Opinion issued June 25, 2013.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00201-CV
                          ———————————
                        ROBERT WRITT, Appellant

                                      V.
  SHELL OIL COMPANY AND SHELL INTERNATIONAL, E&P, INC.,
                        Appellees




                  On Appeal from the 189th District Court
                          Harris County, Texas
                    Trial Court Cause No. 2009-65221




                                OPINION

      Appellant, Robert Writt, challenges the trial court’s rendition of summary

judgment in favor of appellees, Shell Oil Company and Shell International, E&P,
Inc. (collectively, “Shell”), in Writt’s suit against Shell for defamation. In two

issues, Writt contends that the trial court erred in granting Shell summary judgment

as Shell did not have an “absolute privilege,” or “immunity,” to make defamatory

statements about him to the United States Department of Justice (“DOJ”), he

presented evidence of the damages caused by Shell’s defamation, and damages are

presumed as a matter of law on his claim for defamation per se. 1

                                     Introduction

      Because the absolute privilege could possibly be used improperly as a

sword, rather than properly as a shield, Texas courts and the Restatement of the

Law on Torts have long distinguished between it, for communications made during

judicial and quasi-judicial proceedings, and the qualified, or conditional, privilege,

for communications made in the public interest.2 To extend the absolute privilege

to the circumstances of the instant case, where neither Shell nor Writt was a party

to an ongoing or proposed judicial or quasi-judicial proceeding at the time that

Shell made the complained-of statements, would have the very dangerous effect of


1
      Shell has filed a motion for en banc reconsideration. See TEX. R. APP. P. 49.7.
      The panel withdraws its February 14, 2013 opinions and substitutes these opinions
      in their place.
2
      See, e.g., Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987);
      RESTATEMENT (SECOND) OF TORTS §§ 585–591 (1977) (discussing application of
      absolute privilege); id. § 598 (discussing application of qualified, or conditional,
      privilege).

                                           2
actually discouraging parties from being truthful with law-enforcement agencies

and instead encourage them to deflect blame to others without fear of consequence.

      The “immunity” conferred by the absolute privilege attaches only to a

“select number of situations which involve the administration of the functions of

the branches of government, such as statements made during legislative and

judicial proceedings.” 3 And a defendant is entitled to summary judgment on the

basis of the absolute privilege only if the evidence conclusively proves the

privilege’s application. 4

      Here, as detailed below, Shell presented summary-judgment evidence that

the DOJ requested a forty-five minute meeting with Shell to discuss its business

dealings with another company. And, during the meeting, Shell, according to the

DOJ, agreed to “voluntarily investigate its business dealings” with the company

and provide the DOJ with certain documents and Shell’s “proposed

investigative plan.”     Eighteen months later, Shell provided its investigative

report, which contains the complained-of statements about Writt, to the DOJ.

As noted by Shell, it was not until twenty months after it had given the

investigative report to the DOJ that the DOJ first “open[ed] a judicial proceeding

and file[d] a criminal information” against Shell. There simply is no evidence that


3
      Hurlbut, 749 S.W.2d at 768.
4
      Id.
                                         3
a criminal case had been filed against Writt or Shell, or that a criminal prosecution

was actually being proposed against either Writt or Shell, at either the time the

DOJ first contacted Shell or when Shell submitted its report to the DOJ. Thus, we

conclude that the summary-judgment evidence does not conclusively establish the

applicability of the absolute privilege to the complained-of statements made by

Shell in its voluntarily-made investigative report to the DOJ. 5

      However, given that a “sufficiently important public interest” may have

“require[d]” that Shell make the communication to the DOJ, whether solicited by

the DOJ or not, “to take action if the defamatory matter [were] true,” we conclude

that Shell enjoys the adequate protection of the conditional privilege as a

“Communication to One Who May Act in the Public Interest.” 6 As noted below,

the conditional privilege is “applicable when any recognized interest of the public

is in danger, including the interest in the prevention of crime and the apprehension

of criminals, the interest in the honest discharge of their duties by public officers,

and the interest in obtaining legislative relief from socially recognized evils.” 7




5
      See id.
6
      See RESTATEMENT (SECOND) OF TORTS § 598 (1977).
7
      Id. § 598 cmt. d (emphasis added).

                                           4
      Accordingly, we reverse the judgment of the trial court and remand for

proceedings consistent with this opinion.8

                                    Background

      In his petition, Writt alleges that, as an employee of Shell, he was charged

with the responsibility of approving payments to contractors on certain Shell

projects in foreign countries, including Nigeria. During the course of his work,

Writt learned that certain Shell contractors were under investigation “by various

governmental agencies” for making and receiving illegal payments and one of

Shell’s vendors had pleaded guilty to violating the Foreign Corrupt Practices Act

(“FCPA”). 9 Writt further alleged that, in response to an informal inquiry to Shell

from the DOJ, Shell had “voluntarily” submitted to the DOJ a report in which Shell

“falsely accused him” of “engaging in unethical conduct” in connection with the

8
      Shell also sought summary judgment on Writt’s defamation claim on the ground
      that Writt presented no evidence of his damages. However, after Shell filed its
      summary-judgment motion, Writt amended his petition to include a claim for
      defamation per se. Shell did not file an additional or amended summary-judgment
      motion to attack Writt’s defamation per se claim or the alleged damages arising
      therefrom. As Shell recognizes in its appellees’ brief, damages for a claim for
      defamation per se are presumed as a matter of law. See Knox v. Taylor, 992
      S.W.2d 40, 60 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (“In the recovery
      on a claim of defamation per se, the law presumes actual damages and no
      independent proof of damages to reputation or of mental anguish is required.”).
      Because Writt amended his petition after Shell filed its summary-judgment motion
      and Shell did not separately attack the damages element of Writt’s defamation per
      se claim, Shell, as stated in its appellees’ brief, has not addressed the damages
      issue on appeal.
9
      See 15 U.S.C. § 78dd-1 (2004).

                                          5
payment of “bribes” and providing inconsistent statements during multiple

interviews conducted by Shell as part of its internal investigation. Writt asserted a

claim for defamation 10 against Shell for the allegedly false statements contained in

its report to the DOJ. Specifically, Writt alleged that Shell, in its report, falsely

stated that he had been involved in illegal conduct in a Shell Nigerian project by

recommending that Shell reimburse contractor payments he knew to be bribes and

failing to report illegal contractor conduct of which he was aware.

      In its summary-judgment motion, Shell argued that because the statements

made in its report to the DOJ were “absolutely privileged,” they could not give rise

to a defamation claim. Shell asserted that federal regulations authorize the DOJ to

prosecute violations of the FCPA,11 it “agreed with the DOJ to undertake the

internal investigation,” it furnished the report to the DOJ “with the understanding

that the facts in the report would be used by the DOJ in determining whether or not

to prosecute Shell for FCPA violations,” and the report related to the DOJ

investigation.




10
      Writt also asserted a claim against Shell for wrongful termination of his
      employment, but Writt has not appealed the trial court’s adverse judgment entered
      on the claim after a jury trial.
11
      See 28 C.F.R. § 0.55(m)(4) (assigning enforcement of FCPA to Assistant Attorney
      General, Criminal Division of DOJ).

                                          6
       In support of its summary-judgment motion, Shell attached a copy of a July

3, 2007 letter from Mark Mendelsohn of the Fraud Section of the DOJ’s Criminal

Division to Shell. In his letter, Mendelsohn stated in pertinent part:

       It has come to our attention that [Shell] has engaged the services of
       Panalpina, Inc. (“Panalpina”)[ 12] to provide freight forwarding and
       other services in the United States and abroad, and that certain of
       those services may violate the [FCPA]. The purpose of this letter is
       to request a meeting with you to further discuss Shell’s engagement
       of Panalpina. We anticipate this initial meeting will not take longer
       than 45 minutes.
(Emphasis added.) Mendelsohn also made a “request” that, in advance of the

meeting, Shell “prepare and provide the Fraud Section a spreadsheet detailing in

what countries Shell has used the services of Panalpina” and “the total amount of

payments for such services for the past five years.”

       Shell also attached to its motion the affidavit of Michael Fredette, Shell’s

Managing Counsel, who testified that, after receiving Mendelsohn’s letter, Shell

representatives met with the DOJ and Shell “agreed to conduct an internal

investigation into its dealings with Panalpina.” (Emphasis added.) Fredette further

testified:

       I was one of the leaders of Shell’s internal investigation. The
       investigative team was comprised of members of the Shell Legal
       Department and Shell’s Business Integrity Department, and assisted

12
       The record reflects that the DOJ had been investigating Panalpina for a significant
       period of time prior to contacting Shell. The record also reflects that in February
       2007, Shell’s contractor, Vetco Gray, pleaded guilty to violating the FCPA in
       connection with payments made through Panalpina.
                                            7
      by outside counsel from Vinson & Elkins LLP and forensic
      accountants from KPMG LLP.
      Shell’s Business Integrity Department is staffed with attorneys and
      former law enforcement officers, including former Federal Bureau
      of Investigation agents.
      The internal investigation began in August 2007, and culminated in
      a written report submitted to the [DOJ] on or about February 5,
      2009.    Shell submitted the report to the [DOJ] with the
      understanding that the report would be treated confidentially.
      Shell agreed to conduct the internal investigation with the
      understanding that it would ultimately report its finding to the
      [DOJ] and that the [DOJ] would conduct its own investigation for
      possible violations of the [FCPA] and other laws by Shell and/or its
      employees.
(Emphasis added.)

      Additionally, Shell attached to its summary-judgment motion a July 17,

2007 letter from Stacey K. Luck of the DOJ’s Fraud Section to Shell’s legal

counsel, C. Michael Buxton of Vinson & Elkins LLP. In the letter, Luck stated in

pertinent part:

      Thank you and your client, [Shell], for meeting with us today. As
      discussed, it is our understanding that Shell intends to voluntarily
      investigate its business dealings with Panapina Inc. and all other
      Panalpina subsidiaries and affiliates (collectively referred to as
      “Panalpina”).
(Emphasis added.) Luck requested that “in conducting the investigation,” Shell

produce certain documents and information pertaining to the time period of June

2002 through June 2007. Luck also specifically requested that “[p]rior to initiating

your investigation” and the production of any documents, Shell provide the current

                                         8
location of a number of individuals, including Writt, who had been associated with

a Shell project in Nigeria from January 1, 2004 to December 31, 2005. And Luck

requested Shell’s “proposed investigative plan,” including the “estimated volume

of documents implicated,” “number of individuals to be interviewed,” and

“proposed duration of the investigation.”

      Finally, we note that Shell also attached to its motion, among other

documents, a copy of a September 4, 2008 Vinson & Elkins memorandum

regarding an “Overview on Robert Writt” and the February 5, 2009 investigative

report that Shell had provided to the DOJ. In the report submitted to the DOJ,

Shell set forth the basic background facts of the investigation, explained that the

DOJ had contacted Shell and met with its representatives regarding allegations of

criminal violations, and noted that Shell had “agreed to conduct an internal

investigation” and “work with the DOJ to establish an investigative plan.” It also

noted that the DOJ had requested that Shell “produce ten categories of documents

and other information in connection with its investigation.”     Shell then made

findings and recommendations to deter future “potential violations” of Shell’s

business principles, recommended disciplinary action for “certain staff,” and noted

that the “investigation team” had identified “certain individuals to the relevant

Shell managers for consequence management.” Shell also included in the report

specific references to Writt, discussed his conduct in relation to Shell’s dealings

                                            9
with its contractors, and detailed the information that Writt had provided during

Shell’s investigation.

      In his response to Shell’s summary-judgment motion, Writt asserted that

Shell, in its report to the DOJ, had falsely described him as a major participant in

illegal conduct. Citing Shell’s report, Writt noted that he had informed Shell that

he had suspected certain illegal activity and had objected to Shell reimbursing

certain vendors for illegal payments. Nevertheless, Shell informed the DOJ that

Writt had approved payment of certain bribes, had denied suspecting that bribery

was occurring, and had failed to take action to stop the bribery on seventeen

separate occasions. Further citing Shell’s report to the DOJ, Writt also complained

that Shell informed the DOJ that he had provided inconsistent statements during

his interviews. Writt argued that because, under Texas law, “[s]tatements made to

prosecutorial agencies like the DOJ receive at most a qualified privilege,” Shell

was not entitled to summary judgment on the ground that it enjoyed an “absolute

privilege” to make the statements. In addition to the report, Writt attached to his

response his deposition and affidavit testimony. In his testimony, Writt explained

that he had been suspicious of certain payments made by a Shell contractor

beginning in 2004, he subsequently learned that one of Shell’s contractors had

pleaded guilty in February 2007 to FCPA violations, and he had notified Shell




                                        10
personnel about an internal investigation being conducted by the contractor and the

contractor’s subsequent guilty plea to FCPA violations.

      In its reply, Shell noted that on November 4, 2010, twenty months after it

had provided its investigative report to the DOJ, the DOJ “open[ed] a judicial

proceeding and file[d] a criminal information [against Shell] based at least in part

on the information provided by Shell in the course of the investigation.” Shell then

entered into a Deferred Prosecution Agreement with the DOJ, and it attached a

copy of the agreement to its reply. In the agreement, the DOJ noted that Shell had

cooperated in its investigation and agreed to continue cooperating in any ongoing

investigation. Shell also agreed to the payment of a monetary penalty.

                               Standard of Review

      To prevail on a summary-judgment motion, a movant has the burden of

proving that it is entitled to judgment as a matter of law and there is no genuine

issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995). When a defendant moves for summary judgment, it must either

(1) disprove at least one essential element of the plaintiff’s cause of action or (2)

plead and conclusively establish each essential element of its affirmative defense,

thereby defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341.

When deciding whether there is a disputed, material fact issue precluding summary

judgment, evidence favorable to the non-movant will be taken as true. Nixon v.

                                         11
Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). Every reasonable

inference must be indulged in favor of the non-movant and any doubts must be

resolved in his favor. Id. at 549.

      Here, the parties dispute whether Shell’s claim of absolute privilege is

properly characterized as a defense or an affirmative defense for which Shell had

the burden of proof. Compare Clark v. Jenkins, 248 S.W.3d 418, 433 (Tex.

App.—Amarillo 2008, pet. denied) (stating that absolute privilege is “affirmative

defense to be proved”), with CEDA Corp. v. City of Houston, 817 S.W.2d 846, 849

(Tex. App.—Houston [1st Dist.] 1991, writ denied) (citing Reagan v. Guardian

Life Ins. Co., 166 S.W.2d 909, 913 (Tex. 1942)) (stating that “absolute privilege is

not a defense” and that “absolutely privileged communications are not

actionable.”).   Regardless of the different characterizations of the absolute

privilege in Texas, a defendant is entitled to summary judgment on the basis of

absolute privilege only if the evidence conclusively proves the privilege’s

application. See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex.

1987) (holding that evidence did not conclusively establish application of absolute

privilege); see also Thomas v. Bracey, 940 S.W.2d 340, 343 (Tex. App.—San

Antonio 1997, no writ) (“Whether an alleged defamatory matter is related to a

proposed or existing judicial proceeding is a question of law to be determined by

the court.”).

                                        12
                                 Absolute Privilege

      In his first issue, Writt argues that the trial court erred in granting summary

judgment in favor of Shell because Shell did not have an absolute privilege to

make defamatory statements about him in its report to the DOJ. Writt asserts that

there is “no summary judgment evidence that the DOJ had initiated any legal

proceedings against Shell” at the time that it made the defamatory statements in its

report.

      “An absolutely privileged communication is one for which, by reason of the

occasion upon which it was made, no remedy exists in a civil action for libel or

slander.” Reagan, 166 S.W.2d at 912. When the absolute privilege applies to a

communication, there is no action in damages, “and this is true even though the

language is false and uttered or published with express malice.” Id.; see also

Hurlbut, 749 S.W.2d at 768 (stating that when absolute privilege applies, “the

actor’s motivation is irrelevant” and privilege is “not conditioned upon the honest

and reasonable belief that the defamatory matter is true or upon the absence of ill

will on the part of the actor”). Thus, the absolute privilege may be properly

characterized “as an immunity.” Hurlbut, 749 S.W.2d at 768.

      The absolute privilege, or immunity, is “based chiefly upon a recognition of

the necessity that certain persons, because of their special position or status, should

be as free as possible from fear that their actions in that position might have an

                                          13
adverse effect upon their own personal interests.” RESTATEMENT (SECOND)            OF

TORTS ch. 25, title B, intro. note (1977). To accomplish this end, “it is necessary

for them to be protected not only from civil liability but also from the danger of

even an unsuccessful civil action.” Id. Under the Restatement, these persons

include “Judicial Officers,” “Attorneys at Law,” “Parties to Judicial Proceedings,”

“Witnesses in Judicial Proceedings,” “Jurors,” “Legislators,” “Witnesses in

Legislative Proceedings,” and “Executive and Administrative Officers.”             Id.

§§ 585–591 (emphasis added).

      In contrast, the “qualified,” or “conditional,” privilege concerning

communications may be defeated when it is abused, i.e., when the “person making

the defamatory statement knows the matter to be false or does not act for the

purpose of protecting the interest for which the privilege exists.” Hurlbut, 749

S.W.2d at 768. The distinction between the absolute privilege and the conditional,

or qualified, privilege is that “an absolute privilege confers immunity regardless of

motive whereas a conditional privilege may be lost if the actions of the defendant

are motivated by malice.” Id.

      The conditional privilege “arises[s] out of the particular occasion upon

which the defamation is published” and is “based upon a public policy that

recognizes that it is desirable that true information be given whenever it is

reasonably necessary for the protection of the actor’s own interests, the interests of

                                         14
a third person, or certain interests of the public.” RESTATEMENT (SECOND)        OF

TORTS ch. 25, title B, intro. note (emphasis added). As noted in the Restatement:

      In order that this information may be freely given it is necessary to
      protect from liability those who, for the purpose of furthering the
      interest in question, give information which, without their knowledge
      or reckless disregard as to its falsity, is in fact untrue.

Id. The conditional privilege, which protects an actor from liability, but not civil

action, for providing information the actor believes to be true applies to a

“Communication to One Who May Act in the Public Interest.” Id. at § 598.

      Texas recognizes that the “immunity” conferred by the absolute privilege

attaches only to a “select number of situations which involve the administration of

the functions of the branches of government, such as statements made during

legislative and judicial proceedings.” Hurlbut, 749 S.W.2d at 768. The Texas

Supreme Court has explained that communications made “in the due course of a

judicial proceeding” are absolutely privileged, and this privilege “extends to any

statement made by the judge, jurors, counsel, parties or witnesses, and attaches to

all aspects of the proceedings, including statements made in open court, pre-trial

hearings, depositions, affidavits and any of the pleadings or other papers in the

case.” James v. Brown, 637 S.W.2d 914, 916–17 (Tex. 1982). Additionally, the

application of the absolute privilege to communications made in the course of

judicial proceedings has been extended to apply “to proceedings before executive



                                        15
officers, and boards and commissions which exercise quasi-judicial powers.”13

Reagan, 166 S.W.2d at 912. However, “[a]ll communications to public officials

13
     Our dissenting colleague would have this Court be the first appellate court in the
     nation to characterize the DOJ as acting in a quasi-judicial capacity by engaging in
     its law-enforcement duties. He would further hold that the DOJ initiated its own
     “quasi-judicial proceeding” simply by approaching and communicating about a
     potential criminal matter with Shell. Here, as noted by Shell, the DOJ ultimately
     did “open a judicial proceeding and file a criminal information” against Shell, and
     Shell then entered into a Deferred Prosecution Agreement with the DOJ. It seems
     rather odd to characterize the DOJ as engaging in a “quasi-judicial proceeding” for
     its prosecutorial actions taken prior to its opening of an actual judicial proceeding
     against Shell by the filing of a criminal information against Shell. Such a
     characterization fails to recognize the distinct role of prosecutors and judges in our
     criminal justice system. Regardless, our colleague would rely upon such a
     characterization to extend absolute immunity for communications made to the
     DOJ by a potential witness and/or a potential criminal defendant preliminary to an
     actual judicial proceeding.
     In support of his position, our dissenting colleague asserts that the DOJ “satisfies
     most of the elements of quasi-judicial power,” citing Parker v. Holbrook, 647
     S.W.2d 692 (Tex. App.—Houston [1st Dist.] 1982, writ ref’d n.r.e.).
     However, this Court in Parker did not, as suggested by our colleague, broadly
     articulate a test for determining whether any “governmental entity” exercising
     certain powers functions in a quasi-judicial capacity. Rather, emphasizing that
     “the class of absolute privileges has traditionally been very limited,” we noted that
     although, “[o]riginally, only those proceedings that were of a judicial nature were
     deemed to warrant the protection of an absolute privilege,” the protection was later
     “expanded to include some proceedings held before administrative agencies or
     commissions that were of a judicial nature and warranted the protection.” Id. at
     695 (emphasis added). We then simply noted that “[t]hese judicial powers
     exercised by administrative agencies have been described as quasi-judicial
     powers, encompassing the notion that they are exercised by non-judicial
     agencies.” Id. (emphasis added). Given this context, we then explained that,
            At least six powers have been delineated as comprising the judicial
            function and would be indicative of whether a commission was
            acting in a quasi-judicial, or merely an administrative, capacity: 1)
            the power to exercise judgment and discretion; 2) the power to hear
            and determine or to ascertain facts and decide; 3) the power to make
            binding orders and judgments; 4) the power to affect the personal or
                                           16
are not absolutely privileged.”      Hurlbut, 749 S.W.2d at 768 (citing Zarate v.

Cortinas, 553 S.W.2d 652 (Tex. Civ. App.—Corpus Christi 1977, no writ)).


             property rights of private persons; 5) the power to examine
             witnesses, to compel the attendance of witnesses, and to hear the
             litigation of issues on a hearing; and 6) the power to enforce
             decisions or impose penalties.
      Id. (emphasis added). We concluded that “[a]n administrative agency need not
      have all of the above powers to be considered quasi-judicial, but certainly the
      more of these powers it has, the more clearly is it quasi-judicial in the exercise of
      its powers.” Id. And we ultimately held that a hearing conducted by the executive
      committee of the Houston-Galveston Area Council, a regional planning agency of
      the state designated by the governor, was “not quasi-judicial in nature.” Id. at 696.
      This Court in Parker did not, and it has never, intimated that the protection of the
      absolute privilege extends to communications made to any governmental entity
      other than an administrative agency or commission, and then only in proceedings
      of a judicial nature. Indeed, a review of the reasons supporting both the absolute
      privilege and the conditional privilege reveals that there is no sound public policy
      reason to extend the absolute privilege to communications other than those made
      in a proceeding of a judicial nature held before administrative agencies or
      commissions. Because they are in basically the same position, it makes sense to
      recognize that a witness appearing in a proceeding of a judicial nature in front of
      an administrative agency or commission should be protected from a lawsuit as is a
      witness in a judicial proceeding. However, it makes no sense to grant the same
      absolute immunity from a lawsuit for communications made by an individual or an
      entity that may or may not be a witness some day in the future, especially if that
      individual or entity may or may not be a criminal defendant. To grant such an
      individual or entity—one that has a strong motive to deflect blame—immunity
      would more effectively discourage, rather than encourage, truth-telling, especially
      in a law-enforcement context.
      As revealed below, the communication made by Shell to the DOJ regarding Writt
      was in the nature of a “Communication to One Who May Act in the Public
      Interest” under Restatement section 598. As such, given that a “sufficiently
      important public interest” may have “require[d]” that Shell make the
      communication to the DOJ, whether solicited by the DOJ or not, “to take action if
      the defamatory matter [were] true,” Shell enjoys the adequate protection of the
      conditional privilege, not absolute immunity. See RESTATEMENT (SECOND) OF
      TORTS § 598.

                                           17
      In defining the scope of communications to which the absolute privilege

applies, the Texas Supreme Court has referred to relevant provisions in the

Restatement (Second) of Torts. Id. (citing RESTATEMENT (SECOND)             OF   TORTS

§§ 583–612 (1977)). For example, in James, the court considered the appropriate

privilege to apply to a psychiatrist’s statements referenced in reports that were filed

with a probate court. 637 S.W.2d at 917. The court considered the application of

Restatement section 588, entitled “Witnesses in Judicial Proceedings,” which

provides:

      A witness is absolutely privileged to publish defamatory matter
      concerning another in communications preliminary to a proposed
      judicial proceeding or as a part of a judicial proceeding in which he is
      testifying, if it has some relation to the proceeding.

James, 637 S.W.2d at 917 (quoting RESTATEMENT (SECOND)              OF   TORTS § 588

(1981)) (emphasis added). Noting that the “administration of justice requires full

disclosure from witnesses, unhampered by fear of retaliatory suits for defamation,”

the court held that the absolute privilege applied to the psychiatrist’s reports as

well as a letter written by an attorney in the case that was deemed written “in

contemplation” of the judicial proceeding. Id.

      More recently, the supreme court considered the appropriate privilege to

apply to statements made by an insurance agency’s representative to an assistant

attorney general who had been assigned to investigate a group health insurance

program being sold by the agency. Hurlbut, 749 S.W.2d at 768. The court
                                          18
considered both Restatement sections 588 and 598, which is entitled

“Communication to One Who May Act in the Public Interest.” Id. at 767–78.

Section 598 provides,

      An occasion makes a publication conditionally privileged if the
      circumstances induce a correct or reasonable belief that

            (a)    there is information that affects a sufficiently
                   important public interest, and

            (b)    the public interest requires the communication of
                   the defamatory matter to a public officer or a
                   private citizen who is authorized or privileged to
                   take action if the defamatory matter is true.

RESTATEMENT (SECOND)      OF   TORTS § 598 (emphasis added) (quoted in Hurlbut,

749 S.W.2d at 768). Noting that the evidence before it did not conclusively

establish that the allegedly defamatory statements were made to a public official or

were made in the course of a judicial or quasi-judicial proceeding, the court held

that the agency’s communications to the assistant attorney general were “best

analogized to the conditional privilege” set forth in section 598 and, thus, the

statements were not absolutely privileged. Hurlbut, 749 S.W.2d at 768.

      Texas courts of appeals have also addressed the application of the absolute

and conditional privileges to various communications.       In Zarate, the Corpus

Christi Court of Appeals considered the appropriate privilege to apply to allegedly

slanderous statements made in a criminal complaint filed with a local sheriff’s

office.   553 S.W.2d at 654.      The court acknowledged that communications
                                        19
published in the course of a judicial proceeding are absolutely privileged and the

privilege for such statements extends to “proceedings before executive officers,

boards or commissions which exercise quasi-judicial powers.”           Id. at 655.

Analyzing the facts before it, the court determined that only a qualified privilege

applied to communications “of alleged wrongful acts to an official authorized to

protect the public from such acts.” Id. The court acknowledged that “strong

public policy consideration[s]” dictate that communications like the criminal

complaint before it “be given some privilege against civil prosecution for

defamation” and it is “vital to our system of criminal justice that citizens be

allowed to communicate to peace officers the alleged wrongful acts of others

without fear of civil action for honest mistakes.” Id. (emphasis added). But the

court concluded that such communications did not fall “within the traditional areas

of absolutely privileged communications” recognized in Texas. Id. The court

further noted that applying the absolute privilege under the circumstances before it

“would unnecessarily deny those innocent victims of maliciously or recklessly

filed complaints an opportunity to seek remuneration for their injury.”          Id.

(emphasis added); see also Vista Chevrolet, Inc. v. Barron, 698 S.W.2d 435, 436

(Tex. App.—Corpus Christi 1985, no writ) (holding that only conditional privilege

applied to criminal theft complaint made to law-enforcement authorities).




                                        20
      In Clark v. Jenkins, the Amarillo Court of Appeals considered the

appropriate privilege to apply to allegedly defamatory statements made by a civil

rights group accusing the plaintiff of having a criminal history in a memorandum

published to a congressman and the DOJ’s Civil Rights Division. 248 S.W.3d 418,

423–25 (Tex. App.—Amarillo 2008, pet. denied).           The court, after reviewing

Texas privilege law, noted that, “[c]learly, all communications to public officials

are not absolutely privileged.” Id. at 432 (citing Hurlbut, 749 S.W.2d at 768). The

court explained that “[i]nitial communications ‘to a public officer . . . who is

authorized or privileged to take action’ are subject to only a qualified privilege, not

absolute immunity.” Id. (quoting Hurlbut, 749 S.W.2d at 768). Moreover, the

“filing of a criminal complaint is not absolutely privileged because, at that point,

no judicial proceedings have been proposed and no investigating body has

discovered sufficient information to present to a grand jury or file a misdemeanor

complaint.” Id. Citing both the Texas Supreme Court’s opinion in Hurlbut and the

Corpus Christi Court of Appeals’s opinion in Zarate, the court concluded that

“initial” communications “of alleged wrongful or illegal acts to an official

authorized to protect the public from such acts [are] subject to a qualified

privilege.” Id. Because the defendant, who had published the memo to the DOJ,

produced no evidence indicating that the DOJ “was actively contemplating,

investigating, or litigating any civil rights violations” at the time of publication,

                                          21
and because the defendant’s allegations made in the memorandum “were

preliminary in nature, i.e., designed to launch an investigation that might lead to

legal action,” the court held that the defendant’s statements made to the DOJ “were

not part of an executive, judicial, or quasi-judicial proceeding, and were not subject

to an absolute privilege.”14 Id. at 433.

      In Darrah v. Hinds, the Fort Worth Court of Appeals considered the

appropriate privilege to apply to statements made by a bank in a writ of

sequestration filed with a court. 720 S.W.2d 689, 690–91 (Tex. App.—Fort Worth

1986, writ ref’d n.r.e.). The court noted that the absolute privilege applies to

communications made in the course of, or “in contemplation” of, judicial

proceedings, while the qualified privilege applies to communications of wrongful

acts to officials authorized to protect the public from such acts, such as criminal

complaints. Id. at 691. Noting that the affidavit was filed and acted upon by the

county court, the court held that the absolute privilege applied to the statements

made in the writ of sequestration. Id. at 691–92.

      In Smith v. Cattier, the Dallas Court of Appeals, within the context of a

jurisdictional analysis, considered whether the absolute privilege applied to

14
      Similarly, in San Antonio Credit Union v. O’Connor, the San Antonio Court of
      Appeals held that a qualified privilege applied to statements made in a criminal
      complaint supplied to a district attorney. 115 S.W.3d 82, 99 (Tex. App.—San
      Antonio 2003, pet. denied). The court noted that, at the time of the complaint, no
      judicial proceedings had been proposed. Id.

                                           22
statements made to the Federal Bureau of Investigation (“FBI”) by one business

associate concerning another business associate. No. 05-99-01643-CV, 2000 WL

893243, at *3–4 (Tex. App.—Dallas July 6, 2000, no pet.) (not designated for

publication). The court noted that, under Texas law, “[a]bsolute immunity does

not extend to unsolicited communications to law enforcement officials or initial

communications to a public officer . . . authorized or privileged to take action” and,

under such circumstances, “the actor is entitled to only a qualified privilege which

may be lost if the defendant’s actions are motivated by malice.” Id. at *4 (citations

omitted).    The court concluded that because the defendant had failed to

demonstrate that he was not involved in referring the plaintiff to the FBI or

“instigating the investigation,” and because the defendant failed to “negate” the

plaintiff’s claim that the defendant had “initiated, procured, and caused” the

commencement of the criminal investigation into plaintiff’s actions, the defendant

had failed to establish that he was entitled to absolute immunity.” 15 Id.


15
      More specifically, in Smith v. Cattier, the defendant was on the board of directors
      of a company that voted to terminate the plaintiff’s position as the company’s
      president and remove him and his wife from the board of directors. No. 05-99-
      01643-CV, 2000 WL 893243, at *3 (Tex. App.—Dallas July 6, 2000, no pet.) (not
      designated for publication). The board also voted to refer the plaintiff to the FBI.
      Id. Although the plaintiff was ultimately indicted, he was later acquitted and sued
      the defendant for slander and libel. Id. The defendant argued that the statements
      he had made to the FBI during an interview requested by the FBI in connection
      with its investigation were absolutely privileged. Id. at *4. The court rejected the
      defendant’s absolute privilege argument, but its opinion suggests that the court did
      so not based upon the statements made during the course of the FBI interview, but
      instead upon the plaintiff’s allegation that the defendant was one of the board
                                           23
      Finally, a federal district court in Texas recently considered the appropriate

privilege to apply to allegedly defamatory statements made by a witness during

Major League Baseball’s (“MLB”) investigation, which was conducted in

conjunction with a federal investigation, into the illegal use of steroids.         See

Clemens v. McNamee, 608 F. Supp. 2d 811, 823–25 (S.D. Tex. 2009). The court

noted that, under Texas law, communications “to government agencies as part of

legislative, judicial, or quasi-judicial proceedings are entitled to absolute immunity

so long as they are made as part of an ongoing proceeding, they are not unsolicited,

and they are made to an agency whose findings need not be approved or ratified by

another agency.” 16 Id. at 823–24.



      members that had referred him to the FBI, which the court characterized as an
      “unsolicited communication” that instigated the criminal investigation. Id.
16
      In reaching its holding, the court in Clemens relied significantly on Shanks v.
      AlliedSignal, Inc., 169 F.3d 988 (5th Cir. 1999). In Shanks, the court held that a
      National Transportation and Safety Board (“NTSB”) accident investigation
      qualified as a quasi-judicial proceeding, and, thus, Texas law recognized absolute
      immunity for statements made during the NTSB investigation. Id. at 994–95. In
      reaching its holding, the court engaged in a “comprehensive” review of Texas case
      law on the scope of the absolute privilege in the context of communications made
      to government agencies. Id. at 993–94. The court found “only two situations” in
      which Texas courts recognized that communications made to government agencies
      were not absolutely privileged: (1) cases involving “unsolicited communications
      to law enforcement officials” made “in advance of any formal proceeding or
      investigation” and (2) cases involving communications made to agencies that issue
      mere recommendations or preliminary findings. Id. at 994. The court held that
      the allegedly defamatory statements at issue in the case before it were “made in
      connection with an ongoing NTSB investigation” and were absolutely privileged.
      Id.

                                          24
      Having reviewed the Texas common law addressing the scope of the

absolute privilege and its application in different factual scenarios, 17 we now turn

to the arguments made by the parties in the instant case. Writt argues that only the

qualified privilege applies to Shell’s statements made in the report to the DOJ

because there is no summary-judgment evidence that the DOJ had initiated any

legal proceedings against Shell at the time it submitted the report. Writt asserts

that our disposition of this case is controlled by the Texas Supreme Court’s opinion

in Hurlbut, which indicates that statements made by Shell in its report to the DOJ

were not absolutely privileged. Shell counters that the absolute privilege applies to

“statements solicited in an ongoing government investigation.” Focusing on the

Clemens opinion, Shell asserts that “Texas law distinguishes between statements

solicited by government officials or agents as part of an ongoing investigation,” to

which the absolute privilege applies,” and “unsolicited statements unilaterally


17
      This Court has not previously addressed the proper privilege to apply in
      circumstances similar to those presented here. In Watson v. Kaminski, we noted
      that “attorney’s statements made during litigation are not actionable as
      defamation, regardless of negligence or malice,” and the absolute privilege
      “includes communications made in contemplation of and preliminary to judicial
      proceedings.” 51 S.W.3d 825, 827 (Tex. App.—Houston [1st Dist.] 2001, no pet.)
      (emphasis added). In Marathon Oil Co. v. Salazar, we addressed a jury charge
      issue pertaining to a qualified privilege for making a criminal complaint. 682
      S.W.2d 624, 629–31 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).
      However, we expressly stated that the defendant had not made any objection to the
      submission to the jury of the plaintiff’s libel cause of action on the basis of
      absolute privilege, so we did not have the occasion to address the applicability of
      the proper privilege. Id. at 631.

                                          25
proffered to government officials for the purpose of instigating or launching such

an investigation or proceeding,” to which the qualified privilege applies. Shell

notes that, in preparing the report, it was under the “continuing threat of

prosecution for FCPA violations” as well as the “penalty of perjury” for any

misstatements contained in the report. Shell emphasizes that it was ultimately

prosecuted by the DOJ for conspiracy to violate the FCPA.

      We hold that the summary-judgment evidence does not conclusively

establish the applicability of the absolute privilege to the complained-of statements

made by Shell in the report to the DOJ. See Hurlbut, 749 S.W.2d at 768 (stating

that defendant was entitled to summary judgment on basis of absolute privilege

only if evidence conclusively proves the privilege’s application).   Although Shell

established that it made the report in its effort to cooperate with the DOJ, Shell

actually prepared the report during the course of its own voluntary “internal

investigation.”

      Shell did present evidence that it conducted its internal investigation in

response to a DOJ inquiry after attending a meeting requested by the DOJ.

However, there is no evidence conclusively establishing that a criminal case had

been filed against Writt or Shell, or that a criminal prosecution was actually being

proposed against either Writt or Shell, at either the time the DOJ contacted Shell or

when Shell submitted its report to the DOJ. The summary-judgment evidence

                                         26
establishes that the DOJ initially contacted Shell on July 3, 2007, five months after

a Shell contractor, Vetco Gray, had already pleaded guilty to violating the FCPA in

connection with payments made through Panalpina. And Shell submitted the

complained-of report to the DOJ on February 5, 2009. The DOJ did not, in Shell’s

words, “open a judicial proceeding and file a criminal complaint” against Shell

until November 4, 2010, twenty months after Shell submitted its report. Just

because the DOJ ultimately filed a judicial proceeding against Shell does not

establish that it was proposing that one be filed when it contacted Shell on July 3,

2007 or received Shell’s report on February 5, 2009.

      Moreover, the report itself indicates that Shell also prepared it for important

internal purposes. For example, Shell included in the report its findings and

recommendations made to deter future “potential violations” of Shell’s business

principles, it recommended disciplinary action for “certain staff,” and it stated that

the “certain individuals” had been “identified” for “consequence management” by

Shell. In its report, Shell was not proposing that either it or Writt should be

prosecuted for a crime. 18


18
      Section 587 of the Restatement (Second) of Torts, entitled “Parties to Judicial
      Proceedings,” provides:

             A party to a private litigation or a private prosecutor or defendant in
             a criminal prosecution is absolutely privileged to publish defamatory
             matter concerning another in communications preliminary to a
             proposed judicial proceeding, or in the institution of or during the
                                           27
       Our conclusion that the absolute privilege does not apply to the statements

made by Shell to the DOJ is based upon our review of Texas case law, which

reveals that allegedly defamatory statements contained within criminal complaints,

and other similar information provided by private parties to prosecutorial and law

enforcement agencies prior to the initiation of criminal proceedings, are not subject

to the absolute privilege. See Clark, 248 S.W.3d at 427–34; Zarate, 553 S.W.2d at

654.   These holdings comport with the general recognition that the absolute

privilege applies only to communications made in judicial proceedings and those

communications made preliminary to or in serious contemplation of a judicial

proceeding. See Hurlbut, 749 S.W.2d at 767 (citing RESTATEMENT (SECOND)                    OF

TORTS § 588); James, 637 S.W.3d at 917; Zarate, 553 S.W.2d at 654; see also San

Antonio Credit Union, 115 S.W.3d at 99 (stating that “an investigation into

criminal activity does not amount to” proposed judicial proceeding and proposed

judicial proceeding exists when investigating body finds “enough information

              course and as a part of, a judicial proceeding in which he
              participates, if the matter has some relation to the proceeding.

       RESTATEMENT (SECOND) OF TORTS § 587 (1977) (emphasis added). Section 587
       “applies to a litigant in a civil action, a defendant in a criminal prosecution, or one
       who, as private prosecutor, formally initiates a criminal action or applies for a
       search warrant by a written complaint under oath, made to the proper officer,
       charging another with crime.” Id. § 587 cmt. b. It also “applies to
       communications made by a client to his attorney with respect to proposed
       litigation as well as to information given and informal complaints made to a
       prosecuting attorney or other proper officer preliminary to a proposed criminal
       prosecution whether or not the information is followed by a formal complaint or
       affidavit.” Id.
                                             28
either to present that information to a grand jury or to file a misdemeanor

complaint”).

      In Hurlbut, a client of an insurance agency contacted an agent of the agency

and the office of the Texas Attorney General after becoming concerned that the

agency could not produce a copy of a master policy that the agency was selling.

749 S.W.2d at 764. The agent, after receiving this telephone call, then contacted

the agency to inquire about the policy.      Id.   A representative of the agency

reassured him and suggested he meet with the agency to “straighten out the

matter.” Id. When two insurance agents arrived at this purported meeting to

straighten things out, they were “surprised by the appearance” of an assistant

attorney general who had been “assigned to investigate” the insurance policy being

sold by the agency. Id. At the meeting, an agency representative told the assistant

attorney general that its employed agents did not have the authority to write the

insurance policy that they were writing. Id. Thus, the agency effectively accused

the agents of wrongdoing. The agents then accompanied the assistant attorney

general to a local office and “cooperated in the investigation.” Id. The Texas

Supreme Court explained that the allegedly defamatory statements made by the

agency representative at the meeting with the insurance agents were “best

analogized” to the circumstances in which a conditional privilege applied. Id. at

768; see also Gulf Atl. Life Ins. Co. v. Hurlbut, 696 S.W.2d 83, 89–90 (Tex.

                                        29
App.—Dallas 1985), rev’d, 749 S.W.2d 762 (providing additional factual

background and indicating that agency representative had originally, falsely

informed a city attorney that the agents were not authorized to write the insurance

policy and a city attorney had then reported this information to the office of the

Texas Attorney General).19



19
      The parties have submitted to this Court, pursuant to our request at oral argument,
      their survey of cases from other jurisdictions addressing the application of the
      absolute and qualified privileges to certain statements. Although the parties
      vigorously disagree about a “majority” and “minority” rule concerning the
      application of the absolute privilege, they have provided us with a thorough and
      helpful examination of other jurisdictions’ treatment of the privilege issue. The
      surveys reflect that other jurisdictions have formulated privilege rules based, in
      large part, upon public policy considerations. For example, in his post-submission
      brief, Writt cites a case from the Connecticut Supreme Court holding that, under
      Connecticut law, allegedly false and malicious statements made to a law
      enforcement officer investigating a criminal allegation are qualifiedly, rather than
      absolutely, privileged. See Gallo v. Barile, 935 A.2d 103, 114 (Conn. 2007). The
      court in Gallo discussed policy considerations for adopting its rule, noting that a
      “qualified privilege is sufficiently protective of [those] wishing to report events
      concerning crime” and “[t]here is no benefit to society or the administration of
      justice in protecting those who make intentionally false and malicious defamatory
      statements to the police.” Id. at 108–14.

      In contrast, in its post-submission brief, Shell cites, among others, a case from the
      Massachusetts Supreme Court holding that, under its state’s law, statements made
      to police or prosecutors prior to trial are absolutely privileged if they are made in
      the context of a proposed judicial proceeding. Correllas v. Viveiros, 572 N.E.2d
      7, 11 (Mass. 1991). The court in Correllas also discussed policy considerations
      supporting its rule, noting that a conditional or qualified privilege would “not
      adequately protect a witness or party because he or she may still have to go to
      court to prove the absence of malice or recklessness.” Id. Although we have
      considered the surveys in which the jurisdictions discuss the various policy
      considerations supporting their respective rules, we base our holding upon what
      we consider to be the rule suggested by the weight of authority in Texas. We
      conclude that this authority indicates that, under Texas law, it is more appropriate
                                           30
      Again, here, although the record establishes that the DOJ contacted Shell to

discuss Shell’s engagement of Panalpina in Nigeria, there is nothing in the record

that conclusively establishes that, at that time, the DOJ had filed a criminal

proceeding against either Shell or Writt. Nor is there any summary-judgment

evidence conclusively establishing that the DOJ, at the time that it contacted Shell,

was acting in a manner preliminary to filing a criminal proceeding against either

Shell or Writt. Similarly, Shell has not conclusively established that it actually

contemplated in good faith and took under serious consideration the possibility of a

judicial proceeding. And there is no evidence conclusively establishing that Writt,

prior to Shell sharing its report with the DOJ, had been implicated in the alleged

commission of a crime or reported to a law-enforcement agency for an alleged

criminal act. Thus, the statements in Shell’s report, at least as they pertained to

Writt, were more in the nature of information provided by a private party to a

prosecutorial agency implicating another in wrongful conduct. And, as noted

above, Texas courts have indicated that a conditional privilege is more suitable to

protect such statements.20



      to apply the conditional privilege to the complained-of statements made by Shell
      in the report that it submitted to the DOJ.
20
      Our dissenting colleague argues that Shell should be protected by the absolute
      privilege because “it can face criminal liability for failure to adequately comply
      and cooperate with the DOJ’s investigation,” citing United States v. Kay, 513 F.3d
      432, 454–55 (5th Cir. 2007). In Kay, the defendant was charged with obstruction
                                          31
      Under the Restatement, Shell’s communication is protected by the

conditional privilege as a “Communication to One Who May Act in the Public

Interest.” See RESTATEMENT (SECOND)         OF   TORTS § 598. As such, given that a

“sufficiently important public interest” may have “require[d]” that Shell make the

communication to the DOJ, whether solicited by the DOJ or not, “to take action if

the defamatory matter [were] true,” Shell enjoys the adequate protection of the

conditional privilege, not immunity. 21 See id. Section 598 is “applicable when any

recognized interest of the public is in danger, including the interest in the

prevention of crime and the apprehension of criminals, the interest in the honest

discharge of their duties by public officers, and the interest in obtaining legislative

relief from socially recognized evils.” Id. § 598 cmt. d (emphasis added). And

section 598 is specifically “applicable to defamatory communications to public



      of justice for withholding certain documents and denying certain facts in
      testimony given to the United States Securities and Exchange Commission
      (“SEC”) during the SEC’s investigation of violations of the FCPA. Id. at
      454. However, in Kay, the defendant was actually subpoenaed as a witness to
      appear before the SEC, and he was directed to produce documents and provide
      testimony. Id. Here, as explained above, Shell was never subpoenaed as a witness
      by the DOJ, and it actually produced its report implicating Writt as part of its own
      “internal investigation.”
21
      Under the Restatement, had Shell actually filed a “[f]ormal or informal
      complaint[]” with the DOJ about Writt concerning an actual “violation[] of the
      criminal law” by him, it would then have been entitled to the absolute privilege
      “under the rule stated in section 587” concerning “Parties to Judicial Proceedings.”
      See RESTATEMENT (SECOND) OF TORTS § 598 cmt. e. But Shell’s communication
      to the DOJ did not constitute a formal or informal criminal complaint against
      Writt, and Shell has made no attempt to characterize its communication as such.
                                           32
officials concerning matters that affect the discharge of their duties.” Id. § 598

cmt. e (“Communications to Public Officials”).

      And even if Shell could possibly be considered as a “witness” having made

“communications preliminary to a proposed judicial proceeding,” it would be

entitled to the absolute privilege accorded a witness in a judicial proceeding only if

its communications to the DOJ had “some relation to a proceeding that is actually

contemplated in good faith and under serious consideration . . . .” Id. § 588 cmt. e.

As emphasized in the Restatement, the “bare possibility that the proceeding might

be instituted is not to be used as a cloak to provide immunity for defamation when

the possibility is not seriously considered.” Id. (emphasis added).

      In support of its argument that the complained-of statements in the report

that it submitted to the DOJ are absolutely privileged, Shell relies greatly upon

Clemens, 608 F. Supp. 2d at 823–25.           In Clemens, the court noted that the

evidence before it demonstrated that the pertinent witness, Brian McNamee, had

been interviewed by an Assistant United States Attorney as part of a federal

investigation into the distribution of steroids. Id. at 824. McNamee and his

counsel met with the prosecutor and agents from the FBI and the Internal Revenue

Service numerous times, and McNamee had been told that his “witness status”

could be reviewed if he “chose not to co-operate” and he was subject to

prosecution for making false statements during these interviews. Id. The evidence

                                         33
also demonstrated that the prosecutor told McNamee that speaking to the MLB

Commission “was part of his co-operation with the investigation in order to

maintain his witness status.”    Id.   Prior to the interviews with the MLB

Commission, the prosecutor told McNamee that their proffer agreement would

cover the interviews and he could face prosecution for any false material

statements.   Id.   McNamee agreed to these terms and participated in three

interviews with the MLB Commission, the interviews were all arranged by federal

agents or Assistant United States Attorneys, and prosecutors and FBI agents

participated in all interviews between McNamee and the MLB Commission. Id.

The federal district court determined that the evidence established that the

investigation was an “ongoing proceeding,” McNamee’s statements “should be

protected” “[a]s a matter of public policy,” McNamee was “compelled” to make

his statements to the MLB Commission “as part of a judicial proceeding,” and

McNamee’s statements “should be treated with immunity.” Id. at 823–25.

      In the instant case, the facts established in the summary-judgment record do

not demonstrate that the DOJ ever granted Shell any type of “witness status.” Nor

is there any evidence here of a formalized investigative process of the type

engaged in by the MLB Commission with the assistance of federal prosecutors and

the FBI. The Clemens opinion reveals that McNamee’s statements to the MLB

Commission were made in furtherance of its regulatory and oversight functions

                                       34
and preliminary to a proposed criminal proceeding that was actually contemplated.

Indeed, McNamee had been granted “witness status.” Id. at 824. Moreover, to the

extent that the court’s opinion in Clemens could possibly be read as applying the

absolute privilege beyond how Texas courts have applied it, we note that the

Clemens opinion is not controlling authority on this Court. Rather, we are bound

to follow the guidance and reasoning provided by the Texas Supreme Court in

Hurlbut.

                                    Conclusion

      In sum, the summary-judgment evidence presented in the trial court below

does not conclusively establish that, at the time Shell prepared its report following

its “internal investigation” and submitted it to the DOJ, a criminal judicial

proceeding against either Shell or Writt was either ongoing or “actually

contemplated” or under “serious consideration” by the DOJ or Shell.              See

RESTATEMENT (SECOND) OF TORTS § 588, cmt. e. Rather, the communication made

by Shell in its report to the DOJ and complained of by Writt is protected by the

conditional privilege as a “Communication to One Who May Act in the Public

Interest.” See id. § 598.




                                         35
      Accordingly, we hold that the trial court erred in granting Shell’s summary-

judgment motion. We sustain Writt’s first issue. And we reverse the judgment of

the trial court and remand for proceedings consistent with this opinion.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Justice Brown, dissenting.




                                         36
