Stephen Hartman v. Layne Walker, Rife Kimler, Joel Vazquez, and James Makin ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00084-CV
__________________
STEPHEN HARTMAN, Appellant
V.
LAYNE WALKER, RIFE KIMLER, JOEL VAZQUEZ,
AND JAMES MAKIN, Appellees
__________________________________________________________________
On Appeal from the 58th District Court
Jefferson County, Texas
Trial Cause No. A-198,246
__________________________________________________________________
MEMORANDUM OPINION
Stephen Hartman appeals from a judgment granting a motion for
summary judgment filed by Layne Walker, the last of twenty-six
defendants that Hartman sued on claims of malicious prosecution and
civil conspiracy. Hartman’s claims arose from his arrest, prosecution, and
later dismissal of the charge the State brought against him for allegedly
violating a statute designed to prohibit the disruption by an individual of
1
an official proceeding. 1 As to Hartman, the State alleged that in May
2013 and when Judge Walker was conducting a hearing on a defendant’s
plea, Hartman entered the courtroom of the 252nd District Court, told a
deputy sheriff who was assigned to the courtroom as a bailiff that he
(Hartman) was there to serve Judge Walker with a summons, the deputy
sheriff told Hartman to leave, and the proceedings were disrupted by
“noise” when Hartman refused to comply.
Hartman raises two appellate issues in his brief. In his first issue,
Hartman argues that the trial court’s judgment should be reversed for
three reasons: (1) a prior decision of this Court in a prior appeal requires
the trial court’s ruling to be reversed because this Court in the prior
appeal upheld the trial court’s denial of Walker’s motion to dismiss
Hartman’s claims against Judge Walker under the Texas Citizens
Participation Act; 2 (2) the trial court erred in overruling his objections to
1Tex. Penal Code Ann. § 38.13. Section 38.13 is titled “Hindering
Proceedings by Disorderly Conduct,” and it provides that a person
commits an offense if he intentionally or recklessly “hinders an official
proceeding by noise or violent or tumultuous behavior or disturbance and
continues after explicit official request to desist.” Id.
2Walker v. Hartman, 516 S.W.3d 71, 84 (Tex. App.—Beaumont
2017, no pet.) (Walker I) (“Having determined that Hartman has met his
burden for each element of his claim for malicious prosecution and civil
2
several critical exhibits that Walker relied on to support his motion for
summary judgment; and (3) the evidence Walker relied on to support his
motion failed to conclusively disprove three of the elements of Hartman’s
malicious prosecution claims, which Walker challenged in his motion,
and did not conclusively establish that Walker wasn’t a party to a civil
conspiracy that was formed to fabricate false evidence to support
charging Hartman with a crime.
In Hartman’s second issue, he argues the motions for summary
judgment filed by Rife Kimler, Joel Vazquez, and James Makin should be
reversed because the affidavits attached to their respective motions are
defective, and the trial court erred in considering them over his
objections. Hartman also argues that even if, when considered, the
information the attorneys included in their affidavits is insufficient to
support the trial court’s ruling granting their traditional motions for
summary judgment.
conspiracy and that Walker did not demonstrate by a preponderance of
the evidence each essential element of a valid defense to these claims, we
affirm the trial court’s order denying Walker’s motion to dismiss under
the TCPA.”).
3
The trial court granted the motions of these three defendants in
separate interlocutory orders, signed two months before it signed the
final judgment. After the trial court signed these three orders, Hartman
filed his Sixth Amended Original Petition. In it, Hartman named only
Walker as a defendant in his suit.
As to Hartman’s first issue, we conclude Hartman’s arguments lack
merit. As to Hartman’s second issue, we hold that by amending his
petition, Hartman voluntarily dismissed Kimler, Vazquez, and Makin
from the suit. As a result, he cannot now show that the trial court’s final
judgment ordering Hartman to take nothing against Judge Walker and
disposing “of all parties and all claims” is improper. 3
For the reasons fully explained below, we will affirm.
Background
In May 2013, Stephen Hartman—a licensed process server—came
into the 252nd District Courtroom to serve Judge Walker with a
summons to appear before a federal court as a witness while he was
hearing a defendant’s plea. When Hartman approached the rail (the bar
that separates the public area of the courtroom where the attorneys, the
3Tex. R. App. P. 44.1(a).
4
parties, and court personnel are allowed to enter), Deputy Sheriff Steven
Broussard approached him to let him know that he could not go any
farther and could not approach the judge. Still, Hartman told the deputy
he disagreed, as he thought he had the right to carry out his duties as a
process server and execute service of the summons. When Hartman
insisted that he had the right to serve the summons, Deputy Broussard
ordered Hartman to step outside. Hartman refused.
Deputy Broussard responded by arresting Hartman, and with the
assistance of some of the other deputies serving as bailiffs that day in the
courtroom, Hartman was handcuffed and removed from the room. Of
course, when that was going on at the rail, the hearing that Judge Walker
was conducting came to a stop.4 Before Hartman was taken to jail, Judge
Walker came into the room where Hartman was being held and allowed
Hartman to serve him with the summons, which required the judge to
appear as a witness in federal court.
4Hartman disputes that he went beyond the courtroom’s rail. Yet
no dispute exists over whether Hartman refused to comply with Deputy
Broussard’s order to step outside the courtroom before Deputy Broussard
placed Hartman under arrest.
5
That same day, Deputy Broussard filed a probable cause affidavit
to support Hartman’s arrest. The probable cause affidavit contains
Deputy Broussard’s explanation about why he believed a good-faith basis
existed to arrest Broussard based on what Broussard said occurred in the
courtroom that day. Within a month, detectives with the Jefferson
County Sherriff’s Department obtained statements from the lawyers and
other individuals in Judge Walker’s courtroom about Hartman’s arrest
on May 28, 2013. The lawyers who were in the courtroom that day who
gave statements included Makin, Vazquez, and Kimler. They were in the
courtroom that day representing defendants, whose cases were on Judge
Walker’s docket.
In June 2013, Judge Lupe Flores, the judge of Jefferson County
Court at Law Number 2, appointed Joe Alford as the acting district
attorney, known as the District Attorney Pro Tem, to perform the duties
of the Jefferson County District Attorney’s Office in Hartman’s case.
Alford’s duties necessarily included deciding whether to charge Hartman
with an offense. 5 In July 2013, Alford charged Hartman by information
5Hartman v. Estate of Alford, No. 09-19-00051-CV, 2019 Tex. App.
LEXIS 8467, at *1 (Tex. App.—Beaumont Sept. 19, 2019, pet. denied)
6
with “Hindering a Proceeding by Disorderly Conduct,” a misdemeanor
offense under Texas law.6 Before the case went to trial, however, the trial
court dismissed the charge against Hartman. The charge was dismissed
because Alford’s oath of office as the acting district attorney wasn’t filed
with the trial court, as required by law.7
In March 2016, Hartman filed a civil suit for damages against
Judge Layne Walker and twenty-five other defendants. In his suit,
Hartman alleged the defendants were all part of a big civil conspiracy to
have him maliciously prosecuted for a crime he didn’t commit based on
fabricated evidence and conduct that didn’t justify his arrest.8 In the past
seven years, the trial court has disposed of all of Hartman’s claim, most
(mem. op.). The investigation was conducted by the detectives employed
by the Jefferson County Sheriff’s Office, employed by Jefferson County,
and investigators who, in 2013, were employed by Jefferson County but
were assigned jobs in the District Attorney’s Office.
6See Tex. Code Crim. Proc. Ann. art. 21.20; Tex. Penal Code Ann. §
38.13.
7See Tex. Code Crim. Proc. Ann. art. 2.07 (Attorney Pro Tem);
Estate of Alford, No. 09-19-00051-CV, 2019 Tex. App. LEXIS 8467, at *2
n.3 (observing that while the case against Hartman was dismissed
because Alford’s oath of office was not filed, the defect in procedure
created by that procedural defect isn’t sufficient to defeat a prosecutorial
immunity claim).
8Before bringing his claims in state court, Hartman sued the
defendants in federal court. In March 2016, the federal suit was
dismissed for lack of jurisdiction, and then Hartman filed it in state court.
7
of them based on pleas to the jurisdiction filed by defendants employed
by Jefferson County. 9 We affirmed the trial court’s rulings dismissing all
other defendants in three separate opinions, which we note below. 10
9A plea to the jurisdiction is a dilatory plea used to defeat a
plaintiff’s cause of action without regard to whether the plaintiff’s claims
have merit, as the plea requires the court to decide whether it has subject
matter jurisdiction over the plaintiff’s case. See Bland Indep. Sch. Dist.
v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
10Hartman v. Barker, No. 09-19-00052-CV, 2020 Tex. App. LEXIS
1436, at *18 (Tex. App.―Beaumont Feb. 20, 2020, pet. denied) (affirming
trial court’s ruling granting plea to the jurisdiction filed by the bailiff,
various sheriff’s department employees, members of Judge Walker’s
courtroom staff, Jefferson County’s District Attorney, and several
Jefferson County assistant district attorneys, explaining that because the
affidavits these witnesses provided after Hartman’s arrest were
“prepared and presented in the investigation” of the charges brought
against Hartman, they “were made in the course of a judicial
proceeding[,]” and that for that reason the employees were “covered by
absolute witness immunity” from Hartman’s suit); Hartman v.
Broussard, No. 09-19-00053-CV, 2020 Tex. App. LEXIS 1062, at *3, *10,
*19, *21 (Tex. App.—Beaumont Feb. 6, 2020, no pet. h.) (mem. op.)
(affirming trial court’s order dismissing Hartman’s claims against
Deputy Sheriff Steven Broussard, the officer who acted as the bailiff in
the 252nd District courtroom and who arrested Hartman, concluding
that by suing the County and Broussard in federal court, Hartman
triggered the election of remedies provision of the Tort Claims Act, Texas
Civil Practice and Remedies Code section 101.016(a)); Hartman v. Estate
of Alford, No. 09-19-00051-CV, 2019 Tex. App. LEXIS 8467, at *8 (relying
on the doctrine of absolute prosecutorial immunity, we affirmed the trial
court’s order dismissing Hartman’s suit against Joe Alford, the attorney
appointed to act as the district attorney to prosecute Hartman’s case in
Hartman’s appeal from the trial court’s ruling granting Alford’s plea to
the jurisdiction).
8
By July 2020, only five defendants remained before the court in
Hartman’s case: (1) Judge Walker; (2) Arthur Louis Jr. (a Jefferson
County deputy sheriff who was in Judge Walker’s courtroom but who was
not included with the other Jefferson County employees dismissed in the
trial court’s order granting the pleas to the jurisdiction); (3) James
Makin; (4) Joel Vazquez; and (5) Rife Kimler.
By January 2021, Makin, Vazquez, and Kimler filed traditional
motions for summary judgment, arguing that as witnesses in a criminal
investigation, they enjoyed absolute-witness immunity from the
Hartman’s claims alleging they provided false statements to the
detectives who interviewed them about Hartman’s arrest. In February
2021, the trial court granted their motions and ordered the Hartman’s
claims against the attorney dismissed, with prejudice. But at that point,
the orders granting the motions filed by the attorneys were interlocutory,
not final.
Seven weeks later, Hartman filed his Sixth Amended Petition and
named Judge Walker as the sole defendant against whom he was seeking
to recover damages in the suit. In his Sixth Amended Petition, his live
pleading for the purpose of this appeal, Hartman made just two claims:
9
(1) a claim for malicious prosecution, and (2) a claim for what Hartman
refers to in his brief as “a civil conspiracy to maliciously prosecute
Hartman.”
The court granted Judge Walker’s traditional motion for summary
judgment on Hartman’s claims in April 2021. The judgment, which is
styled “Final Summary Judgment,” recites:
Plaintiff Stephen Hartman shall take nothing from
Defendant Layne Walker.
This order finally disposes of all parties and all claims and
is appealable.
After the trial court signed the judgment, Hartman appealed. As
previously mentioned, he argues: (1) this court is bound by its ruling
upholding the trial court’s ruling in a prior appeal, Walker v. Hartman,
516 S.W.3d 71, 84 (Tex. App.—Beaumont 2017, no pet.), a case we will
refer to as Walker I; (2) the trial court erred in overruling his objections
to several critical exhibits that Walker relied on to support his motion for
summary judgment; and (3) the evidence Walker relied on to support his
motion failed to conclusively prove that Walker didn’t commit the three
elements of the tort of malicious prosecution that were challenged in
Walker’s motion, and Walker did not conclusively establish that Walker
10
wasn’t a party to a civil conspiracy formed to fabricate false evidence to
support charging Hartman with a crime.
In Hartman’s second issue, he argues the trial court erred in
granting the motions for summary judgment filed by Makin, Vazquez,
and Kimler. According to Hartman, the trial court erred in extending an
absolute-witness-immunity privilege to these three defendants because
they gave their statements to police before Alford formally brought
charges against Hartman in July 2013, which is when Alford formally
charged Hartman by information with disrupting the proceedings in
Judge Walker’s court.
Standard of Review
We review summary judgments de novo.11 “To prevail on a
traditional motion for summary judgment, the movant must show no
material fact issues exist and that it is entitled to judgment as a matter
of law.” 12 We take as true all evidence favorable to the party that opposes
the motion, and we indulge every reasonable inference and resolve any
11Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 218 (Tex.
2022).
12Id., Tex. R. Civ. P. 166a(c).
11
doubts in favor of that party.13 Of the various arguments the respective
defendants raised in their motions for summary judgments, the trial
court did not specify the precise argument it relied on when it granted
the motions. For that reason, we may affirm the trial court’s rulings on
any ground on which the trial court’s rulings have merit. 14
When a party that moves for summary judgment attaches
summary-judgment proof to its motion that is sufficient to establish that
no genuine issue of material fact exist on at least one element of the
plaintiff’s claim on which it is seeking to obtain a summary judgment,
“the burden shifts to the nonmovant to raise a genuine issue of material
fact precluding summary judgment” on that claim. 15 Evidence raises a
genuine issue of material fact when reasonable and fair-minded jurors
could differ in their conclusions after considering the summary-judgment
evidence properly considered in the hearing. 16
13Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003).
14Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39,
45 (Tex. 2017).
15Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).
16Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.
2007).
12
Analysis
I. Issue One
A. Did the trial court err in rejecting Hartman’s law-of-the case
argument?
Hartman contends that our holding in Walker I, a prior
interlocutory appeal in which we upheld the trial court’s ruling denying
Judge Walker’s TCPA motion to dismiss, operates as the law of the case,
and requires the Court to reverse the trial court’s ruling granting
Walker’s motion for summary judgment even though the trial court’s
ruling at issue here is not based on the same record we had before us
when we decided Walker I.17 Because the appeal in Walker I and the
appeal before us here are based on different evidentiary records, we
disagree with Hartman that the law-of-the-case doctrine applies to this
appeal.
To evaluate Hartman’s law-of-the-case argument, we must first
examine what the then existing language of TCPA statute allowed trial
courts to consider in ruling on TCPA motions to dismiss. In 2016, which
is when Judge Walker filed his TCPA motion to dismiss, the TCPA
17Walker I, 516 S.W.3d at 84.
13
statute limited the trial court to deciding such motions to the pleadings
and affidavits filed in support of or in opposition to the TCPA motion.18
The version of the TCPA that applies to the TCPA motion Judge Walker
filed in 2016 (and our review of the trial court’s ruling on it) provided:
In determining whether the legal action should be
dismissed under this chapter, the court shall consider the
pleadings and supporting and opposing affidavits stating the
facts on which the liability and defense is based. 19
When we affirmed the trial court’s ruling in Walker I and upheld
the trial court’s ruling, we noted: “Our review of the appellate record does
not reveal any affidavits from Walker.” 20 And in 2016, the only “evidence”
Judge Walker would have been allowed to file, had he filed any evidence
(and he did not) would have been affidavits to support his TCPA motion
to dismiss.21
18Citizens Participation Act, 82nd Leg., R.S., ch. 27, § 27.006(a),
2011 Tex. Gen. Laws 960, 962 (current version at Tex. Civ. Prac. & Rem.
Code Ann. § 27.006(a)) (In 2019, the legislature amended section 27.006
to allow trial courts to consider affidavits, pleadings, and the evidence a
court may consider under Texas Rule of Civil Procedure 166a, the rule
that applies to motions for summary judgment.).
19Id.
20Walker I, 516 S.W.3d at 77.
21Citizens Participation Act, § 27.006(a), 2011 Tex. Gen. Laws at
962.
14
In Walker I, the absence of any affidavits contradicting the factual
allegations in Hartman’s pleadings proved consequential, since once
Hartman’s pleadings established the TCPA applied to his claims the
burden of proof shifted to Walker to disprove the allegations in
Hartman’s pleadings.22 Yet because Judge Walker didn’t file affidavits to
contradict the allegations in Hartman’s pleadings to support his TCPA
motion to dismiss, we were required in Walker I to accept Hartman’s
pleadings as evidence when reviewing whether the trial court erred in
denying Judge Walker motion under the then exiting requirements of the
TCPA.23
That same problem does not exist here. On remand, Judge Walker
developed an evidentiary record to support his motion for summary
judgment. When boiled down, Walker’s summary-judgment evidence
22See Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (explaining
that under the TCPA, the trial court must consider pleadings whether
they are formally offered as evidence or not); Walker I, 516 S.W.3d at 79(noting that under the rules that apply to TCPA dismissal hearings,
pleadings are considered “as evidence” under the Act).
23Walker I, 516 S.W.3d at 81-82 (concluding that Hartman’s live
pleadings and affidavits, “which we are required to consider as evidence
under the TCPA, alleged facts if neither rebutted nor contradicted,
demonstrate the elements of causes of action for malicious prosecution
and civil conspiracy as to Walker”); see also Citizens Participation Act, §
27.006(a), 2011 Tex. Gen. Laws at 962.
15
supports his claim that he was not involved in the decisions that led to
Hartman’s prosecution for disrupting the proceedings in court or in any
alleged conspiracy to fabricate evidence to support charging Hartman
with a crime.
After we decided Walker I, the parties continued to litigate this case
for another four years in the trial court before Judge Walker moved for
summary judgment. Now, the appellate record includes the types of
summary-judgment evidence parties are allowed to file under Rule of
Civil Procedure 166a, evidence the parties were not allowed to file to
support a TCPA motion under the version of the TCPA that applied when
the trial court ruled on Judge Walker’s TCPA motion to dismiss.24
Turning to the summary-judgment evidence, the appellate record
shows that Judge Walker attached ten exhibits to his motion for
summary judgment. None of these exhibits were attached to Judge
Walker’s TCPA motion to dismiss in 2016.25 The exhibits include Deputy
24Compare Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a), with
Citizens Participation Act § 27.006(a), 2011 Tex. Gen. Laws at 962.
25Judge Walker supported his motion for summary judgment with
these ten exhibits: (1) a video of the proceedings in Judge Walker’s
courtroom on May 28th; (2) a copy of the probable cause affidavit signed
by Deputy Broussard supporting Hartman’s arrest; (3) a copy of the
16
Steven Broussard’s probable cause affidavit, the deputy who arrested
Hartman. Deputy Broussard’s probable cause affidavit explains why he
believed he had probable cause to arrest Hartman for disturbing the
proceedings, a defendant’s plea. The deputy’s affidavit explains that
Hartman was arrested after refusing to leave the courtroom and the
deputy and Hartman began arguing about whether the deputy had the
right to require Hartman to leave after the deputy told him he could not
serve Judge Walker with a summons while the judge was conducting a
hearing and on the bench. Nothing in the deputy’s affidavit reflects that
Judge Walker told Deputy Broussard before or during the hearing to
place Hartman under arrest. What’s more, nothing in Deputy
Broussard’s affidavit shows that Judge Walker met with, conspired with,
or was involved in the alleged mishandling by police of any evidence that
police gathered following Hartman’s arrest.
Information Joe Alford signed, filed in County Court at Law Number
Two, charging Hartman with Disorderly Conduct; (4) a copy of Hartman’s
public reprimand, issued by the Process Server Review Board; (5) a copy
of the decision of the Judicial Branch Certification Commission
sustaining Hartman’s public remand; (6) an affidavit from Kimler; (7) an
affidavit from Makin; (8) an affidavit from Vazquez; (9) the unsworn
declaration of Layne Walker; and (10) the unsworn declaration of Jeffrey
Dorrell, verifying exhibits 2, 3, 4, and 5 are true and correct.
17
Besides Deputy Broussard’s probable cause affidavit, Judge Walker
attached his unsworn declaration to his motion. It provides additional
support for Judge Walker’s claim that he didn’t participate in a malicious
prosecution or conspiracy to have Hartman prosecuted for disrupting the
proceedings in the 252nd District Court. 26 In his Unsworn Declaration,
which Judge Walker signed under penalty of perjury, he declared that he
was never asked to provide any information or testimony about Hartman
after Hartman’s arrest. Among other things, Walker states in his
Unsworn Declarations that:
• . . . As part of the investigation of Steven Hartman’s
courtroom conduct on May 28, 2013, I was never asked to
provide information or testimony regarding Hartman's
actions. Therefore, I never provided any information or
testimony regarding Hartman’s actions on May 28, 2013,—
true, false, or otherwise.
• I never asked, instructed, or suggested that any witness to
Steven Hartman’s May 28, 2013, courtroom conduct give any
particular testimony regarding Hartman’s conduct[;] and
• I never met with any witness(es) to Steven Hartman’s May
28, 2013 conduct, courtroom conduct in court on May 28th] to
discuss his or their testimony regarding Hartman’s conduct.
26See Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a) (with
exceptions that are not relevant here, allowing unsworn declarations to
“be used in lieu of a written sworn declaration, verification, certification,
oath, or affidavit required by statute, or required by a rule, order, or
requirement adopted as provided by law”).
18
Simply put, a TCPA motion to dismiss is a procedural device
authorizing a party to seek an early dismissal of certain claims subject to
the Act within sixty days of serving the defendant with the motion.27 It
allows a party to challenge the plaintiff’s pleadings by alleging they fail
to plead sufficient facts to proceed on the certain claims, like those subject
to the First Amendment, that are subject to the protection offered
through an early dismissal under the Act. 28 Given the early stage of the
proceedings at which TCPA motions are filed, the evidence available to
the trial court is rarely (if ever) very fully developed.
Unlike the record before us in Walker I, the record now before us
was developed after years of litigation where the parties had a full
opportunity to determine whether there was any substance whatsoever
to Hartman’s claims. And unlike the record in Walker I, the record here
includes summary-judgment evidence, which consists of exhibits that
support Judge Walker’s claim he was not involved in the investigation of
Hartman’s case or with Joe Alford’s decision to charge Hartman with a
crime. Because Walker’s TCPA motion to dismiss and his traditional
27Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b).
28Id.
19
motion for summary judgment are not based on the same evidentiary
records, we conclude the trial court did not err in rejecting Hartman’s
law-of-the-case argument and in deciding Judge Walker’s motion on its
merits. 29
B. Did the trial court err in overruling Hartman’s objections to
Walker’s summary-judgment evidence?
Next, Hartman argues that based on the evidence supporting Judge
Walker’s motion for summary judgment, the burden of proof never
shifted to him to present evidence to establish that issues of material fact
existed on the elements of his malicious prosecution and civil conspiracy
claims that were challenged in Judge Walker’s motion. Hartman’s
argument that the burden never shifted to him relies on his claim that
the trial court erred in overruling seven of his objections to Judge
29See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)
(explaining that the law-of-the-case doctrine doesn’t apply when “the
issues or facts have sufficiently changed”); Glenn v. Prestegord, 456
S.W.2d 901, 902 (Tex. 1970) (rejecting argument that the Court’s opinion
in a former appeal governed the outcome of the current appeal when
different standards applied in the trial court as to which of the parties
bore the burden of proof); Governing Bd. v. Pannill, 659 S.W.2d 670, 681
(Tex. App.—Beaumont 1983, writ ref’d n.r.e.) (rejecting argument that
the trial court erred in rejecting a law-of-the-case argument, which
depended on a prior opinion of the court of appeals, when the evidentiary
record on which the later appeal was based differed materially from the
evidentiary record in the prior appeal).
20
Walker’s summary-judgment evidence—his objections to Exhibits 2 and
Exhibits 4 through 9. We disagree the trial court erred in overruling
Hartman’s objections to these exhibits.
The substance of the complaints Hartman raises to Walker’s
exhibits address the trial court’s rulings on Hartman’s objections to
Exhibit 2 (the Probable Cause Affidavit signed by Deputy Broussard),
Exhibit 6 (the affidavit signed by Kimler), Exhibit 7 (the affidavit signed
by Makin), and Exhibit 8 (the affidavit signed by Joel Vazquez). In the
trial court, Hartman argued these exhibits were inadmissible because
other summary-judgment evidence contradicts the information these
four exhibits contain.
Hartman also complains the trial court erred in admitting Exhibits
4 and 5 because they weren’t relevant. Exhibit 4 is the reprimand
Hartman received from the Process Server Review Board, which found
Hartman “disrupted the proceedings in the 258th District Court on May
28, 2013.” Exhibit 5 is the Judicial Branch Certification Commission’s
ruling sustaining that finding. According to Hartman, Exhibits 4 and 5
aren’t relevant to the issue of whether he was subjected to a prosecution
for “disturbing a court proceeding via noise.” Last, Hartman objected to
21
Exhibit 9—Judge Walker’s Unsworn Declaration—arguing that “as
unsworn testimony” it was “conclusory and self-serving.”
Generally, reviewing courts defer to “a trial court’s decision to
exclude or admit summary judgment evidence.” 30 As to the exhibits 2, 6,
7, and 8, the affidavits attached to Judge Walker’s motion, Rule 166a(f)
of the Texas Rules of Civil Procedure requires supporting and opposing
affidavits used in summary-judgment proceedings to “set forth such facts
as would be admissible in evidence, and [to] show the affiant is competent
to testify to the matters stated therein.” 31 In a trial, evidence relevant to
an issue is generally admissible unless the United States and Texas
Constitutions, a statute, or a rule of evidence otherwise provides. 32
As to Exhibits 2, 6, 7, and 8, Hartman doesn’t rely on any
constitutional argument, a statute, or a rule of evidence in his brief to
support his argument that these affidavits aren’t relevant or were
inadmissible; instead, he argues these four exhibits were inadmissible
simply because other evidence in the record contradicts what’s in them.
30Lujan, 555 S.W.3d at 85.
31Tex. R. Civ. P. 166a(f).
32Tex. R. Evid. 402.
22
We disagree the six affidavits were inadmissible. First, they were
all relevant to the issues raised in Walker’s motion for summary
judgment, as Walker challenged three elements of Hartman’s malicious
prosecution claim: (1) did Walker procure Hartman’s prosecution; (2) was
Hartman innocent of the charge; and (3) did Walker lack probable cause
to initiate or procure the prosecution that resulted from his arrest. Thus,
Walker’s motion made the issues of whether he procured Walker’s
prosecution and whether probable cause existed to justify Hartman’s
prosecution relevant to the trial court’s resolution of Walker’s motion.
Under the Rule of Evidence 401:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and
(b) the fact is of consequence in determining the action.33
Broussard, Makin, Vasquez, and Kimler were all witnesses to
Hartman’s conduct in the 252nd District Court in May 2013. The fact
that there is other summary-judgment evidence that conflicts with
Walker’s doesn’t make Judge Walker’s summary-judgment evidence
inadmissible. For instance, even were it true that the video captured on
33Tex. R. Evid. 401.
23
the pen recording that Hartman carried into the courtroom with him that
day shows he never went beyond that rail separating the gallery of the
courtroom from the area reserved for attorneys, which is the reason
Hartman argues the affidavits of the attorneys are unreliable,
discrepancies in summary-judgment evidence is a matter that concerns
the weight the evidence is given, not its admissibility.34 We further note
that when Hartman was in the trial court, he did not argue the trial court
should exclude any evidence under the “sham affidavit” rule, and he
hasn’t made that argument here.35 Because the affidavits were from
eyewitness and were relevant to the issues raised in Judge Walker’s
motion, we conclude Hartman’s argument claiming the exhibits shouldn’t
have been admitted because there is other contradictory evidence in the
record lacks merit.
34See Lujan, 555 S.W.3d at 85 (explaining that just because there
are variances between the same witness’s sworn accounts, the fact there
are variations don’t necessarily justify a court’s exclusion of a witness’s
affidavit as a sham); Valent v. Firstmark Credit Union, No. 04-19-00687-
CV, 2020 Tex. App. LEXIS 2185, at *7 (Tex. App.—San Antonio Mar. 11,
2020, no pet.) (holding that whether a business-records affidavit
contained inaccurate information affected its weight, not its
admissibility).
35Lujan, 555 S.W.3d at 85-90.
24
Next, Hartman argues the trial court erred in admitting Exhibits 4
and 5—the reprimand he received from the Process Server Review Board
and the decision by the Judicial Branch Certification Commission
affirming the reprimand—because those entities did “not find [Hartman]
was reprimanded for disturbing a proceeding via noise.” Hartman
contends the reprimand isn’t an adjudication in a court of law, and
therefore it didn’t have “a collateral estoppel or res judicata effect.”
The Judicial Branch Certification Commission (JBCC) and Process
Server Review Board were created by the legislature.36 Thus, the letter
from the Process Server Review Board informing Hartman of its findings
from the hearing it conducted following its investigation into a complaint
it received about disrupting the proceedings in the 252nd District Court
is a fact of consequence in Hartman’s case, as the finding reflects that a
public body determined Hartman disrupted a court proceeding. The letter
states:
Based on the testimony and the evidence, the Board found
that you a person certified by the Board to serve civil process
statewide, disrupted the proceedings in the 252nd Criminal
District Court of Jefferson County on May 28, 2013 by
attempting to serve process on Judge Layne Walker while
court was in session.
36Tex. Gov’t Code Ann. §§ 152.051, 156.051(a).
25
We recognize the information charging Hartman with a criminal
offense alleges he disputed the hearing by “noise,” while the letter
Hartman received from the Process Server Review Board doesn’t specify
the exact cause of the disturbance. But no matter the exact cause, the
letter undercuts Hartman’s claim that he didn’t disrupt the proceedings
and that he didn’t cause the disturbance because it constitutes evidence
that he is the person who disrupted the proceedings by attempting to
serve process on Judge Walker while court was in session.
That’s relevant because under the section 38.13 of the Penal Code,
the statute that Hartman was charged with violating, noise isn’t the only
way someone may be charged with a violation. The hindering a
proceeding by disorderly conduct statute may be violated in one of four
ways, (1) “by noise[,]” by (2) “violen[ce,]” by (3) tumultuous behavior[,]” or
by “disturbance[.]” 37 Furthermore, the State could have chosen to refile
the information and allege that Hartman intentionally or recklessly
hindered the hearing in Judge Walker’s court by creating a “disturbance”
37Tex. Penal Code Ann. § 38.13.
26
when he refused to comply with Deputy Broussard’s demand to leave the
courtroom. 38
Hartman’s own affidavit acknowledges that he refused the deputy’s
demand to leave the room. When Hartman responded to Judge Walker’s
motion, he filed an affidavit in which he swore that when Deputy
Broussard told him to “GET OUR OF HERE NOW, YOU NEED TO
LEAVE NOW[,]” he told the deputy: “No sir. . . . I advised the sergeant
that I was there to serve papers on the judge[.] . . . [T]he sergeant stated
that at the time I was under arrest[.]” Thus, the record shows that
Deputy Broussard arrested Hartman only after Hartman failed to comply
with the deputy’s instructions to leave the room.
Judge Walker’s motion for summary judgment made the question
of whether Hartman was innocent relevant, as his motion argued that
Hartman couldn’t establish that he was “innocent of the charge.”
Therefore, the letter from the Board and the JBCC ruling upholding it
38See Tex. Code Crim. Proc. Ann. art. 28.10 (Amendment of
Indictment or Information); Wilson v. State, 504 S.W.3d 337 (Tex. App.—
Beaumont 2016, no pet.) (in a criminal trespass case, holding the city-
manager’s warning to the defendant that he could not return to the city’s
community center was sufficient evidence to establish that when the
defendant returned to the community center, he didn’t have the city’s
permission to be there).
27
were relevant to a fact of consequence in the dispute. We conclude
Exhibits 4 and 5 were relevant (but not conclusive) on the Judge Walker’s
claim that Hartman could not establish he was innocent of having
disrupted the hearing Judge Walker was conducting in 2013.39 Stated
another way, whether noise or whether something else hindered the
proceeding are matters that concern the weight to assign Exhibits 4 and
5, they do not make the exhibits irrelevant and inadmissible as to
Hartman’s claims.40
Hartman also argues that since the proceedings before the Process
Server Review Board and JBCC were merely administrative proceedings
leading to his reprimand, not adjudications in a court of law, Exhibits 4
and 5 don’t have a res judicata or collateral estoppel effect. From that
argument, he concludes that makes the two exhibits inadmissible. Yet
Judge Walker never argued that Hartman could not contest the findings
in Exhibits 4 and 5, in other words Walker never claimed that the
39Tex. R. Evid. 401.
40Hartman did not argue in the trial court or here that the records
from these two entities did not meet the hearsay exception that applies
to public records, Texas Rule of Evidence 803(8). For that reason, we
expressly do not address the admissibility of Exhibits 4 and 5 under Rule
803(8).
28
doctrines of collateral estoppel or res judicata applied to Hartman’s
claims based on Exhibit 4 or 5. Instead, Judge Walker relied on the
exhibits to support his contention that they were evidence to show that
probable cause to justify the Joe Alford’s decision to charge Hartman with
a crime.
Generally, public records or statements of a public office are
admissible as an exception to the hearsay rule.41 Walker’s motion alleged
Exhibits 4 and 5 were admissible under Rule of Evidence 803(8), the rule
that creates an exception for public records. In the trial court, Hartman
didn’t claim Exhibits 4 and 5 weren’t public records, and he didn’t argue
the exhibits were inadmissible under Rule 803(8).
Under Texas law, trial courts have broad discretion in deciding
whether to admit or exclude evidence. Here, Judge Walker did not argue
that res judicata or collateral estoppel prevented Hartman from proving
that issues of material fact existed on the elements of his malicious
prosecution and civil conspiracy claims. For that reason, we hold the trial
court did not act without reference to the guiding rules and principles in
41Tex. R. Evid. 803(8).
29
overruling Hartman’s res judicata and collateral estoppel objections to
Exhibits 4 and 5. 42
Turning to Exhibit 9 (Judge Walker’s Unsworn Declaration),
Hartman complains the trial court erred in considering it over his
objections that it is “unsworn,” “conclusory, and self-serving.” Because
Hartman attacks the substance of the statements in Judge Walker’s
Unsworn Declaration, we will quote the substance of it in its entirety:
1. My name is William Ralph Layne Walker. My date of birth
is [ ], 1964. My address is 215 Orleans, Suit[e] 300,
Beaumont, 77701. I am over the age of 18 and competent to
make this declaration. I make this unsworn declaration
pursuant to Tex. Civ. Prac. & Rem. Code. § 132.001 in lieu of
an affidavit. I declare under the penalty of perjury that the
facts stated herein are within my personal knowledge and are
true and correct.
2. I am the sole remaining defendant in the above-entitled and
numbered cause.
3. On May 28, 2013, I was the duly elected judge of the 252nd
District Court of Jefferson County, Texas. On that day, while
I was on the bench presiding, Stephen Hartman came to my
courtroom to serve me with process in No. 1: 13-CV-00327;
Morrison v. Walker; in the U.S. District Court for the
Eastern District of Texas.
4. While I was hearing arguments in a motion to revoke
probation, I heard loud talking and a commotion in the
42See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43
(Tex. 1998).
30
courtroom. I diverted my attention from the attorneys arguing
before me to see Jefferson County Sheriff’s Deputy Steven
Broussard confronting Stephen Hartman. After Hartman
refused to leave the courtroom, I saw Deputy Ste[ph]en
Broussard place Hartman under arrest and put Hartman in
handcuffs.
5. On July 11, 2013, Hartman was charged by Criminal
District Attorney Pro Tem Joe Alford with hindering an
official proceeding by noise. As part of the investigation of
Ste[ph]en Hartman’s courtroom conduct on May 28, 2013, I
was never asked to provide information or testimony
regarding Hartman’s actions. Therefore, I never provided any
information or testimony regarding Hartman’s actions on
May 28, 2013—true, false, or otherwise.
6. I never asked, instructed, or suggested that any witness to
Ste[ph]en Hartman’s May 28, 2013, courtroom conduct give
any particular testimony regarding Hartman’s conduct.
7. I never met with any witness(es) to Ste[ph]en Hartman’s
May 28, 2013, courtroom conduct to discuss his (or their)
testimony regarding Hartman’s conduct.
___________/s/________________
William Ralph Layne Walker
First, we will address Hartman’s argument that the instrument is
unsworn. Hartman notes that while affidavits are mentioned in Rule
166a as the type of evidence that a party may use to support a motion for
summary judgment, unsworn declarations are not. 43 Even though we
43See Tex. R. Civ. P. 166a.
31
concede that unsworn declarations aren’t specifically mentioned in Rule
166a, we note that with limited exceptions that aren’t applicable here,
the legislature gave parties the right to use unsworn declarations rather
than affidavits when affidavits are “required by statute or required by a
rule, order, or requirement adopted as provided by law” 44 On appeal,
Hartman doesn’t argue that Judge Walker’s declaration doesn’t comply
with the requirements of the unsworn-declaration statute, section
132.001.45
Second, we turn to Hartman’s procedural objections to the form of
Judge Walker’s Unsworn Declaration. According to Hartman, Judge
Walker’s declaration wasn’t signed before a notary, and it isn’t notarized.
Even so, unsworn declarations aren’t required to be notarized.46
Hartman’s complaint alleging that Judge Walker’s declaration is
defective because it isn’t notarized is frivolous.
44Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a).
45Id.
46Id. § 132.002(c) (providing that to qualify as an unsworn
declaration, it must be “in writing” and “subscribed by the person making
the declaration as true under the penalty of perjury” accompanied by a
jurat that substantially complies with the form like the one provided as
an example in the statute).
32
Last, Hartman complains that Judge Walker’s declaration is
conclusory and self-serving. Judge Walker’s declaration reflect he was in
the courtroom on May 28th. His statements are about what occurred in
the courtroom that day and about what he knows about his participation,
or lack thereof, in the investigation that followed. All these statements
are based on Judge Walker’s personal knowledge. Judge Walker
describes what he was doing, what diverted his attention from the
hearing he was conducting, and is statements reveal that he saw Deputy
Broussard arrest Hartman “[a]fter Hartman refused to leave the
courtroom.” As to the investigation, Judge Walker would have known
whether anyone contacted him following Hartman’s arrest as it concerns
the investigation conducted by authorities. Walker would have personal
knowledge about whether he met with any witnesses about what
occurred.
Under Rule 602 of the Rules of Evidence, a witness may testify to
matters within their personal knowledge.47 Hartman’s argument that
Judge Walker’s declaration is conclusory and self-serving lacks merit, as
his statements are based on his personal knowledge and were made
47Tex. R. Evid. 601.
33
under penalty of perjury. For all these reasons, we hold the trial court
did not err in overruling Hartman’s objections to Exhibit 2 or to Exhibits
4 through 9.
C. Is the evidence insufficient to support the trial court’s ruling granting
Judge Walker’s motion granting summary judgment on Hartman’s
malicious prosecution and civil conspiracy claims?
Turning first to Hartman malicious prosecution claim, he argues
that the evidence Judge Walker relied on to support his motion his
motion never shifted the burden of proof to Hartman to present
summary-judgment evidence raising fact issues on the three elements of
his malicious prosecution claim that were challenged in Judge Walker’s
motion. Hartman then argues that even if the burden shifted to him, the
evidence he attached to his response established that genuine issues of
material fact exist on the challenged elements of his malicious
prosecution claim.
There are seven elements that a plaintiff must prove to prove a claim
of malicious prosecution. Of these, Judge Walker’s motion challenged
three of the elements of a malicious prosecution claim, arguing that as a
matter of law (1) Walker did not initiate or procure Hartman’s
prosecution, (2) Hartman was not innocent of committing an offense, and
34
(3) probable cause existed for the State to charge Hartman with a crime.48
Proving a claim of civil conspiracy requires proof the defendant, (1)
together with at least one other person, (2) agreed on an object to be
accomplished, (3) those involved in the conspiracy had a meeting of the
minds on the object or course of action, (4) committed one or more
unlawful, overt acts to accomplish the goal of the conspiracy, and (5) the
plaintiff suffered damages as a result. 49
We will first address Walker’s argument that he didn’t initiate or
procure Hartman’s prosecution before addressing his other arguments,
as this is the argument that is dispositive of Hartman’s claim for
malicious prosecution. Judge Walker’s summary-judgment evidence
describes the circumstances leading to Hartman’s arrest and prosecution.
48These are the four elements of Hartman’s malicious prosecution
claim that Walker’s motion left unchallenged: (1) a criminal prosecution
against Hartman was commenced; (2) the prosecution terminated in
Hartman’s favor; (3) the requirement that Hartman prove Walker acted
with malice; and that (4) Hartman suffered damages from the resulting
prosecution. See Kroger v. Suberu, 216 S.W.3d 788, 792 n.3 (Tex. 2006).
49See Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136,
141-42 (Tex. 2019); First United Pentecostal Church of Beaumont v.
Parker, 514 S.W.3d 214, 222 (Tex. 2017).
35
He described his lack of involvement in the post-arrest investigation.50
Deputy Broussard’s affidavit shows that Deputy Broussard arrested
Hartman after what had occurred just a few minutes before, during a
time that Judge Walker was busy conducting a hearing on the bench.
Deputy Broussard’s probable cause affidavit reflects that he arrested
Hartman without being ordered to do so by anyone. His affidavit doesn’t
reflect a role for Judge Walker in the decision he made in deciding
whether to make the arrest. Nothing in the summary-judgment evidence
links Judge Walker to the post-arrest investigation conducted by police
or the investigators that worked for the District Attorney’s Office. And
nothing shows that Walker had any contact or role in Joe Alford’s
decision to charge Hartman about six weeks later with disrupting the
proceedings in Judge Walker’s court.
Since Deputy Broussard is the person who made the decision to
arrest Hartman, and he stated his reasons for doing so in his probable
cause affidavit, we quote it here:
50Agar Corp., 580 S.W.3d at 141 (explaining that civil conspiracy is
not an independent tort, but it exists so that on proving a conspiracy a
plaintiff may obtain a remedy against any co-conspirators involved in the
underlying tort).
36
On 05/28/2013 (Tuesday) I was performing duties as a bailiff
+(sic) in the 252nd Criminal District Court (Judge Layne
Walker). Located at 1001 Pearl Street, Beaumont, Jefferson
County, Texas. 77701. I was wearing my distinctly marked
Jefferson County Sheriff’s Office uniform. At about 1030 hrs.
I observed a white male approaching the railing in the
courtroom. No one is permitted past this line without
authorization from either the Judge or the bailiff's
permission.
At this time I observed Deputy Sharon Lewis approach tile
male and stop him from advancing any closer. I could see her
speaking to the male. She, then approached me and stated
that the subject had papers and he wanted to serve Judge
Walker. Judge [W]alker was in the process of a pleading. I
approached the male and stated that due to security reasons
he could not approach the judge at this time. I could see that
this clearly agitated the subject. He began raising his voice
and I ordered him be qui[e]t and sit down or exit the
courtroom. I informed him he was interrupting daily
activities. He informed me that I could not stop him from
approaching the judge.
By now I became fearful for the safety of the court and asked
the male subject to step outside the courtroom. He said I could
not order him outside. I gave him another command to exit
the courtroom and again he refused to leave. I attempted to
explain to him that he could not disrupt these proceedings.
The subject again stated I could not have him leave the
courtroom. At this time I informed the subject that he was
under arrest. I reached to take control of the subject and place
handcuffs on him. He pulled away from [me] and stated that
I had no authority to put my hands on him. By this time his
voice became excessively loud, to the point that the court
proceedings stopped. By now Deputies Lewis and Barker
observed me struggling [with] the subject and came to my aid
in placing the subject into handcuffs.
37
The subject was then identified as Stephen Hartman. He was
taken to the inmate holding cell. He was transported to the
Jefferson County Correctional Facility by the Sheriff’s
transport division.
The remaining exhibits attached to Judge Walker’s motion provide
more support for his argument. Yet the information in Broussard’s
affidavit and in Judge Walker’s declaration by themselves shifted the
burden of proof to Hartman to respond with summary-judgment evidence
raising an issue of material fact to show that Judge Walker initiated or
procured Joe Alford’s decision charging Hartman with a crime.
Hartman argues that his summary-judgment evidence is sufficient
to show that a fact issue exists on his claim that Judge Walker procured
Alford’s decision to prosecute Hartman for disturbing the proceedings in
his court. Certainly, Hartman pleaded that Walker was plotting with his
bailiffs to have Hartman arrested if he appeared and attempted to serve
the judge with a summons. Yet Hartman never presented any evidence
supporting that claim. Hartman says his pleadings should count. But
pleadings are nothing more than allegations about what a party intends
38
to prove at trial. When contested as here, pleadings are not evidence of a
party’s claims. 51
Thus, Hartman needed to present evidence that Joe Alford’s decision
to charge him with a crime would not have been made but for false
information supplied to Alford or to the police by Judge Walker. 52 Yet
none of the evidence Hartman attached to his response shows Judge
Walker provided anyone with any information after Hartman’s arrest,
including any information that was false.
Next, Hartman points us to indictments of some of the deputies who
were involved in the investigation, indictments that were based on the
deputies alleged mishandling of evidence after Hartman’s arrest.
Hartman acknowledges that the indictments against these deputies were
dismissed. Still, Hartman argues the indictments show the affidavits by
the deputies that Walker relied on are unreliable.
51See Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 543
(Tex. 1971) (“Pleadings simply outline the issues; they are not evidence
even for summary judgment purposes.”).
52King v. Graham, 126 S.W.3d 75, 78 (Tex. 2003) (per curiam)
(explaining that to prove malicious prosecution, the plaintiff has the
burden to prove the prosecutor’s or grand jury’s decision to charge a
defendant with an offense “would not have been made but for the false
information supplied by the defendant”).
39
In a criminal case, a person’s indictment is not evidence of the
defendant’s guilt. Traditionally, juries are instructed in a criminal case
that “the indictment is not evidence of guilt.”53 In a civil case alleging
malicious prosecution, the only relevance of the plaintiff indictment is to
prove that the plaintiff’s prosecution has ended—the indictment is not
relevant for any other purpose. 54 As to the indictments Hartman relies
on, Hartman concedes that none resulted in convictions. And in civil
cases, with exceptions not applicable here, only final felony convictions
are admissible as evidence in a civil case.55 Thus, the indictments
Hartman points to don’t raise an issue of material fact on whether
Walker was involved in procuring Joe Alford’s decision to prosecute
Hartman for a crime. 56
The remaining exhibits Hartman attached to his response also fail
to show that Judge Walker provided any information to anyone involved
53See State Bar of Tex. Criminal Pattern Jury Charges: The General
Charge § 2.1 (General Principles) (2018); Beal v. State, 520 S.W.2d 907,
911 (Tex. Crim. App. 1975); Hall v. State, 150 S.W.2d 404, 407 (Tex. Crim.
App. 1941).
54See Equitable Life Assur. Soc’y of United States v. Lester, 110 S.W.
499, 502 (Tex. Civ. App. 1908, no writ).
55Tex. R. Evid. 803(22)(A).
56See Hidalgo, 462 S.W.2d at 543.
40
in Hartman’s investigation, fail to show that he spoke to any witnesses
about their testimony, and fail to show that Judge Walker provided any
information to Joe Alford, the acting attorney who decided to charge
Hartman with a crime. We address the exhibits Hartman points to in his
brief in turn: (1) the Reporter’s Record from the proceedings of the plea
hearing that Judge Walker was conducting when Hartman was arrested;
(2) the recording from the pen recorder, which Hartman carried into the
courtroom; (3) the affidavit of James Makin; (4) the affidavit of Joel
Vazquez; (5) the affidavit of Rife Kimler; and (6) the sworn statement of
Diane Rojas, the office manager for Allied Bail Bonds.
The Reporter’s Record of the hearing on the plea Judge Walker was
conducting when Hartman came into the 252nd District courtroom
simply doesn’t support Hartman’s theory that Judge Walker was
involved in ordering Hartman’s arrest. Instead, the Reporter’s Record is
consistent with the affidavits of Deputy Broussard and Hartman, which
both show Deputy Broussard told Hartman that he had to leave the
courtroom or “you’re going under arrest.” Despite the fact the record
continues for another page after that occurred, given Walker’s evidence
that he had no contact with Alford and no input into the investigation
41
conducted by police, nothing in the Reporter’s Record shows that Joe
Alford’s decision to charge Hartman would not have been made but for
information he obtained from someone directly or indirectly through
Judge Walker.
Likewise, we find nothing in the affidavits of Makin, Vazquez, and
Kimler, the three attorneys who were present in Judge Walker’s
courtroom, to support Hartman’s malicious prosecution claim. Instead,
the affidavits from these attorneys reflect that none of them were
influenced by anyone to provide false testimony about what they saw
occur in the courtroom of the 252nd District Court. None of the
statements reflect the attorneys had opinions about whether Hartman
should (or should not) be prosecuted for what he did, and none of the
attorneys expressed an opinion about whether Hartman committed a
crime.
The sworn statement from Diane Rojas, which was taken July 2015,
reflects that Rojas was working as the office manager of Allied Bail Bonds
when she spoke to Hartman while in the hallway outside the 252nd
District Court. She stated she knew Hartman because he was formerly
employed by Allied Bail Bonds. According to Rojas, she spoke to Hartman
42
about ten minutes before he went into the courtroom. In her statement,
Rojas said Hartman told her that “he was going to try to serve Judge
Walker papers pertaining to whatever lawsuit it was regarding, which
[she could no longer recall].” Rojas also said that she never spoke to Judge
Walker about Hartman’s arrest. Thus, like Hartman’s other evidence, it
offers no facts to show that Judge Walker had anything whatsoever to do
with procuring Hartman’s prosecution for disturbing the proceedings in
the 252nd District Court.
To sum it up, after years of litigation in state and federal court,
Hartman failed to provide the trial court with any evidence to show that
Judge Walker procured Joe Alford’s decision to charge Hartman with a
crime. Because Hartman did not meet his burden of proof, we hold the
trial court did not err in rendering a take-nothing judgment in Judge
Walker’s favor on Hartman’s malicious prosecution claim.57
We need only briefly address Hartman’s civil conspiracy claim.
Among other things, proving a claim of civil conspiracy requires proof
57M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23
(Tex. 2000) (explaining that subjective beliefs about whether a
discriminatory purpose motivated the hospital’s decision to terminate an
employee were “insufficient to overcome [the hospital’s] summary
judgment evidence”).
43
that the persons involved reached a “meeting of the minds on the object
or course of action.” 58
Hartman argues that the circumstantial evidence in the exhibits he
attached to his summary-judgment response is enough to allow a jury to
infer that Judge Walker was responsible for the wrongful conduct of the
court personnel assigned to his courtroom, including Deputy Broussard.
His theory is that Judge Walker is responsible for the court personnel
assigned to his courtroom because he is the “boss in the courtroom.”
Based on this theory, for which he cites no authority, Hartman argues a
jury could reasonably believe that Judge Walker was responsible for
Deputy Broussard’s filing a false (Hartman claims) probable cause
affidavit in which he claimed that Hartman raised his voice in the
courtroom when that claim was false. Hartman also claims that the jury
could have attributed other misconduct made by those assigned to Judge
Walker’s staff to Walker as their “boss,” including the various officers
involved in handling Hartman’s arrest and the investigation into his
arrest. Hartman contends the conspiracy that infected the investigation
went beyond Judge Walker’s courtroom, but nonetheless he theorizes
58Parker, 514 S.W.3d at 222.
44
that a jury could infer that since Judge Walker was the boss, he played a
role in manipulating the facts to make it appear that Hartman was guilty
of having committed a crime. Hartman concludes that a jury could
reasonably find that Judge Walker’s assigned staff, including those like
Deputy Broussard, could be found to have been “acting on behalf of, and
at the request of Walker” and acting together “as part of the civil
conspiracy.”
As a practical matter, Hartman’s “boss-in-the-courtroom” theory
would make judges liable for whatever torts those assigned to a
courtroom might commit. Yet clearly Hartman’s theory is based on a
claim of agency, since it essentially seeks to make judges responsible for
the acts of staff assigned by a county to work in a judge’s courtroom, even
though the employees working in the courtroom typically, as here, are
employed by the county, not by the judge. As to Hartman’s agency theory,
we note that Hartman alleged (and sued) Jefferson County as the
employer of twenty-two Jefferson County employees he sued, including
Deputy Broussard. Hartman alleged that the County, as their employer,
was responsible for their acts. Hartman never alleged that any of these
45
twenty-two Jefferson County employees, including Deputy Broussard,
were employed by Judge Walker. 59
We recognize, of course, that a judge in a courtroom may instruct
bailiffs assigned to work in a court how to discharge their responsibilities
while court is in session. That said, except for Deputy Broussard’s
statement in his probable cause affidavit to the effect that without the
judge’s or a bailiff’s permission no one may go past the courtroom’s rail,
we find nothing else in the record to show what procedures Judge Walker
expected his bailiffs to follow in his courtroom. And here, we have no
evidence in the appellate record that shows Judge Walker created a rule
requiring a person to immediately be arrested and charged with a crime
should that person pass the rail without the bailiff’s permission or raise
their voice. There is also no evidence that Judge Walker met with
deputies and instructed them to arrest Hartman if he appeared in court
59In an interlocutory appeal in this same case in which we
dismissed Hartman’s claims against Deputy Broussard for lack of
jurisdiction, we held: “Hartman’s decision to sue both [Deputy] Broussard
individually and his employer, Jefferson County, triggered [Texas Civil
Practice and Remedies Code Section 101.106] subsection (a)’s election of
remedies [provision,] which bars suit against an employee in his
individual capacity.” Broussard, 2020 Tex. App. LEXIS 1062, at *10
(cleaned up).
46
and tried to serve Walker with a summons while the judge was on the
bench.
As Hartman tells it, he never passed the rail, never raised his voice,
and Alford charged him with a crime based on false information that
Alford was given by the authorities, sheriff’s deputies and investigators
from the Jefferson County District Attorney’s Office who were involved
in the investigation of Hartman’s arrest. Regardless of whether Hartman
was falsely charged, an issue we need not decide, there is no evidence in
this record to refute Judge Walker’s summary-judgment evidence that he
didn’t instruct Deputy Broussard to arrest Hartman, didn’t speak to the
authorities who investigated Hartman arrest, and never spoke to the
acting district attorney, Joe Alford, who made the decision to charge
Hartman with disturbing the proceedings in the 252nd District Court.
Absent evidence proving that Judge Walker met with, discussed,
and agreed on an object or course of action to have Hartman prosecuted,
we conclude Hartman failed to provide the trial court with evidence
sufficient to raise a genuine issue of material fact on his civil conspiracy
claim. Having reviewed Hartman’s arguments supporting his first issue,
47
we conclude they lack merit. For the reasons explained above, Harman’s
first issue is overruled.
II. Issue Two
A. Did the trial court err in granting the motion for summary
judgment filed by Makin, Vazquez, and Kimler?
In his second issue, Hartman argues the trial court erred in granting
the motions for summary judgment filed by Makin, Vazquez, and Kimler
and ordering his claims against them dismissed. 60 He argues that since
they provided police with witness statements before he was indicted or
formally charged, they were not immune from suit on his malicious
prosecution and civil conspiracy claims. In his Fifth Amended Petition,
Hartman alleged the three attorneys provided the detectives who
questioned them false information, which led to his prosecution.
According to Hartman, the trial court erred in relying on the absolute-
witness privilege in granting their respective motions for summary
judgment.
The trial court granted the motions for summary judgment filed by
Makin, Vazquez, and Kimler in three interlocutory orders, signed on
60The trial court’s orders granting these three motions are
interlocutory, and they were all signed on February 4, 2021.
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February 4, 2021. On March 26, 2021, Hartman filed his Sixth Amended
Petition, his live pleading in this suit.
Turning to the allegations in Hartman’s Sixth Amended petition, he
referred to the more than twenty defendants dismissed by interlocutory
orders filed before March 26—a group that included Makin, Vazquez, and
Kimler—as the “now-dismissed Defendants[.]” In his Sixth Amended
Petition, Hartman also sought to recover damages solely against Judge
Walker. Finally, when Hartman listed the parties whom he was naming
as defendants in his Sixth Amended Petition, he named just one
defendant: “Defendant Layne Walker[.]” In his prayer, Hartman asked
the trial court to enter judgment against the “Defendant.” In the first
sentence of his Sixth Amended Petition, Hartman defined defendant as:
“Plaintiff, Stephen Hartman, files Plaintiff’s Sixth Amended Original
Petition, complaining of Layne Walker, Defendant[.]”
In his brief, Hartman argues the trial court erred in granting
summary judgment for Makin, Vazquez, and Kimler in February 2021.
Under the rules of civil procedure, an amended pleading supersedes all
previous pleadings.61 Thus, when Hartman amended his petition in
61Tex. R. Civ. P. 65.
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March 2021 and omitted all parties from his suit except for Judge
Walker, he effectively abandoned the claims in his earlier petitions
against other defendants, including the claims he had filed against
Makin, Vazquez, and Kimler. 62
We find nothing in Hartman’s pleadings that shows he intended to
reserve his right to reassert his claims against Makin, Vazquez, or
Kimler, or to argue the trial court erred in granting their motions for
summary judgment.63 Had Hartman wanted to preserve his claims
against these three defendants, he could have done so by filing a
supplemental petition rather than by amending his petition. 64
62See F.K.M. P’ship, Ltd. v. Bd. Of Regents of Univ. Of Houston Sys.,
255 S.W.3d 619, 632-33 (Tex. 2008) (filing an amended petition that does
not include a cause of action effectively nonsuits or voluntarily dismisses
the omitted claims when the pleading is filed); Chamberlain v. McReight,
713 S.W.2d 372 (Tex. App.—Beaumont 1986, writ ref’d n.r.e.) (“The filing
of an amended petition omitting an individual as a party-defendant has
the effect of dismissing such party the same as if an order had been
entered.”).
63F.K.M. P’ship, Ltd. 255 S.W.3d at 633 (observing that to avoid
waiver, a party may specifically state it is preserving its right to appeal
from a prior ruling in an amended pleading and reserve its right to
appeal).
64Tex. R. Civ. P. 69; see Pipes v. Hemingway, No. 05-13-00428-CV,
2014 Tex. App. LEXIS 4061, at *4 (Tex. App.—Dallas Apr. 14, 2014, pet.
denied) (“Had Pipes filed a supplemental pleading, instead of an
amended pleading, his claims against these defendants would have been
preserved.”).
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For the reasons explained above, we conclude that as to Makin,
Vazquez, and Kimler, Hartman may not now argue the trial court’s final
judgment, signed in April 2021, is improper. Hartman voluntarily
dismissed these three defendants from his suit by not naming them as
defendants in his Sixth Amended Petition. 65 We overrule Hartman’s
second issue.
Conclusion
Because we agree with the trial court that Hartman didn’t meet his
burden of proof on his malicious prosecution and civil conspiracy claims,
we hold the trial court properly granted Judge Walker’s motion for
summary judgment. And because Hartman voluntarily dismissed his
claims against Makin, Vazquez, and Kimler before the trial court signed
a final judgment, Hartman may not now complain that the judgment
disposed of his claims against parties that he chose to voluntarily
dismiss.
65See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex.
1995) (per curiam); Tex. R. App. P. 44.1.(a)(1).
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We hold that Hartman has not established the trial court erred in
rendering judgment granting Judge Walker’s motion for summary
judgment. The trial court’s judgment is
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on October 14, 2022
Opinion Delivered August 17, 2023
Before Golemon, C.J., Horton and Wright, JJ.
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