     Case: 18-20323      Document: 00515073913         Page: 1    Date Filed: 08/13/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-20323
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
BRIAN ORTIZ,                                                              August 13, 2019
                                                                           Lyle W. Cayce
              Plaintiff-Appellant,                                              Clerk

v.

MONTGOMERY COUNTY, TEXAS; BRETT LIGON; PHIL GRANT; TIANA
SANFORD,

              Defendants-Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-3357


Before WIENER, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       The defendants in this case are three prosecutors from the District
Attorney’s Office in Montgomery County, Texas (“DA’s Office”). The DA’s
Office prosecuted Brian Ortiz for engaging in improper sexual contact with a
student in violation of Texas Penal Code § 21.12.                The DA’s Office later
dismissed the charges. Ortiz responded by suing the defendants under 42



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-20323   Document: 00515073913     Page: 2   Date Filed: 08/13/2019


                                No. 18-20323

U.S.C. § 1983 for allegedly prosecuting him in violation of the First, Fourth,
and Fourteenth Amendments. The district court dismissed the complaint. We
affirm.
                                         I.
      In 2013, Ortiz was a twenty-five-year-old man. He worked as a referee
for sporting events in Conroe Independent School District, including events at
Caney Creek High School. In January 2013, Ortiz began dating Trey Trott, an
eighteen-year-old student at Caney Creek.
      On February 25, 2013, the DA’s Office applied for a warrant to arrest
Ortiz. The warrant application alleged Ortiz had criminally inappropriate
contact with Trott, in violation of Texas Penal Code § 21.12. That provision
makes it a crime for “[a]n employee” of a school to commit certain sexual acts
with a student who is enrolled in the “school at which the employee works.”
Id. § 21.12(a)(1).
      The warrant application also included an affidavit by a peace officer
named John Stephenson. That affidavit detailed the sexual contact between
Ortiz and Trott. It averred Trott was a student in Conroe ISD. And it said:
“Affiant knows that Brian Joseph Ortiz has been employed by the Conroe
Independent School District since September of 2011.” The magistrate found
probable cause. Police arrested Ortiz.
      On September 14, 2016, the Texas Court of Criminal Appeals announced
a new interpretation of Texas Penal Code § 21.12. See State v. Sutton, 499
S.W.3d 434 (Tex. Crim. App. 2016). According to that court, a Conroe ISD
police officer who worked throughout the district—including at Caney Creek
High School—nonetheless did not “ ‘work’ ” at Caney Creek High School. Id. at
437–38 (quoting TEX. PENAL CODE § 21.12(a)(1)); but see Sutton v. State, 469
S.W.3d 607, 611–14 (Tex. App.—Beaumont 2015) (Johnson, J., dissenting).


                                         2
    Case: 18-20323    Document: 00515073913     Page: 3   Date Filed: 08/13/2019


                                 No. 18-20323

The same day the court issued its decision in Sutton, the DA’s Office dismissed
the charges against Ortiz.
      Unsatisfied, Ortiz sued the prosecutors under 42 U.S.C. § 1983. Ortiz
argued he never should have been arrested in the first place. That is so, he
said, because Conroe ISD referees are independent contractors, not
“employees” as required by Texas Penal Code § 21.12.
      The district court dismissed Ortiz’s complaint. It held, in relevant part,
that the prosecutors acted reasonably—not maliciously—in prosecuting Ortiz
and then dismissing the charges after Sutton. It held the prosecutors did not
violate the Fourth Amendment because they had probable cause to arrest Ortiz
for having sex with a student. And it held the prosecutors did not violate the
First Amendment because they had no retaliatory motive to prosecute Ortiz
for having sex with a student.
                                      II.
      We need not reach the merits of Ortiz’s claims because they are all
barred by absolute immunity.      It is well settled “that absolute immunity
applies when a prosecutor prepares to initiate a judicial proceeding, or appears
in court to present evidence in support of a search warrant application.” Van
de Kamp v. Goldstein, 555 U.S. 335, 343 (2009) (citations omitted).         The
prosecutors’ actions in this case fall squarely within that immunity. Ortiz’s
only allegations to the contrary are conclusory and hence irrelevant.        See
Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).
      AFFIRMED.




                                       3
