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Tuesday, November 12, 2019

Court rules deceased Texas judge has judicial immunity in case of convicted aggravated robber

State Court

By Charmaine Little | Oct 31, 2019

General court 10

BEAUMONT -- A judge sued by a man convicted of aggravated robbery is protected with judicial immunity.

The Texas Ninth District Court of Appeals affirmed the dismissal of all claims filed by Herbert Feist against Larry J. Gist on Oct. 24. Gist, who passed away recently, served as the judge for Feist’s aggravated robbery charge in 1978 and the presiding judge in his conviction in 1981 in the 136th District Court in Jefferson County, Texas.

“Because the record establishes that all of Feist’s claims against Gist are barred by judicial immunity, the trial court did not err in dismissing all claims with prejudice pursuant to Rule 91a of the Texas Rules of Civil Procedure,” wrote Justice Leann Johnson. Justice Steve McKeithen and Chief Justice Charles Kreger concurred.

Johnson also noted that judges are protected by immunity when carrying out tasks in a judicial proceeding in an area he/she has jurisdiction. The three-judges panel agreed that Feist failed to claim Gist’s alleged behavior was not judicial.

Although Feist does claim that immunity does not cover someone who has broken the law, he did not submit any proof that would show Gist is not protected with judicial immunity (such as proving that his actions weren’t judicial).

In his lawsuit against Gist filed in May 2018, Feist alleged a “civil rights and personal injury complaint” against Gist, suing him in his official and individual capacity of illegal, intentional, discriminatory and malicious acts that went beyond his authority as a judge. Feist also said he was owed $100,000 in damages, and that he should be released from jail. Feist then asked for a declaratory judgment that stated Gist confessed to violating the constitution. 

“Feist alleged ‘the trial court in 2015 notified the plaintiff in a habeas corpus that no hearing would be had because they ‘destroyed’ the records,” based on the opinion. “According to Feist, the trial court should grant him a ‘writ of prohibit’ because his underlying conviction was void and not available for enhancement.”

Feist also petitioned for a temporary restraining order and preliminary injunction, asking the Texas Department of Corrections Records clerk to “’provide priors for enhancements to any and all counts’ because he was ‘doing a 40-year sentence on a void conviction,’” the appeals court ruled.

Feist noted that he has served more than 30 of the 40 years and asked for a time reduction for the conviction. Gist answered with a motion to dismiss, which was granted, leading to Feist’s appeal.

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