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Moore v. Novark9/28/1995
protection to those accused of malicious prosecution in Ellis County State Bank v. Keever, 888 S.W.2d 790, 794 (Tex. 1994). There, in rejecting the heightened burden of proof by clear and convincing evidence for claims of malicious prosecution, the court recognized that there are other safeguards available to assure reasonable protection to citizens who report criminal activity to prosecuting authorities. Id. at 793-94. First, this goal can be satisfied by demanding full satisfaction of all of the elements of the tort. Id. at 793. Moreover, those accused of malicious prosecution are rightly aided by "an initial presumption that a defendant acted reasonably in good faith and therefore had probable cause." Id. at 794 (citing Akin v. Dahl, 661 S.W.2d at 920). The court further asserted that " rotection is also afforded to one who makes a full and fair disclosure to the prosecuting attorney." Id. (citing Zavaleta, 827 S.W.2d at 345; Cisneros, 596 S.W.2d at 317; Dillaberry, 440 S.W.2d at 912).
The court did not, however, address the issue of whether an instruction is required.
The elements of the tort of malicious prosecution included in the charge to the jury in this case generally comport with the law, with one major exception recently clarified by our Supreme Court in Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 291-93 (Tex. 1994). In Lieck, the court rejected the statement of the causation element of malicious prosecution as "cause, or aid or cooperate in causing," cited by many courts, and used in the instructions in this case. Id. at 292. Instead, the court enunciated the proper standard of causation as whether the defendant "procured or initiated" the criminal proceedings. Id. at 293. "Initiated" does not ordinarily need to be defined because it is demonstrated by evidence that the defendant actually filed formal charges against the plaintiff, but "procurement" is defined as follows:
A person procures a criminal prosecution if his actions were enough to cause the prosecution, and but for his actions the prosecution would not have occurred. A person does not procure a criminal prosecution when the decision whether to prosecute is left to the discretion of another, including a law enforcement official or the grand jury, unless the person provides information which he knows is false. A criminal prosecution may be procured by more than one person. Id.
Thus, we conclude that an instruction on full and fair disclosure is necessary to aid the jury in answering a question on malicious prosecution when causation is submitted as it was in this case.
Novark argues that appellants waived their entitlement to an instruction on this issue by failing to plead full and fair disclosure as an affirmative defense. An affirmative defense permits a party to introduce evidence to establish an independent reason why its opponent should not prevail, not to rebut the factual proposition of its opponent's pleadings. Gorman v. Life Ins. Co. of North America, 811 S.W.2d 542, 546 (Tex.), cert. denied, 502 U.S. 824 (1991). An affirmative defense is one of avoidance, rather than a defense in denial. Id. We agree with the deputies' contention that full and fair disclosure is not an affirmative defense. Instead, the plaintiff must negate full and fair disclosure as part of his proof of the elements of the tort. Zavaleta, 827 S.W.2d at 346; Coniglio v. Snyder, 756 S.W.2d 743, 747 (Tex. App. -- Corpus Christi 1986, writ denied).
Novark also argues that this instruction is subsumed within the approved definitions of malice and probable cause submitted to the jury and would be redundant. A prosecuting party acts with probable cause where, in good faith, he makes a fu
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