                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-19-00373-CV

                                          Carissa L. BEENE,
                                               Appellant

                                                   v.

                               Keith HENNEKE and David Escamilla,
                                          Appellees

                   From the 425th Judicial District Court, Williamson County, Texas
                                    Trial Court No. 18-1071-C425
                              Honorable David Peeples, Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Luz Elena D. Chapa, Justice
                  Irene Rios, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: March 11, 2020

AFFIRMED

           This is an appeal of a trial court’s order dismissing the underlying cause pursuant to the

Texas Citizens Participation Act (TCPA). On appeal, Carissa L. Beene asserts the trial court erred

by: (1) concluding the TCPA applied to her claims; and (2) concluding the appellees established

the defense of absolute prosecutorial immunity. We affirm the trial court’s order.

                                            BACKGROUND

           On September 20, 2017, the Honorable Paul Davis signed an order holding attorney Adam

Reposa in contempt of court based on his actions during jury selection in a criminal trial in a Travis
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County court at law. Special Prosecutor Keith Henneke was appointed by Travis County Attorney

David Escamilla to represent the State in the contempt proceeding.

       On October 9, 2017, Beene, who is an attorney and represented Reposa in the contempt

proceeding, filed an application for writ of habeas corpus in a district court in Williamson County

challenging the validity of the contempt judgment. On October 12, 2017, the State, represented

by Escamilla and Henneke, filed a petition for writs of prohibition and mandamus in the Third

Court of Appeals. The petition challenged the jurisdiction of the Williamson County district court

to consider a habeas application relating to a contempt judgment entered by a Travis County court.

That same day, the Third Court of Appeals granted an emergency stay and stayed all proceedings

in the Williamson County habeas proceeding.

       On November 14, 2017, Beene filed a second application for writ of habeas corpus on

behalf of Reposa in a different district court in Williamson County. On November 17, 2017, the

trial judge assigned to preside over the second habeas application held a hearing and signed an

agreed order for emergency bond. The evidence is conflicting with regard to whether the trial

judge was informed of the stay imposed by the Third Court of Appeals.

       On November 17, 2017, the State, represented by Escamilla and Henneke, filed an

emergency motion for stay and motion for show cause hearing in the original proceeding still

pending in the Third Court of Appeals. The Third Court of Appeals stayed the second habeas

proceeding and ordered Beene to appear and show cause why she should not be held in contempt

of court. Prior to the show cause hearing, Henneke, acting on behalf of the State, filed the affidavit




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of the trial judge who signed the agreed order for emergency bond. In the affidavit, the trial judge

stated he was not informed of the stay previously imposed by the Third Court of Appeals. 1

         On September 28, 2018, Beene 2 filed the underlying lawsuit against Escamilla and

Henneke alleging claims for abuse of process and libel. 3 On November 30, 2018, Escamilla and

Henneke filed a motion to dismiss pursuant to the TCPA. On January 25, 2019, the trial court held

a hearing on the motion. After considering additional briefing filed after the hearing, the trial court

signed an order on February 25, 2019, granting the motion to dismiss which contained the

following rulings:

         1. The TCPA applies to this case.
         2. This case arose from an underlying contempt matter in which Escamilla is the
         Travis County Attorney and defendant Henneke had been acting as a duly
         authorized special assistant county attorney.
         3. Defendants have established the defense of absolute immunity.
         4. The case is dismissed with prejudice pursuant to the TCPA.

The trial court also ordered Beene to pay $9,240.53 in attorney’s fees.

                  TEXAS CITIZENS PARTICIPATION ACT AND STANDARD OF REVIEW

         A party in a legal action that “is based on, relates to, or is in response to a party’s exercise

of the . . . right to petition” may move for dismissal under the TCPA. Act of May 18, 2011, 82nd

Leg., ch. 341, § 2, R.S., 2011 Tex. Gen. Laws 961, 962 (amended 2019) (current version at TEX.

CIV. PRAC. & REM. CODE § 27.003(a)). 4 “Dismissal requires two steps.” Dall. Morning News,

Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019). “First, the party moving for dismissal must show,

by a preponderance of the evidence, that the ‘legal action is based on, relates to, or is in response



1
  Beene filed three affidavits, including her own, stating the trial judge was informed. Beene also stated in her affidavit
that the second habeas application challenged the writ of attachment resulting in Reposa’s arrest, and she believed that
challenge was independent of the challenge to the validity of the contempt judgment in the initial habeas application.
2
  The original petition was filed by Reposa as Beene’s attorney; however, Reposa filed a motion to withdraw as
Beene’s attorney on January 18, 2019.
3
  Beene also sued three justices of the Third Court of Appeals who she later non-suited.
4
  The 2019 amendments are not applicable to the underlying cause which was filed in 2018.


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to [the movant]’s exercise of the right’” to petition. Id. (quoting TEX. CIV. PRAC. & REM. CODE

ANN. § 27.003(a)). “The burden then shifts to the plaintiff to establish ‘by clear and specific

evidence a prima facie case for each essential element of the claim in question.’” Id. (quoting TEX.

CIV. PRAC. & REM. CODE ANN. § 27.005(c)). If the Act applies and the plaintiff establishes a prima

facie case, the trial court must still dismiss the suit if the defendant establishes each essential

element of a valid defense to the plaintiff’s claims by a preponderance of the evidence. Id. (citing

TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d)).

        We review whether the parties met or failed to meet their burdens of proof de novo. Id. In

our review, however, “[w]e view the pleadings and evidence in the light most favorable to the

nonmovant.” Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 603 (Tex. App.—San

Antonio 2018, pet. denied).

                                       RIGHT TO PETITION

        In her first issue, Beene contends the trial court erred in concluding the TCPA applied to

her claims, asserting the affidavit of the trial judge was not a communication by Escamilla and

Henneke; therefore, her claims were not based on, related to, or in response to their exercise of the

right to petition.

        The “exercise of the right of petition” includes “a communication in or pertaining to a

judicial proceeding” or a communication made in connection with an issue under judicial review.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4)(A)(i), (B). “A ‘communication’ is broadly

defined as ‘the making or submitting of a statement or document in any form or medium.’”

Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018) (quoting TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.001(1)). In fact, the Texas Supreme Court has described the definition of the “exercise of the

right of petition” as being “expansive.” Id.




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       “Courts must adhere to legislative definitions of terms when they are supplied.” Id.

“Substituting the statutory definitions for the defined terms, we see that the TCPA applies to a

legal action against a party that is based on, related to, or in response to the party’s making or

submitting of a statement or document in or pertaining to a judicial proceeding.” Id.

       Here, the affidavit of the trial judge was a document Escamilla and Henneke submitted to

the Third Court of Appeals pertaining to an original proceeding pending before that court. Beene

cites no case law to support her contention that the communication must be a communication by

the defendant rather than a communication by a third party that a defendant submits pertaining to

a judicial proceeding. Accordingly, adhering to the legislative definitions set forth in the TCPA,

we hold Escamilla and Henneke were exercising their right to petition in submitting the trial

judge’s affidavit to the Third Court of Appeals.

                                       ABSOLUTE IMMUNITY

       In her second issue, Beene contends the trial court erred in concluding Escamilla and

Henneke established absolute immunity as a valid defense “because 1) they were not prosecuting

a criminal action and arguably had no role at all at the show cause hearing, 2) they were acting as

investigators rather than prosecutorial function [sic], and 3) they were acting as [sic] the role of a

witness.”

       “District attorneys and other prosecutors are absolutely immune from liability when

performing their prosecutorial functions.” Charleston v. Pate, 194 S.W.3d 89, 90 (Tex. App.—

Texarkana 2006, no pet.). “This immunity protects not only chief prosecutors, but also their

assistants who perform prosecutorial functions.” Id.

       “The common-law immunity of a prosecutor is based upon the same considerations that

underlie the common-law immunities of judges and grand jurors acting within the scope of their

duties.” Imbler v. Pachtman, 424 U.S. 409, 422-23 (1976); see also Gentry v. Smith, No. 05-18-


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01181-CV, 2019 WL 4033947, at *3 (Tex. App.—Dallas Aug. 27, 2019, no pet. h.) (mem. op.)

(noting Texas courts follow federal jurisprudence in construing the doctrine of absolute

prosecutorial immunity). “These include concern that harassment by unfounded litigation would

cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he

would shade his decisions instead of exercising the independence of judgment required by his

public trust.” Imbler, 424 U.S. at 423. For these reasons, a prosecutor has absolute immunity for

activities that are an “integral part of the judicial process.” Id. at 430 (internal quotation marks

omitted). Stated differently, prosecutorial functions to which absolute immunity applies are those

“intimately associated with the judicial process.” Charleston, 194 S.W.3d at 90 (internal quotation

marks omitted). And, “[a]bsolute immunity protects a prosecutor even if the prosecutor acts in

bad faith or with ulterior motives, so long as he or she acts within the scope of his or her

prosecutorial functions.” Id.

         Beene first contends absolute prosecutorial immunity is not a valid defense against her

claims because Escamilla and Henneke “were not prosecuting a criminal action and arguably had

no role at all at the show cause hearing.” First, we disagree Escamilla and Henneke had no role in

the show cause hearing. They filed the motion for show cause hearing on behalf of the State based

on the stay they previously obtained on behalf of the State in the pending original proceeding. 5

Next, we reject Beene’s argument that Escamilla and Henneke were required to be “prosecuting a

criminal action” in order to establish the defense. First, filing affidavits in furtherance of a pending

motion is an integral part of and intimately associated with the judicial process. See Imbler, 424




5
  A prosecutor’s conduct in handling original proceedings relating to a criminal contempt proceeding is entitled to the
same immunity applicable to a prosecutor’s conduct in handling appeals. See Henzel v. Gerstein, 608 F.2d 654, 657
(5th Cir. 1979) (holding prosecutorial immunity applies to prosecutor’s conduct in handling appeals). As the Fifth
Circuit has noted, “[f]ear of civil liability could hinder a prosecutor’s judgment in conducting a case at the appellate
level as well as at the trial level.” Id.


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U.S. 430; Charleston, 194 S.W.3d at 90. In addition, the motion was filed in support of a motion

to show cause why Beene should not be held in contempt, and our sister courts have held actions

taken by prosecutors relating to contempt proceedings are prosecutorial functions entitled to

absolute immunity. See Hesse v. Howell, No. 07-16-00453-CV, 2018 WL 2750005, at *1-2, 7

(Tex. App.—Amarillo June 7, 2018, pet. denied); Hawkins v. Walvoord, 25 S.W.3d 882, 892 (Tex.

App.—El Paso 2000, pet. denied). As the El Paso court explained, “contempt proceedings are

quasi-criminal in nature” and “conform to criminal procedures.” Hawkins, 25 S.W.3d at 892.

Finally, we note the original proceeding in which the affidavit was filed challenged habeas relief

sought in regard to a contempt judgment which arose from actions taken during a pending criminal

trial. See Moon v. City of El Paso, 906 F.3d 352, 359 (5th Cir. 2018) (“If the prosecutor continues

his role as an advocate, absolute immunity extends to conduct during post-conviction

proceedings.”).

       Beene also argues Escamilla and Henneke were acting as investigators or complaining

witnesses in filing the affidavit. The Fifth Circuit, however, has recognized “the broad scope of

absolute prosecutorial immunity may even reach an apparently . . . investigative function if that

function requires legal knowledge and the exercise of related discretion.” Moon, 906 F.3d at 359

(internal quotation marks omitted, emphasis in original). Furthermore, actions taken to enforce a

court order, like the stay granted by the Third Court of Appeals, have been held to be prosecutorial

because they are intrinsically associated with a judicial proceeding. See Mays v. Sudderth, 97 F.3d

107, 112 (5th Cir. 1996). Finally, the affidavit was an integral part of the pending contempt

hearing. See Imbler, 424 U.S. at 423; see also Hamill v. Wright, 870 F.2d 1032, 1037 (5th Cir.

1989) (holding prosecutor entitled to full prosecutorial immunity relating to decision to bring

contempt proceedings and participation in those proceedings).




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                                          CONCLUSION

       Because we hold the TCPA applied to the underlying legal action and Escamilla and

Henneke established a valid defense, we affirm the trial court’s order.

                                                 Liza A. Rodriguez, Justice




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