ORANGE — A visiting state district judge has cleared the way for the discovery phase in a civil lawsuit filed  Feb. 9 against Orange County, the district attorney and two county law enforcement officers.

Judge Bob Wortham, who normally presides over the 58th State District Court in Beaumont, handled the July 20 hearing on the case after 128th District Judge Courtney Arkeen of Orange voluntarily removed herself in May, citing a possible conflict of interest.

The lawsuit was filed by David Bailey, a former chief deputy of the OC Sheriff's Department, who claims he was the victim of “malicious prosecution” because of the actions of District Attorney John Kimbrough, DA investigator Kevin “K.C.” Brashears and OC sheriff's deputy Jimmy LeBouef related to two separate criminal charges brought against Bailey in 2004 and 2011.

In 2004, Bailey was charged with criminal trespass for an incident that allegedly occurred more than a year earlier, in May 2003.

County Court-at-Law Judge Troy Johnson found there was no evidence to support the charge, and directed the Kimbrough to dismiss the case. Bailey's lawsuit claims the DA's Office “failed or refused to take any corrective actions,” so the charge remained a matter of public record for several years.

In 2011, Kimbrough charged Bailey with deadly conduct for a September 2010 incident in which a process server claimed Bailey pulled a gun on him, chased him off the property, beat on the hood of his car and fired the gun three times. 

Bailey rejected what he described as an “outrageous” plea bargain offer from the District Attorney's Office, so the case went to trial in September 2011 before a jury that deliberated for only 10 minutes before returning with a verdict of “not guilty.”

Bailey's lawsuit contends there was no investigation, no evidence and no probable cause for either of the criminal charges, which he believes were unjustified and represented malicious prosecution.

The lawsuit states that “from the length of the charges and the unbalanced handling of (them) that they were filed with malice and solely for the purposes of vexation and harassment.”

The county, represented by Assistant County Attorney Douglas Manning, filed a second amended response on June 22 that generally denied all of Bailey's allegations.

Manning petitioned the court to dismiss the case on the grounds of six separate defenses, including the “doctrine of sovereign immunity,” which bars lawsuits against the government or its employees.

Manning also argued Kimbrough has “official or absolute immunity” while performing his role as district attorney.

The county also asserted that Kimbrough, Brashears and LeBouef are protected by “qualified immunity” while performing “lawfully assigned” duties “in good faith.”

Bailey's lawsuit, however, argues that the Texas Supreme Court has long recognized “a cause of action for those subjected unjustifiably to criminal proceedings.”

Bailey is asking for monetary compensation for past and future medical expenses, physical pain and suffering and mental anguish.

The lawsuit also claims Bailey's wife suffered emotional distress, severe mental anguish and painful anxiety as a result of “fear of her husband's incarceration (because of the) omissions by the defendants.”

During the July 20 hearing, Judge Wortham did not rule on any of the motions filed by either side.

Instead, he ordered both parties to adhere to a Discovery Control Plan that includes serving all parties in the lawsuit (Aug. 20), naming all responsible third parties (Aug. 27), designation of experts (Sept. 26), completing all paper discovery (Oct. 20) and filing of all motions (Nov. 20).

The case also must be mediated by Dec. 11. A pre-trial conference is set for Dec. 17 in Orange. The plan lists June 2013 as a target for a trial date.

Bailey's attorney, Harrison Vickers of Houston, said he will be filing an amended petition in addition to attempting to discover all of the evidence.

Manning, however, believes the county is only a motion away from dismissal of the lawsuit.

“Judge Wortham told the plaintiff's attorney that his filings were legally insufficient,” Manning said. “He said that if I had filed a motion for a summary judgment, he would have had to approve it at the time. But he is giving them time to amend their petition.”

Manning does not plan to do any further discovery. 

“I don't think I have any need to do further discovery,” he said, “But if the other side files an amended pleading, I may want to.”

Manning said he intends to file a motion for a summary judgment.