In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-23-00072-CV
STEPHEN PATRICK BLACK, APPELLANT
V.
CHARLES P. WOODRICK, APPELLEE
On Appeal from the 154th District Court Lamb County, Texas Trial Court No. DCV-20106-19, Honorable Scott Say, Presiding
November 1, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Appellant, Stephen Patrick Black, appeals from the trial court’s order granting
summary judgment in favor of Appellee, Charles P. Woodrick, which dismissed his libel
suit with prejudice.1 Appellant challenges the summary judgment as follows: (1) collateral
estoppel does not apply; (2) Woodrick did not establish statutory immunity as a matter of
law; (3) Woodrick is not entitled to derived judicial immunity; and (4) Woodrick is not
entitled to the judicial proceedings privilege. We affirm.
1 Black proceeded pro se in the trial court but is represented by counsel in this appeal. BACKGROUND
Black is civilly committed pursuant to the Sexually Violent Predators Act. TEX. CIV.
PRAC. & REM. CODE ANN. §§ 841.001–.151. Woodrick is a licensed psychologist under
contract with the Texas Civil Commitment Office (TCCO) to perform psychological
evaluations under chapter 841 of the Act.
In 2018, Woodrick performed a biennial review of Black and filed his written report
entitled “Biennial Risk Assessment for Civil Commitment.” Black contends the report is
libelous because it inaccurately recites he has five counts for indecency with a child
instead of the one count for which he was convicted. According to Black, he requested
correction of the alleged inaccuracy to no avail. He sued Woodrick for libel based on the
alleged incorrect recitation in the report.2
Woodrick moved to dismiss Black’s suit under Rule 91a of the Texas Rules of Civil
Procedure and chapter 27 of the Texas Civil Practice and Remedies Code. A hearing
was held on July 5, 2019, but the trial court did not sign an order of dismissal until January
16, 2020. On appeal, this Court reversed the order of dismissal because the time in which
to grant a dismissal under either Rule 91a or chapter 27 expired and the case was
remanded for further proceedings. See Black v. Woodrick, No. 07-20-00083-CV, 2021
Tex. App. LEXIS 2197, at *6 (Tex. App.—Amarillo March 23, 2021, no pet.) (mem. op.).
On remand, Woodrick filed two separate motions for summary judgment asserting
Black’s libel suit was barred by issue preclusion/collateral estoppel, statutory immunity,
derived judicial immunity, and the judicial proceedings privilege. As summary judgment
2 The record of the hearing shows that although Black had been charged with various other sexual
offenses, he pleaded to only one count of indecency with a child. 2 evidence, Woodrick included a certified copy of the Final Judgment and Order of
Commitment finding Black to be a sexually violent predator and ordering his civil
commitment, a copy of section 841.147 of the Texas Civil Practice and Remedies Code
providing for statutory immunity from liability for good faith conduct to a person under
contract for services under chapter 841, and a copy of the opinion in Black v. Turner, 779
Fed. Appx. 231 (5th Cir. 2019), in which the Court found Turner, an expert, immune from
suit under section 841.147. Black responded to the summary judgment motion by
alleging a material fact issue existed. He further alleged Woodrick had not proven
entitlement to summary judgment as a matter of law under any of the affirmative defenses
raised in his motion.3
STANDARD OF REVIEW
We review a grant of a traditional summary judgment de novo. Trial v. Dragon,
593 S.W.3d 313, 316–17 (Tex. 2019). In conducting our review, we take as true all
evidence favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d
211, 215 (Tex. 2003). Summary judgment is appropriate when there is no genuine issue
as to any material fact and judgment should be granted in favor of the movant as a matter
of law. ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018); Diversicare
Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).
3 Woodrick did not raise any of his affirmative defenses in his original answer. Although Black asserts those defenses may have been waived, we disagree. An unpleaded affirmative defense may serve as a basis for summary judgment when it is raised in the summary judgment motion and the opposing party does not object. See Roark v. Stallworth Oil & Gas, 813 S.W.3d 492, 494 (Tex. 1991). Black did not object prior to rendition of the summary judgment. 3 A defendant moving for traditional summary judgment bears the burden of
negating at least one essential element of the plaintiff’s cause of action or conclusively
establish all the elements of an affirmative defense and that it is entitled to judgment as
a matter of law. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). If the
movant meets its burden, the burden then shifts to the nonmovant to raise a fact issue
precluding summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.
1995).
When, as here, the trial court’s order does not specify the grounds for summary
judgment, we must affirm the judgment if any of the theories presented to the trial court
and preserved for appellate review are meritorious. Knott, 128 S.W.3d at 216. When the
trial court’s summary judgment does specify the ground on which it was granted, we
generally limit our review to that ground. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d
623, 625–26 (Tex. 1996).
We address Black’s issues in a logical rather than sequential order.
ISSUE FOUR—JUDICIAL PROCEEDINGS PRIVILEGE
Texas recognizes an absolute privilege to communications made as part of a
judicial proceeding. Shell Oil Co. v. Writt, 464 S.W.3d 650, 655 (Tex. 2015). “Any
communication, oral or written, uttered or published in the due course of a judicial
proceeding is absolutely privileged and cannot constitute the basis of a civil action in
damages for slander or libel.” See Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166
S.W.2d 909, 912 (1942). See also Johnson v. Tepper, No. 07-23-00146-CV, 2023 Tex.
App. LEXIS 5858, at *6 (Tex. App.—Amarillo Aug. 7, 2023, pet. filed) (mem. op.) (finding
4 sworn statements made by defendant during a hearing before an appraisal review board
were privileged communications made as part of a judicial proceeding and could not form
the basis of a defamation suit). The privilege attaches to all aspects of the proceeding
including pleadings or other papers in the case. James v. Brown, 637 S.W.2d 914, 916–
17 (Tex. 1982) (finding doctor’s report to a probate judge in mental health proceeding was
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-23-00072-CV
STEPHEN PATRICK BLACK, APPELLANT
V.
CHARLES P. WOODRICK, APPELLEE
On Appeal from the 154th District Court Lamb County, Texas Trial Court No. DCV-20106-19, Honorable Scott Say, Presiding
November 1, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Appellant, Stephen Patrick Black, appeals from the trial court’s order granting
summary judgment in favor of Appellee, Charles P. Woodrick, which dismissed his libel
suit with prejudice.1 Appellant challenges the summary judgment as follows: (1) collateral
estoppel does not apply; (2) Woodrick did not establish statutory immunity as a matter of
law; (3) Woodrick is not entitled to derived judicial immunity; and (4) Woodrick is not
entitled to the judicial proceedings privilege. We affirm.
1 Black proceeded pro se in the trial court but is represented by counsel in this appeal. BACKGROUND
Black is civilly committed pursuant to the Sexually Violent Predators Act. TEX. CIV.
PRAC. & REM. CODE ANN. §§ 841.001–.151. Woodrick is a licensed psychologist under
contract with the Texas Civil Commitment Office (TCCO) to perform psychological
evaluations under chapter 841 of the Act.
In 2018, Woodrick performed a biennial review of Black and filed his written report
entitled “Biennial Risk Assessment for Civil Commitment.” Black contends the report is
libelous because it inaccurately recites he has five counts for indecency with a child
instead of the one count for which he was convicted. According to Black, he requested
correction of the alleged inaccuracy to no avail. He sued Woodrick for libel based on the
alleged incorrect recitation in the report.2
Woodrick moved to dismiss Black’s suit under Rule 91a of the Texas Rules of Civil
Procedure and chapter 27 of the Texas Civil Practice and Remedies Code. A hearing
was held on July 5, 2019, but the trial court did not sign an order of dismissal until January
16, 2020. On appeal, this Court reversed the order of dismissal because the time in which
to grant a dismissal under either Rule 91a or chapter 27 expired and the case was
remanded for further proceedings. See Black v. Woodrick, No. 07-20-00083-CV, 2021
Tex. App. LEXIS 2197, at *6 (Tex. App.—Amarillo March 23, 2021, no pet.) (mem. op.).
On remand, Woodrick filed two separate motions for summary judgment asserting
Black’s libel suit was barred by issue preclusion/collateral estoppel, statutory immunity,
derived judicial immunity, and the judicial proceedings privilege. As summary judgment
2 The record of the hearing shows that although Black had been charged with various other sexual
offenses, he pleaded to only one count of indecency with a child. 2 evidence, Woodrick included a certified copy of the Final Judgment and Order of
Commitment finding Black to be a sexually violent predator and ordering his civil
commitment, a copy of section 841.147 of the Texas Civil Practice and Remedies Code
providing for statutory immunity from liability for good faith conduct to a person under
contract for services under chapter 841, and a copy of the opinion in Black v. Turner, 779
Fed. Appx. 231 (5th Cir. 2019), in which the Court found Turner, an expert, immune from
suit under section 841.147. Black responded to the summary judgment motion by
alleging a material fact issue existed. He further alleged Woodrick had not proven
entitlement to summary judgment as a matter of law under any of the affirmative defenses
raised in his motion.3
STANDARD OF REVIEW
We review a grant of a traditional summary judgment de novo. Trial v. Dragon,
593 S.W.3d 313, 316–17 (Tex. 2019). In conducting our review, we take as true all
evidence favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d
211, 215 (Tex. 2003). Summary judgment is appropriate when there is no genuine issue
as to any material fact and judgment should be granted in favor of the movant as a matter
of law. ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018); Diversicare
Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).
3 Woodrick did not raise any of his affirmative defenses in his original answer. Although Black asserts those defenses may have been waived, we disagree. An unpleaded affirmative defense may serve as a basis for summary judgment when it is raised in the summary judgment motion and the opposing party does not object. See Roark v. Stallworth Oil & Gas, 813 S.W.3d 492, 494 (Tex. 1991). Black did not object prior to rendition of the summary judgment. 3 A defendant moving for traditional summary judgment bears the burden of
negating at least one essential element of the plaintiff’s cause of action or conclusively
establish all the elements of an affirmative defense and that it is entitled to judgment as
a matter of law. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). If the
movant meets its burden, the burden then shifts to the nonmovant to raise a fact issue
precluding summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.
1995).
When, as here, the trial court’s order does not specify the grounds for summary
judgment, we must affirm the judgment if any of the theories presented to the trial court
and preserved for appellate review are meritorious. Knott, 128 S.W.3d at 216. When the
trial court’s summary judgment does specify the ground on which it was granted, we
generally limit our review to that ground. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d
623, 625–26 (Tex. 1996).
We address Black’s issues in a logical rather than sequential order.
ISSUE FOUR—JUDICIAL PROCEEDINGS PRIVILEGE
Texas recognizes an absolute privilege to communications made as part of a
judicial proceeding. Shell Oil Co. v. Writt, 464 S.W.3d 650, 655 (Tex. 2015). “Any
communication, oral or written, uttered or published in the due course of a judicial
proceeding is absolutely privileged and cannot constitute the basis of a civil action in
damages for slander or libel.” See Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166
S.W.2d 909, 912 (1942). See also Johnson v. Tepper, No. 07-23-00146-CV, 2023 Tex.
App. LEXIS 5858, at *6 (Tex. App.—Amarillo Aug. 7, 2023, pet. filed) (mem. op.) (finding
4 sworn statements made by defendant during a hearing before an appraisal review board
were privileged communications made as part of a judicial proceeding and could not form
the basis of a defamation suit). The privilege attaches to all aspects of the proceeding
including pleadings or other papers in the case. James v. Brown, 637 S.W.2d 914, 916–
17 (Tex. 1982) (finding doctor’s report to a probate judge in mental health proceeding was
absolutely privileged because it was written in contemplation of a judicial proceeding).
Section 841.101(b) of the Act provides for an expert’s report of the biennial
examination to be provided to the judge in preparation of judicial review. § 841.101(b).
The Order of Commitment recites that TCCO shall provide the expert report of the biennial
examination to the trial court pursuant to section 841.101. Although Woodrick is not
appointed by the trial court, the statute mandates that his report be provided to the trial
court to assist in the judicial review process. § 841.101(b).
Relying on Hurlbut v. Gulf Atlantic Life Insurance Co., 749 S.W.2d 762 (Tex. 1987),
Black maintains Woodrick is not shielded from liability under the judicial proceedings
privilege because he did not provide any evidence he testified as a witness in a judicial
proceeding. Black also contends Woodrick is not immune from suit because he did not
directly provide his report to the trial court as was done in James; rather, Woodrick
provided his report to TCCO who acted as an intermediary between Woodrick and the
court.
Black’s arguments fail. The judicial proceedings privilege extends to “any
statement made by the judge, jurors, counsel, parties or witnesses, and attaches to all
aspects of the proceedings, including statements made in open court, pretrial hearings,
depositions, affidavits and any of the pleadings or other papers in the case.” James, 637 5 S.W.2d at 916–17 (citing RESTATEMENT (SECOND OF TORTS § 588)). See also W. Mktg. v.
AEG Petroleum, LLC, 616 S.W.3d 903, 917 (Tex. App.—Amarillo 2021), modified on
reh’g, 621 S.W.3d 88 (Tex. App—Amarillo 2021, pet. denied). Although Woodrick was
not a witness at the time he prepared his report, he could have potentially been a witness
if the trial court had set a hearing under section 841.102(c) after determining at the
biennial review that Black’s conditions of commitment should be modified. Thus,
Woodrick’s report is a communication made in connection with and related to a judicial
proceeding, and is therefore absolutely privileged. See IBP, Inc. v. Klumpe, 101 S.W.3d
461, 470 (Tex. App.—Amarillo 2001, pet. denied).
The summary judgment evidence established Woodrick’s report was subject to the
judicial proceedings privilege. Thus, Woodrick established an affirmative defense as a
matter of law which shifted the burden to Black to raise a fact issue which he did not
satisfy. Because the trial court’s summary judgment did not specify the ground on which
it was granted, we may affirm on any viable theory presented. Issue four is overruled and
we need not address issues one, two, or three.
CONCLUSION
The trial court’s Order Granting Second Motion for Summary Judgment is affirmed.
Alex Yarbrough Justice