AFFIRMED; Opinion Filed November 5, 2015.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00844-CV

                    JAMES BELL MCCOY, Appellant
                                 V.
   CRAIG WATKINS, JUSTIN LORD, LARRY MITCHELL, RAY GRISHAM, AND
                      HENRY M. WADE, Appellees

                       On Appeal from the 44th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-13-13955-B

                             MEMORANDUM OPINION
                           Before Justices Lang, Evans, and Whitehill
                                   Opinion by Justice Evans
       James Bell McCoy appeals the dismissal of his suit against former Dallas County District

Attorney Craig Watkins, Assistant District Attorney Justin Lord, Judge Larry Mitchell, former

Judge Ray Grisham, and former Judge Henry M. Wade.                Appellant presents four issues

contending the trial court erred in granting the dismissal because appellees are not entitled to

immunity, his suit is not an impermissible collateral attack on his conviction, and he has asserted

a cognizable claim for malicious prosecution. We affirm the trial court’s orders.

                                          BACKGROUND FACTS

       After pleading guilty and admitting in open court that he molested his step-daughter,

appellant was convicted in March 2005 of aggravated sexual assault. Appellant was sentenced to

thirty-five years’ confinement and this Court upheld his conviction on appeal. See McCoy v.
State, No. 05-05-00458-CR, 2007 WL 2325509 (Tex. App.—Dallas Aug. 13, 2007, no pet.). On

November 15, 2007, appellant filed a petition for writ of habeas corpus which was denied by the

court of criminal appeals. A year and a half later, appellant filed an application for writ habeas

corpus in federal court contending that the statute of limitations on his offense was improperly

extended in violation of the ex post facto protections of the United States Constitution. The

United States District Court for the Northern District of Texas concluded appellant’s argument

was without merit because (1) he had waived all non-jurisdictional defects by pleading guilty and

(2) there was no ex post facto violation. See McCoy v. Thaler, No. 3:09-CV-405-K, 2011 WL

4632869, at *2 (N.D. Tex. Sept. 14, 2011). The court noted that the new statute of limitations

was enacted before the original limitations period on appellant’s offense had expired. The

extension of a limitations period that has not yet expired does not violate constitutional

protections against ex post facto prosecutions. Id.

       On June 18, 2013, appellant filed this suit against the judges, district attorney, and

assistant district attorney who were involved in his indictment, prosecution, and conviction.

Appellant alleges that appellees committed malicious prosecution by applying a statute of

limitations to his offense that did not go into effect until after the offense was committed. His

claim, therefore, is based on the same alleged ex post facto violation that was rejected by the

federal court. See id. Appellees answered and moved to dismiss the suit asserting, among other

things, lack of subject matter jurisdiction on the ground of immunity. The trial court granted

appellees’ pleas to the jurisdiction and motions to dismiss and dismissed appellant’s claims with

prejudice. Appellant then brought this appeal.

                                                 ANALYSIS

       In his first issue, appellant contends the trial court erred in concluding appellees were

protected by immunity and dismissing his suit for lack of subject matter jurisdiction. Whether

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the trial court has subject matter jurisdiction is a matter of law that we review de novo. Willms v.

Americas Tire Co., Inc., 190 S.W.3d 796, 808 (Tex. App.—Dallas 2006, pet. denied). In

performing this review, we do not look to the merits of the case, but consider only the pleadings

and evidence relevant to the jurisdictional inquiry. Id. at 809.

       Appellant’s sole claim against each of the appellees is for malicious prosecution.

Appellant contends that appellees’ application of the later-enacted statute of limitations amounts

to malicious prosecution because he was indicted, prosecuted, and convicted in violation of the

ex post facto protections of both the United States and Texas constitutions.

        Judges enjoy absolute immunity from suit for judicial acts unless such acts fall clearly

outside the judge’s subject matter jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 356–57

(1978); Spencer v. City of Seagoville, 700 S.W.2d 953, 957–58, (Tex. App.—Dallas 1985, no

writ). Judges will not be deprived of such immunity even if the action taken was in error, done

maliciously, or in excess of authority. See Stump, 435 U.S. at 356. Similarly, prosecutors have

absolute immunity for activities “intimately associated with the judicial phase of the criminal

process.” See Font v. Carr, 867 S.W.2d 873. 877 (Tex. App.—Houston [1st Dist.] 1993, writ

dism’d w.o.j.) (citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Such activities include

initiating a prosecution and presenting the State’s case. Id.

       There is no dispute that the initiation of the case against appellant, the prosecution of that

case, and appellant’s conviction were all either judicial acts or acts “intimately associated with

the judicial phase of the criminal process.” Appellant argues that appellees were “acting outside

of their jurisdiction,” and thereby voiding all immunity protections, by prosecuting him under an

unconstitutionally applied limitations period. We first note that the issue of whether the new

limitations period was unconstitutionally applied to appellant has already been resolved against

him. See McCoy, 2011 WL 4632869, at *2. Furthermore, although qualified immunity may be

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defeated by a showing that the official knew or reasonably should have known the action he took

within the sphere of his official responsibility would violate the constitutional rights of the

plaintiff, or that he took the action with the malicious intent to cause a deprivation of

constitutional rights or other injury, no such limitation applies to the absolute immunity attendant

to actions taken by judges and prosecutors as part of the judicial phase of the criminal process.

See Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982); Oden v. Reader, 935 S.W.2d 470, 474–76

(Tex. App.—Tyler 1996, no writ). Because the actions about which appellant complains were all

either judicial acts or acts associated with the judicial process, appellees are protected by

absolute immunity from suit and the trial court lacks subject matter jurisdiction over appellant’s

suit.

        Based on the foregoing, we resolve appellant’s first issue against him. Because of our

resolution of appellant’s first issue, it is unnecessary for us to address his remaining issues. We

affirm the trial court’s orders.




                                                      /David W. Evans/
                                                      DAVID EVANS
140844F.P05                                           JUSTICE




                                                –4–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

JAMES BELL MCCOY, Appellant                           On Appeal from the 44th Judicial District
                                                      Court, Dallas County, Texas
No. 05-14-00844-CV          V.                        Trial Court Cause No. DC-13-13955-B.
                                                      Opinion delivered by Justice Evans. Justices
CRAIG WATKINS, JUSTIN LORD,                           Lang and Whitehill participating.
LARRY MITCHELL, RAY GRISHAM,
AND HENRY M. WADE, Appellees

       In accordance with this Court’s opinion of this date, the orders of the trial court
dismissing appellant JAMES BELL MCCOY’S suit are AFFIRMED.

       It is ORDERED that appellees CRAIG WATKINS, JUSTIN LORD, LARRY
MITCHELL, RAY GRISHAM, AND HENRY M. WADE recover their costs of this appeal from
appellant JAMES BELL MCCOY.


Judgment entered this 5th day of November, 2015.




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