*1 Therefore, judgment I render a present property case.1 It follows that the 488. would acquittal, could not corroborate the testi- mony of Butler and Mason.

Disposition reasons,

For the I hold that above would non-accomplice

none of the evidence corrob- accomplice testimony of Butler

orates the required in

and Mason as order to establish follows,

appellant’s guilt. It and I hold, insuffi- further that the evidence is LITTLE, Appellant, Steven I appellant’s cient to sustain conviction. because, view, my would so hold the v. accomplice testimony corroborated. Randall’s Food Jack BRYCE and Consequently, appellant’s I would sustain Markets, Inc., Appellees. point first of error and the trial reverse No. 01-86-00691-CV. Burks United judgment. court’s Under States, 2141, 2151, 437 U.S. 98 S.Ct. Texas, Appeals Court of Massey, (1978), and Greene v. L.Ed.2d 1 (1st Dist.). Houston 19, 24, 2151, 2154, 98 S.Ct. (1978), a in- L.Ed.2d 15 reversal based on June operates acquit the sufficient evidence the defendant of offense for which State, Windham

tried. 638 S.W.2d (Tex.Crim.App.1982).

487-88 In case,

present the evidence is not sufficient allegations support in the indictment. Windham,

See 638 S.W.2d at 487-88.

Thus, evidence, under the verdict jury properly could have returned was Windham, acquittal. at 638 S.W.2d

1. In Meyers, sheriff Appeals to stolen items found in the vehicle robbery. vehicle.” been S.W.2d at 336. the items in the car were not ly suggest sheets side he found the been "hot-wired" and was still Shortly and on the box which had come taken found items taken in the my stolen. 626 S.W.2d at 781." drugstore, found the vehicle used in the I state misreads in the earlier In discovered blood on the after the view Tolley,the court states “[i]n Mustang gearshift. He also some robbery. "[s]hortly recitation of facts taken from of that its Tolley quote Meyers: prior opinion Meyers robbery, near parts from statement, In addition the Court of Criminal after the a dirt road. drugs which were inside the Sheriff Roberts robbery shown to have the instruction found running. robbery, I used in the Tolley, 717 floorboard the sheriff respectful- robbery Meyers, safe in that cigar had In- Meyers, car were Meyers, Thus, And was that he discovered from plice, Furthermore, although the car. which had found a knife type showed iff Roberts testimony, drugstore I read as the finally to link the ^[******] shown to have been that the blood was drugstore Meyers S.W.2d at 781 blood on the floor and blood on it. established the in the other than that on the floor of the testimony of Sheriff Roberts appellant at 780 in the say Mustang. some items taken Laboratory analysis Mustang, (emphasis (emphasis testimony presence type stolen. the items in the of the accom- O, gearshift of there was the same Mustang robbery. added). added). items Sher- from *2 by his He exposed to AIDS roommate. alleged Bryce knew the statement false, knowingly, willfully, that it was be par- maliciously communicated to third ties, result, Little was termi- and that as alleged He employment. nated from his he was called to the office when if supervisor, he was asked Randall’s meat AIDS, he did. he had and he denied that voluntarily told that he could either He was resign reasons of or be terminated for health, In and he chose to be terminated. damages of petition, sought he actual $30,000 $300,000 damages exemplary alleged slanderous conduct. Little for the termination was alleged also that his wrongful public poli- because it violated cy state as set forth in the Commis- of the Rights Act of sec. sion Human 2.01(7)(B) 5.01(1), 1.04(b); in that he the mean- handicapped was a within alleged act. He that because of that termination, wrongful he was entitled $30,000 wages. in lost to recover appel appellees The answered the Houston, Kuhn, appellant. for R. James asserting the state petition, lant’s Smith, Link, appellant & Ste- Scott Reiter Williams made ments about Smith, Houston, Neel, protect & for phen personnel Williams true and Randall’s were appellees. privilege. But after the qualified ed case, changed they in the

appellees counsel answer, asserting only a filed an amended EVANS, C.J., and SAM Before the issue general denial. Because LEVY, BASS and JJ. privilege in a defamation action qualified defense, pled; it must an affirmative BASS, Justice. SAM Dealers’ National it is waived. otherwise Little, appeals appellant, Steven Rose, 535, 636 396 S.W.2d Insurance Co. v. dismissing his summary judgment from a dism'd (Tex.Civ.App. writ —Waco wrongful termination for slander and suit agr,); Tex.R.Civ.P. employment. one, appellant point of error for trial. and remand We reverse summary court's the trial contends Bryce and appellees, sued Jack Little improperly granted, because judgment was Inc., Markets, alleging that Pood Randall’s conclusively prove appellees failed to cutter employed as a meat while he was protection of a to the they were entitled Randall’s, (his co-worker) Bryce called qualified privilege. Little, he hos- him that and Little told have point, because we sustain this We one hernia and that pitalized ruptured for a not enti- appellees were concluded that tested of his roommates was on their affirm- summary judgment tled to in- Bryce then alleged that AIDS. Little in the privilege, qualified defense of ative supervisors Little’s co-workers formed raising that issue. pleading of a absence AIDS and had been might have that Little Muller, is- Debord v. 301 have not considered the merits of the (Tex.1969). disposition concurring opinion, Because sues discussed in the error, thereon, point express the first do not ex- we consider we no views we appellant’s point error, pressly second from the disassociate ourselves appellees expressed by contends that failed to the author of the con- views negate malice, error, point curring opinion. his third petition which he contends that his states a *3 The summary judgment reversed, is and wrongful

valid cause of action for termi- this cause is remanded for trial. employment. nation of finally We direct our attention to the LEVY, Justice, concurring.

concurring opinion, which sets forth the viewpoints author’s on issues other than Although reversal, I concur in the I am by majority

those considered and that somewhat discomfited majority’s with the necessary disposition are not to the of this disposition error, point of the third as- appeal. serting wrongful employ- termination of function, appel- Our as an intermediate ment. It deserves further comment here. state, court, briefly late is to as and suc- cinctly possible, dispositive as issues judicially-created “employment-at- apply and to declare and We are law. by will” doctrine invoked the trial opinions authorized to issue that are complete court appellant’s bar to claim nature, merely advisory in and are ad- we wrongful termination. It is a tenacious opinions monished that our should be never vestige from the industrial and revolution simply publish particular used to our views economics,1 when there was laissez-faire special on a matter of interest. See Par- perceived responsibility, social much ker, Procedure, Improving Appellate 25 government less in intervention the econo- (1950); also, N.Y.U.L.Rev. 12-13 Le- see my, protect to or assist those who had been fler, (West Appellate Opinions Judicial permanently displaced from their farms Pub.Co.1974). and, land, wealth, without or material re- mandate, Our Tex.R.App.P. under is sources, attempted living to earn their every to decide substantial issue that labor, only they possessed. their asset necessary raised and disposition to the revolution, In the middle of the industrial appeal, then, and to hand down a writ- production modes of and distribution of opinion ten practicable. that is as brief as drastically being commodities were mecha- Where, bar, as in the case at there is one nized, modem taking nation-states were clearly disposes settled issue that of the shape, agricultural and a once dominant appeal, opinion, we should write a brief economy rapidly being transformed published.” which “should not be Id. unprecedented into industrial and urban- Here, there is no need for economy. the court’s centered dig- Human labor and any discussion of nity, general matters that are not dis- and the poor status of the and positive appeal. of the propertyless, The issues dis- then were matters of second- concurring opinion ary, any, cussed are mat- if importance. Only as theories ters that only participation should be determined after a democratic wider in the na- development culture, full of the economy, political evidence a trial tional life McDonald, hold, on the merits. 4 R. gradually enlightened See Texas took were more County concepts Civil Practice in dignity District and of the worth and of a Courts, (1984). being developed sec. 17.26.12 Because we human accepted. Comment, origin 1. Some commentators trace the of the Death. See The At-Will Doctrine: A England’s at-will doctrine to ers, Statute of Labour- Proposal Modify Employment the Texas Rela- century response enacted in the 14th to a (1984). tionship, Baylor L.Rev. 667 shortage severe labor caused the Black very society Relationship, Baylor “It is of nature of a free ment L.Rev. at to advance in its standards of what right,” deemed reasonable and Justice longer legal Because we no tolerate the Colorado, Frankfurter wrote in v.Wolf working people treatment of as faceless U.S. S.Ct. serfs, primarily whose function was to closing L.Ed. decades these cogs serve as commodities or in the indus- century, say it is 20th fair to wheel, trial so too decisis stare now, century with 18th social contrast regarded in employment the law of rela- modes, longer a servant is no considered universal, tionships not as a inexorable slave, virtually master’s we deem command, only generally but as a wise dignity worth of the human law, rule of nevertheless bows right,” be not “reasonable and particular experience lessons of and the importance. paramount Today, the ab- reasoning. force better are not We dis- “employment-at-will”

solute doctrine is in- ourselves, from correcting abled anachronism, recognize rigid as a harsh creasingly seen an adher- should too *4 brought baby precedent may unduly not a a constitutional ence to outworn re- proper of stork, development strict the the law. but a doctrine born out of the travail Perhaps does the more century nowhere else law of 19th economic circumstances. acutely logical need further humane Service, Hauck, See Sabine Pilot Inc. v. development than in its treatment (Tex.1985) (Kilgarlin, employment relationship. J., concurring). Accordingly, Legisla- our grounds, exceptions imagine any ture some difficult has created narrow to It is to personal an than our economic employer may this not termi- other own doctrine: saying for that the membership predilections, nate for or contract employee an non- employment less any appro- is an union,2 serving membership in a for labor priate subject legislation than jury,3 filing compen- on a a for workmen’s others, dealing scores with which claim,4 being military sation for on active legislatures may this Court has held that race, being duty,5 particular or for of a public freedom the curtail individual color, origin, sex, religion, age, national or interest. having handicap.6 Recently, for Su- a Texas, preme invoking authori- York, 587, 633, Court of its U.S. Morehead New ty judicially (1936) to amend the “at-will” absolute 80 L.Ed. 1347 56 S.Ct. doctrine, J., prohibition against (Stone, dissenting). fir- added ing refusing for an employee perform an to Curtailing employer’s an “individual free- Service, illegal act. Sabine Pilot discharge arbitrarily employee an dom” to Additionally, laws S.W.2d at 735. federal or necessarily suggest result in does not discharge prohibit pre- to employee an control of employer’s utter lack of his obtaining rights, vested pension vent his business; put affirmatively, judi- means right statutory mini- exercising for his to a recognizing employee’s an cially serious wage a safe mum and overtime to and interest in his livelihood. This concern causing proceedings to workplace, or for is, it, public vitally see interest. as I (or against em- testifying) age for his job today, instituted a of increas- Losing in this ployer technology, employee federal specialization for violations various Comment, skills, unstable, contracting, Doctrine: if not acts. See At-Will economy, very risky worker Proposal Modify Employ- A to the Texas 7(a) (Ver- (Vernon sec. 5. Tex.Rev.Civ.Stat.Ann. art. 2. Tex.Rev.Civ.Stat.Ann. art. 5207a 1987). Supp.1987). non & 122.001 3. Tex.Civ.Prac. Rem.Code Ann. sec. 5221k, 5.01(1) sec. 6. art. Tex.Rev.Civ.Stat.Ann. (Vernon 1986). (Vernon 1987). (Vernon 8307(c) art. Tex.Rev.Civ.Stat.Ann. Supp.1987). discharge or discriminate depends entirely upon his er is forbidden to livelihood whose alia, against employee, inter because govern- nor federal labor. Neither state in handicap, handicapped ensure that a provides institutional structure to ment opportuni jobs are not denied dividuals guaran- employment or assure continued fears, igno prejudice, ties because of tee that the worker will even be able Quite recently, others. the United rance of job if he is fired. find another Supreme Court held School States legal hoary contrasts a doctrine This case — U.S. -, Arline, 107 S.Ct. Board v. and decen- current notions of fairness (1987); 1126, 94 L.Ed.2d 307 in its ele- cy, approaching the melodramatic any person “handicapped individual” meant having enjoyed for appellant, ments: “(i) impairment physical has a ... who by ap- years employment three of his or more of substantially limits one which Food Markets pellee Randall’s activities,8 (ii) major has a record of life record,” (“Randall’s”) “perfect personnel a (iii) impairment, regarded employee, appellee by another was accused impairment." (Emphasis having such an AIDS, having Bryce, either of Jack comparable fed supplied.) Arline involved to some frightening, lethal and because law, viz., section 504 of the Rehabilita eral communicable, disease, living or of extent 794,9 Act 29 U.S.C. sec. tion apartment in an with a who was federally program state prohibits a funded see if he had the then tested to against discriminating handicapped im- Fleming, appellant’s Kenneth disease. solely by of such handi individual reason supervisor, summarily ap- fired the mediate Essentially, cap. the Court decided that giving opportunity, *5 pellant after him an “handicap” contagious disease be a refused, voluntarily resign. to which the case under section and remanded Fleming none of the normal admitted that for an “individualized to the trial court procedures termination were followed. the risks of inquiry” to determine whether appears undisputed that neither the to be being plaintiff from precluded infection in appellant nor his roommate were fact qualified” job for her as an “otherwise disease, by the and that Randall’s afflicted elementary school teacher. investigate to the made no effort whatever the case at is Especially pertinent to bar accusation, verify appel- or to at least that validating protec- the federal the Court’s He a hear- lant was ill. was fired without simply tion of “those individuals who ing, being after condemned an accusa- ‘regarded having’ physical or mental as hearsay. tion based on in fact does not substan- impairment which By person’s functioning on tially virtue of the Texas Commission limit that ... substantially limit Rights Human Act of Tex.Rev.Civ. could nevertheless ability as a result of 5221k, 5.01,7 person’s to work employ art. sec. an that Stat.Ann. self, per- caring for one’s "functions such as of the Texas Commission on Hu- 7. Section 5.01 tasks, part: seeing, hearing, Rights provides pertinent walking, forming Act man manual working." breathing, learning, speaking, and employment practice an an unlawful for It is employer: 84.3(j)(2)(ii) sec. CFR (1) discharge to hire or to an to fail or refuse or to discriminate individual otherwise Act, pat- of the Rehabilitation 9.Section compen- against respect individual with to an Rights Civil Act of after Title VII of the terned terms, conditions, privileges or the or sation part: pertinent reads in race, color, employment handi- because of handicapped qualified individu- No otherwise sex, age; religion, origin, cap, national or ... States, shall, solely by in the United ... al determining particular individu- whether a handicap, be excluded from the of his reason Acts, "handicapped" both as defined the al is of, in, participation the benefits or be denied federal, regulations promulgated Texas and by any pro- subjected to discrimination under Department of Health and the United States receiving gram activity Federal financial Services, oversight approv- and Human with the assistance_ 29 U.S.C. sec. 794. significant Congress, assistance. al of are of regulations “major as define life activities" negative disease, reactions others.” Al- Randall’s admitted that did not though persons some contagious rumor, who attempt have to verify veracity of the may pose diseases a serious health threat argued and it was to duty that under circumstances, others to under certain investigate accept the situation. I cannot justify Court held that this “does not ex- argument today, employ- facile an cluding coverage of the Act all from the prerogatives er’s royal, are or be as should perceived persons contagious with actual or absolute, beyond question and em- an diseases.” The Court not unmindful ployer’s century England, were in 19th “legitimate [employers] concerns despite employee, that an the devotion of exposing significant to avoid others to energies, time, his loyalty, his his and his risks,” safety accordingly health and and sweat, (as given case) “per- and his in this an inquiry directed the trial court initiate record,” personnel fect prop- has no vested before, deferring as described to the rea- erty job, interest whatever his judgments public sonable medical health many instances constitutes the source officials, findings and make of fact about is important to his of his livelihood nature, duration, severity enjoyment do I believe Neither of life. risk, probability the disease be- employee job is interest causing transmitted and various de- inherently incompatible the employ- grees of harm. The Court concluded that necessary authority er’s to eliminate incom- person fact that a with a “the record petent irresponsible protect workers to also physical impairment contagious is does accept his economic interests. Nor can I suffice remove from the employer assertion that without coverage under section 504.” any obligation in- to conduct a reasonable recurring throughout

A dominant theme quiry aif is raised about an em- Court’s Arline the ployee being contagiously Supreme opinion ill, before necessity inquiry to conduct a discharge the employee entitled to fair the existence and determine nature reason. assumption by appellee This handicap. hearing pro- both Such a arbitrary power, irresponsible judi- employee public provide tect the cially in Texas one established about hun- *6 opportunity decent to show either years ago,11 against dred our cuts national contagious disease, risk has that the grain; flatly century it denies our 20th perhaps infection is minimal or non-exis- jus- national commitment fairness and tent, employer that the can make a “rea- tice, perpetuate serves the conve- and employee for the sonable accommodation” deceptive is nient but fiction that there (without intruding upon unnecessarily equal bargaining power employer between employer’s legitimate manage authority to job usually and is employee. Loss a not business), operate his and or some other and, less than a severe inconvenience not mitigating factors. infrequently, a financial and emotional ca- tastrophe, for has no other the worker who argued appellees But both in their brief We continue source of income. cannot “appellant was an and submission that thus, the economic social re- “ignoring employee-at-will subject to termination for very society, modern for it is that reason, reason, alities of good a bad no reason at Moreover, society are here to serve. As that despite we all.” the absence changes, thinking.” society must our proof appellant any afflicted with so was incapacity at all." Southeastern Commu- To combat the effects common but mistak- actual 6, 397, 405-406, Davis, perceptions handicapped, College nity en about stem- v. 442 U.S. n. ming only simple prejudice 2361, 2366-67, 6, but also n. 60 L.Ed.2d 980 99 S.Ct. (1979). attitudes, Congress laws ex- from archaic "handicapped panded the definition of individu- preclude against person "a al" discrimination Scott, Co. v. 72 Tex. 11. See East Line & R.R.R. of, regarded having, is as has a record who 70, 75, 99, (1888). S.W. 10 102 may impairment present have no an but who

943 Korvettes, Inc., “handicapped” any as F.Supp. 488 definition of Savodnik v. having impair- an 822, 826, (E.D.N.Y.1980). regarded who is substantially limits one or more ment that theory nature and the of our insti- [T]he Appellant, major of his life activities. who government tutions of do not mean ... AIDS, currently thought to have a was play to leave room and action severely disease, plainly and fatal purely personal arbitrary power ... definition. “handicapped” under the Arline very For the idea that one man Fleming “for safe- by He fired life, compelled to hold his or the means only, proved later ty/health reasons” which living, any right material essential groundless. to be life, enjoyment mere to the at the will another, any seems to be intolerable enlightened age suggests that This more prevails.... country where freedom dealing” imply “good faith and fair we 356, Hopkins, contract, 369- employment Yick Wo v. U.S. fol clause into each 70, 1064, 1070-71, Alaska, 220 lowing examples 6 S.Ct. L.Ed. of at least Montana, California, Connecticut, Illinois, (1886). Massachusetts, Hampshire.12 and New policy never to Our whole national Register See Fortune v. National Cash penalize upon condemn or accusation Co., 373 Mass. 364 N.E.2d 1256- without, first, hearing upon reason- a fair Co., (1977); Monge v. Beebe Rubber satisfactory proof. Such is able notice and (1974). 316 A.2d N.H. Process, very essence of Due a civilized employ is not unreasonable to read into an concept embodying our fundamental com- implied relationship promise ment fairness, procedural mitment to employer arbitrarily not to act deal immediately employment to the relevant employee, upon conditioned with the and, relationship specifically, preven- to the dealing employee good faith fair unjust tion of dismissals. performance of his duties. See Cancellier scope Due Process is not confined in its Stores, 672 F.2d Dept. Federated rights particular to the forms in which Cir.1982), denied, (9th cert. have heretofore been found to have been 131, 74 L.Ed.2d 113 103 S.Ct. procedural curtailed for want of fairness. A good mutual commitment to faith and perhaps majestic Due Process is the most equalize dealing at least tend to fair concept sys- in our whole constitutional overwhelming disparity in normally garnered tem. contains the While employer bargaining power between past assuring wisdom of the funda- seeking job, and thus the worker justice, living principle it is also mental genuine make more the desirable tend to past not confined to instances. forming em “meeting of the minds” in relationship. a commit Refugee ployment Anti-Fascist Such Joint Committee *7 by 123, 173-4, 624, ment, effectuated the McGrath, 71 if it had been S.Ct. J., hereto, made much 650, (1951) (Frankfurter, could well have parties 95 L.Ed. 817 note, I litigation unnecessary. inci of this concurring). appellant’s of dentally, that no on I realize that the Texas Commission dealing” his em “good and fair with faith Rights independent and Human Act is an appellees; raised the he ployer was ever ground as to are adequate state which we describing had, in as mentioned before comparable strictly to follow not bound evaluation, personnel Fleming’s “perfect a caselaw, ratio- supporting but the federal record” with Randall’s. clearly provides analytic nale of Arline procedural specifics of Especially ap- Returning to the support in the instant case. case, that in review- firmly it is settled is the federal this plicable to the case at bar ment, Proposal to Modi- judicially The At-Will Doctrine: A Approximately have 32 states Bay- Relationship, fy Employment 36 exceptions "employment-at- the Texas carved out years. n. 14. thirty See Com- lor L.Rev. at 668 in the last will” doctrine 944 summary judgment, accept a qualified privilege. we as firmative defense therefore,

true the non-movant’s version of the evi Appellees, were entitled not to a every summary dence and draw reasonable inference judgment pleadings when their in wholly the non-movant’s favor. Sabine Pilot failed to the authorize either affirm- Inc., Service, 784; 687 S.W.2d Gulbenki defense summary ative asserted at the Penn, 412, 929, an v. 151 Tex. 252 judgment hearing judgment granted S.W.2d or the judg 931 To sustain the summary proof. on the basis of such unauthorized ment, judicial however, the movant establish as a mat economy, must For reasons of I genuine ter of that no appellees’ law issue material think that we should the address City fact exists. arguments, simply Houston v. Clear rather than substantive reversing Authority, procedural ground Creek Basin 589 on S.W.2d a narrow (Tex.1979). have, Appellees my bouncing in have the case come back on view, burden, to discharge appeal failed with most the same issues regard only qualified privilege presented. with to the My review of the evidence in issue, particularly respect ap to case important questions this indicates that error, pellant’s point concerning third and at least of fact exist qualified privi- the following (1) appel lege presence factual issues: defense Was malice. regarded by lant because was fired he “Qualified privilege” is a matter of law as handicapped, Randall's de as underlying when facts asser- (2) regarded handicapped, If so fined? as of the privilege tion are not contested. discharge appellant’s wrongful? Telephone Dixon v. Southwestern Bell discussion, Co., (Tex.1980). follows the above A S.W.2d course, employee’s qualified privilege believe that an is an affirmative defense wrongfully discharged avoidance, claim in the nature of confession and “(a) being mistakenly having accused of a is defined as communication contagious and subject public loathsome disease also con- which author or defamation, interest, cause respect stitutes a of action for or with to has duty perform because it would tend to deter others from the author to has a anoth- owing associating disparage with him him in er a corresponding duty ... Accusa- against eyes community. Appellant employee employer tions his entitled have these day employee court on or another made to a hav- by prior ing corresponding duty issues. need We not be bound interest or legislative relates, judicial inaction in this area matter which the communication because, Supreme qualifiedly privileged.” of tort Texas are law Marathon Oil Schindler, Salazar, (Tex. Court held 651 Co. v. Sanchez (1983), App. “tort has writ ref d S.W.2d law ... Dist.] [1st —Houston n.r.e.). developed traditionally primarily been through judicial process.” Courts Appeals Corpus Christi Court of held legitimate heritage com- “possess the “qualified privilege occurs where the prin- develops mon law innovation that new policy (public policy social considerations ciples changing to accommodate values.” interest) weight of relatively less are Co., Ivy Army Publishing Times inquiry and reason- so that into motive (Ferren, J., (D.C.App.1981) A.2d permitted. ableness behind the statement is dissenting). privileged when Such communications *8 summary good any subject in matter in argue their faith appellees

The that made interest, has or judgment of a the author with proof asserts existence duty negates per- he has a qualified malice as a reference to which privilege and having a corre- to another agree majority matter of law. with the form answer, only sponding duty.” or Associated consisting interest appellees’ that the Publishers, denial, Inc. v. general Telephone af- Director a does raise the

945 Austin, Inc., defendant’s attitude towards Bureau cuses on the Better Business statements 190, plaintiff. Recklessly false (Tex.App. Corpus 710 S.W.2d 192 — privileged occa- usually of a 1986, n.r.e.). an abuse ref’d Christi writ sion, thereby lost. privilege successfully if a defendant estab Even person or a prejudice or towards a Fear his communication was made lishes that subject may so influence or do- particular privilege, privi subject qualified to a he could be- person’s mind that minate a if lege is “lost the communication was falsity truth or come reckless about good faith.” made with malice or want of Thus, interests others. rights Co., 711 Henry Ramos v. C. Beck S.W.2d made defamatory remarks would be 1986, writ); 331, (Tex.App. 335 no —Dallas they “malice” because were motivated with Co., Supply 625 Houston v. Grocers by feelings spoken and not from the 798, (Tex.App. S.W.2d 801 [14th —Houston privilege. duty sense of that underlies 1981, writ); Bergman no v. Osh Dist.] Libel, Sack, Related R. Slander & See Goods, Inc., 594 Sporting S.W.2d man’s (1980). Problems 331-35 1980, 814, (Tex.Civ.App. Tyler 1 816 n. — Appeals Antonio Court of stated San writ). if he privilege does the exist Neither is no but that that “[t]here by the statement was actuated who utters privi of common law conditional defense part by part, a lawful malice by showing lege can be overcome McManis, v. 543 S.W.2d motive. Stearns Baker, Bolling actual malice.” 671 659, (Tex.Civ.App. 664 [1st Dist.] —Houston 559, (Tex.App. 564 Antonio S.W.2d —San 1976, dism’d); writ Butler v. Central Bank dism’d), denied, 1984, writ cert. Co., 510, (Tex.Civ. 458 515 Trust S.W.2d & (1985); 824, 79, 64 88 L.Ed.2d 106 S.Ct. 1970, dism’d). App. writ —Dallas O’Neil, Bradstreet, 456 Inc. v. Dun & appeals appear The courts to be 896, (Tex.1970). However, the S.W.2d 900 concerning type conflict of malice re- plaintiff state that the Court did not i.e., negate quired qualified privilege, required prove “actual” malice. plaintiff whether the must show “actual” This Court has stated that malice “common “Actual” malice or law” malice. qualified privilege may required to defeat a term often malice is the most derived be Supreme the United States Court's defini- proof of facts and circum- established subjective tion of malice set out in New may reasonably be stances from which Sullivan, 254, York Times Co. v. U.S. among by, inferred. be shown 710, (1964). 84 S.Ct. 11 L.Ed.2d 686 Sulli- things, proof that the defendant other requiring van defined “actual" malice as complain- toward the entertained ill-will showing defamatory statement ing party. knowledge made it was with Stearns, 663; Buck, at S.W.2d false, disregard reckless of whether Id, S.W.2d at 373. 279-280, 84 at it was false. at S.Ct. 725-26; Welch, Inc., 418 Gertz v. Robert plaintiff may the de Apparently, defeat 6, 384 n. 3004 n. U.S. S.Ct. privilege by proving fendant’s conditional contrast, 41 L.Ed.2d 789 “com- acted the defendant with either “actu will, ill mon law” malice defined as al" or law” malice. Because "common Co., defendant, motive. Marathon Oil although enjoying bad evil a conditional 681; Savage, at 828 S.W.2d S.W.2d Buck if actuated privilege, liable herein, (Tex,Civ.App. malice, appellees movants [1st Dist.] —Houston n.r.e.). malice, defendants, prove ref d “Actual” have the burden to writ falsity, fo- of known or reckless of malice on their motion sense the absence Ramos, summary judgment. cuses on the defendant’s attitude towards 335; Cheatwood, 445 S.W.2d irrespective of the defendant’s Jackson v. the truth (Tex.1969). motivation, “common law" malice fo- while *9 Although judgment may gen- a summary Clearly, proof required the to demonstrate erally on “common law” malice is more subjective be based the uncontroverted testi- and, mony party, therefore, an of interested the affidavits less amenable of in a “controverted” than is interested witnesses “common law” the evidence neces- sary prove Logic or “actual” malice of action are not “actual” malice. cause policy suggest readily Supreme that the Texas proof of malice controvertible proof Court’s of support or lack treatment affidavit of malice as a motion will interested witness as to his of Bessent Times- summary judgment. for lack “actu- applies greater al” malice with even Printing Co., force Herald S.W.2d proof supporting to affidavit (Tex.1986); an interested Enterprise Beaumont Jour-& Smith, witness’s assertion that he no ill had will or nal v. (Tex. 687 S.W.2d motive, i.e., bad no “common law” malice. Enterprise, 1985). In Beaumont plain- the journal reporter, tiff the its sued Linda appellant, although arguably not re- Gilchriest, granted for libel. The court the so, quired presented to do evidence the summary judgment. motion defendant’s appellees’ ill will towards This him. Court Appeals The Beaumont Court of that held has held that malice be “inferred from presented, there fact were issues and re- relationship parties, circum- judgment. Supreme versed the The Texas publication, attending stances the lan- Court for its stated that one issues used, guage and from the words acts of review whether the defendants met at, before, the time the defendant after showing their burden of absence communication_” Steams, Beau- actual malice. The defendants (emphasis added). Bryce, at 664 S.W.2d Enterprise mont relied Gilchriest’s affi- deposition, argument his related an be- davit she to be that believed article tween himself and Little that occurred factually accurate and true. The Texas shortly Little, Fleming after fired as fol- Supreme Court held: lows: pro- Texas Rule Civil Procedure 166-A I I job; And told him didn’t cost him his summary judgment may vides that a life-style job. you his cost him his And if based on uncontroverted testimonial word, want it word for him if told he’d party provided evidence an interested keep mouth, dick his out of wouldn’t ‘clear, positive, evidence di- problem. have that rect, otherwise credible ... and could statement, Bryce’s others, among readily have been controverted.’ Gilchri- contempt ap- some evidence of his for the her est’s affidavit as to own state of raising regard- pellant, thereby a fact issue mind is not evidence that could been have publication whether his defam- controverted; readily therefore it is not atory statement actuated “common support summary evidence will malice. law” See Wise Dallas South- judgment. Further, presented there is fact issue Corp., west Media 535- concerning the existence “actual” mal- (Tex.Civ.App. writ —Beaumont Bryce Little told ice. had earlier one State n.r.e.); see also Lewisville ref’d. might thought doctor that Baxter have Blanton, 525 S.W.2d 696 (Tex. Bank v. AIDS, going and that the doctor was to run 1975). test, Bryce employees told his fellow Journal, Enterprise Beaumont & had Little who lived with individual S.W.2d at Bryce admits that his AIDS. also above, the be- concerning

As discussed difference came from information Baxter Little, raising tween malice and “common law” a fact as to “actual” thus knowledge of Bryce malice is that the former focuses on the acted with whether statement, statement, falsity latter reckless truth of the while the false, disregard it was or at of the defendant. of whether focuses on motivation *10 need for Rule obviously be no degree of ... there would “high least a of awareness 90(c)(3), Improvement quoted above. Gertz, falsity.” probable genesis must have their progress in the law was, in Bryce’s statement 94 S.Ct. at 3003. order, existing imperfect in criticism of the fact, Little nor Baxter had false—neither origin. in its though may it be AIDS. course, dis- that the issues agree, of are, accordingly, at least these ad- There would best be deter- opinion in this cussed jury for a questions ditional of fact development of the evi- after a full mined Bryce resolve: the communication Was But the on the merits. dence a trial privilege? Was it made with a conditional majority selected ground narrow malice, Bryce’s Did communi- as defined? to viti- precisely calculated for reversal Little?, cation defame development of the facts” that the “full ate reasons, foregoing although con- For the says pre-requisite before majority reversal, curring I would remand may here be discussed. Such the issues wrongful the slander and for trial on both appellees ingenious casuistry permits termination issues. merely to amend their answer on remand again summary judgment. and move briefly para- to the final Responding Nothing majority opinion indicates to in the concerning majority opinion graphs asserting a simple amendment me that a concurring opinion, I propriety of this thereby en- qualified privilege would meaning of Rules observe that the prevail on a renewed appellees title the 90(c) (d) Appellate of the Rules of again thus summary judgment, motion for apparently escaped the at- Procedure has foreclosing trial on the merits and ex- majority. tention of the of the pressly bypassing any adjudication 90(d) Rule reads as follows: employment issue. wrongful termination of opinion file concur- Any justice avoided, procedural This snarl is not but dissenting from decision of ring in or impenetrable, by the ma- made more rather concurring or appeals. A the court of ignoring appel- jority’s deliberate if, dissenting opinion may published attempt through points of error lant’s author, its judgment in the it meets give guidance some to have this Court —at para- one of the criteria established efficiency judicial in the name of least —on (c), majority in such graph event his cause of ac- the issues that constitute (Em- opinion published tion, grave shall be as well. and increas- issues that are contemporary society. added.) ing importance phasis 90(c) pertinent part Rule states

follows: opinion by appeals

An a court of shall be (2)

published only if ... it is one that ... legal continuing pub- issue

involves (3) existing interest; lic criticizes [or] Benjamin Franklin law.... RICHARDSON, Appellant, only of con- subject matter is not interest, is one that will tinuing public Texas, Appellee. The STATE expanding, and even in- probably be of tense, No. 3-85-289-CR. majority’s public concern. And the opinion does of a traditional reaffirmation Texas, Appeals Court personal opinion any the less not make that Austin. legal con- expression of newer than 17, 1987. June majority’s conten- cepts. Contrary to the Aug. Rehearing Denied tions, rules did not contem- appellate if the that criticize filing opinions plate the law, inherently and neces-

existing and that views, personal

sarily expressions