law-judicial-communications-privilege immunity to tort suit | attorney-client privilege | confidentiality
medical peer review privilege
JUDICIAL COMMUNICATIONS PRIVILEGE
The communicative privilege covers "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,
pre-trial hearings, depositions, affidavits, and any other pleadings or other papers in the case." James
v. Brown, 637 S.W.2d 914, 916-917 (Tex. 1982). The purpose of the communicative privilege is to
ensure parties feel free to make full disclosures to tribunals without the fear of retaliatory lawsuits. Id.
at 917. This privilege is founded on the "theory that the good it accomplishes in protecting the rights
of the general public outweighs any wrong or injury which may result to a particular individual."
Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 913 (Tex. 1942).
There is extensive case law holding that the communicative privilege bars civil actions for defamation.
Bird v. W.C.W., 868 S.W.2d 767, 771 (Tex. 1994) (barring a defamation action for alleging child
abuse in a signed affidavit); James, 637 S.W.2d at 916 (Tex. 1982) ("Communications in the due
course of a judicial proceeding will not serve as the basis of a civil action for libel or slander,
regardless of the negligence or malice with which they are made."); Reagan, 166 S.W.2d at 912
(preventing a claim for libel or slander under the communicative privilege when a party put forth
allegedly false evidence in trial).
Importantly, the communication privilege applies in libel, defamation, and slander cases even if the
allegedly false statement was intentionally made. In Reagan, an insurance company was accused of
knowingly filing a fabricated and forged letter with the Texas Board of Insurance Commissioners. Id. at
911. Reagan sued the insurance company for allegedly libelous claims made in the letter. Id. at 912.
The Texas Supreme Court decided the issue, stating "Any communication . . . 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. The falsity of the statement or the malice of the utterer is
immaterial . . ." Id. This principle includes perjured testimony as well. See Ross v. Arkwright Mut. Ins.
Co., 892 S.W.2d 119, 132 (Tex. App.-Houston [14th Dist.] 1994, no pet.).
YIGAL BOSCH v. MARK S. ARMSTRONG, PAUL BAILIFF AND SQUIRE, SANDERS AND DEMPSEY,
L.L.P.; from Harris County; 1st district (01-08-00847-CV, ___ SW3d ___, 06-11-09, pet. denied Sep.
2009)(suit barred by judicial communications tort immunity, absolute privilege for communications in
court proceeding, sanctions for baseless claim)