On Motion for Rehearing. Counsel for appellee has filed a motion for rehearing and therein our attention is called to the fact that in our original opinion we said:
"The truth of the statement or statements, however, in such publications constitute a defense to such action unless it be shown thatsuch publications were prompted by malice."
Commenting upon the above statement, counsel said:
"We are unaware of any authority which lays down the rule here announced by this court. The Texas statute expressly provides that `the truth' of the statement or statements, in such publication, shall be a defense to such action (Vernon's Ann.Tex.Stat. art. 5431). Such defense is unqualified and absolute."
We concede that the criticism is well founded. What we should have said was that statements conditionally privileged could not be made the basis of any action for libel without proof of actual malice. The writer, when making the criticized statement, must have had in mind the provisions of article 1269 of the Revised Criminal Statutes of 1925 (Code Cr. Proc.), which defines libel as follows:
"He is guilty of `libel' who, with intent to injure, makes, writes, prints, publishes, sells, or circulates any malicious statement affecting the reputation of another in respect to any matter or thing pointed out in this chapter."
*Page 911With the explanation made, we refuse the motion.