* 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that this opinion should not be published and is not precedent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.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 97-11220

(Summary Calendar)

_________________

ROBERT EDWARD BRATTAIN,

Plaintiff - Appellant,

versus

JIM SPURGER, Detective; PAMELA BENSON, Judge;

CITY OF BALCH SPRINGS, TEXAS; CITY OF

HUTCHINS, TEXAS,

Defendants - Appellees.

Appeal from the United States District Court

For the Northern District of Texas

(3:97-CV-1275-X)

April 2, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Robert Edward Brattain, Texas prisoner #603113, appeals the

dismissal of his civil rights complaint as frivolous pursuant to 28

U.S.C. §§ 1915(e)(2)(B)(iii), 1915A(b)(2). Brattain argues that
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Judge Benson is not protected by judicial immunity because the

warrant was an evidentiary search warrant issued pursuant to TEX.

CODE CRIM. P. art. 18.02(10), and Judge Benson was not authorized to

issue such a warrant. Contrary to Brattain’s contentions, however,

Judge Benson was authorized to issue the warrant, which was issued

to search for a handgun used to commit a crime and therefore was

not an evidentiary warrant. See TEX. CODE CRIM. P. art. 18.02(9)

(authorizing issuance of search warrant for “implements or

instruments used in the commission of a crime”). Thus, Judge

Benson’s issuance of the warrant was therefore protected by

judicial immunity. See Mays v. Sudderth, 97 F.3d 107, 111 (5th

Cir. 1996) (“A judge will not be deprived of immunity because the

action he took was in error, was done maliciously, or was in excess

of his authority; rather, he will be subject to liability only when

he has acted in the ‘clear absence of all jurisdiction.’”) (quoting

Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331

(1978)); Ammons v. Baldwin, 705 F.2d 1445, 1447-48 (5th Cir. 1983)

(holding that judge was immune for issuing arrest warrant). We

accordingly AFFIRM the dismissal of Brattain’s claims against Judge

Benson. 

With respect to the remaining defendants, Brattain argues that

the district court erred in dismissing his claims in light of Heck

v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994). Construing

Brattain’s complaint as seeking monetary damages “for his arrest
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and prosecution for the misdemeanor offense, and the subsequent

revocation of his parole” the district court held that his claim

called into question the legality of his confinement and were

therefore barred by Heck. Brattain contends that the district

court misunderstood his complaint, which he claims seeks damages

for the unconstitutional issuance and execution of the search and

arrest warrant that resulted in his arrest. Although attacking the

validity of a parole revocation proceeding must satisfy Heck, see

Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995), “a claim of

unlawful arrest, standing alone, does not necessarily implicate the

validity of a criminal prosecution following the arrest.” See

Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995); Montoya v.

Scott, 65 F.3d 405, 421 (5th Cir. 1995), cert. denied, 116 S. Ct.

1417, 134 L. Ed. 2d 542 (1996) (noting the “established rule that

illegal arrest or detention does not void a subsequent

conviction”). Liberally construed, Brattain’s pro se complaint and

answers to the magistrate’s questionnaire challenge the legality of

his arrest, and the record does not clearly reflect whether this

challenge, if successful, would implicate the validity of his

conviction or parole revocation. We accordingly VACATE the portion

of the district court’s dismissal invoking Heck and REMAND for

further proceedings. Brattain’s motion for the appointment of

counsel on appeal is DENIED. 

AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTION DENIED.