 U.S. 9 (1991). "Whether an act is judicial (or non-judicial) for this purpose is determined by the nature of the act, i.e., whether it is a function normally performed by a judge, as contrasted from other administrative, legislative, or executive acts that simply happen to be done by judges." Id., citing, Forrester v. White, 484 U.S. 219 (1988). Under Texas law, "judicial acts include those performed by judges in adjudicating, or otherwise exercising their judicial authority over, proceedings pending in their courts." Id., citing, Mireles, 502 U.S. at 13.
In the instant action Plaintiff is suing Defendant Judge for construing a pleading and issuing an order. These are clearly actions taken by Defendant Judges in their judicial and official capacities entitling them to both sovereign and judicial immunity.
C. Plaintiff's Claim for Declaratory Relief is Without Merit As a Matter of Law.
While "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," Twillinger, 148 S.W. 3d at 504, f.n. 8, citing, Pulliam v. Allen. 466 U.S. 522, 542-44 (1984)(emphasis original), Plaintiff's pleadings reflect that Plaintiff's claim is not for prospective injunctive relief. Plaintiff's complaints are for past conduct and his request for equitable relief is vague. The Texas Supreme Court has made it clear that "a declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought." Bonham State Bank v. Beadle, 907 S. W.2d 465,467 (Tex. 1995). There is no controversy that could be resolved by the declaration sought.
Finally, the United States Supreme Court has made it clear that there are limitations on the availability of equitable relief against a judge in his official capacity:
The limitations already imposed by the requirements for obtaining equitable relief against any defendant — a showing of an inadequate remedy at law and of a serious risk of irreparable harm, severely curtail the risk that judges will be harassed and their independence compromised.Pulliam, 104 S.Ct. at 1978. See also, Adams v. Mcllhany, 593 F. Supp. 1025, 1032 (N.D. Tex. 1984).
Plaintiff cannot make the required showing of an inadequate remedy at law. Plaintiff cannot make the required showing of a serious risk of irreparable harm. In Judice v. Vail, 97 S.Ct. 1211, 1215-6 (1977), the Supreme Court addressed the issue of standing for a litigant seeking equitable relief for being imprisoned pursuant to a contempt order. The Court held that the plaintiffs, "having been released from jail, no longer had a live controversy — as to either the contempt citation or the short periods of incarceration which would entitle them to injunctive relief." See also, Adams, Id. Therefore, Plaintiff's request for declaratory relief should also be dismissed with prejudice for lack of subject matter jurisdiction.
ACCORDINGLY, Defendant Judges Mark Stoltz and Susan Hawk respectfully pray that the Court grant this motion, dismiss this lawsuit with prejudice for lack of subject matter jurisdiction, and grant such other and further relief as Defendant Judges are justly entitled.
Respectfully submitted,
GREG ABBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
DAVID C. MATTAX
Deputy Attorney General for Defense Litigation
KAREN D. MATLOCK
Assistant Attorney General
Chief, Law Enforcement Defense Division
_________________
DAVID A. HARRIS
Assistant Attorney General
Attorney-in-Charge
State Bar No. 09056800
P. O. Box 12548, Capitol Station
Austin, Texas 78711
512.463.2080 / Fax 512.495.9139
ATTORNEY FOR DEFENDANTS
NOTICE OF ELECTRONIC FILING
I. DAVID A. HARRIS, Assistant Attorney General of Texas, do hereby certify that I have electronically submitted for filing a true and correct copy of the above and foregoing Defendant Mark Stoltz and Susan Hawk's Motion to Dismiss for Lack of Subject Matter Jurisdiction in accordance with the CaseFileXpress System for Dallas County Judicial District on September 7 2012.
_________________
DAVID A. HARRIS
Assistant Attorney General
CERTIFICATE OF SERVICE
I, DAVID A. HARRIS, Assistant Attorney General of Texas, do hereby certify that a true and correct copy of the above and foregoing Defendant Mark Stoltz and Susan Hawk's Motion to Dismiss for Lack of Subject Matter Jurisdiction has been served by placing the same in the United States mail, certified return receipt requested, postage prepaid on this the 7th day of September, 2012, addressed to Plaintiff: Todd D. Pruett, #11085024
Dallas County Jail
500 Commerce Street
Dallas, TX 75202
Todd Sellars
Assistant District Attorney
411 Elm Street, 5th Floor
Dallas, TX. 75202-3384
CMRRR - 7008- 0500-0001-5046-9449
_________________
DAVID A. HARRIS
Assistant Attorney General