Opinion issued October 25, 2018




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-17-00857-CV
                           ———————————
                        GARY MACHETTA, Appellant
                                       V.
    THE HONORABLE LISA A. MILLARD, 310TH DISTRICT COURT
                      JUDGE, Appellee


                   On Appeal from the 234th District Court
                            Harris County, Texas
                      Trial Court Case No. 2017-23108


                         MEMORANDUM OPINION

      Appellant Gary Machetta filed the present lawsuit against Judge Millard,

asserting that her rulings in his custody proceeding violated his rights. Judge

Millard sought dismissal of Machetta’s claims under the doctrine of judicial

immunity. The trial court granted the motion to dismiss, and Machetta appealed.
      Because Judge Millard is immune from this lawsuit, we affirm.

                                   Background

      Machetta is the biological father of two minor daughters, who were aged 12

and 14 at times relevant to the underlying custody suit. He and his ex-wife were

joint managing conservators of the children. Before the underlying custody battle

at issue, Machetta lived with his new wife, his stepdaughter, and his 21-year-old

stepson.

      When Machetta’s 14-year-old daughter said that Machetta’s stepson had

been sexually abusing her, the girl’s mother (Machetta’s ex-wife) obtained a

temporary restraining order to prevent Machetta from exercising his extended

period of summer possession of the children. The court later held a bench trial,

after which Judge Millard limited Machetta’s visitation to supervised visits.

      Machetta then filed this separate lawsuit against Judge Millard, asserting that

the orders she entered in the custody dispute violated his rights under the Texas

Religious Freedom Restoration Act. He argued that the restricted, supervised

visitation infringed upon his ability to transmit his religion to his children and to

pray as a family unit.

      Judge Millard filed a motion to dismiss under Rule 91a based on the doctrine

of judicial immunity. The trial court granted the motion and Machetta appealed.




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                                     Analysis

      Under Rule 91a, “a party may move to dismiss a cause of action on the

grounds that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1; Guillory v.

Seaton, LLC, 470 S.W.3d 237, 240–41 (Tex. App.—Houston [1st Dist.] 2015, pet.

denied). “A cause of action has no basis in law if the allegations, taken as true,

together with inferences reasonably drawn from them, do not entitle the claimant to

the relief sought.” TEX. R. CIV. P. 91a.1. The court considers solely “the pleading

of the cause of action, together with any pleading exhibits,” and it does not

consider any other part of the record. TEX. R. CIV. P. 91a.6; see In re Guardianship

of Peterson, No. 01-15-00567-CV, 2016 WL 4487511, at *6 (Tex. App.—Houston

[1st Dist.] Aug. 25, 2016, no pet.) (mem. op.); Guillory, 470 S.W.3d at 241. We

review a dismissal under Rule 91a de novo. Guillory, 470 S.W.3d at 241.

      It has been well-settled for centuries that, subject to limited exceptions,

judges are immune—from suit and liability—for actions performed in their judicial

capacity.1 Mireles v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 288 (1991) (citing U. S.

Supreme Court authority from 1872 through 1988); Dallas Cty. v. Halsey, 87

S.W.3d 552, 554 (Tex. 2002); James v. Underwood, 438 S.W.3d 704, 709 (Tex.

App.—Houston [1st Dist.] 2014, no pet.). “[I]t is a general principle of the highest


1
      This has been a fundamental principle of law for more than 400 years.
      Bradley v. Fisher, 80 U.S. 335, 347 (1871) (noting that this rule was
      recorded as early as 1608).
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importance to the proper administration of justice that a judicial officer, in

exercising the authority vested in him, shall be free to act upon his own

convictions, without apprehension of personal consequences to himself.” James,

438 S.W.3d at 709 (quotation omitted). A judge will not be deprived of immunity

because a judicial action was erroneous or misguided.2 Stump v. Sparkman, 435

U.S. 349, 356–57, 98 S. Ct. 1099, 1105 (1978) (quoting Bradley v. Fisher, 80 U.S.

335, 351 (1871)); see also Alpert v. Gerstner, 232 S.W.3d 117, 127 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied).

      Immunity deprives a trial court of subject-matter jurisdiction over a suit

against a judge. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.

2006); James, 438 S.W.3d at 709. The judge is immune from suit—not just

immune from damages. Reata Constr. Corp., 197 S.W.3d at 374; James, 438

S.W.3d at 709.

      There are two exceptions to judicial immunity. First, a judge is not immune

for actions taken in the “complete absence of all jurisdiction.” And second, a judge

is not immune for nonjudicial actions, i.e., actions not taken in the judge’s judicial

capacity. See Mireles, 502 U.S. at 11–12, 112 S. Ct. at 288. We determine whether


2
      See also Bradley, 80 U.S. at 348 (“If civil actions could be maintained in
      such cases against the judge, because the losing party should see fit to allege
      in his complaint that the acts of the judge were done with partiality, or
      maliciously, or corruptly, the protection essential to judicial independence
      would be entirely swept away.”).
                                          4
a judge’s action is “judicial” by considering whether (1) the act complained of is

one normally performed by a judge, (2) the act occurred in the courtroom or an

appropriate adjunct such as the judge’s chambers, (3) the controversy centered on a

case pending before the judge, and (4) the act arose out of an exchange with the

judge in the judge’s judicial capacity. James, 438 S.W.3d at 709; see Bradt v.

West, 892 S.W.2d 56, 67 (Tex. App.—Houston [1st Dist.] 1994, writ denied).

      Neither exception to judicial immunity applies here. The challenged actions

fell within Judge Millard’s jurisdiction. Even Machetta admits, in his original

petition, that he moved in Judge Millard’s court to modify the parent-child

relationship and for injunctive relief. He acknowledged that her court was “the

court with continuing jurisdiction.” See James, 438 S.W.3d at 712 (“In determining

whether an act was clearly outside a judge’s jurisdiction for judicial immunity

purposes, the focus is not on whether the judge’s specific act was proper or

improper, but on whether the judge had the jurisdiction necessary to perform an act

of that kind in the case.”) (quotation omitted).

      Moreover, Machetta’s claims against Judge Millard stem from actions taken,

in her judicial role, in the custody suit before her. See id. at 709; Bradt, 892

S.W.2d at 67. In particular, Machetta challenges the following specific actions and

rulings: (1) an emergency TRO signed on July 5, 2016 by Judge Millard’s

associate judge, Judge Moren; (2) an August 9, 2016 injunction prohibiting


                                           5
Machetta from allowing his daughters to be in the same residence or premises as

his stepchildren “thus prohibiting the family from praying together as a family

unit”; (3) Judge Millard’s October 27, 2016 “oral no contact order,” which

restricted him “from any possession or access to his children”; (4) a temporary

order dated January 19, 2017 permitting Machetta supervised visits with his

daughters; (5) temporary orders signed on January 24, 2017; (6) Judge Millard’s

failure to rule on motions that Machetta filed in the custody suit; (7) the bench trial

conducted by Judge Millard; and (8) the final orders that Judge Millard signed on

March 7, 2017. These are all functions normally performed by a judge, concerning

a case pending before the judge, taken in the judge’s judicial capacity. See James,

438 S.W.3d at 710.

      Judge Millard is immune from this lawsuit arising from her judicial actions,

performed within her jurisdiction.3 Accordingly, Machetta’s allegations, taken as

true, together with inferences reasonably drawn from them, do not entitle him to

the relief sought. See TEX. R. CIV. P. 91a.1. The trial court properly dismissed

Machetta’s claims against Judge Millard. See id.; Mireles, 502 U.S. at 11, 112 S.

Ct. at 288; Halsey, 87 S.W.3d at 554; James, 438 S.W.3d 709.


3
      There are proper ways to challenge decisions made by a judge in her judicial
      capacity, in a case in which she has jurisdiction. See TEX. FAM. CODE
      § 109.002 (governing appeals from final orders in suits affecting the parent-
      child relationship). But this is not a viable way for Machetta to bring his
      challenges.
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                                   Conclusion

      None of Machetta’s issues on appeal establish that the doctrine of judicial

immunity does not apply in this case. See TEX. R. APP. P. 47.1. We affirm the trial

court’s judgment. We dismiss all pending motions as moot.




                                            Jennifer Caughey
                                            Justice

Panel consists of Chief Justice Radack and Justices Brown and Caughey.




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