Court of Appeals of Texas, Third District, Austin
David E. Jones, Appellant
Dr. Alissa Sherry; Alissa Sherry Consulting, PLLC; Legal Consensus, PLLC, Appellees
THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO.
D-l-GN-17-006851, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING.
Chief Justice Rose, Justices Kelly and Smith.
L. Kelly, Justice.
David E. Jones appeals from the trial court's order
dismissing his suit against Dr. Alissa Sherry; Alissa Sherry
Consulting, PLLC; and Legal Consensus, PLLC (collectively,
the "Sherry Defendants"). Because Jones's
pleadings establish that his claims against the Sherry
Defendants arise from actions taken by Dr. Sherry in her
capacity as a court-appointed child-custody evaluator,
Jones's claims are barred by derived judicial immunity.
We will affirm the trial court's order of dismissal.
Sherry is a licensed psychologist and the owner of Legal
Consensus, PLLC, formerly known as Sherry Consulting, PLLC.
In April 2014, Dr. Sherry was ordered by the District Court
of Travis County, 250th Judicial District, to conduct a
child-custody evaluation in Jones's divorce proceedings.
See Tex. Fam. Code §§ 107.101-.115. In its
"agreed order for custody evaluation" (or the
"custody-evaluation order") the trial court ordered
Dr. Sherry to conduct psychological evaluations of Jones and
his then-wife, make recommendations to the court on issues of
conservatorship, and deliver her findings and recommendations
in a written report to the court. According to Jones, Dr.
Sherry submitted her report, entitled "Forensic Custody
Evaluation Family Law," on December 2, 2014, and
testified about her conclusions and recommendations at the
final hearing later that month.
December 2017, Jones sued the Sherry Defendants for a variety
of claims stemming from Dr. Sherry's child-custody
evaluation, including claims for malpractice, negligence,
breach of fiduciary duty, and defamation. The Sherry
Defendants answered the suit, asserting affirmative defenses
and generally denying all of Jones's claims. In the same
pleading, the Sherry Defendants also moved to dismiss
Jones's claims pursuant to Rule 91a of the Texas Rules of
Civil Procedure on the basis that all of Jones's claims
are barred by derived judicial immunity. See Tex. R.
Civ. P. 91a (dismissal of baseless causes of action).
Alternatively, the Sherry Defendants moved to dismiss
Jones's suit pursuant to Chapter 27 of the Texas Civil
Practice and Remedies Code, also known as the Texas Citizens
Participation Act (TCPA). See Tex. Civ. P. &
Rem. Code § 27.002. After a hearing on the motions, the
Court signed an order granting the Sherry Defendants'
motions, under both Rule 91a and the TCP A, and dismissing
all of Jones's claims with prejudice to refiling. Jones,
representing himself pro se, then perfected this appeal.
he identifies as sixteen issues on appeal, Jones asserts that
the trial court erred in granting the Sherry Defendants'
motions and dismissing his suit. We begin our review by
addressing Jones's challenge to the trial court's
decision to grant the Sherry Defendant's Rule 91a motion
91a Motion to Dismiss
Rule 91a, a party may move to dismiss a cause of action on
the ground that it has no basis in law or fact. Tex.R.Civ.P.
91a. 1. Dismissal is appropriate "if the allegations,
taken as true, together with inferences reasonably drawn from
them, do not entitle the claimant to the relief sought. . .
[or] no reasonable person could believe the facts
pleaded." City of Dallas v. Sanchez, 494 S.W.3d
722, 724 (Tex. 2016) (quoting Tex.R.Civ.P. 91a. 1). In ruling
on a Rule 91a motion, the trial court may not consider
evidence and must base its ruling only on the pleading of the
cause of action, together with any exhibits permitted under
Rule 59. Tex.R.Civ.P. 91a.6; see id. R. 59
(permitting party to attach to pleading "notes,
accounts, bonds, mortgages, records, and all other written
instruments, constituting, in whole or in part, the claim
sued on, or the matter set up in defense" and providing
that such instruments are considered "part of the
pleadings"). We review de novo a trial court's
decision on a Rule 91a motion "because the availability
of a remedy under the facts alleged is a question of law and
the rule's factual-plausibility standard is akin to a
legal-sufficiency review." Sanchez, 494 S.W.3d
at 724. In conducting our review, we construe the pleadings
liberally in favor of the plaintiff, look to the
pleader's intent, and accept as true the factual
allegations in the pleadings to determine if the cause of
action has a basis in law or fact. Koenig v.
Blaylock, 497 S.W.3d 595, 599 (Tex. App.- Austin 2016,
appeal, Jones contends that the trial court erred in granting
the Sherry Defendants' Rule 91a motion to dismiss
because, according to Jones, Dr. Sherry and the other Sherry
Defendants are not entitled to the protections of derived
judicial immunity. When a person is entitled to derived
judicial immunity, he or she receives the same absolute
immunity from liability for acts performed within the scope
of his or her jurisdiction as that of a judge. Dallas
County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002)
(concluding that court reporter was not entitled to derived
judicial immunity); see Delcourt v. Silverman, 919
S.W.2d 777, 781 (Tex. App.-Houston [14th Dist] 1996, writ
denied) (concluding that court-appointed psychiatrist was
entitled to derived judicial immunity). Judicial immunity can
attach to certain non-judges because the policy reasons for
judicial immunity-the protection of individual judges and of
the public's interest in an independent judiciary-are
also implicated when a judge delegates his or her authority,
appoints another person to perform services for the court, or
allows another to otherwise serve as an officer of the court.
Halsey, 87 S.W.3d at 554; B.W.D. v.
Turnage, No. 05-13-01733-CV, 2015 Tex.App. LEXIS 1947,
at *8 (Tex. App.-Dallas Mar. 2, 2015, pet. denied) (mem. op).
Texas, courts apply a "functional approach" to
determine whether a person is entitled to derived judicial
immunity. Halsey, 87 S.W.3d at 554 (discussing
Delcourt, 919 S.W.2d at 782-83). This approach
focuses on the nature of the function performed, not the
identity of the actor, and considers whether the court
officer's conduct is like that of the delegating or
appointing judge. Id. at 555. Under this functional
approach, courts must assess "whether the person seeking
immunity is intimately associated with the judicial
process" and whether "that person exercises
discretionary judgment comparable to that of the judge."
Id. at 554. When an individual acquires derived
judicial immunity from a particular function, absolute
immunity extends to "every action taken with ...