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Click here for the full text of this decision FACTS:The appellant, an inmate, appeals the dismissal of his suit pursuant to Texas Civil Practice & Remedies Code Chapter 14. In February 2004, the appellant brought suit against the Lubbock County Commissioners Court, the commissioners, Kenny Maines, James Kitten, Gilbert Flores and Patti Jones, the Lubbock County district attorney, William Sowder, and the judge of the 72nd District Court, Blair Cherry, alleging they deprived him of constitutional rights by creating and applying procedures which denied him the assistance of counsel prior to his indictment. He also alleged the district attorney engaged in malicious prosecution. An amended petition added 364th District Judge Bradley Underwood and Lubbock County Magistrate Judge David Hazlewood as defendants. HOLDING:Affirmed. Texas courts have consistently held the affidavit of previous filings required by �14.004 is a procedural matter which can be cured by amendment. The record shows appellant did correct the defect by filing a declaration of his previous suits as an attachment to his motion for rehearing. Dismissal with prejudice was not proper under �14.004. Section 14.005 applies to suits arising out of a claim “subject to the grievance system established under �501.008 [of the] Government Code.” Appellant’s claims are not subject to the grievance system under Texas Government Code �501.008, because they are not against the Department of Criminal Justice or its employees and did not arise during his confinement. Consequently, �14.005 is inapplicable to appellant’s suit and it does not support the trial court’s dismissal of that suit, the court finds. The district judge defendants concede appellant had filed a certified copy of his inmate trust account statement as required by �14.006(f). The court agrees and finds the dismissal was not supported on that basis. Appellant’s argument supporting his second and third issues focuses on the merits of his claim that the period between his arrest and indictment was a critical stage of the proceeding against him at which the right to counsel attached, and the failure to appoint counsel deprived him of a right secured by the constitution. He concludes this deprivation supports a claim under 42 U.S.C. �1983. Judges acting in their judicial capacity have immunity from liability and suit for judicial acts performed within the scope of their jurisdiction. Dallas County v. Halsey, 87 S.W.3d 552 (Tex. 2002). This immunity extends to actions that are done in error, maliciously and even in excess of the judge’s authority. Stump v. Sparkman, 435 U.S. 349 (1978). It is overcome only for actions that are: 1. nonjudicial, that is, not taken in the judge’s official capacity; or 2. taken in the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9 (1991). The trial court did not abuse its discretion in finding the claims against the judges lack an arguable basis in law and dismissing the claims against those defendants, the court finds. Prosecuting attorneys also enjoy immunity when performing in their role as prosecutors. Imbler v. Pachtman, 424 U.S. 409 (1976). The record supports a conclusion by the trial court that the Lubbock County district attorney was acting in a quasi-judicial capacity and is immune from appellant’s claims. The trial court did not abuse its discretion in dismissing the claims against the district attorney. Individuals acting in a legislative capacity are also immune from liability for their legislative actions. In Re: Perry, 60 S.W.3d 857 (Tex. 2001). Appellant’s claims against the members of the commissioners court arise from their performance of legislative functions and are barred by those defendants’ legislative immunity. The trial court did not abuse its discretion in dismissing appellant’s claims against the members of the commissioners’ court. The trial court did not err in dismissing appellant’s suit as frivolous, the court concludes. OPINION:Campbell, J.; Quinn, C.J., Reavis and Campbell, JJ.

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