Opinion issued October 8, 2015




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-15-00076-CV
                             ———————————
                      ALAN NELSON CROTTS, Appellant
                                          V.
          JOHN F. HEALEY, JR. AND JEFF STRANGE, Appellees


                    On Appeal from the 268th District Court
                           Fort Bend County, Texas
                     Trial Court Case No. 14-DCV-217232


                           MEMORANDUM OPINION

      Alan Nelson Crotts sued his local district attorney and assistant district

attorney for refusing to prosecute a theft allegedly committed against him by

Jessalyn Cole, the mother of his children, in a dispute over child support payments.

The defendants filed a plea to the jurisdiction, which the trial court granted. Crott’s
case was dismissed. In three issues, Crotts contends that (1) the trial court erred in

granting the plea because the district attorney and assistant district attorney are not

entitled to prosecutorial immunity, (2) this lawsuit is not an impermissible

collateral attack on his child support proceeding, and (3) the trial court should not

have dismissed the lawsuit “with prejudice.” Because the defendants are entitled to

absolute prosecutorial immunity, we affirm.

                                    Background

      Jessalyn Cole, the mother of Alan Nelson Crotts’s children, claimed Crotts

owed child support. The Child Support Division of the Office of the Attorney

General garnished nearly $7,000 from Crotts’s income tax return for child support

payments. Crotts argued that Cole was not entitled to the $7,000.

      In a lawsuit for modification of the child support order, the trial court denied

Crotts’s request for a $7,000 credit for the alleged overpayment resulting from the

garnishment. About a year after that order, Crotts reported Cole to the Sugar Land

Police for theft of the $7,000 in child support Crotts claimed he did not owe. Jeff

Strange, the Assistant District Attorney for Fort Bend County, informed the police

he would not prosecute Cole for theft.

      Crotts filed this lawsuit against John F. Healey, Jr., the Fort Bend District

Attorney, and Strange for failure to prosecute Cole, alleging civil rights violations,




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breach of contract, and abuse of process. Healey and Strange filed a plea to the

jurisdiction, which the trial court granted. Crotts appeals.

                                Standard of Review

      A plea to the jurisdiction challenges the trial court’s subject-matter

jurisdiction over a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.

2000); Pineda v. City of Houston, 175 S.W.3d 276, 279 (Tex. App.—Houston [1st

Dist.] 2004, no pet.). Subject-matter jurisdiction is required for a court to have

authority to decide a case and is never presumed. Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 443–45 (Tex. 1993). The plaintiff has the burden to

allege facts affirmatively demonstrating that the trial court has subject-matter

jurisdiction. Id. at 446; Richardson v. First Nat’l Life Ins. Co., 419 S.W.2d 836,

839 (Tex. 1967).

      The existence of subject-matter jurisdiction is a question of law. State Dep’t

of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002);

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Therefore, we

review de novo the trial court’s ruling on a plea to the jurisdiction. Mayhew, 964

S.W.2d at 928.




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                             Prosecutorial Immunity

      Healey and Strange argue they are entitled to “the defense of absolute

prosecutorial immunity from any suit for damages,” for their conduct performing

discretionary duties.

      Crotts disagrees, arguing that “prosecutors enjoy absolute immunity only

when initiating a prosecution and in presenting the State’s case.” Crotts argues

Healey and Strange never initiated a case, instead they “advised the Sugar Land

Police Department that they would not prosecute a case. . . . In essence, [Healey

and Strange] performed no duties related to their office.”

A.    Healey and Strange are entitled to absolute prosecutorial immunity

      A prosecutor, in certain circumstances, is entitled to absolute immunity from

a lawsuit for damages. Imbler v. Pachtman, 424 U.S. 409, 411, 96 S. Ct. 984, 986

(1976); Bradt v. West, 892 S.W.2d 56, 71 (Tex. App.—Houston [1st Dist.] 1994,

writ denied). Absolute immunity extends to both a prosecutor and to the

prosecutor’s deputies. See Imbler, 424 U.S. at 411, 96 S. Ct. at 986 (applying

absolute prosecutorial immunity to deputy district attorney). To determine when a

prosecutor is entitled to immunity, Texas applies a “functional approach.” Bradt,

892 S.W.2d.at 69. This approach “focuses on the nature of the official acts of

which the plaintiff complains” and shields a prosecutor for acts “intimately

associated with the judicial phase of the criminal process.” Id. at 69–70. In


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applying the functional approach, “Texas courts follow federal jurisprudence.”

Clawson v. Wharton Cnty., 941 S.W.2d 267, 271 (Tex. App.—Corpus Christi

1996, writ denied); see Bradt, 892 S.W.2d at 69; Brown v. Lubbock Cnty. Comm’rs

Court, 185 S.W.3d 499, 505 (Tex. App.—Amarillo 2005, no pet.); Oden v. Reader,

935 S.W.2d 470, 474 (Tex. App.—Tyler 1996, no writ).

      The decision on whether to initiate a prosecution is a “quintessential

function” of a prosecutor “intimately associated with the judicial phase of the

criminal process.” Bradt, 892 S.W.2d at 70. Thus, “in initiating a prosecution . . .

the prosecutor is immune from a civil suit for damages.” Imbler, 424 U.S. at 430,

96 S. Ct. at 995. A prosecutor receives absolute immunity because civil liability

“for his decision to initiate and pursue a prosecution could skew his

decisionmaking, tempting him to consider the personal ramifications of his

decision rather than rest that decision purely on appropriate concerns.” Bradt, 892

S.W.2d at 70 (quoting Schloss v. Bouse, 876 F.2d 287, 289–90 (2d Cir. 1989)).

      Texas law does not support Crotts’s distinction between initiating and

declining to initiate a prosecution. “[T]he decision not to prosecute . . . is the

quintessential function of a prosecutor.” Clawson, 941 S.W.2d at 272; see Font v.

Carr, 867 S.W.2d 873, 876 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d

w.o.j.) (citing Miller v. Curry, 625 S.W.2d 84, 87 (Tex. App.—Fort Worth 1981,

writ ref’d n.r.e.)) (recognizing “absolute prosecutorial immunity for decisions to


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prosecute or not prosecute criminal complaints”). Public policy supports applying

prosecutorial immunity when a prosecutor chooses not to initiate a prosecution

because, “if the prosecutor were not immune . . . suits for civil damages could be

expected with considerable frequency from disgruntled, frustrated citizens whose

complaints and grievances the prosecutor, in exercising his best judgment, chose

not to file and prosecute. His time, energies and resources would be seriously

affected.” Miller, 625 S.W.2d at 87. Eleven federal circuits have reached the same

conclusion. Pugh v. Balish, 564 F. App’x 1010, 1013 (11th Cir. 2014); Smith v.

McCarthy, 349 F. App’x 851, 859 (4th Cir. 2009); Nedab v. Litten, 184 F. App’x

261, 262 (3d Cir. 2006); Botello v. Gammick, 413 F.3d 971, 976 (9th Cir. 2005);

Steele v. City of Bemidji, 257 F.3d 902, 906 (8th Cir. 2001); Ireland v. Tunis, 113

F.3d 1435, 1446 (6th Cir. 1997); Mendenhall v. Goldsmith, 59 F.3d 685, 691 n.10

(7th Cir. 1995); Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 31 (1st Cir. 1995);

Schloss, 876 F.2d at 290; Morrison v. City of Baton Rouge, 761 F.2d 242, 248 (5th

Cir. 1985); Dohaish v. Tooley, 670 F.2d 934, 938 (10th Cir. 1982).

      Under Texas law, Healey and Strange are entitled to absolute prosecutorial

immunity for their decision not to prosecute Cole. Crotts attempts to circumvent

prosecutorial immunity by alleging that he in only complaining of “legal advice”

Strange gave the police to not file a police report. A prosecutor is not protected by

absolute immunity when giving legal advice to law enforcement. Burns v. Reed,


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500 U.S. 478, 496, 111 S. Ct. 1934, 1944–45 (1991); Font, 867 S.W.2d at 875. In

Font v. Carr, a bondsman sued a prosecutor for advising the sheriff to require the

bondsman to show additional proof of sufficiency of security for bonds he posted.

Font, 867 S.W.2d at 875. This Court held that this advice was not “bound up with

the judicial process” and, thus, the prosecutor was not entitled to absolute

prosecutorial immunity. Id. at 874, 876. In contrast, the advice here was

intertwined with the decision not to prosecute. Crotts’s petition makes clear that

Healey and Strange’s decision not to prosecute Cole underlies all of his asserted

causes of action. 1

      This “advice” Strange gave the police was connected with the district

attorney’s office’s decision not to prosecute. See Koubriti v. Convertino, 593 F.3d

459, 469–70 (6th Cir. 2010) (holding prosecutor’s recommendation to police

officer that he need not disclose certain evidence to defendant was not “legal

advice” but rather part of decisions for which the prosecutor was entitled to

prosecutorial immunity). Because Healey and Strange did not give the police any
1
      In his cause of action for violation of his civil rights, Crotts complains that Healey
      and Strange “have refused to prosecute crimes committed against the Plaintiff in
      the same manner as crimes committed against others.” In his cause of action for
      breach of contract, Crotts complains that “the Defendants substantially breached
      [their employment] contract, failing in whole or in part, to faithfully perform their
      duties, which include, but are not limited to, the diligent prosecution of crimes
      committed within their jurisdiction, refusing to prosecute crimes not supported by
      probable cause, and to see that justice is done, not merely seek convictions.” In his
      cause of action for abuse of process, Crotts complains that “[t]he Defendant’s
      perverted the proper use of legal process by refusing to prosecute crimes
      committed against the Plaintiff, thereby violating the Plaintiff’s civil rights.”
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legal advice and Crotts only complains of their decision not to prosecute Cole,

Healey and Strange are entitled to absolute prosecutorial immunity.

      To the extent absolute prosecutorial immunity may not shield Healey and

Strange from liability for breach of contract, Crotts cannot successfully assert a

breach-of-contract claim against them. To successfully assert a claim for breach of

contract, a contract must exist between the parties. Graves v. Logan, 404 S.W.3d

582, 584 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Crotts claims that Healey

and Strange’s oaths of office constitute a contract between them and the public. No

contract, however, has been entered into between Crotts and Healey and Strange;

thus, Crotts cannot sue them for breach of contract. See Price v. Schnaufer, 81

S.W.2d 160, 160–61 (Tex. Civ. App.—Fort Worth 1935, no writ) (holding that

member of public cannot assert breach-of-contract claim against police officer

based on contract formed by police officer’s oath of office).

      Because Healey and Strange are entitled to absolute immunity, we overrule

his first issue. We do not reach the issues of qualified immunity, state sovereign

immunity, or Eleventh amendment immunity. Nor do we reach Crotts’s second

issue of whether this lawsuit constituted an improper collateral attack on the child

support proceedings.




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B.    Dismissal with prejudice

      In his third issue, Crotts argues that the trial court should have dismissed his

lawsuit without prejudice. Ordinarily, if the trial court grants a plea to the

jurisdiction, it should not dismiss the lawsuit with prejudice until it first affords the

plaintiff a reasonable opportunity to amend the jurisdictionally defective pleading.

Univ. of Tex. M. D. Anderson Cancer Ctr. v. Eltonsy, 451 S.W.3d 478, 482 (Tex.

App.—Houston [14th Dist.] 2014, no pet.). “Incurably defective claims, however,

must be dismissed with prejudice.” Tex. A & M Univ. Sys. v. Koseoglu, 233

S.W.3d 835, 846 (Tex. 2007). A dismissal of a lawsuit by granting a plea to the

jurisdiction on the grounds of immunity “is with prejudice because a plaintiff

should not be permitted to relitigate jurisdiction once that issue has been finally

determined.” Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). Here, the

jurisdictional defects are incurable: no amount of repleading will overcome

absolute immunity. Accordingly, we conclude that the trial court did not err in

dismissing Crotts’s lawsuit with prejudice. We overrule his third and final issue.

                                      Conclusion

      We affirm the judgment of the trial court.



                                               Harvey Brown
                                               Justice

Panel consists of Justices Jennings, Higley, and Brown.

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