B.W.D. v. James W. Turnage and Forensic DNA & Drug Testing Services, Inc.
05-13-01733-CV
| Tex. App. | Mar 2, 2015Background
- Appellant B.W.D. sued James W. Turnage and Forensic DNA & Drug Testing Services, Inc. arising from court‑ordered random supervised urinalysis in a child‑custody case, alleging breach of contract, negligence, fraud by nondisclosure, breach of fiduciary duty, and DTPA violations.
- An agreed order required weekly supervised urinalysis from Oct 18, 2010 through Mar 31, 2011 (extendable if appellant "failed" a test) and authorized the person "charged with the responsibility of interpreting the test results" to judge explanations; that person (Turnage) would receive satisfactory explanations.
- Turnage concluded certain samples (e.g., Aug. 18, 2010) were "diluted" using creatinine alone rather than federal SAMHSA/DOT combined creatinine and specific gravity thresholds; the testing laboratory (Medtox) had not reported that sample as diluted under federal guidelines.
- Appellant alleged Turnage’s interpretations caused imposition of onerous custody‑related conditions; appellees moved for traditional summary judgment asserting derived judicial immunity as an affirmative defense.
- The trial court granted summary judgment for appellees; appellant appealed challenging immunity, scope of the order, sufficiency of summary judgment proof, and portions of Turnage’s affidavit. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Entitlement to derived judicial immunity | Turnage and company exceeded any delegated judicial function and are not entitled to derived judicial immunity | They acted as an arm of the court, performing discretionary, judge‑like functions under the agreed order | Court held appellees entitled to derived judicial immunity for acts within scope of appointment |
| 2. Whether appellees exceeded scope of the agreed order by interpreting results | Appellant: order only required collection/testing; Turnage ignored Medtox and used improper standards | Appellees: order explicitly made "the person charged with interpreting results" responsible to evaluate explanations and determine failures; Turnage fit that role | Court held the order left interpretation methods to that person’s discretion and did not preclude Turnage’s role; actions were within scope |
| 3. Sufficiency of summary judgment proof | Appellant: genuine issues of material fact exist about scope and correctness of testing interpretation | Appellees: produced summary judgment evidence showing they acted pursuant to court order and thus are immune | Court applied de novo review, concluded appellees established entitlement to judgment as a matter of law based on derived judicial immunity |
| 4. Whether portions of Turnage’s affidavit should be struck | Appellant: paragraphs were conclusory and Turnage lacked qualifications, so affidavit evidence should be disregarded | Appellees: affidavit supported their summary‑judgment defense | Court did not reach this issue because immunity resolved the case; affirmed judgment |
Key Cases Cited
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (standard for de novo review of summary judgment)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (summary judgment evidence and favorable‑to‑nonmovant rules)
- Dallas Cnty. v. Halsey, 87 S.W.3d 552 (Tex. 2002) (functional test for derived judicial immunity; court reporters not immune)
- Delcourt v. Silverman, 919 S.W.2d 777 (Tex. App.—Houston [14th Dist.] 1996) (derived judicial immunity for court‑appointed evaluators)
- Clements v. Barnes, 834 S.W.2d 45 (Tex. 1992) (derived immunity applies to court appointees acting within authority)
- B.K. v. Cox, 116 S.W.3d 351 (Tex. App.—Houston [14th Dist.] 2003) (once immunity attaches to a function it shields both good and bad acts related to that function)