CHAPTER 12 - 12-9 Examiners' Derived Judicial Immunity

• Jurisdiction: United States

12-9 Examiners' Derived Judicial Immunity

Under certain circumstances, examiners appointed under Texas Rule 204.4 are entitled to derived judicial immunity. "When entitled to the protection of [such] immunity, an officer of the court receives the same immunity as a judge acting in his or her official judicial capacity—absolute immunity from liability for judicial acts performed within the scope of jurisdiction."¹⁰⁸ Judicial immunity not only protects the judges, but it also protects "the public 'whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences.'"¹⁰⁹

The derived-judicial-immunity doctrine recognizes that "[t]he policy reasons for judicial immunity are also implicated when a judge delegates or appoints another person to perform services for the court or when a person otherwise serves as an officer of the court. In this circumstance, the immunity attaching to the judge follows the delegation, appointment, or court employment."¹¹⁰

Texas courts, like federal courts, use a "functional approach" in determining whether an individual is entitled to the protection of derived judicial immunity.¹¹¹ This approach "focuses on whether the person seeking immunity is 'intimately associated with the judicial process and if that person exercises discretionary judgment comparable to that of the judge'"¹¹² and "on the nature of the function performed, not the identity of the actor"; thus, in assessing whether derived judicial immunity applies to conduct in question, courts "consider[] whether the conduct is like that of the delegating or appointing judge."¹¹³ "Officers of the court who are integral parts of the judicial process, 'such as court clerks, law clerks, bailiffs, constables issuing writs, and court-appointed receivers and trustees are entitled to [derived] judicial immunity if they actually function as an arm of the court.'"¹¹⁴ Likewise, court-appointed examiners who conduct mental or physical examinations of individuals are entitled to derived judicial immunity while functioning as an arm of the court.

In Delcourt v. Silverman,¹¹⁵ a case arising under Title II of the Texas Family Code, the court of appeals extended derived judicial immunity to a psychologist appointed by the trial court under former Texas Rule 167a(d)(1).¹¹⁶ In doing so, the court reasoned:

A psychologist who is appointed by the court is entitled to absolute immunity if he or she is appointed to fulfill quasi-judicial functions intimately related to the judicial process. The focus is on the nature of the function performed, not the identity of the actor. The question is whether the psychologist's activity is such an integral part of the judicial process that to deny immunity would disserve the broader public interest that non-judicial officers act without fear of liability.

Numerous courts have extended absolute immunity to psychiatrists and other mental health experts assisting the court in criminal cases. The consistent reasoning given by the courts in these cases is that the psychiatrist or mental health professional performed a special task closely related to the judicial process pursuant to a court directive.

We believe this reasoning also applies to mental health experts appointed to provide psychological expertise in child custody suits. Many courts recognize that psychiatrists and psychologists performing court-ordered custody evaluations perform a judicial function and enjoy absolute immunity. When a court appoints a mental health professional to examine the child and the parents in a custody proceeding, the professional is acting as a fact finder for the court. The court relies on the professional to provide information essential to the decision-making process. Without the protection of absolute immunity, such professionals would be, at the very least, reluctant to accept these appointments. This would in turn inhibit judges from performing their duties.¹¹⁷

The Texas Supreme Court has analyzed Delcourt extensively and approvingly.¹¹⁸ Thus, Delcourt provides a useful guide in determining when derived judicial immunity applies to examiners appointed under Texas Rule 204.4.¹¹⁹

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Notes:

^[108] Dall. Cnty. v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002); accord Wilder v. Merritt, No. 02-16-00477-CV, 2017 Tex. App. LEXIS 10810, at *6, 2017 WL 5494258 (Tex. App.—Fort Worth Nov. 16...