# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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Carissa L. BEENE , Appellant

v. Keith HENNEKE and David Escamilla, Appellees From the 425th Judicial District Court, Williamson County, Texas Trial Court No. 18

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- C425 Honorable David Peeples, Judge Presiding Opinion by: Liza A. Rodriguez, Justice Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Liza A. Rodriguez, Justice Delivered and Filed: March 11, 2020 AFFIRMED This is an appeal of a t rial court’s order dismissing the underlying cause pursuant to the Texas Citizens Participation Act (TCPA) . On appeal, Carissa L. Beene asserts the trial court erred by: (1) concluding the TCPA applied to her claims; and (2) concluding the appellees established the defense of absolute prosecutorial immunity. We affirm the trial court’s order. B ACKGROUND On September 20 , 2017, the Honorable Paul Davis signed an order holding attorney Adam Reposa in contempt of court based on his actions during jury selection in a criminal t rial in a Travis04

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- County court at law

. Special Prosecutor Keith Henneke was appointed by Travis County Attorney David Escamilla to represent the State in the contempt proceeding. On October 9, 2017, Beene , who is an attorney and represent ed Reposa in the c ontempt proceeding , filed an application for writ of habeas corpus in a district court in Williamson County challenging the validity of the contempt judgment. On October 12, 2017, the State, represented by Escamilla and Henneke, filed a petition for writs of prohibition and mandamus in the Third C ourt of A ppeals . The petition challeng ed the jurisdiction of the Williamson County district court to consider a habeas application relating to a contempt judgment entered by a Travis County court. That same day, the Third C ourt of A ppeals granted an emergency stay and stayed all proceedings in the Williamson County habeas proceeding. On November 14, 2017, Beene filed a second application for writ of habeas corpus on behalf of Reposa in a different district court in Williamson County. On November 17, 2017, t he trial judge assigned to preside over the second habeas application held a he aring and signed an agreed order for emergency bond. The evidence is conflicting with regard to whether the trial judge was informed of the stay imposed by the Third C ourt of A p peals. On November 17, 2017, the State, represented by Escamilla and Henneke, filed an emergency motion for stay and motion for show cause hearing in the original proceeding still pending in the Third C ourt of A ppeals. The Third C ourt of A ppeals stayed the secon d habeas proceeding and ordered Beene to appear and show cause why she should not be held in contempt of court. Prior to the show cause hearing, Henn e ke , acting on behalf of t he State , filed the affidavit04

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- of the trial judge who signed the agreed order for emergency bond . In the affidavit, the trial judge stated he was not informed of the stay previously imposed by the Third C ourt of A ppeals. 1 On September 28, 2018, Beene 2 filed the underlying lawsuit against Escamilla and Henneke alleging claims for abuse of process and libel. 3 On November 30, 2018, Escamilla and Henneke filed a motion to dismiss pursuant to the TCPA. On January 25, 2019, the trial court held a hearing o n the motion . A fter considering additional briefing filed after the hearing, the trial court signed an order on February 25, 2019, granting the motion to dismiss which contained the following rulings: 1. The TCPA applies to this case. 2. This case arose f rom an underlying contempt matter in which Escamilla is the Travis County Attorney and defendant Henneke had been acting as a duly authorized special assistant county attorney. 3. Defendants have established the defense of absolute immunity. 4. The case is dismissed with prejudice pursuant to the TCPA. The trial court also ordered Beene to pay $9,240.53 in attorney’s fees. T EXAS C ITIZENS P ARTICIPATION A CT AND S TANDARD OF R EVIEW A party in a legal action that “is based on, relates to, or is in response to a party ’ s exercise of the

. . . right to petition ” may move for dismissal under the TCPA
. Act of May 18, 2011, 82 nd Leg., ch. 341, § 2, R.S., 2011 Tex. Gen. Laws 961, 962 (amended 2019) (current version at T EX . C IV . P RAC . & R EM . C ODE § 27.003(a)). 4 “ Dismissal requires two steps. ” Dall. Morning News, Inc. v. Hall , 579 S.W.3d 370, 376 (Tex. 2019) . “ First, the party mo ving for dismissal must show, by a preponderance of the evidence, that the ‘ legal action is based on, relates to, or is in response

1 Beene filed three affidavits , including her own, stating the trial judge was informed. Beene also stated in her affidavit that the second habeas application challenged the writ of attachment resulting i n Reposa’s arrest, and she believed that challenge was independent of the challenge to the validity of the contempt judgment in the initial habeas application. 2 The original petition was filed by Reposa as Beene’s attorney; however, Reposa filed a motion to withdraw as Beene’s attorney on January 18, 2019. 3 Beene also sued three justices of the Third C ourt of A ppeals who she later non

- suited. 4 The 2019 amendments are not applicable to the underlying cause which was filed in 2018.04

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- to [ the movant] ’ s exercise of the right ’” to petition. Id . (quoting T EX . C IV . P RAC . & R EM . C ODE A

NN . § 27.003(a)). “ The bu rden then shifts to the plaintiff to establish ‘ by clear and specific evidence a prima facie case for each essential element of the claim in question. ’ ” Id . (quoting T EX . C IV . P RAC . & R EM . C ODE A NN . § 27.005(c) )

. If the Act applies and the plaintiff esta blishes a prima facie case, the trial court must still dismiss the suit if the defendant establishes each essential element of a valid defense to the plaintiff’s cla i m s by a preponderance of the evidence. Id . (citing T EX . C IV . P RAC . & R EM . C ODE A NN . § 27.005 (d) ). We review whether the parties met or failed to meet their burdens of proof de novo

. Id . In our review, however, “[w] e view the pleadings and evidence in the light most favorable to the nonmovant. ” Robert B. James, DDS, Inc. v. Elkins , 553 S. W.3d 596, 603 (Tex. App.

— San Antonio 2018, pet. denied)

. R IGHT TO P ETITION In her first issue, Beene contends the trial court erred in concluding the TCPA applied to her claims, asserting the affidavit of the trial judge was not a communication by Escamil la and Henneke; therefore, her claims were not based on, relate d to, or in response to their exercise of the right to petition. The “ e xercise of the right of petition” includes “ a communication in or pertaining to a judicial proceeding ” or a communication made in connection with an issue under judicial review. T EX . C IV . P RAC . & R EM . C ODE A NN . § 27.001(4)(A)( i) , (B)

. “ A ‘ communication ’ is broadly defined as ‘ the making or submitting of a statement or document in any form or medium. ’ ” Youngkin v. Hines , 546 S.W.3d 675, 680 (Tex. 2018) (quoting T EX . C IV . P RAC . & R EM . C ODE A NN . § 27.001 (1) )

. In fact, t he Texas Supreme Court has described the definition of the “exercise of the right of petition” as being “expansive.” Id

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- “ Courts must adhere to legi slative definitions of terms when they are supplied .” Id

.

“ Substituting the statutory definitions for the defined terms, we see that the TCPA applies to a legal action against a party that is based on, related to, or in response to the party ’ s making or submitting of a statement or document in or pertaining to a judicial proceeding. ” Id

. Here, the affidavit of the trial judge was a document Escamilla and Henneke submitted to the Third C ourt of A ppeals pertaining to an original proceeding pending before that court. Beene cites no case law to support her contention that the communication must be a communication by the defendant rather than a communication by a third party that a defendant submits pertaining to a judicia l proceeding. Accordingly, adhering to the legislative definitions set forth in the TCPA, we hold Escamilla and Henneke were exercising their right to petition in submitting the trial judge’s affidavit to the Third C ourt of A ppeals. A BSOLUTE I MMUNITY In her second issue, Beene contends the trial court erred in concluding Escamilla and Henneke established absolute immunity as a valid defens e “because 1) they were not prosecuting a criminal action and arguably had no r o le at all at the show cause hearing, 2 ) they were acting as investigators rather than prosecutorial function [sic] , and 3) they were acting as [sic] the role of a witness.” “District attorneys and other prosecutors are absolutely immune from liability when performing their prosecutorial functi ons.” Charleston v. Pate , 194 S.W.3d 89, 90 (Tex. App.

— Texarkana 2006, no pet.)

. “This immunity protects not only chief prosecutors, but also their assistants who perform prosecutorial functions.” Id

. “The common

- law immunity of a prosecutor is based up on the same considerations that underlie the common

- law immunities of judges and grand jurors acting within the scope of their duties.” Imbler v. Pachtman , 424 U.S. 409, 422

- 23 (1976) ; see also Gentry v. Smith , No. 05

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- 01181

- CV, 2019 WL 4033947, at *3 (Tex. App.

— Dallas Aug. 27, 2019, no pet. h.) (mem. op.) (noting Texas courts follow federal jurisprudence in construing the doctrine of absolute prosecutorial immunity). “These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Imbler , 424 U.S. at 423. For these reasons, a prosecutor has absolute immunity for activities that are an “integral part of the judicial process.” Id . at 430 (internal quotation marks omitted). Stated differently, p rosecutorial functions to which absolute immunity applies are those

“ intimately associated with the judicial process.” Charleston , 194 S.W.3d at 90 (internal quotation marks omitted). And, “[a] bsolute immunity protects a prosecutor even if the prosecutor acts in bad faith or with ulterior motives, so long as he or she ac ts within the scope of his or her prosecutorial functions. ” Id

. Beene first contends absolute prosecutorial immunity is not a valid defense against her claims because Escamilla and Henneke “were not prosecuting a criminal action and arguably had no role at all at the show cause hearing.” First, we disagree Escamilla and Henneke had no rol e in the show cause hearing. They filed the motion for show cause hearing on behalf of the State based on the stay they previously obtained on behalf of the State in the pending original proceeding. 5 N ext, we reject Beene’s argument that Escamilla and He nneke were required to be “prosecuting a criminal action” in order to establish the defense. First, f iling affidavits in furtherance of a pending motion is an integral part of an d intimately associated with the judicial process. See Imbler , 424

5 A prosecutor’s conduct in handling original proceedings relating to a criminal contempt proceeding is entitled to the same immunity applica ble to a prosecutor’s cond uct in handling appeals. See Henzel v. Gerstein , 608 F.2d 654, 657 (5th Cir. 1979) (holding prosecutorial immunity applies to prosecutor’s conduct in handling appeals ). As the Fifth Circuit has noted, “[f] ear of civil liability could hinder a prosecutor ’ s judgment in conducting a case at the appellate level as well as at the trial level. ” Id

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- U.S. 430; Charleston , 194 S.W.3d at 90

. In addition, the motion was filed in support of a motion to show cause why Beene should not be held in contempt, and ou r sister courts have held actions taken by prosecutors relating to contempt proceedings are pros ecutorial functions entitled to absolute immunity. See Hesse v. Howell , No. 07

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- 2, 7 (Tex. App.

— Amarillo June 7, 2018 , pet. denied) ; Hawkins v. Walvoord , 25 S.W.3d 882, 892 (Tex. App.

— El Paso 2000, pet. denied)

. As the El Paso court explained, “ contempt proceedings are quasi

- criminal in nature ” and “ conform to criminal procedures. ” Hawkins , 25 S.W.3d at 892

. Finally, we note the original proceeding in which the affidavit was filed challenged habeas relief sought in reg ard to a contempt judgment which arose from actions taken during a pending criminal trial. See Moon v. City of El Paso , 906 F.3d 352, 359 (5th Cir. 2018) (“If the prosecutor continues his role as an advocate, absolute immunity extends to conduct during post

- conviction proceedings.”)

. Beene also argues Escamilla and Henneke were acting as investigators or complaining witnesses in filing the affidavit. The Fifth Circuit, however, has recognized “ the broad scope of absolute prosecutorial immunity ma y even reach an apparently

. . . investigative function if that function requires legal knowledge and the exercise of related discretion .” Moon , 906 F.3d at 359 (internal quotation marks omitted , emphasis in original ). Furthermore, a ctions taken to enfor ce a court order, like the stay granted by the Third C ourt of A ppeal s , have been held to be prosecutorial because they are intrinsically associated with a judicial proceeding. See Mays v. Sudderth , 97 F.3d 107, 112 (5th Cir. 1996) . Finally, the affidavit was an integral part of the pending contempt hearing. See Imbler , 424 U.S. at 423 ; see also Hamill v. Wright , 870 F.2d 1032, 1037 (5th Cir. 1989) (holding prosecutor entitled to full prosecutorial immunity relating to decision to bring contempt proceedin gs and participation in those proceedings).04

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- C ONCLUSION Because we hold the TCPA applied to the underlying legal action and Escamilla and Henneke established a valid defense, we affirm the trial court’s order. Liza A. Rodriguez, Justice