there was no mention in the lower court's decision on immunity we feel that we would address that issue here this morning essentially mr t s was an individual that was a banker back in two thousand and thirteen i mean his spare time he moonlighted as a referee through different rd party organizations he will go referee different games you while games trotter in fact was still a student at canyon creek and also was engaging in different interactions with a police officer that also was employed by  star by those different revelations mr t s took it upon himself to report these different conduct this different conduct to foresman including mr charge mother who in fact herself was a police officer as a result harness as a result a missed or teasers complaint mr harness took it upon himself to engage in an investigation with the district attorney's to lodz what we believe it has no factual basis which was a criminal complaint chief this is something that but isn't the allegation that the chief the reason the chief is upset is because of the prosecution that sudden well yeah that was that's him mr ortiz's complaint because there was they're the ones that are the defendant on this malicious prosecution class and so i'm trying to understand if the prosecutors prosecute mr sutton then what is the malicious motivation that they would have to prosecute mr ortiz seems like they've got two different people doing the same thing and prosecuting both of them and again that's that's a that's a good point but we haven't we never left at the same prosecutors that are named defendants and mis prosecution office the same the a's on this but the individual prosecutors we don't know the identity of those individuals is it was mr sutton's done under seal like if i worked it up on the texas courts website i assume it would be a matter of public record who prosecuted mr sutt you who may have tried the case but not necessarily who was involved throughout the day to day litigations and prosecution of that individual out there that would be a matter of public record but whoever actually in the case went to trial who ever was a prosecuting attorney at that time if you to get the transcript that would be a matter of public record but if they are the same prosecutors just say hypothetically yes and how how could we infer a malicious motivation to prosecution but assuming same prosecutors doing the same thing it seems hard to infer maliciousness ah well in this case it would necessarily be the same person doing the same thing because there's a clear distinction between mr ortiz and officer shits opinion about the scope of this educator student relationship statute that the that the charges against your client were dismissed was there some reason that the prosecutors was there some case out there some reason that the prosecutor should have known not to charge him as an educator statute was show that the bribe the legislator issued a bride and guidance or she's me in a split the guidance on the prod positions that will qualify as educator and also means that it was malicious prosecution to charge me in the st place without a motivation right because we've gotten past we don't really know why they would be motivated to prosecute him other than they think he's violated the statute well and well the motivation still reporting one of his high ranking sergeant and and that was the motivation when he teamed up with the disorder tourney to bring these charges against miss ortiz and get your point about the test because i don't think that there's a test case but i think that even the court and where for you shows that if it is reasonable if there's a reasonable understanding the what the law is if that prosecutor acts on reasonable and reasonably then that would be  removing that particular fact there is no way that probably cause would have been respect has as a reason sachi shows the st the st element in the criminal statute states that this individual has to be either an employee of that particular high school or has to be next we look at even though the district court did not mention make any mention of immunity we turned to me because that is something that was raised by the opposing party and again to the point that the court absolute whether absolute immunity applies in this particular case and the answer we believe is no because the that the crux of the case is actually the pre judicial proceedings which was the arrest in the misrepresentation of fact that were made to the magistrate so we look at what the d a was doing in that investigative process that is not something that was intimately related to judicial proceedings that is something that would not be considered proceedings so constitutional violation of the current law which we clearly did he was arrested all individuals have the right to to be free of unlawful arrest to we must see whether or not the defendant's actions were objection to a reasonable and a lot of circumstances as mentioned refers to another section where different positions are set out right and so as part of your prosecution you would read this statute to look at which prosecuting a month or so needs to be an employee so what facts would give as or support a conclusion it was a referee he was high school football and basketball games are so tell me what would lead you to the sole basis for the prosecutor's conclusion that he was an employee of the school district was a representation made in an affidavit bana best know that was you telling me no that was just a st point the nd point i believe would be that there was no precedent has never been challenged before in the state of texas about whether or not someone in their office or suddens position as a condo ice deep police officer or a u i school during the homecoming game so well the homecoming games are restricted to students and employee understand but i believe that the prosecutors could have had the well founded belief that the intent of this statute that criminalizes a improper relationship between an educator and a student was to protect students which mr truck clearly was at this time he was still attending the canyon creek high school from a adults in positions of authority at the school and a referee a high school fo otball game this was not argued before so i believe the prosecutors they went forward and ultimately judge if the prosecutors got the law wrong they're still entitle to absolute immunity the case law is clear on that they can they can get the law totally wrong they can they can have a mistake and they would as long as they are within their duty as an advocate for the state in the judicial process they have absolute immunity so i think believe i believe that cuts off all of mr teases claims but to move on the cases also make clear that to look at absolute immunity you don't look at the title of the person who's claiming it you look at the function that is complained about it's all the complaints against these prosecutors are their normal job as a prosecutor store arresting and charging the store t in the criminal process there's nothing within the four corners of either the original complaint or the st minute complaint that leads us to believe that any of these prosecutors stepped outside of their normal job as advocates for the state and did anything that could cause them to lose absolute immunity but even if you said absolutely munity side and evaluate plaintiff's claims in the qualified immunity as the district court indicated dismissed it would still be proper because even  i don't believe any claim was raised from that but as i mentioned before even if there is some flaw with that affidavit even if the testimony of the law enforcement officer who made that affidavit it turned out to be false that does not remove absolute immunity for the prosecutor who goes forward conspiracy the majority seems to be alleging he's not here to answer for so we can only focus on what is in what is complained about and it's the complaints are against the prosecutors and all those actions are something to every prosecutor would do for e earlier of my friend that on the face of the allegations in the complaint in the store tease he can make a case for most of the prosecution there's no discussion of any intent or motive or malice on the part of the prosecutors to bring this prosecution and that's not limit but i think the bigger element is again going back to probable cause even if there was a malicious intent the case law in the case that it's not malicious prosecution if  probable cause to bring criminal charges also further agreed that it's a public record about who the prosecutors were for this other case  of officer sutton and i believe if you were to look back at the published cases in the state reporters about the prosecution of officer sutton that you will see that those are the same three prosecutors are sued by mr  here but again i think all of this is kind of secondary in tertiary to the bigger question of do these prosecutors did they do anything to remove the cloak of immunity and i said based upon just the you know assuming everything that mr t s has pled is you know in his favor no they haven't done anything that caused them to lose immunity the absolute immunity shilled doesn't even take into account how egregious to behavior is so there's case law in the circuit that talks about if a prosecutor you know decides to make the offer to dismiss charges against a detainees in a jail after that detention was injured in a jail fire clearly a quid pro quo situation he still acting as a prosecutor by making that offer about so typically the only other functions that are the case law talks about the prosecutors could be involved in that might remove them from absolute immunity are administrative functions and investigative functions i don't think any of that applies to anything to my recollection regarding chief honest is a comment that chief honest barely made to other officers not to these prosecutors so i don't see any connection i don't see anything that would indicate that these prosecutors were involved in investigation  least nothing that he complains about nothing there rises to the level of the cases where this circuit has ruled that prosecutors lose absolute immunity for example if if a prosecutor does a case where the prosecutor it was involved in tampering with expert testimony regarding a boot print and i believe that that was determined to be you know a police function so the general rule as you  that if if a prosecutor does something that would you know a police officer done it would only give the qualified immunity then the prosecutor would have qualified immunity but nothing alleged like that in this case while my friend  and again i would go back to talking about the underlying statute the prosecutors did not know at least there was no precedential president the question was asked of my friend whether or not this had been decided before looking at the cases and looking at the published cases of officer sutton that this was a matter st impression for texas courts so i would argue there was no mistake made by the prosecutors but as i said even if there was a mistake of law made in bringing these charges it does not remove their absolute immunity  he was looking for and what he saw as the shortcomings of his complaint and gave him every opportunity to fix it and that didn't happen and that's why we're here and i believe that the record got it right thank you thank you  prosecutors quote received evidence stating mr ortiz was classified as an independent contractor what is this the only place in the complaint where that allegation is made and is there any fact to support it that the allegation that he was independent information so we don't know what the information was how they received it when they received it who gave it to them what it said no but again like like stated earlier i think it can be reasonably inferred from from the facts that advised in the penal code neither does being a referee fit within the planners of those listed school positions that would constitute an educator under this particular kid and again i don't want use that oh i'm sorry did you see that officer for making a false statement in the affidavit no no so these particular individuals knew that that the statement was false and again that was what was relied on by the magistrate so absent that particular prosecutor engages in an investigative action that is not protected by a muti therefore the prosecutors in this case not enjoy that absolute unity then we must pivot to whether or not qualified immunity would be a political and again as stated earlier the plaintiff satisfied that two prong test st he claimed that there was a clear constitutional violation which was his arrest and attention and then that action by the prosecutor was clearly a reasonable based on the pla