Nabelek, Ivo v. Powers, Kathleen O'Conner--Appeal from 133rd District Court of Harris County

Reversed and Remanded and Opinion filed December 19, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00292-CV

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IVO NABELEK, Appellant

V.

KATHLEEN O=CONNER POWERS, Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2001-31889

M E M O R A N D U M O P I N I O N

Kathleen Powers, a court reporter, prepared a transcript of the testimony presented at the trial of Ivo Nabelek wherein he was convicted of a felony offense. Nabelek disputed the amount of Power=s fee for preparing the record, and he ultimately sued her for damages allegedly due to breach of contract, misappropriation of funds, conversion, and other claims. Powers filed a motion for summary judgment asserting only the affirmative defense of official immunity. The trial court granted Powers= motion and dismissed Nabelek=s suit with prejudice. Recently, however, the Supreme Court of Texas has held that because court reporters do not engage in a discretionary function or exercise judgment comparable to that of a judge while preparing a reporter=s record, they are not entitled to derive judicial immunity for that function. Dallas County v. Halsey, 87 S.W.3d 552 (Tex. 2002). Accordingly, Powers was not entitled to assert the affirmative defense of official immunity.

The judgment is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed December 19, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).