H.B. 1501 amends the Family Code to include a child custody evaluator among the individuals appointed in a suit affecting the parent-child relationship who are immune from liability for civil damages arising from an action taken, a recommendation made, or an opinion given in the suit.

https://capitol.texas.gov/tlodocs/85R/analysis/html/HB01501H.htm

HB01501I

C.S.H.B. 1501
By: Thompson, Senfronia
Juvenile Justice & Family Issues
Committee Report (Substituted)
BACKGROUND AND PURPOSE

 

Interested parties note the need to clarify and update the law relating to child custody evaluations. C.S.H.B. 1501 seeks to provide that clarification and update.

 

CRIMINAL JUSTICE IMPACT

 

It is the committee’s opinion that this bill expressly does one or more of the following: creates a criminal offense, increases the punishment for an existing criminal offense or category of offenses, or changes the eligibility of a person for community supervision, parole, or mandatory supervision.

 

RULEMAKING AUTHORITY

 

It is the committee’s opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

 

ANALYSIS

 

C.S.H.B. 1501 amends the Family Code to include a child custody evaluator among the individuals appointed in a suit affecting the parent-child relationship who are immune from liability for civil damages arising from an action taken, a recommendation made, or an opinion given in the suit. The bill includes in the required components of an order for a child custody evaluation a list of the basic elements of such an evaluation and a list of any additional elements of an evaluation required by the court to be completed. The bill excludes an order appointing a child custody evaluator who is qualified on the basis of the evaluator’s employment or contract with a domestic relations office from the orders that must contain the required components. The bill includes any additional element ordered by the court in the requirement for a child custody evaluator to complete each basic element of an evaluation before offering an opinion regarding conservatorship of a child who is the subject of a suit or possession of or access to the child and creates an exception to the requirement if the failure to complete an element is satisfactorily explained. The bill establishes four years of age as the minimum age at which a child who is the subject of a suit may be interviewed and revises the basic elements required to be included in an evaluation. The bill specifies that the additional elements of an evaluation provided under state law may be ordered by a court.

 

C.S.H.B. 1501 authorizes a child custody evaluator to request additional orders from the court if the evaluator considers psychometric testing necessary for the evaluation but lacks specialized training or expertise to use specified tests or if the evaluator identifies the presence of a potentially undiagnosed serious mental illness experienced by an individual who is a subject of the child custody evaluation and the evaluator is not qualified to assess a serious mental illness.

 

C.S.H.B. 1501 entitles a child custody evaluator appointed by a court to obtain records that relate to any person residing in a residence subject to a child custody evaluation from a local law enforcement authority, a criminal justice agency, a juvenile justice agency, a community supervision and corrections department, or any other governmental entity. The bill makes such records obtained by a child custody evaluator confidential and exempt from disclosure under state public information law or from disclosure in response to a subpoena or a discovery request. The bill authorizes a child custody evaluator to disclose such information in the child custody evaluation report only to the extent that the evaluator determines that the information is relevant to the evaluation or a recommendation relating to the evaluation. The bill creates a Class A misdemeanor offense for a person who recklessly discloses such confidential information in violation of the bill’s provisions.

 

C.S.H.B. 1501 replaces the requirement for a person conducting a child custody evaluation to file with the court on a date set by the court a report containing the person’s findings and conclusions with the requirements that such a person file with the court on a date set by the court notice that the child custody evaluation report is complete and provide a copy of the report, on a specified date, to each party’s attorney, each party who is not represented by an attorney, and each attorney ad litem, guardian ad litem, and amicus attorney appointed in the suit. The bill specifies that the disclosure to the court of the contents of the report is subject to the rules of evidence.

 

C.S.H.B. 1501 amends the Government Code to entitle a child custody evaluator who has been appointed to conduct a child custody evaluation to obtain from the Department of Public Safety (DPS) criminal history record information that relates to a person involved in the evaluation. The bill requires DPS to provide the evaluator with the information not later than the 10th day after the date on which the information is requested and prohibits a child custody evaluator from releasing or disclosing the information to a person other than the court ordering the applicable evaluation, with certain exceptions.

 

EFFECTIVE DATE

 

September 1, 2017.

 

I lost custody of my son due to biased evaluator

www.msnbc.com/the-docket/watch/i-lost-custody-of-my-son-due-to-biased-evaluator-568588355717

Mothers Civil Liberties Union (MCLU) Director Rachel Alintoff says “unless you’re in the court system, you would have no idea this was happening” discussing sexist biases of New Jersey’s court systems.

Texas Derived Judicial Immunity

JUDICIAL IMMUNITY OF JUDGES, JUDICIAL OFFICERS, DERIVED JUDICIAL
IMMUNITY

derived judicial immunity provides broad protection. “Once an individual is cloaked with derived judicial
immunity because of a particular function being performed for a court, every action taken with regard to
that function—whether good or bad, honest or dishonest, well-intentioned or not—is immune from suit.

Once applied to the function, the cloak of immunity covers all acts, both good and bad.” Ramirez v.
Burnside & Rishebarger, L.L.C., No. 04-04-00160-CV, 2005 Tex. App. LEXIS 6065, at *5 (Tex. App.-San
Antonio Aug. 3, 2005, no pet.) (mem. op.) (citing B.K. v. Cox, 116 S.W.3d 351, 357 (Tex. App.-Houston
[14th Dist.] 2003, no pet.)). REHABWORKS, LLC v. Flanagan, Tex: Court of Appeals, 3rd Dist., Austin 2009

US Judicial Immunity Case Basis

In the United States, judicial immunity is among a handful of forms of absolute immunity, along with prosecutorial immunity, legislative immunity, and witness immunity. The U.S. Supreme Court has characterized judicial immunity as providing “the maximum ability [of judges] to deal fearlessly and impartially with the public”.[8] The justification is as follows: because of the likelihood of innocent individuals being convicted in a court of law under false claims, the “burden” of being subjected to a court of law (a trial) would “dampen” the judges “enthusiasm” or “passion”.[9] Opponents of judicial immunity argue that this doctrine is not adequately justified.[10] For example, judges could be shielded from any personal capacity liability, and still be subject to official capacity liability so that they may be held accountable for their injurious acts – thus “balancing” the “evil” to better protect the fundamental rights of victims.

Judicial immunity does not protect judges from suits stemming from administrative decisions made while off the bench, like hiring and firing decisions. But immunity generally does extend to all judicial decisions in which the judge has proper jurisdiction, even if a decision is made with “corrupt or malicious intent”.[11] In 1997 West Virginia judge Troisi became so irritated with a rude defendant, he stepped down from the bench, took off his robe, and bit the defendant on the nose.[12] He pleaded no contest to state charges but was acquitted of federal charges of violating the defendant’s civil rights.[13] He spent five days in jail and was put on probation.[14]

Because the immunity is attached to the judicial nature of the acts, not the official title of the officeholder, judicial immunity also applies to administrative hearings, although in some situations, only qualified immunity applies.[15] In determining whether absolute or qualified immunity should be provided, the U.S. Supreme Court has identified the following factors, according to the Shriver Center‘s Federal Practice Manual for Legal Aid Attorneys:[15]

(a) The need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal.

Cases

Stump v. Sparkman

One of the leading decisions on judicial immunity is Stump v. Sparkman. In 1971, Judge Harold D. Stump granted a mother’s petition to have a tubal ligation performed on her 15-year-old daughter, whom the mother alleged was “somewhat retarded”. The daughter was told that the surgery was to remove her appendix. In 1975 the daughter, going by her then-married name of Linda Sparkman, learned that she had been sterilized. She sued the judge. The U.S. Supreme Court ruled that the judge could not be sued, because the decision was made in the course of his duties. In that regard, it was irrelevant that the judge’s decision may have been contrary to law and morally reprehensible.

Harris v. Harvey

Judges usually, but not always, receive immunity from being sued. One exception where a judge was sued and lost is Harris v. Harvey (1979).[16][17] Sylvester Harris was an African-American police lieutenant in Racine, Wisconsin, attacked in a variety of ways by Judge Richard G. Harvey. Harris sued Harvey because of (a) comments Harvey made to the news media, (b) threatening letters Harvey wrote to city and county officials who attempted to defend Harris, and (c) parties Harvey held for ranking state officials during which he attempted to get Harris removed from law enforcement. The jury concluded that Harvey was not eligible for judicial immunity for these actions, as such acts which were not part of the judge’s normal duties (i.e. were “outside his jurisdiction”). The jury awarded Harris $260,000 damages. Another judge later added $7,500 legal fees. The United States Court of Appeals for the Seventh Circuit concurred with the jury’s decision. Judge Harvey petitioned the Seventh Circuit court for an en banc rehearing, which was denied. His petition to the Supreme Court was also denied. Harris v. Harvey is the first case in the United States where a sitting court judge has been sued and lost in a civil action;[18] it is a binding precedent in the Seventh Circuit and is persuasive authority in the other circuits.

Supreme Court of Virginia v. Consumers Union

In Supreme Court of Virginia v. Consumers Union (1980), the U.S. Supreme Court ruled that the Supreme Court of Virginia did not have immunity in federal court from being enjoined in its enforcement capacity where state law gave the court independent authority to initiate certain proceedings against attorneys.[19] Consumers Union was hindered from compiling an attorney directory because many attorneys they contacted declined to provide requested information out of fear of violating, and thereafter prosecuted, attorney conduct regulations promulgated by the Supreme Court of Virginia. Consumers Union filed a lawsuit in federal court against the Supreme Court of Virginia and others, under 42 U.S.C. § 1983, seeking to have the regulation declared unconstitutional and to enjoin the defendants from enforcing it.[20] The U.S. Supreme Court affirmed the Supreme Court of Virginia’s legislative immunity:[21]

If the sole basis for [Consumer Union’s] § 1983 action against the Virginia Court and its chief justice were the issuance of, or failure to amend, the challenged rules, legislative immunity would foreclose suit against appellants. … As already indicated, § 54–74 gives the Virginia Court independent authority of its own to initiate proceedings against attorneys. For this reason, the Virginia Court and its members were proper defendants in a suit for declaratory and injunctive relief, just as other enforcement officers and agencies were. … If prosecutors and law enforcement personnel cannot be proceeded against for declaratory relief, putative plaintiffs would have to await the institution of state court proceedings against them in order to assert their federal constitutional claims. This is not the way the law has developed, and, because of its own inherent and statutory enforcement powers, immunity does not shield the Virginia Court and its chief justice from suit in this case.

— Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 734-37 (1980)

Mireles v. Waco

On the other hand, misbehavior while performing judicial acts is immune. In the case of Mireles v. Waco (1991),[22] when a defense lawyer failed to appear for a scheduled hearing, the judge not only issued a bench warrant for his arrest, but instructed the police sent to arrest him to “rough him up a little” to teach him not to skip court dates. Although this was entirely unprofessional and possibly criminal, the judge was held, by the Supreme Court, to have absolute immunity from a lawsuit arising from the resulting beating, because done entirely within his activities as a judge presiding over a court.

HOUSTON TEXAS CASELAW ON DERIVED JUDICIAL IMMUNITY

HOUSTON CASELAW ON DERIVED JUDICIAL IMMUNITY

A person entitled to derived judicial immunity receives the same absolute immunity from liability for
acts performed within the scope of his jurisdiction as a judge. Dallas County v. Halsey, 87 S.W.3d 552, 554
(Tex. 2002).

Judicial immunity can attach to certain non-judges because the policy reasons for judicial immunity–
protection of individual judges and of the public’s interest in an independent judiciary–are also implicated
when judges delegate their authority, appoint another to perform services for the court, or allow another to
otherwise serve as an officer of the court. Id. In those circumstances, the immunity attaching to the judge
follows the delegation, appointment, or court employment. Id. The person acting in such a capacity thus
also enjoys absolute immunity, which is known as derived judicial immunity. Id.

Texas uses a “functional approach” to determine whether someone is entitled to derived judicial immunity.
Id. at 556-57. The “functional approach looks to whether the person seeking immunity is intimately
associated with the judicial process” and whether “that person exercises discretionary judgment
comparable to that of the judge.” Id. at 554 (citing Delcourt v. Silverman, 919 S.W.2d 777, 782 (Tex. App.–
Houston [14th Dist.] 1996, writ denied)). The functional approach focuses on the nature of the function
performed, not the identity of the actor, and considers whether the court officer’s conduct is like that of the
delegating or appointing judge. Id. at 555.

Radoff contends that, as a court-appointed receiver acting within the scope of his authority, he is entitled
to derived judicial immunity. We agree. “Like a court-appointed bankruptcy trustee acting within his
authority as trustee, a court-appointed receiver acts as an arm of the court and is immune from liability for
actions grounded in his conduct as receiver.” Rehabworks, LLC v. Flanagan, No. 03-07-00552-CV, 2009
WL 483207 (Tex. App.–Austin 2009, pet. denied) (mem. op) (citing Clements v. Barnes, 834 S.W.2d 45,
46 (Tex. 1992) (court-appointed bankruptcy trustees acting within scope of authority entitled to derived
judicial immunity); Alpert v. Gerstner, 232 S.W.3d 117, 130-31 (Tex. App.–Houston [1st Dist.] 2006, pet.
denied) (court-appointed receiver entitled to derived judicial immunity for all acts authorized by court, but
not for breach of fiduciary duties); Spigener v. Wallis, 80 S.W.3d 174, 183 (Tex. App.–Waco 2002, no
pet.) (characterizing court-appointed receiver as agent of court)).

“Once an individual is cloaked with derived judicial immunity because of a particular function being
performed for a court, every action taken with regard to that function–whether good or bad, honest or
dishonest, well-intentioned or not–is immune from suit. Once applied to the function, the cloak of immunity
covers all acts, both good and bad.” Id. (citing Ramirez v. Burnside & Rishebarger, L.L.C., No. 04-04-
00160-CV, 2005 WL 1812595 (Tex. App.–San Antonio Aug. 3, 2005, no pet.) (mem. op.)).

Here, the turnover order was issued by a Harris County justice court. It recited that “whereupon the Court’s
review of the papers herein on file, [the Court] became of the opinion that [Houston Reporting] holds and is
entitled to collect upon a true, final, valid and subsisting judgment against Defendant-in-Judgment,
VERONICA L. DAVIS . . . .” The Court accordingly ordered that

HENRY RADOFF, . . . be and is hereby appointed Receiver to serve after posting bond in the sum of $100
and taking the oath of office , in this case pursuant to the Texas Turnover Statute, with all the power and
authority to take possession of all non-exempt property of Respondent VERONICA L. DAVIS, that is in the
actual or constructive possession or control of Respondent VERONICA L. DAVIS, including but not limited
to all property incidental to or associated with the daily operation of Respondent VERONICA L. DAVIS . . .
including but not limited to all cash, . . . drafts and checks, monies on deposit in financial institutions,
financial accounts (bank accounts), certificates of deposit, money market accounts, accounts held by any
third party, . . . that is in the actual or constructive possession of Respondent VERONICA L. DAVIS; and to
pay the proceeds to the Receiver to the extent required to satisfy said judgment, but not to exceed the full
amount awarded under the judgment (or balance due if the judgment has been partially satisfied) which
amount includes principal, attorney’s fees and prejudgment interest, together with postjudgment interest
and costs and the amount of attorney’s fees awarded herein; . . .

On appeal, Davis complains that Radoff took actions violating the turnover order. Specifically, Davis
alleges that the order does not allow Radoff to seize property from the Bank but that he instead only may
receive property from Davis, that he must act in tandem with the constable or sheriff, and that he was
required to hold a hearing to determine the amount of money Davis needed to live on and to provide for
her dependents. Davis also appears to allege that Radoff seized exempt assets and that he improperly
seized her assets without providing a certified copy of the turnover order to the Bank.

However, as set out above, the turnover order in this case is extremely broad. The order granted Radoff
the explicit power to perform the acts that form the basis of Davis’s complaints–to locate and take control
of any cash she had deposited in bank accounts and to use that money to satisfy the underlying default
judgment against her. Davis’s petition does not allege any acts by Radoff except those performed in his
capacity as receiver, and those acts are within the bounds of the turnover order.

Davis’s argument regarding Texas Civil Practice and Remedies Code section 64.052 is also unsuccessful.
Section 64.052 allows suits against receivers “in their official capacity” to be brought in a court of
competent jurisdiction without permission of the appointing court. Tex. Civ. Prac. & Rem. Code Ann. §
64.052 (Vernon 2008). It is, in essence, a venue provision that has “the effect of making receivers subject
to the general venue statute and thereby served the convenience of the public by abolishing the common-
law rule that only the court appointing the receivers should have jurisdiction and venue on suits brought
against the receiver.” Carson v. Hilley, 484 S.W.2d 457, 460 (Tex. App.–Fort Worth 1972, no writ). Section
64.052 does not enlarge or restrict the causes of action that may be asserted against a receiver, nor does
it abrogate a receiver’s derived judicial immunity for acts taken within the scope of his receivership. See, e.
g., Rehabworks, LLC v. Flanagan, No. 03-07-00552-CV, 2009 WL 483207 (Tex. App.–Austin 2009, pet.
denied) (“We have already concluded that derived judicial immunity shields a court-appointed receiver
from suit in this case, where the receiver acts as an arm of the court and the suit is based on actions taken
within the scope of the receiver’s authority.”).
Accordingly, we conclude that the trial court properly granted summary judgment on Radoff’s motion for
summary judgment as a matter of law on his defense of derived judicial immunity.
Davis v. West (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)(derived judicial immunity) (turnover
reliefvoid vs voidable orderexistence of fiduciary dutysufficiency of notice of summary judgment
hearing)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-08-01006-CV  Veronica Davis v. James A. West, Henry V. Radoff,
Houston Reporting Services & Prosperity Bank, Inc..
Appeal from 149th District Court of Brazoria County
Trial Court Judge: Hon. Robert E. May

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

Derived Immunity Rebuttal

Davis v Medical Evaluation Specialists

(I’m only going to copy over the relevant parts – see the bold / underlined parts of what I have copied) Appellant pleaded that local plaintiffs attorneys had detected a bias against claimants by doctors affiliated with MES. For example, appellant’s pleadings alleged that when MES physicians were involved, the reports allegedly all read the same, and the result was allegedly almost always a 0% impairment rating. Appellant thus alleged that MES and its physicians were not participating in good faith in evaluating workers’ compensation claims.(FN2) Appellant contends that MES was subverting the TWCA by recruiting physicians who would ignore the American Medical Association (AMA) guidelines and knowingly assign false and fraudulent impairment ratingsthat would attract insurance company business.

The TWCC then designated another doctor to evaluate appellant (A Second Opinion). The new designated doctor examined appellant and assigned an impairment rating of 21% under the AMA guides.  (second opinion was in disagreement with the bias doctor)

(The bias doctors) moved for summary judgment, claiming absolute derived judicial immunity and qualified “good faith” immunity.   ( The trial court granted immunity)

In point of error one, appellant contends it was error for the trial court to grant the summary judgment motions of MES, Dr. DeFrancesco, and Dr. Dozier based upon either absolute derived judicial immunity or qualified “good faith” immunity.    These appellees rely heavily on Delcourt v. Silverman (which Sherry relies heavily on)

(The second opinion) affidavit created a fact issue as to whether Dr. DeFrancesco and Dr. Dozier acted in bad faith when they assessed appellant These appellees rely on Putthoff v. Ancrum, 934 S.W.2d 164, 166-67 (Tex. App.–Fort Worth 1996, writ denied), in which the plaintiffs complained that a negligent autopsy prevented them from proving their daughter was murdered. The pathologists claimed qualified judicial immunity, and their motion for summary judgment was denied.

In City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994), the supreme court adopted a good faith test consisting of “objective legal reasonableness.” This standard applies in all qualified or official immunity cases. Murillo v. Garza, 881 S.W.2d 199, 202 (Tex. App.–San Antonio 1994, no writ). The element of good faith is satisfied when it is shown that a reasonably prudent person in the same or similar circumstances would have taken the same actions. City of Houston v. Newsom, 858 S.W.2d 14, 18 (Tex. App.–Houston [14th Dist.] 1993, no writ). To controvert summary judgment proof on good faith, the plaintiff must do more than show a reasonably prudent person would not have taken the same action; “the plaintiff must show that ‘no reasonable person in the defendant’s position could have thought the facts were such that they justified defendant’s acts.‘” City of Lancaster, 883 S.W.2d at 657 (emphasis added).  (No reasonable person like the list of a dozen experts that have come in behind Sherry with second opinion reports??) plaintiffs did not lose because the defendants’ affidavits were unassailable. They lost because their own controverting affidavit was inadequate. All it stated was that the defendant doctors were negligent; it wholly failed to say that they acted in bad faith. See id. at 173.

“We must also bear in mind that it is not appellees’ burden to disprove good faith, but merely to raise a fact issue.” Murillo v. Garza, 904 S.W.2d 688, 692 (Tex. App.–San Antonio 1995, writ denied).

The appellees claim that (the second opinion) affidavit was conclusory and unsupported by any medical or other objective data. We (the appellate court) disagree.  We sustain the first point of error.

Delcourt, 919 S.W.2d at 787. This argument must fail because we have found above that the physicians in question are not immune if they acted in bad faith, and a fact issue was raised on this question. Unlike the court-appointed psychiatrist and the attorney ad litem defendants in Delcourt, and unlike the corrupt judge in the Delcourt hypothetical, appellees are not entitled to common-law absolute derived judicial immunity. They are immune by statute only for their acts “in good faith.” For acts in bad faith, they have no immunity. Tex. Lab. Code Ann. §§ 413.054(a), 402.010(b). These appellees’ contention that they derive immunity from Dr. Dozier and Dr. DeFranceso fails for the same reason. We sustain the second point of error.

We reverse the judgment and remand the cause.