concurring.
I concur with Justice Gilberto Hinojosa’s opinion and adopt his analysis of the facts of this case. I write separately to distinguish my vote in this case from that in Browning-Ferris Industries, Inc. v. Zavaleta, 827 S.W.2d 336 (Tex.App.—Corpus Christi 1991, writ denied), and to show how the differences in these two cases have led the majority of this Court to affirm the trial court’s judgment in favor of Kenneth J. Lieck.
In reviewing Texas ease law on malicious prosecution, I find that the Courts of Appeals have thoroughly confused the issues of causation and proximate causation with the element of probable cause. See, e.g., Compton v. Calabria, 811 S.W.2d 945, 950-51 (Tex.App.—Dallas 1991, no writ). In particular, the Courts have mistaken a proximate causation issue to be a probable cause issue.
As in any tort, a malicious prosecution plaintiff must prove that the defendant’s act or omission caused an injury. When criminal proceedings are instituted against the plaintiff based on an allegation made by the defendant, then the defendant caused the institution of criminal proceedings. Restatement (Second) of ToRts § 653 comment d (1977).2 If a court determines that the defendant’s act caused the plaintiff’s injury, the court must then determine whether the act and the injury have a relationship to which the law attaches liability.3 That is, the court inquires whether the act proximately caused the plaintiff’s injury.
To show proximate causation, the plaintiff must prove that there are no intervening circumstances that insulate the defendant from liability as a matter of law. In a malicious prosecution case, a public prosecutor who is fully informed of the material facts and who exercises independent discretion in deciding to file criminal charges is such an intervening circumstance. Restatement (Second) of Torts § 653 comment d (1977). A defendant shows lack of proximate causation when he shows that he fully informed the prosecutor of material facts within his knowledge and the prosecutor used independent discretion in filing criminal charges. Fisher v. Beach, 671 S.W.2d 63, 66 (Tex.App.—Dallas 1984, no writ); Thomas v. Cisneros, 596 S.W.2d 313, 317 (Tex.Civ.App.—Austin 1980, writ ref’d n.r.e.); Green v. Meadows, 517 S.W.2d 799, 808 (Tex.Civ.App.—Houston [1st Dist.] 1974), rev’d on other grounds, 524 S.W.2d 509 (Tex.), on remand, 527 S.W.2d 496 (1975); Ada Oil Co. v. Dillaberry, 440 S.W.2d 902, 912 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ dism’d); Andrews v. Dewberry, 242 S.W.2d 685, 688 (Tex.Civ.App.—Fort Worth 1951, writ ref'd n.r.e.).
Appellants argue that they are not liable for malicious prosecution unless they knowingly made a false statement to the prosecutors. In Thomas, the Austin Court of Appeals noted that Restatement (Second) of ToRts § 653 comment g (1977) states that when a private prosecutor gives a public official information of another's supposed criminal conduct, the private prosecutor is immune from liability unless it appears either 1) that his desire to have the proceedings initiated was the determining factor in the official’s decision to commence the prosecution or 2) that the private prosecutor knew that the information he furnished was false. However, this comment does not express the law in Texas; it is only “[t]he reasoning behind” the Texas rule of “full and fair disclosure.” Thomas, *952596 S.W.2d at 317. The Austin Court also noted that a defendant is required to state to the prosecutor the objective facts as the defendant knew them. Id. Proximate cause may be established if the private prosecutor fails to disclose all pertinent facts or falsely represents the facts. Fisher, 671 S.W.2d at 66. The private prosecutor must bring to the attention of the public prosecutor all material facts from which the district attorney might determine that the accused is not guilty of any offense. Eans v. Grocer Supply Co., 580 S.W.2d 17, 22 (Tex.Civ.App.—Houston [1st Dist.] 1979, no writ).
Appellants cite Thomas and Green as support for their contention that they may not be held liable for causing Lieck’s indictment unless they made a knowing false statement. Neither case addresses the question appellants raise. As noted above, the Austin Court of Appeals quoted Restatement (Second) of ToRTS § 653 comment g in Thomas, but it then held that full and fair disclosure was required and met by that defendant. Thomas, 596 S.W.2d at 317. In Green, the Houston First Court of Appeals quoted comment g, but found that the defendant in that case had furnished false information to the prosecutor. Green, 517 S.W.2d at 809. Hence, the Court in Green could not, and did not, reach the question whether it was necessary for the malicious prosecution plaintiff to prove that the defendant uttered a knowing false statement to the public prosecutor. I have not found a single Texas case in which a defendant who failed to fully and fairly disclose material facts to the prosecutor was held immune from liability on the ground that he did not make a knowing false statement.
“Probable cause” is a specific element of the tortious conduct of malicious prosecution. It has nothing to do with questions of causation or proximate causation of injury. Restatement (Second) of Torts § 662 (1977) states that:
One who initiates or continues criminal proceedings against another has probable cause for doing so if he correctly or reasonably believes
(a) that the person whom he accuses has acted or failed to act in a particular manner, and
(b) that those acts or omissions constitute the offense that he charges against the accused, and
(c) that he is sufficiently informed as to the law and the facts to justify him in initiating or continuing the prosecution.
This is a very tough standard for a defendant to meet. He must show that he reasonably believed that the plaintiff committed an act or omission, that the act or omission constituted a crime, and that he was sufficiently informed of the law and facts to justify prosecution. According to the Restatement, this standard also applies to a private person who merely procures the institution of criminal proceedings, that is, a private person who provides information to a public official who exercises discretion in bringing charges. Restatement (Second) of ToRTS § 662 comment a (1977).4
Public policy favors cooperation between citizens and law enforcement authorities in order to encourage the exposure of crime. Thomas, 596 S.W.2d at 317. To this end, the burden is on the malicious prosecution plaintiff to show lack of probable cause, and courts of this State initially presume that the defendant acted reasonably and in good faith, thereby establishing probable cause. Akin v. Dahl, 661 S.W.2d 917, 920 (Tex.1983).
Under the reasoning of this Court’s decision in Zavaleta, the trial court erred by charging the jury that probable cause *953“means the existence of such facts and circumstances as would cause belief in a reasonable mind, acting on the facts within the knowledge of Mr. Meszaros, that Mr. Lieck was guilty of the conduct for which he was prosecuted.” Since the prosecutor investigated the case against Lieck and determined that it should be presented to the grand jury, the “probable cause” question should inquire into Meszaros’s actual beliefs, not into whether he held reasonable beliefs. We require a higher level of mental culpability from a defendant in a cooperation case, compared with a defendant in an initiation case, to comport with the social policy of encouraging cooperation with law enforcement authorities.
Restatement (Second) of Touts § 662 comment c (1977) states that the defendant must actually believe in the guilt of the plaintiff, or probable cause is not established. If the defendant actually believes that the accused is guilty, then the plaintiff must show that the facts known or reasonably believed by the defendant are not sufficient to create a belief of plaintiffs guilt in a reasonable mind. Fisher, 671 S.W.2d at 66; Restatement (Second) of ToRts § 662 comment e (1977). In a cooperation or procurement case, the question of actual belief of guilt might be immediately resolved against the defendant based on the reasoning that the defendant had no belief of plaintiffs guilt.5 In such a case, the defendant would not have recourse to the further defense that a reasonable mind would have believed the plaintiff guilty of an offense.
Since law enforcement authorities need citizens to cooperate and expose criminal conduct, some safeguard must be maintained for citizens who bring allegations of fact, but not allegations of a crime. The proximate cause issue provides one such safeguard. The intervening act of the fully informed prosecutor will insulate a citizen who fully and fairly discloses all material facts from liability. In addition, Texas law requires a malicious prosecution plaintiff to prove his case by clear and convincing evidence. Diamond Shamrock Corp. v. Ortiz, 753 S.W.2d 238, 241 (Tex.App.—Corpus Christi 1988, writ denied).
The probable cause issue will also protect a citizen who cooperates with law enforcement authorities, if the question is slightly altered. It makes little sense to ask a jury whether a citizen who alleged facts, but was uncertain that a crime had been committed, had an actual belief that the plaintiff was guilty of the offense of which he was later charged. In a cooperation or procurement case, honest citizens who report suspicious behavior would be better protected if the jury was asked whether the citizen had an actual belief of the innocence of the accused. If the jury can answer this question affirmatively, then the citizen did not have probable cause to procure the instigation of criminal proceedings. Such an inquiry can be resolved against a defendant who knows the plaintiffs innocence but cooperates with prosecutors, while being resolved in favor of a defendant who is uncertain whether the plaintiff is guilty of anything. Texas Courts have adopted this inquiry. See Ada Oil Co., 440 S.W.2d at 910; J.C. Penney Co. v. Gilford, 422 S.W.2d 25, 30 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ ref'd n.r.e.). Under this analysis, a defendant who procures the initiation of criminal proceedings does so without probable cause if he believes the plaintiff to be innocent of wrongdoing or if he does not believe the plaintiff acted or failed to act in the particular manner that the defendant accuses.
A plaintiff can establish a malicious prosecution action by proving that the defendant procured the initiation of criminal proceedings. To do so, he must show that the defendant made a factual allegation that became the basis of criminal charges. He must show proximate causation by demonstrating that the defendant did not fully and fairly disclose all material facts to the prosecutor. He must show lack of probable cause for the proceedings by proving that the defendant either knew of the plaintiff’s innocence or that the defendant knew the falsity of the factual allegation.
*954A plaintiff who proves 1) that a defendant made a false material factual allegation that led to the institution of criminal proceedings against the plaintiff, which were terminated in his favor, and 2) that the defendant made the allegation knowing it to be false, has proven both proximate cause and lack of probable cause. However, a false material factual allegation is not necessary to maintain an action for malicious prosecution. A defendant who has an actual belief that the plaintiff is innocent of criminal wrongdoing, who makes statements that give rise to criminal charges against the plaintiff, and who hides material facts which would exonerate the plaintiff is liable for malicious prosecution. This is Meszaros’ situation.
I have previously stated in this concurring opinion that public policy disfavors malicious prosecution actions so as not to discourage citizens from cooperating with law enforcement agencies in exposing crime. This policy should not be applied without giving weight to the countervailing policy of discouraging the abuse of the criminal justice system. Courts of this State should not approve of citizens who spin tales suggesting criminal conduct by revealing only part of the truth, all the while knowing the party being condemned is innocent of all wrongdoing. These citizens encumber an already overburdened body of prosecutors, requiring them to waste time and money investigating innocent people for no good reason. In addition, innocent citizens may be subjected to the extraordinary intrusion of a grand jury investigation, which may culminate in an indictment. By then, even the dismissal of charges might not preclude the destruction of career, reputation, opportunity, and family harmony. This is Lieck’s situation.
This Court found the trial court erred in Zavaleta by failing to instruct the jury that “probable cause” depended on Meszaros’ actual, rather than reasonable, beliefs. This Court found the evidence in Zavaleta factually insufficient to support a finding of malicious prosecution. We accordingly reversed and remanded the case to the trial court. I joined the majority opinion, finding the instruction erroneous for failing to inquire into Meszaros’ actual beliefs. The facts of Zavaleta show that error was harmful.
Dr. Zavaleta was indicted for soliciting a bribe. The following statement, which possibly caused the indictment to issue, was made by Meszaros:
In fact, Commissioner Tony Zavaleta introduced me to two gentlemen from a bank in Brownsville that had just opened, stating that we, BFI, was [sic] going to have the garbage contract in Brownsville. This bank was a branch of a bank in Laredo, Texas. Mr. Zavaleta asked if we could put our Brownsville account with this bank, of which I said I thought it would not be a problem, but I would have to check it with the people who make those decisions.
Dr. Zavaleta and three other people who were alleged to have taken part in the conversation, all testified at trial that the gentlemen were introduced and that Dr. Zavaleta merely suggested they become acquainted. The witnesses testified in a conflicting manner concerning the actual words exchanged in this conversation. A jury could have found that Meszaros had an actual, albeit unreasonable, belief that he was solicited for the bank account. While Meszaros admitted that he did not feel compelled to deposit BFI’s account into the bank in question, that statement did not show either that he had an actual belief that Dr. Zavaleta was innocent or that he believed the conversation was different from what he told the investigators.6 Our review of the evidence and pleadings indicated that the charge error was reasonably calculated to cause and probably did cause the rendition of an improper judgment.
In the present case, however, there is no question that Meszaros and Freed, BFI employees, made misleading statements to the *955prosecutors and investigators. As this Court has stated, “full and fair disclosure” requires disclosing all material facts. Coniglio v. Snyder, 756 S.W.2d 743, 744 (Tex.App.—Corpus Christi 1988, writ denied). As Justice Gilberto Hinojosa shows, Mesza-ros knew and failed to disclose: 1) the City of Brownsville was not soliciting sealed bids for the garbage contract, 2) the proposals were open to the public and to competing contractors, 3) he had equal access to BFI’s competitor’s proposals, 4) BFI distributed the form contract throughout the Rio Grande Valley, 5) the numbers and figures in the contract were items negotiated with the city, 6) BFI had no claim to any negotiated figure, and 7) Lieck committed no offenses. These facts show that the information Lieck gave to Torres was available to the public and was neither confidential nor advantageous to BFI’s competitors.
The misleading statements that Mesza-ros made to investigators and which were presented to the grand jury were not supported by any actual belief of full disclosure. Meszaros admitted knowing of Lieck’s innocence and facts that, if disclosed to prosecutors, would have prevented the prosecutors from seeking Lieck’s indictment.
I find the evidence both legally and factually sufficient to support the jury finding that Meszaros, acting without probable cause and with malice, caused, aided, or cooperated in causing a criminal prosecution of Lieck. I find error in the trial court’s failure to charge the jury with an inquiry into Meszaros’ actual belief. However, I find the error harmless, given Mes-zaros’ admissions on the witness stand. I agree that the trial court’s judgment in favor of Kenneth J. Lieck should be modified and affirmed.
I also agree that the trial court’s judgment barring Nydia Hinojosa Lieck’s claim for loss of consortium should be reversed and judgment rendered in accordance with the jury’s findings.
Before the Court En Banc.1
. The Restatement is cited with the obvious caveat that it is a general reference work, useful for discussing basic principles of torts, but does not necessarily represent the particulars of Texas law.
.Normally an intentional tort does not require proof of proximate causation, there being no recognized intervening circumstances to prevent liability from attaching to assault, battery, trespass, etc. Since malicious prosecution is not favored at law, proximate causation issues exist.
. Applying this standard to a cooperation case appears fraught with difficulty. For example, a person approaches a prosecutor and advises him of a fact situation that the person is uncertain constitutes a crime. The prosecutor investigates the facts and determines that a crime has been committed, based on the revealed facts. The citizen cannot be said to have any belief that the plaintiff's acts constituted an offense.
In a cooperation case, however, a defendant is only said to have procured the initiation of criminal proceedings when his desire to initiate them becomes the official's deciding factor or when he fails to fully and fairly disclose information to the official. Thomas, 596 S.W.2d at 317. Failure to fully and fairly disclose material facts implies belief that the plaintiff committed no offense.
. See n. 3, supra.
. "Solicit” is not defined in Tex.Penal Code Ann. § 36.02 (Vernon Supp.1992). "Solicitation of bribe” has been defined as "asking, or enticing, or requesting of another to commit crime of bribery.” Black’s Law Dictionary 1249 (5th ed. 1979). Only in the context of soliciting a crime is "soliciting" equated with "compelling" or "commanding.” Id.
. Honorable Jackson B. Smith, Jr., Retired Justice, 1st Court of Appeals, assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex.R.App.P. 79(d).