Parker v. Holbrook, 01-81-0852-CV

• Decision Date: 31 August 1982
• Docket Number: No. 01-81-0852-CV,01-81-0852-CV
• Citation: 647 S.W.2d 692
• Parties: James P. PARKER, Appellant, v. C. Ray HOLBROOK, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 692

647 S.W.2d 692

James P. PARKER, Appellant, v. C. Ray HOLBROOK, Appellee.

No. 01-81-0852-CV.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 31, 1982.

Rehearing Denied Oct. 21, 1982.

Michael S. Tomasic, Houston, for appellant.

James R. Ansell, Galveston, for appellee.

Before DOYLE, DYESS and DUGGAN, JJ.

OPINION

DYESS, Justice.

This is an appeal from a summary judgment granted by the trial court in this slander suit brought by reason of comments made by Judge Holbrook, the appellee, in a hearing before the executive committee of the Houston-Galveston Area Council (H-GAC). Judge Holbrook was present and participating as a member of such committee. Judgment was granted, apparently on the basis that the hearing was quasi-judicial in nature and therefore all comments made during the hearing were absolutely privileged or non-actionable.

The appellant raises four points of error on appeal as follows:

Point of Error Number One

The District Court erred in granting appellee's motion for summary judgment and in overruling appellant's motion for new trial because as a matter of law the executive committee of the Houston-Galveston Area Council was not a quasi-judicial body at the meeting in which appellee made defamatory statements about appellant's character and reputation.

Point of Error Number Two

The District Court erred in granting appellee's motion for summary judgment and in overruling appellant's motion for new trial because material issues of fact existed regarding appellee's entitlement to claim an absolute privilege to make defamatory statements about appellant's character and reputation.

Point of Error Number Three

The District Court erred in granting appellee's motion for summary judgment and in overruling appellant's motion for new trial because as a matter of fact the factually sufficient evidence presented by appellee did not entirely preclude all issues of fact establishing the executive committee of the Houston-Galveston Area Council as a quasi-judicial body.

Point of Error Number Four

The District Court erred in granting appellee's motion for summary judgment and in overruling appellant's motion for new trial because as a matter of law the admissible evidence presented by appellee did not entirely preclude all material issues of fact establishing the executive committee of the Houston-Galveston Area council as a quasi-judicial body.

The thrust of the appellant's points of error is his claim that the executive committee of the H-GAC is not a quasi-judicial body.

Based upon the record before the court, we conclude that the executive committee of the H-GAC as a matter of law is not a quasi-judicial body and that consequently, no absolute privilege is conferred upon the Holbrook statements. We do find, however, that a qualified privilege exists to protect Holbrook's statements, requiring the cause to be reversed and remanded to the trial court for a hearing on the merits to determine if Holbrook's statements were made with malice.

What does the record reflect as to the nature and function of the H-GAC? It appears that it is a regional council of governments, i.e., the regional planning agency for a 13 county area of the state designated by the governor. According to the director of the agency, the council "performs a variety of long-term planning jobs for particular governmental responsibilities which are inherently multi-jurisdictional in nature." One of the council's functions, and the one which is particularly involved in the case at bar, is its position as a health systems agency for the 13 county governments it represents. In this capacity, the H-GAC reviews requests from private and public entities for federal funds, and decides whether to recommend these applicants to the federal government for funding.

At the hearing in question in this case, the H-GAC executive committee was considering whether to recommend continued federal support for the "4-C's Clinic program," a Galveston County Coordinated Community Clinics Program. Although a decision of the H-GAC is not binding on the federal funding agencies, it appears that its recommendations are followed in approximately 90% of the applications coming before it. Consequently, whatever comments were made at the hearing could have a substantial impact on the vitality of the 4-C's Clinic program.

The appellant appeared before the committee with the obvious purpose of persuading it not to recommend the 4-C's Clinic for continued funding. After the appellant had concluded his comments, the appellee, who had had a major role in the initial organization of the clinic, and who was in favor of the program, made the following remarks:

I think in addition to the merits of this program you also ought to know that Dr. Parker is the kind of person that sued Galveston County in the past for alledged drainage problems on his ranch over near the Brazoria County line. He also is a politician. He ran for the State Senate last year, against Senator A.R. Schwartz, and is held in very low esteem by his colleagues at the Galveston County Memorial Hospital. Also, we refer you to any politician in Galveston County who at one time or other he has castigated. And it seems like that every month or two he is on some new kick about criticizing some program in Galveston County and this just happened to be the newest one that he is on. I think his credibility is very low and I think if you talk to anybody in Galveston County who is involved in this 4-C's program including the Medical Branch you will find it is one of the finest medical programs in the State of Texas.

Summary judgment, it would appear, was granted on the basis of the court's conclusion that the hearing was quasi-judicial in nature, and, therefore, that any comments made during the hearing were absolutely privileged. If the H-GAC's Executive Committee was exercising quasi-judicial functions at this particular hearing, i.e., if it was functioning in a quasi-judicial manner, an absolute privilege would attach to every statement made during the proceeding. This in itself is important, because absolute privilege is one of only two total defenses to a claim of slander; the other one is truth, Zarate v. Cortinas, 553 S.W.2d 652 (Tex.Civ.App.--Corpus Christi 1977, no writ). When an absolute privilege is accorded to statements made in a proceeding, no action in damages will lie, even though the statements are false and uttered with express malice. Reagan v. Guardian Life Insurance Co., 140 Tex. 105, 166 S.W.2d 909 (Tex.1942). The privilege is based on public policy considerations that every citizen should have the unqualified right to appeal to the agencies of his government for redress, without the fear of being called to answer in damages for libel or slander, and that the public will be benefitted and the administration of justice advanced if witnesses are not deterred by fear of lawsuits. Moore & Associates v. Metropolitan Life Insurance Co., 604 S.W.2d 487 (Tex.Civ.App.--Dallas 1980, no writ). In short, conduct, which would otherwise be actionable, escapes the burden of liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation. Zarate, supra.

Since an absolute privilege completely forecloses a remedy in a civil action, the class of absolute privileges has traditionally been very limited. Putter v. Anderson, 601 S.W.2d 73 (Tex.Civ.App.--Dallas 1980, writ ref. n.r.e.). Originally, only those proceedings that were of a judicial nature were deemed to warrant the protection of an absolute privilege. Id. at 76. Later, the protection was expanded to include some proceedings held before administrative agencies or commissions that were of a judicial nature and warranted the protection. Aransas Harbor Terminal Railway Co. v. Taber, 235 S.W. 841 (Tex.1921). These judicial powers exercised by administrative agencies have been described as quasi-judicial powers, encompassing the notion that they are exercised by non-judicial agencies. 1 Am.Jur.2d § 160. A quasi-judicial power has been described as the power or duty to investigate and to draw conclusions from such investigations. Id. At least six powers have been delineated as comprising the judicial function and would be indicative of whether a commission was acting in a quasi-judicial, or merely an administrative, capacity: 1) the power to exercise judgment and discretion; 2) the power to hear and determine or to ascertain facts and decide; 3) the power to make binding orders and judgments; 4) the power to affect the personal or property rights of private persons; 5) the power to examine witnesses, to compel the attendance of witnesses, and to hear the litigation of issues on a hearing; and 6) the power to enforce decisions or impose penalties. 1 Am.Jur.2d §§ 167-173.

An administrative agency need not have all of the above powers to be considered quasi-judicial, but certainly the more of these powers it has, the more clearly is it quasi-judicial in the exercise of its powers.

Texas courts have confronted this problem a number of times. In Reagan v. Guardian Life Ins. Co., supra, an insurance company was sued for defamation by a former employee because the company informed the Texas Board of Insurance Commissioners that the employee tried to collect insurance payments from several customers after he was terminated. The court cited four reasons for its decision that the information presented to the board was protected by an absolute privilege: 1) the Board was clothed by statutes with the authority to license insurance agents, i.e., to determine who is fit and who is not fit for a license; 2) the Board was authorized to conduct investigations and to make findings; 3) agents whose licenses were revoked had the right to have redress in courts as in other civil suits; and 4) the Board was required to hold a...