Hughes v. Tarrant County Tex.

• Decision Date: 29 November 1991
• Docket Number: No. 91-1219,91-1219
• Parties: Thomas P. HUGHES, Plaintiff-Appellee, v. TARRANT COUNTY TEXAS, et al., Hon. Roy English, Dionne Bagsby, Bob Hampton, J.D. Johnson, O.L. Watson, Tim Curry, Ray Rike, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 918

948 F.2d 918

Thomas P. HUGHES, Plaintiff-Appellee, v. TARRANT COUNTY TEXAS, et al., Hon. Roy English, Dionne Bagsby, Bob Hampton, J.D. Johnson, O.L. Watson Tim Curry, Ray Rike, Defendants-Appellants.

No. 91-1219

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Nov. 29, 1991.

Van Thompson, Jr., Asst. Dist. Atty., Tim Curry, Crim. Dist. Atty., Ft. Worth, Tex., for defendants-appellants.

Grey Pierson, Pierson & Ray, Arlington, Tex., D. Nicholas Acuff, D. Nicholas Acuff

& Assoc., Ft. Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, DAVIS, and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In Texas state court, contempt proceedings were brought against the appellee, a Texas state court district court clerk, for his failure to comply with the state court's order to resume a particular office practice relating to notification of attorneys. The clerk requested the county commissioners to pay for the attorney's fees he incurred as a result of the contempt proceedings. His request was denied. He then filed a claim in state court alleging, inter alia, 42 U.S.C. § 1983 claims against the commissioners, the district attorney, and the assistant district attorney. The defendants removed the case to federal district court and filed a motion for summary judgment, which the district court denied. The defendants appeal, arguing they are entitled, respectively, to legislative and quasi-judicial absolute immunity from this suit. Because we find no error, we affirm.

I

In January 1987, the appellee, Thomas P. Hughes, acting in his official capacity as district court clerk of Tarrant County, Texas, ceased the practice of mailing the monthly dockets of the district court to the attorneys on the mailout list. In February, a judge of the 352nd Judicial District Court ordered Hughes to resume this practice. Hughes requested representation by the district attorney's office. This request was denied, leaving to Hughes the decision whether to seek private counsel. The judge ordered Hughes to show cause why he should not be held in contempt of court for failing to comply with the court's order to resume the mailing practice. Without approval, Hughes retained private counsel to represent him in the contempt proceedings. The judge again ordered Hughes to show cause and then found him in contempt of court. The contempt order was upheld on appeal to the Supreme Court of Texas. Ex parte Hughes, 759 S.W.2d 118 (Tex.1988).

On May 5, 1988, Hughes asked the Commissioners Court to pay his private attorney's fees resulting from the contempt proceedings. The Commissioners Court denied the request after receiving a letter from the district attorney's office, stating that, based upon the provisions of the Local Government Code, the Commissioners Court could not legally pay for the fees.

II

Hughes originally brought suit against Tarrant County, in state court, seeking a declaratory judgment declaring the county liable for his attorney's fees. He later amended his complaint, adding the individual county commissioners, the criminal district attorney, and the assistant district attorney of Tarrant County as defendants. He further added claims against all defendants under 42 U.S.C. § 1983 alleging deprivation of his civil rights, denial of equal protection under the Fourteenth Amendment to the Constitution, and conspiracy to deny him of his constitutional rights. The defendants removed the case to federal court and filed a motion to dismiss or for summary judgment, asserting the defenses of legislative and quasi-judicial absolute immunity. The trial court denied the motion.

III

On appeal, the defendants argue that their motion for dismissal or summary judgment should have been granted because they are absolutely immune from suit. The district court's denial of the appellants' claim of absolute immunity is "appealable before final judgment, for the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action." Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). The county commissioners argue that they are entitled to legislative immunity from this suit because the allocation and expenditure of public monies of the county was in the course of their official duties while acting as commissioners. The district attorney and his assistant argue that they are entitled to quasi-judicial immunity. We find no error in the district court's denial of absolute immunity, and therefore, we affirm.

IV

The county commissioners argue that the decision to refuse to compensate Hughes for his attorney fees incurred in the contempt proceedings was a decision regarding the allocation of county monies, and as such was a legislative function. The Supreme Court recognized absolute immunity from suit under 42 U.S.C. § 1983 for state legislators in Tenney v. Brandhove, 341 U.S. 367, 371, 71 S.Ct. 783, 785, 95 L.Ed. 1019 (1951). This absolute immunity was extended to regional legislators in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 399, 99 S.Ct. 1171, 1176, 59 L.Ed.2d 401 (1979). This court further extended absolute immunity to local legislators in Hernandez v. City of Lafayette, 643 F.2d 1188, 1193 (5th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982). Furthermore, legislative immunity not only protects legislators; it also protects officials fulfilling legislative functions. Minton v. St. Bernard Parish School Board, 803 F.2d 129, 135 (5th Cir.1986); Hernandez, 643 F.2d at 1193.

The Supreme Court "has extended legislative immunity both to appointed members of a regional planning agency, in a suit challenging one of the agency's ordinances, and to the justices of a state supreme court, in a suit challenging a provision of a state bar code promulgated by the court." Calhoun v. St. Bernard Parish, 937 F.2d 172, 174 (5th Cir.1991) (citing Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979), and Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980)). This court has extended legislative immunity to a mayor for his veto of two zoning ordinances and to police jurors for their spot zoning decision. Calhoun, 937 F.2d at 174, Hernandez, 643 F.2d at 1194. In Hernandez, this court reasoned:

When the mayor exercises his veto power, it constitutes the policy-making decision of an individual elected official. It is as much an exercise of legislative decision-making as is the vote of a member of Congress, a state legislator, or a city councilman. Id.

In Calhoun, this court stated that the spot zoning decision "was a legislative judgment, an evaluation of legislative facts." Calhoun, 937 F.2d at 174.

Not all actions taken by an official with legislative duties, however, are protected by absolute immunity--only those duties that are functionally legislative. Minton, 803 F.2d at 135.

When an official possessing legislative responsibilities engages in official activities insufficiently connected with the legislative process to raise genuine concern that an inquiry into the motives underlying his actions will thwart his ability to perform his legislative duties, vigorously, openly and forthrightly, he is not entitled to absolute immunity but only to the qualified immunity grounded in good faith that is bestowed upon other government officials. Id.

In Minton, this court remanded the issue of whether the school board's decision to appropriate funds to pay a tort judgment "involve[d] the degree of discretion and public-policy-making traditionally associated with legislative functions or merely an administrative application of existing policies." Minton, 803 F.2d at 135.

Even though this court has addressed the legislative immunity issue, it has not developed a clear standard by which to distinguish between legislative acts entitled to absolute immunity and non-legislative acts entitled only to qualified immunity. Other courts have attempted to establish such a standard. The courts have made a distinction between establishing a policy, act, or law and enforcing or administering it.

In Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580 (9th Cir.1984), the court held that city council members were not protected by absolute immunity for their decision to deny rock groups access to the city amphitheater. The court held that the city was simply monitoring and administering the contract with the plaintiff which gave the plaintiff the right to promote live entertainment in the amphitheater. "Administration of a contract does not involve the formulation of a policy.... Rather, it is more the type of ad hoc decisionmaking engaged in by an executive." Id.

In Scott v. Greenville County, 716 F.2d 1409 (4th Cir.1983), the county counsel refused to issue a real estate developer a building permit to construct low-income apartments, pending consideration of a rezoning proposal. The court held that the county council members were not entitled to legislative immunity. "When local zoning officials do more than adopt prospective, legislative-type rules and take the next step into the area of enforcement, they can claim only the executive qualified immunity appropriate to that activity." Id. at 1423.

In Cutting v. Muzzey, 724 F.2d 259 (1st Cir.1984), a subdivision developer brought a civil rights action against the members of a town planning board, arguing that they were imposing outrageous conditions on their approval of his development because of their racial animus towards his purchases. The board had decided to condition approval of the development on the completion of a road, rather than accept a bond as a guarantee of the road's completion. In describing the action of the planning board, the First Circuit Court stated:

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