           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         January 17, 2008

                                     No. 07-50548                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


RAY E DUNN,

                                                  Plaintiff - Appellant,
v.

Honorable BRENDA KENNEDY, Judge of the 403rd State District Court,
Austin, Travis County, Texas; Debra Hale, Director of Court Administration,
Austin, Travis County, Texas,

                                                  Defendants - Appellants.



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:06-CV-647


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff Ray E. Dunn, an attorney in Austin, Texas, filed this suit against
Defendants Judge Brenda Kennedy and Director of Court Administration Debra
Hale alleging that Defendants’ actions in removing him from the court
appointment list violated his constitutional right to due process. Dunn further



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-50548

asserted state law claims for defamation, breach of contract, intentional
infliction of emotional distress, tortious interference with prospective relations,
and wrongful removal from court appointment list.           Defendants moved to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting judicial
immunity from suit. The district court granted the motion, concluding that the
actions of both Judge Kennedy and Hale were taken in executing a judicial
function, and that therefore, Defendants were entitled to absolute judicial
immunity from all claims asserted by Dunn. Dunn appealed.
      Dismissal pursuant to Rule 12(b)(6) is appropriate only when “it appears
that no relief could be granted under any set of facts that could be proven
consistent with the allegations.” Meadowbriar Home for Children, Inc. v. Gunn,
81 F.3d 521, 529 (5th Cir. 1996). We review the district court’s action de novo,
accepting as true all well-pleaded facts in Dunn’s complaint. Id.
      Judicial officers are entitled to absolute immunity from claims for damages
arising out of acts performed in the exercise of their judicial functions. Boyd v.
Biggers, 31 F.3d 279, 284 (5th Cir. 1994). This immunity can be overcome only
by demonstrating that the conduct complained of was non-judicial or by showing
that the conduct was “in the complete absence of all jurisdiction.” Id.
      On appeal, Dunn argues that the disputed acts were not judicial in nature
because the actions were taken in an administrative capacity, rather than in
Judge Kennedy’s judicial capacity. This argument is without merit. This Court
utilizes the following four factor test to determine whether a judge acted within
the scope of her judicial capacity: (1) whether the precise act complained of is a
normal judicial function; (2) whether the acts occurred in the courtroom or
appropriate adjunct spaces such as the judge’s chambers; (3) whether the
controversy centered around a case pending before the court; and (4) whether the
acts arose directly out of a visit to the judge in his official capacity. Ballard v.
Wall, 413 F.3d 510, 515 (5th Cir. 2005). Here, each of the four factors weighs in

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favor of a finding of judicial immunity. First, the governing Texas statute
“authorize[s] only the judges,” or the judges’ designee, to appoint counsel for
indigent defendants in the county and to adopt and publish written procedures
for the timely and fair appointment of counsel. TEX. CODE CRIM. PROC. ART.
26.04 (Vernon 2006). Further, the appointment of counsel to represent indigent
defendants is a function normally performed by a judge acting in his judicial
capacity. See Roth v. King, 449 F.3d 1272, 1286-87 (D.C. Cir. 2006) (holding that
judges acted in judicial, not administrative, capacity in creating a family court
attorney panel system and selecting attorneys for inclusion on panel); Hawkins
v. Walvoord, 25 S.W. 3d 882, 891 (Tex. App. 2000) (holding that actions taken by
judges in implementing state’s indigent defense system are judicial acts within
their jurisdiction). Second, Dunn has not alleged that the decision made by
Defendants was made anywhere other than in the Travis County courthouse
building, which is certainly a space adjunct to a judge’s chambers. Third, the
decision to remove Dunn centered around a case pending in court inasmuch as
Dunn’s removal was based on his conduct stemming from his representation of
indigent defendants before the court. Finally, the acts arose from a visit to the
judge in her official capacity, as Dunn’s practice before the court and submission
of payment vouchers were all directed toward the judge in her official capacity.
Because all four factors weigh in favor of a finding of judicial immunity, the
district court correctly concluded that Judge Kennedy’s actions were grounded
in judicial acts and that she is entitled to judicial immunity. Ballard, 413 F.3d
at 515-518.
      This case is distinguishable from Forrester v. White, 484 U.S. 219 (1988),
which held that judges are not absolutely immune for employment decisions
involving the hiring and firing of court personnel.      First, Dunn is not an
employee of the Court. The payment of a private attorney to represent criminal
defendants by court appointment is not tantamount to employment by the

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judicial system. Second, in this case, the judicial function at issue is the
appointment of outside counsel to represent clients before the court, not the
hiring or firing of court personnel. See Roth, 449 F.3d 1272, 1287.
      Hale is also entitled to judicial immunity. Judicial immunity also extends
to other court personnel to the extent that they were acting at the judge’s
direction. Clay v. Allen, 242 F.3d 679, 682 (5th Cir. 2001) (holding that court
clerks are entitled to absolute immunity for acts they are specifically required
to do under court order or at a judge’s discretion). Here, allegations against Hale
are that she removed Dunn from the court appointment list at the direction of
Judge Kennedy.      Therefore, because Hale acted at the direction of Judge
Kennedy, she is entitled to immunity as well. Id.
      Dunn has shown no error in the judgment of the district court.
Consequently, that judgment is AFFIRMED.




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