#### Ed SALAZAR, Appellant, v. Dan MORALES, Appellee.

No. 03-94-00336-CV.

Court of Appeals of Texas, Austin.

June 21, 1995.

*930James R. (Ron) Weddington, Friedman & Weddington, Austin, for appellant.

Dan Morales Atty. Gen., Javier Aguilar, Sp. Asst. Atty. Gen., Bruce V. Griffiths, Asst. Atty. Gen., Richard Tomlinson, Asst. Atty. Gen., Houston, for appellee.

Before CARROLL, C.J., and ABOUSSIE and JONES, JJ.

JONES, Justice.

Appellant Ed Salazar sued Texas Attorney General Dan Morales, appellee, for common-law defamation for statements Morales made to the press concerning Salazar’s termination as an assistant attorney general. Morales filed a plea to the jurisdiction based on absolute immunity. The trial court granted the motion and dismissed the claim. This appeal presents a single question: Is the Texas Attorney General entitled to absolute immunity from a state-law defamation claim for comments made to reporters concerning the termination of an employee? Concluding that he is, we will affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In a plea to the jurisdiction, the trial court must base its decision solely on the allegations in the plaintiffs pleadings. *Brannon v. Pacific Employers Ins. Co.,*148 Tex. 289, 224 S.W.2d 466, 469 (1949); *Huston v. Federal Deposit Ins. Corp.,*663 S.W.2d 126, 129 (Tex.App. — Eastland 1983, writ ref d n.r.e.). Factual allegations must be taken as true. *Id.*Accordingly, our description of the events surrounding this controversy is gleaned primarily from Salazar’s petition.

Ed Salazar was employed as an assistant attorney general in the Consumer Protection Division of the Texas Attorney General’s office. As the result of an investigation, Salazar determined that certain insurance companies were overcharging policyholders.1 On October 8, 1993, with the approval of his supervisors, Salazar filed three separate lawsuits against State Farm, Allstate, and the Texas Farm Bureau Insurance Companies. Morales issued a press release announcing the lawsuits and praising the work of the Attorney General’s office in protecting insurance consumers.

In early November 1993, the head of the Consumer Protection Division urged Salazar to end immediately the case against the Texas Farm Bureau Insurance Companies (“Farm Bureau suit”). Because Salazar was involved in settlement discussions, ,ie informed his supervisors that an extremely favorable settlement of the Farm Bureau suit might compromise the other lawsuits. On November 22,1993, the head of the Consumer Protection Division instructed Salazar to dismiss the Farm Bureau suit. On the same day, Salazar received a memorandum informing him that he should look for another job.

In the weeks following Salazar’s termination, a number of other attorneys with the Consumer Protection Division were also dismissed. These terminations attracted the attention of reporters, who questioned Salazar about his dismissal. Salazar relaced to the reporters the situation involving the Farm Bureau suit. On February 3,1994, the Fort Worth Star-Telegram reported that the Farm Bureau suit had been abruptly dropped and that Salazar, who had been in charge of the case, had quit in protest rather than be fired. Following this article, a reporter for the Associated Press asked Morales about Salazar’s termination.2 In lis answer to the reporter’s questions, Morales characterized Salazar as a “disgruntled employee” who was not doing a good job. Specifically, with respect to the Farm Bureau *931suit, Morales said: “This particular lawsuit was one not authorized and not merited. He went out and filed it without authority from his supervisors.” Morales concluded: “We’re going to continue to make decisions in similar fashion in the future. When lawyers mess up in our agency, there will be consequences. It’s as simple as that.” Morales’s comments were subsequently reported in several Texas newspapers.3

As a result of these statements made to the press, Salazar sued Morales and the Attorney General’s Office of the State of Texas on February 14, 1994. In his original petition, Salazar alleged two causes of action: one for common-law defamation and one for wrongful termination under *Sabine Pilot Service, Inc. v. Hauck,*687 S.W.2d 733 (Tex. 1985). Morales responded with a plea to the jurisdiction based on immunity. Before the trial court’s hearing on the jurisdictional challenge, Salazar non-suited the Attorney General’s Office. He also amended his petition, dropping the *Sabine Pilot*wrongful termination claim against Morales, but adding a civil rights claim under 42 U.S.C. § 1983.

Following a hearing on April 14, 1994, the trial court severed the federal civil rights claim.4 The court then granted Morales’s plea to the jurisdiction on immunity grounds and dismissed the state-law defamation claim. In a single point of error, Salazar contends the trial court erred in dismissing his defamation suit because Morales is not entitled to absolute immunity from such claims.

DISCUSSION

The issue of absolute immunity for high-ranking state officials to publish defamatory material in the performance of their duties is one of first impression for Texas courts. However, we have much guidance from the United States Supreme Court and several state supreme courts describing the nature of the privilege and the parameters of its application. The starting point for any discussion of this privilege is *Barr v. Matteo,*360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), the leading case in this area.

In *Barr,*the acting director of the Office of Rent Stabilization was sued for malicious defamation by two employees whose suspension for misconduct he had announced through a press release. *Id.*at 567-68, 79 S.Ct. at 1337-38. Both the district court and court of appeals rejected Barr’s contention that absolute privilege attached to his actions. The Supreme Court reversed the judgment of the court of appeals, holding that the issuance of the press release was within the “outer perimeter” of Barr’s duties, thus making the absolute privilege applicable. *Id.*at 575, 79 S.Ct. at 1341. Justice Harlan, writing for the plurality, explained the necessity of the privilege:

> The reasons for the recognition of the privilege have been often stated. It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.

*Id.*at 571, 79 S.Ct. at 1339 (Harlan, J., plurality opinion).

While the Court was divided and even the plurality5 characterized the question as a “close one,” the closeness of the issue was due primarily to Barr’s position, not the existence of the privilege. As acting director of the Office of Rent Stabilization, Barr did not hold a position of cabinet rank or its equivalent. Three of the four dissenters approved application of an absolute privilege to officials *932of cabinet level and above. *See id.*at 583, 79 5.Ct. at 1345-46 (Warren, C.J., dissenting) (Douglas, J., joining); *id.*at 592, 79 S.Ct. at 1347 (Stewart, J., dissenting). Only Justice Brennan opposed the application of an absolute privilege to executive officials regardless of rank. *See id.*at 586-88, 79 S.Ct. at 1347-48 (Brennan, J., dissenting) (contending that only a qualified privilege was appropriate).

Since *Barr,*this absolute privilege for executive officers from defamation claims has been embodied in section 591 of the Restatement (Second) of Torts. This section states that “[a]n absolute privilege to publish defamatory matter concerning another in communications made in the performance of his official duties exists for ... a governor or other superior executive officer of a state.” Restatement (Second) of Torts § 591(b) (1977). The comments to the Restatement contain the rationale for the privilege: “The public welfare is so far dependent upon a reasonable latitude of discretion in the exercise of functions of high executive offices that their incumbents may not be hindered by the possibility of a civil action for defamation in connection therewith.” Restatement (Second) of Torts § 591 cmt. a (1977).

All of the state courts that have addressed the issue have agreed that an absolute privilege as described in *Barr*and section 591 applies to state attorneys general. *See, e.g., Kilgore v. Younger,*30 Cal.3d 770, 180 Cal.Rptr. 657, 640 P.2d 793, 797-98 (1982); *Little v. Spaeth,*394 N.W.2d 700, 706 (N.D.1986); *Matson v. Margiotti,*371 Pa. 188, 88 A.2d 892, 896 (1952); *Levinsky v. Diamond,*151 Vt. 178, 559 A.2d 1073, 1078 (1989); *Gold Seal Chinchillas, Inc. v. State,*69 Wash.2d 828, 420 P.2d 698, 701 (1966); *Morton v. Hartigan,*145 Ill.App.3d 417, 495 N.E.2d 1159, 1164-65 (1986) (noting that the Illinois Supreme Court adopted the *Barr*rationale for the governor in *Blair v. Walker,*64 Ill.2d 1, 349 N.E.2d 385 (1976), and extending it to cover the attorney general); *see also*Restatement (Second) of Torts § 591 cmt. e (1977). *But cf. Chamberlain v. Maths,*151 Ariz. 551, 729 P.2d 905, 912 (1986) (rejecting *Barr*immunity for Director of Arizona Department of Health Services).

Although the Texas Supreme Court has not specifically addressed the issue of absolute privilege for state officials from defamation suits, it has recently adopted the *Barr*rationale as the foundation for official immunity in this state. *See Kassen v. Hatley,*887 S.W.2d 4, 8 (1994). Our courts of appeals have also cited the *Barr*rationale approvingly. *See, e.g., Armendarez v. Tarrant County Hosp. Dist.,*781 S.W.2d 301, 305 (Tex.App.— Fort Worth 1989, writ denied); *Tom of South Padre Island v. Jacobs,*736 S.W.2d 134, 143 (Tex.App. — Corpus Christi 1987, writ denied); *cf. Martinez v. Hardy,*864 S.W.2d 767, 772-73 (Tex.App. — Houston [14th Dist.] 1993, no writ).

We are persuaded by the foregoing authorities that the Texas Attorney General has an absolute privilege to publish defamatory statements in communications made in the performance of his official duties. Having reached this conclusion, we must, now consider if Morales’s actions, as described by Salazar’s petition, come within the scope of this absolute privilege. Again, we benefit from the experience of both the United States Supreme Court and several stane supreme courts.

Salazar alleged that Morales made the defamatory comments in direct response to a reporter’s question about recent terminations in the Attorney General’s office. Salazar contends that when Morales made these statements he was not acting in his official capacity, but was responding to personal attacks affecting his ability to be reelected.6 We disagree.

The overwhelming weight of authority reflects that comments made to the press by a *933high-ranking official concerning personnel matters are within the scope of the privilege. Again *Barr*is instructive. Barr made his defamatory comments about the suspension of two employees in his agency through a press release. The Supreme Court held that this action was within the “outer perimeter” of the official’s duty.7*Barr,*360 U.S. at 575, 79 S.Ct. at 1341. Similarly, the vast majority of state supreme courts that have considered the question have held that statements to the press concerning personnel matters are within the official duties of high-ranking state officials. *See, e.g., Johnson v. Dirkswager,*315 N.W.2d 215, 221 (Minn.1982) (telephone interview with reporter by Commissioner of Public Welfare concerning termination of employee was within Commissioner’s official duties); *Little,*394 N.W.2d at 706 (North Dakota Attorney General’s statement in a newspaper interview about termination of assistant attorneys general was within discharge of his official duties); *Matson,*88 A2d at 900 (Pennsylvania Attorney General was acting within official duties in delivering to press a copy of letter alleging attorney was a Communist); *Hackworth v. Larson,*83 S.D. 674, 165 N.W.2d 705, 709 (1969) (news release by Secretary of State concerning termination of employees was within line of duty).

Only the Arizona Supreme Court has rejected the privilege under these circumstances. *See Chamberlain,*729 P.2d 905. *Chamberlain*involved comments to a reporter by the Director of the Arizona Department of Health Services concerning the incompetence of certain employees. *Id.*at 907. The court held the official was only entitled to qualified immunity. However, in reaching its decision the court specifically noted that it had “not expressly adopted *Barr*or its rationale.” *Id.*at 911. The court then rejected *Barr*in reaching its holding that “in the vast majority of cases, qualified immunity will adequately protect state executive officials.” *Id.*at 912. Unlike the Arizona court, our supreme court has embraced *Barr,*thereby aligning itself with the majority position expressed in the Restatement that an absolute privilege exists for high-ranking state officials such as the attorney general. Consequently, we decline to adopt the holding in *Chamberlain.*

Similarly, the rest of the state authorities on which Salazar relies are readily distinguishable. The cases Salazar cites rejecting absolute immunity do so in the context of lower-level officials. *See Carradine v. State,*511 N.W.2d 733, 735-36 (Minn.1994) (rejecting absolute privilege from defamation suit for comments made to press by state trooper); *Eubanks v. Smith,*292 S.C. 57, 354 S.E.2d 898, 902 (1987) (rejecting absolute immunity for city manager’s press releases implying employees were guilty of criminal conduct); *Doran v. Cohalan,*125 AD.2d 289, 509 N.Y.S.2d 51, 52 (1986) (rejecting absolute immunity for two county officials).

Likewise, Salazar’s reliance on post-Harr Supreme Court authority is unpersuasive. Salazar argues that a trilogy of cases has eroded the scope of *Barr. See Butz v. Economou,*438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); *Forrester v. White,*484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); *Buckley v. Fitzsimmons,*— U.S. -, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). While the Court has limited the concept of official immunity, it has done so solely in the context of immunity for federal civil rights violations, not state common-law defamation claims. *See Butz,*438 U.S. at 507, 98 S.Ct. at 2911 (holding only qualified immunity exists in suits for damages from an unconstitutional action); *Forrester,*484 U.S. at 220-21, 108 S.Ct. at 540-41 (denying absolute immunity for a state-court judge from a section 1983 *934claim); *Buckley,*— U.S. at-, 113 S.Ct. at 2617 (rejecting absolute immunity for state prosecutors from section 1983 claim). What the Court has prescribed is one level of analysis for immunity from common-law defamation claims and another for constitutional claims. These cases do not overrule *Barr*as applied to a state common-law defamation claim. *See Butz,*438 U.S. at 507, 98 S.Ct. at 2911 (holding qualified immunity for constitutional violations is consistent with Barr). In the present ease, the trial court recognized the different analysis required for a section 1983 claim when it severed Salazar’s federal civil rights claim from his state-law defamation claim.

Salazar raises two final challenges to the immunity doctrine. Initially, Salazar argues that the statement must be “made in conjunction with or contemporaneously with the firing” to come within the privilege. Not only is there no authority for this position, but Salazar offers no rationale for such a restriction. Furthermore, despite the fact that Salazar had been terminated two months earlier, Morales’s statements were made within one day of the initial newspaper article focusing on Salazar’s termination. We conclude that Salazar’s “contemporane-ousness” argument is without merit.

Finally, Salazar contends that Morales is not entitled to immunity because his statements were made in his capacity as a politician seeking re-election, not as Attorney General. The California Supreme Court was confronted with this identical contention in *Kilgore v. Younger.*Kilgore sued the California Attorney General for defamation because of press releases tying him to organized criminal activity. *Kilgore,*640 P.2d at 795-96. Kilgore alleged in his petition that when Younger released the information he was acting as a candidate and, therefore, was not performing an official duty. *Id.*at 798. The California Supreme Court had little difficulty in rejecting this contention: “The latter argument is without merit: Younger’s alleged activity, though it may well have been taken to produce a popular and appealing law enforcement image, was for all intents and purposes indistinguishable from actions initiated by public officials truly oblivious to the political ramifications of their moves.” *Id.*

Similarly, we decline to dissect Morales’s comments to discern whether they were politically motivated. It is sufficient to invoke the absolute privilege that the statements concerned personnel matters in his agency. When the head of a state executive agency offers an explanation to the press, and hence the public, for the dismissal of employees, he acts within his official duties. We conclude that Morales was acting within the scope of his official duties when he responded to a reporter’s question regarding Salazar’s termination.

CONCLUSION

In sum, we hold that the Texas Attorney General has an absolute privilege to publish, in the performance of his official duties, material that may be perceived to be defamatory. Further, we hold that statements made by the Attorney General in response to reporters’ inquiries concerning the termination of employees in his office are within his official duties and, therefore, within the absolute privilege. We overrule Salazar’s single point of error and affirm the trial court’s judgment dismissing Salazar’s defamation suit.

1

. Specifically, the investigation discovered that the companies were charging the same or higher premiums for insuring property that was depreciating in value. As a result, the companies' risk of loss declined, but there was no comparable decline in consumer premiums.

2

. The record does not reflect the location where Morales was questioned by the Associated Press reporter. Salazar’s pleadings are silent on this matter. The newspaper articles attached to the pleadings also omit the specific location. At oral argument, the parties were also unable to specifically identify the forum. Apparently, Morales made a public appearance in Houston and addressed some gathering. The reporter questioned him there.

3

.Three of these articles were attached to Salazar's pleadings. *See Morales Says Shake-up Is No Cause for Worry,*Hous. Chron., Feb. 4, 1994, at 26A; *Morales Defends Office Shakeup Amid Lawsuit,*San Antonio Express-News, Feb. 4, 1994, at 12A; Clay Robinson, *Morales Gets Heat For Axing Insurance Suit,*Hous. Chron., Feb. 5, 1994, at 27A.

4

. This claim is still pending in the district court under a different cause number.

5

. The plurality was composed of Justices Harlan, Frankfurter, Clark, and Whittaker. Justice Black concurred in the judgment on First Amendment grounds.

6

. In his brief, Salazar also argues that because he alleged Morales was not acting in his official capacity, we must accept that statement as true. Salazar is incorrect. In a jurisdictional challenge we accept Salazar’s *factual*allegations as true. *See Alford v. City of Dallas,*738 S.W.2d 312, 314 (Tex.App. — Dallas 1987, no writ). We are not required to accept the blanket legal conclusion that Morales was not acting in his official capacity. That question of law is for this Court to determine, based on the underlying facts alleged by Salazar.

7

. Significantly, the "outer perimeter” language must be read in the context of Barr's official status. Barr was merely the acting director of the Office of Rent Stabilization — a position neither appointed by nor directly responsible to the President. *Barr,*360 U.S. at 583, 79 S.Ct. at 1345-46. The Court recognized that “the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions.” *Id.*at 573, 79 S.Ct. at 1340. The Court concluded that "the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion.” *Id.*Given this language, we think it doubtful that the Court would have described the press release as being in the "outer perimeter” of official duty if Ae actor had been Ae head of an executive agency, such as Ae Attorney General.