                               ATTORNEY GENERAL OF TEXAS
                                            GREG       ABBOTT




                                              February 9,2004



The Honorable Greg Lowery                              Opinion No. GA-0146
Wise County Attorney
Wise County Courthouse, Room 300                       Re: Whether an officer, as bailiff and head of
Decatur, Texas 76234                                   courthouse security, is entitled to judicial immunity
                                                       from a suit for injuries occurring while removing
                                                       an individual from the courthouse (RQ-0094-GA)


Dear Mr. Lowery:

         You ask whether an officer acting as bailiff and chief of courthouse security is entitled to
judicial immunity from a suit for an assault allegedly occurring when the officer removed an
 individual from the courthouse. ’

        You state that Officer Dick Wood is the bailiff for the 271 st District Court and chief of
courthouse security with the responsibility “to protect the operations of the courthouse and the
people inside of it.” Request Letter, supru note 1, at 3-4. In May 2002, Officer Wood, a certified
peace officer, escorted Mr. Kelton from the Wise County Courthouse. See id. at 2. Previously, Mr.
Kelton had been asked not to return to the district attorney’s office, “due to his harassing nature.”
Id.

        Mr. Kelton went to the courthouse to complain to the grand jury about the assistant district
attorney and other courthouse employees. When Officer Wood asked Mr. Kelton to leave, Mr.
Kelton explained that he wished to present his complaints. Officer Wood took Mr. Kelton’s arm and
escorted him out the courthouse door. Outside, Mr. Kelton slipped on a doormat and fell. It is
disputed whether Mr. Kelton fell from his own exertions or because of Officer Wood’s actions. See
id.

         You ask: “If an assault has occurred, is Officer Wood covered by judicial immunity, as he
was acting in his capacity of bailiff and chief of courthouse security?” Id. at 3. You assert that a
baliff or a chief of courthouse security would be entitled to derived judicial immunity under these
circumstances because the “normal function of these positions is to escort or remove people fi-om
the courthouse when they have become disruptive to everyday courthouse proceedings or functions.”
Id.


         ‘See Letter from Honorable Greg Lowery, Wise County Attorney, to Honorable Greg Abbott, Texas Attorney
General (Aug. 11,2003) ( on f 11e with Opinion Committee) [hereinafter Request Letter].
The Honorable Greg Lower-y - Page 2                  (GA-0146)




         Derived judicial immunity, like judicial immunity, is immunity from suit for monetary
damages, not just fi-om the ultimate award of damages. Mireles v. Waco, 502 U.S. 9, 11 (1991).
Judicial immunity is imperative to foster judicial independence and to discourage collateral attack
of rulings that may be challenged by appeal. Pierson v. Ray, 386 U.S. 547, 553-54 (1967)
(recognizing judicial irnmunity from actions for damages under 42 U.S.C. 8 1983). Federal courts
utilize a functional approach to judicial immunity, focusing on the nature of the challenged action
or function and not the identity of the actor. Forrester v. White, 484 U.S. 219 (1988).

         Judicial innmmity has also been extended to others exercising discretion and judgment
comparable to judicial decisionmaking,         such as grand juries, petit jurors, prosecutors, and
administrative judges. Butz v. Economou, 438 U.S. 478,509- 13 (1978). However, the United States
Supreme Court has cautioned that absolute immunity must not be extended any further than the
policy reasons for the doctrine warrant, because it is presumed that in most cases qualified immunity
is sufficient to protect government officials exercising their official duties. Antoine v. Byers &
Anderson, Inc., 508 U.S. 429, 433 (1993). When determining whether an official is entitled to
absolute immunity, federal courts consider the historic immunity under the common law for the
relevant official’s functions and practical considerations of the official’s functions as currently
practiced. See id. at 432; Harlow v. Fitzgerald, 457 U.S. 800,8 1O-l l(l982). Central to the analysis
in such cases is whether the official’s challenged conduct was an exercise of discretion functionally
comparable to judicial decisionmaking.      Antoine, 508 U.S. at 436. “Accordingly, the ‘touchstone’
for the doctrine’s applicability has been ‘performance of the function of resolving disputes between
parties, or of authoritatively adjudicating private rights.“’ Id. at 435-36 (quoting Burns v. Reed, 500
U.S. 478,499-500 (1991) (Scalia, J., concurring in part and dissenting in part)); see also Forrester,
484 U.S. at 227-28 (judicial immunity does not apply to judges’ executive, legislative or
administrative functions).

          The Supreme Court of Texas determined that the functional approach discussed in Antoine
comports with derived judicial immunity that Texas courts apply to state-law claims. Dallas County
v. Halsey, 87 S.W.3d 552, 556-57 (Tex. 2002). In Halsey, the question was whether an official
district court reporter was entitled to absolute immunity from Dallas County’s suit for inaccurately
preparing a court reporter’s record. Id. at 553. The court first noted that when a judge delegates or
appoints another as an officer of the court or to perform services for the court, the court’s immunity
may follow the delegation or appointment. Id. at 554. However, because a court reporter preparing
a trial record does not engage in judicial decisionmaking, the court concluded that the reporter was
not entitled to derived judicial immunity. Id. at 556-57. The court stated that, “as applied in Texas,
the functional approach in applying derived judicial immunity 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.

         The United States Supreme Court in Antoine and the Supreme Court of Texas in Halsey
focused on whether the pertinent official exercised the functional equivalent of judicial
decisionmaking.   See also Clements v. Barnes, 834 S.W.2d 45,46 (Tex. 1992) (bankruptcy trustee);
Delcourt v. Silverman, 919 S.W.2d 777, 781 (Tex. App.-Houston [ 14th Dist.] 1996, writ denied),
cert. denied, 520 U.S. 1213 (1997) (psychiatrist and a guardian ad litem appointed to advise the
court). However, other courts have also applied derived judicial immunity to officials whose
functions may be more administrative or executive than judicial, but who act pursuant to the explicit
The Honorable Greg Lower-y - Page 3                 (GA-0146)




directions of a judicial officer. See Clay v. Allen, 242 F.3d 679,682 (5th Cir. 2001) (holding that
a court clerk enjoys absolute immunity for complying with the court’s express order or directive, but
only qualified immunity for routine duties that are not explicitly commanded); Mays v. Sudderth, 97
F.3d 107,113 (5th Cir. 1996) (holding that a sheriff acting within the scope of a facially valid arrest
warrant is absolutely immune from a suit for damages); Robinson v. Freeze, 15 F.3d 107 (8th Cir.
1994) (holding that a bailiff is immune for actions requested by the judge during trial). These courts
have reasoned that derived judicial immunity should protect court personnel and others acting
pursuant to a court’s order or at the court’s direction because enforcement of court orders is closely
intertwined with the judicial function, court personnel should not be subjected to harassing litigation
aimed at a judge’s ruling, and an official charged with enforcing a facially valid court order has no
choice but to comply. See In re Foust, 3 10 F.3d 849,855 (5th Cir. 2002).

         For example, federal courts generally hold that law enforcement officers have absolute
immunity for enforcing the terms of a court order but only qualified immunity for the manner in
which they choose to enforce it. See, e.g., In re Foust, 3 10 F.3d at 855 (officers not entitled to
absolute immunity for manner of executing turnover order); Richman v. Sheahan, 270 F.3d 430 (7th
Cir. 200 l), cert. denied, 53 5 U.S. 97 l(2002) (deputies who restrained an individual in the courtroom
were not judicially immune from wrongful death suit); Mays, 97 F.3d at 113 (holding that a sheriff
acting within the scope of a facially valid arrest warrant is absolutely immune from a suit for
damages); Martin v. Bd. of County Comm ‘rs, 909 F.2d 402, 405 (10th Cir. 1990) (holding that
officers were not entitled to absolute immunity against charge that they used excessive force in
executing a bench warrant); Haldane v. Chagnon, 345 F.2d 601,604 (9th Cir. 1965) (holding that
bailiff signing petition at express direction of judge is entitled to judicial immunity). However, at
least one federal court has held that an officer acting at the direction of a court will be immune even
for the manner of executing the court’s order. See Martin v. Hendren, 127 F.3d 720,721-22 (8th
Cir. 1997) (holding that bailiff was judicially immune from action for restraining an individual in
the courtroom at the judge’s specific order, including the charge of use of excessive force).

          In Robinson v. Freeze, 15 F.3d 107 (8th Cir. 1994), the court considered whether a bailiff was
judicially immune for conduct occurring during trial. The court noted that under the common law
bailiffs enjoyed imrnunity for attending the court during trial, but not other functions. Id. at 109.
Based on this analysis of a bailiffs historic common-law immunity and a functional analysis of the
bailiffs duties, the court concluded that the question of absolute immunity for bailiffs depends “on
whether the specific conduct of the bailiff at issue was quasi-judicial in nature.” Id. The court
determined that the bailiff would not be entitled to absolute immunity against claims that he
mishandled evidence while monitoring the jury unless the actions were specifically ordered by the
trial judge and related to a judicial function. Id.

        Texas courts have also often stated that court officials such as bailiffs may be entitled to
derived judicial immunity. In Byrd v. WoodrufJ 891 S. W.2d 689,707 (Tex. App.-Dallas 1994, writ
dism’d by agr.), the court stated: “In Texas, judicial immunity applies to officers of the court who
are integral parts of the judicial process, such as a prosecutor performing typical prosecutorial
functions, court clerks, law clerks, bailiffs, constables issuing writs, and court-appointed receivers
and trustees.” Accord Hawkins v. Walvoord, 25 S.W.3d 882, 890 (Tex. App.-El Paso 2000, pet.
denied) (holding that the court administrator selecting an attorney for indigent representation and the
sheriff taking the attorney into custody pursuant to court directive were entitled to judicial
The Honorable Greg Lowery - Page 4                               (GA-0146)




immunity); City of Houston v. W CapitaZ Fin. Sews. Corp., 961 S.W.2d 687, 690 (Tex.
App.-Houston    [ 1st Dist.] 1998, pet. dism’d w.o.j.) (but holding that a court clerk’s oversight of a
collections contract of traffic fees and fines was not a judicial function and clerk was not protected
by judicial immunity); Delcourt, 919 S. W.2d at 782 (holding that psychiatrist and guardian ad litem
appointed to advise court on child custody matters were entitled to immunity).

          In Hawkins v. Walvoord, an attorney sued a number of individuals, including a county court
 at law judge, the court administrator, and the sheriff, concerning a county bar plan to appoint
 attorneys to represent indigent criminals.      Hawkins, 25 S.W.3d at 886. With respect to the
 administrator and the sheriff, the court of appeals held that “[tlhe key consideration in determining
whether an officer is entitled to judicial immunity is whether the officer’s conduct is a normal
 function of the delegating or appointing judge.” Id. at 890. Pursuant to delegated authority, the court
 administrator selected the attorney’s name from the appointment list and rubber-stamped the judge’s
name on an order appointing the attorney.            Id. The court of appeals concluded that the
 administrator’s actions were entitled to derived judicial immunity because the delegated duty of
 appointing attorneys is a judicial function. Id. For similar reasons, the court also extended derived
judicial immunity to the sheriff, “as an officer of the court who played an integral part of the judicial
process, . . . and who arrested and placed Hawkins in the county jail on two separate occasions,
pursuant to facially valid judicial orders.” Id. at 891.

         We first review Officer Wood’s duties as a bailiff and chief of courthouse security.* Officer
 Wood is a deputy sheriff assigned to the 27 1st Judicial District Court. See Wise County Sheriffs
Department - Court Security, available at http://www.sheriff.co.wise.tx.us/court.htm.3        As court
bailiff, his principal responsibility is to act at the direction of the court. TEX. CODE CRIM.PROC.
ANN. art. 36.24 (Vernon 1981). Also, Officer Wood served as the grand jury bailiff.’ See id. art.
 19.36 (Vernon 1977) (the court and the district attorney may appoint a grand jury bailiff). A grand
jury bailiff performs duties as required by the grand jury foreman. See id. art. 19.37.

         Officer Wood is also chief of courthouse security. Request Letter, supra note 1, at 3. By
statute, the county sheriffhas “charge and control of the county courthouse, subject to the regulations
of the commissioners court.” TEX. Lot. GOV’T CODE ANN. 0 291.003 (Vernon 1999). It appears
that courthouse security is overseen by a committee including judges and other elected officers?

       While security personnel controlling access to a county courthouse may exercise discretion
when they engage members of the public, a court would likely characterize that discretion as


         *Chapter 53 of the Government Code provides for the appointment ofbailiffs by certain courts, but not the 27 1st
Judicial District Court. See TEX. GOV’T CODE ANN. 0s 53.001-.092 (Vernon 1998 & Supp. 2004); see generally 36
DAVIDB. BROOKS,TEXASPRACTICE:COUTUY AND SPECIALDISTRICT              LAW $22.24 (2002) (‘There is no general statute
governing the designation of a bailiff for the various courts.“).

          3See also TEX. CODE GRIM. PROC.ANN. art. 36.24 (Vernon 1981) (“The sheriff of the county shall furnish the
court with a bailiff during the trial of any case to attend the wants of the jury and to act under the direction of the court.“).

         4Telephone Conversation      with Margaret Shelton, Assistant District Attorney,      Wise County (Dec. 22,2003).

         ‘Id,
The Honorable Greg Lowery       - Page 5            (GA-0146)




 executive or administrative rather than the functional equivalent of judicial decisionmaking
 described in Antoine and Halsey. See Antoine, 508 U.S. at 436 (holding that judicial immunity does
not hinge on the importance of a court officer’s duties to the judicial process, but on the kind of
 discretionary judgment the officer exercises); Halsey, 87 S.W.3d at 555 (holding that “derived
judicial immunity 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.“).
 Consequently, when a bailiff or other courthouse security officer asserts derived judicial immunity
 a key question would be whether the complained-of action was taken pursuant to a specific judicial
order. The principal policy reasons for derived judicial immunity do not apply when an officer was
not acting pursuant to a facially valid order. An action against a baliff or other security officer for
the exercise of the officer’s own discretion would not be, in practical effect, a collateral attack on
a court order. See In re Foust, 3 10 F.3d at 855.

         Finally, even when an officer acts pursuant to a judicial order, a court might not provide
immunity from allegations that the officer’s actions exceeded that order. See id. ; Richman, 270 F.3d
at 437-38; Martin v. Bd. of County Comm ‘rs, 909 F.2d at 405. But see Martin v. Hendren, 127 F.3d
at 721-22. Of course, an officer not entitled to judicial immunity may assert other immunity
defenses such as official immunity, see Telthorster v. Tennell, 92 S.W.3d 457,460 (Tex. 2002), or
qualified immunity, see McPherson v. Kelsey, 125 F.3d 989,993 (6th Cir. 1997).
The Honorable Greg Lower-y - Page 6                  (GA-0146)




                                         SUMMARY

                         Derived judicial immunity applies to officials exercising the
                functional equivalent of judicial discretion. Generally, a bailiff and
                chief of courthouse       security screening individuals         from the
                courthouse would not be exercising the functional equivalent of
               judicial discretion. Derived judicial immunity may also apply to an
                official acting pursuant to facially valid judicial orders or instructions.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
