Judicial and Quasi-Judicial Proceedings Privilege

FOURTH COURT UPDATE

By Chief Justice Rebeca C. Martinez and Jack Salmon

Over the last few years, the Fourth Court has had several occasions to consider the absolute privilege for communications made in the due course of judicial proceedings. In its simplest application, this “judicial proceedings privilege” protects any statement made by a judge, juror, counsel, party, or witness and attaches to all aspects of judicial proceedings, including statements made in open court, pretrial hearings, depositions, affidavits, and any pleadings and papers in the case. See Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021). For example, in Strickland v. iHeartMedia, Inc., 665 S.W.3d 739, 742 (Tex. App.—San Antonio 2023, pet. denied), we affirmed the dismissal of a plaintiff’s defamation claim based on a statement made in the defendants’ original answer in a separate lawsuit. This statement fell squarely within the judicial proceedings privilege.

The privilege also can extend to the right of parties and counsel “to communicate with a quasi-judicial body touching the matters under its consideration.” Landry’s, 631 S.W.3d at 4647 (citation and brackets omitted). “Quasijudicial” proceedings, include “proceedings before executive officers, and boards and commissions that exercise quasi-judicial powers.” Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (1942). In Parker v. Holbrook, 647 S.W.2d 692 (Tex. App.—Houston [1st Dist.] 1982, writ ref’d n.r.e.), the First Court of Appeals surveyed decisions and commentary and listed six powers as comprising the judicial function that would be indicative of whether a body was acting in a quasi-judicial—as opposed to 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. Id. at 695. The Fourth Court has adopted this sixfactor test. In Doe v. Cruz, we held, after applying the test, that a school board was not acting in a quasi-judicial capacity when it received an email alleging improprieties committed by its general counsel. 683 S.W.3d 475, 496 (Tex. App.— San Antonio 2023, no pet.). Therefore, we held the allegedly defamatory statements in the email were not protected by the quasi-judicial proceedings privilege. Id.

Although the quasi-judicial proceedings privilege has been firmly established in Texas law for over eighty years, novel situations continue to arise. See Reagan, 166 S.W.2d at 912. Last year, in Consultants in Pain Medicine, PLLC v. Ellen Boyle Duncan, PLLC, 690 S.W.3d 739 (Tex. App.—San Antonio 2024, pet. denied), we addressed whether a letter alleging Medicare fraud sent to a Medicare contractor was privileged. To determine the matter, we assessed the contractor’s role in the Medicare accountability scheme. Statutes, regulations, and manuals provided that the contractor’s role was to determine whether overpayments had been made to providers. If an overpayment was discovered, the contractor informed another contractor, which then issued a demand letter and sought recoupment. If a provider was dissatisfied with an overpayment determination, it could pursue a four-step administrative appeal and then raise the matter in federal court. We held that, under this scheme, the contractor that received the letter alleging Medicare fraud was not acting in a quasi-judicial capacity because it was not the final arbiter on any matter and had few of the six enumerated judicial powers; instead, it played a limited investigatory and advisory role. Id. at 763. Therefore, allegedly defamatory statements in the letter were not protected by the quasi-judicial proceedings privilege. Id.

While the Texas Supreme Court has not addressed the scope of the quasi-judicial proceedings privilege in recent years, the Fourth Court has had the opportunity to address the matter twice in just the past two years.

Chief Justice Rebeca C. Martinez has served on the Fourth Court of Appeals since January 2013, and as Chief Justice since January 2021. Chief Justice Martinez previously served for U.S. Magistrate Judge Eduardo E. de Ases for the Western District of Texas, for Justice Federico Hinojosa on the Thirteenth Court of Appeals, and practiced trial law for over twenty years.

Jack Salmon has served as Staff Attorney to Chief Justice Martinez since April 2019, and as Chief Staff Attorney since July 2021. Previously, he served as Law Clerk to Judge Xavier Rodriguez and Judge Orlando L. Garcia for the Western District of Texas and practiced civil rights law.