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Click here for the full text of this decision For a malicious prosecution claim, there must be proof that the prosecutor acted based on the false information and that � but for such false information � the decision would not have been made. FACTS:Allan R. King, Donald E. Holley, F. Edward Barker, Bonner Dorsey, and perhaps also Hugo F. Berlanga, decided to go into business operating under the name Safari Specialties Inc., offering full-service hunts of exotic animals and white-tail deer in the Texas Hill Country. SSI contracted with Phillip H. Graham and Thomas Michael Wren to act as guides for the hunters that SSI planned to book. Under the agreement, effective through Feb. 1, 1992, Graham and Wren were to arrange with landowners for “trespass rights” for hunting sites and to “reserve” a sufficient number of animals to be “harvested.” Convinced that Graham and Wren had made off with SSI’s deposits, King called the Kerr County Sheriff’s Department and spoke to investigator Brad Alford. Alford obtained the Sheriff’s Department’s consent to report his findings to Ronald Sutton, one of two district attorneys for Kerr County. Sutton, who had been district attorney for 14 years, decided that the matter should be presented to the grand jury on Jan. 6, 1992. Without hearing from Graham and Wren, the grand jury indicted them for felony theft. Several months later, after conferring with legal counsel for Graham and Wren, Sutton decided to dismiss the indictment. Although Sutton was aware of the agreement between SSI, Wren, and Graham, he had overlooked (by his own admission) that at the time the indictment was returned, almost a month remained on the term of the agreement in which Graham and Wren could still have performed. Thus, he concluded that the indictment was premature. He also had concluded by then that the matter was civil in nature rather than criminal. Graham and Wren promptly sued King, Holley, Barker, Dorsey and Berlanga for malicious prosecution. Graham and Wren asserted, among other things, that the defendants had instigated the criminal case using the prestige of Dorsey and Berlanga, respectively a justice of the court of appeals and a state representative. The trial court directed a verdict for Dorsey and Berlanga but rendered judgment on a verdict against King, Holley and Barker. These defendants and the plaintiffs appealed. A divided court of appeals, sitting en banc, affirmed the judgment of the trial court in all respects. The court held that the judgment for malicious prosecution was supported by evidence that the defendants had given Sutton false information and omitted material information. The dissent argued that the judgment could not stand because there was no evidence that Sutton would have decided not to prosecute but for the allegedly false information the defendants provided. HOLDING:The court reverses the judgment of the court of appeals and renders judgment that Graham and Wren take nothing. A person who knowingly provides false information to the grand jury or a law enforcement official who has the discretion to decide whether to prosecute a criminal violation cannot be said to have caused the prosecution if the information was immaterial to the decision to prosecute. If the decision to prosecute would have been made with or without the false information, the complainant did not cause the prosecution by supplying false information. Therefore, to recover for malicious prosecution when the decision to prosecute is within another’s discretion, the plaintiff has the burden of proving that that decision would not have been made but for the false information supplied by the defendant. In the present case, as the dissenting justices in the court of appeals correctly stated, no such evidence exists. Graham and Wren offered no evidence whatever � as by opinion from Sutton, for example � that the decision to prosecute was based on any information supplied by King that Graham and Wren assert was false. The court of appeals did not address the dissenting justices’ argument but simply held that evidence that King’s statements were false or misleading was sufficient to support the trial court’s judgment. Graham and Wren argue in essence that causation can be inferred from the falsity of King’s statements. While such an inference might be drawn in a case in which the only information the official relied on in deciding to prosecute was false, that is not the situation in this case. Sutton testified that the determinative issue for him was whether Graham and Wren had accepted money from the defendants without being ready, willing, and able to perform their agreement to provide hunting guide services. He could reasonably have decided that they were not, even if he had known that King’s information was false in various particulars. Nothing in the record shows that the false information was material to the decision to prosecute Graham and Wren. Graham and Wren also cite in support of the judgment King’s failure to provide Alford and Sutton with a copy of SSI’s price sheet showing the very high prices it intended to charge and his failure to disclose that Graham and Wren had made numerous calls to SSI. But Sutton testified that the omission of SSI’s price sheet was immaterial to his decision because it made no difference to him how high SSI’s prices were. Sutton testified that he would have wanted to investigate further Graham’s and Wren’s calls to SSI. He, however, neither stated nor intimated that he would have refused to refer the case to the grand jury had he known that calls had been made. The court does not need to decide whether the omission of that information could form the basis for a malicious prosecution claim because the evidence demonstrates that that omission did not cause Graham and Wren to be prosecuted. OPINION:Per curiam.

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