In In re Bexar County Criminal Dist. Attorney's Office, 224 S.W.3d 182 (Tex. 2007), a malicious prosecution plaintiff subpoenaed several assistant district attorneys to solicit testimony as to how the charging decision was made in that case. Id. at 184.
The district attorneys sought to quash the subpoena, contending any testimony they might give would be privileged. Id.
The court of appeals concluded that King necessitated the district attorney's testimony because the plaintiff had to show any false information was important to the charging decision. Id. at 185.
The Texas Supreme Court disagreed, noting the plaintiffs need for the testimony did not outweigh the importance of the privilege. Id. at 187-88.
Moreover, the court suggested a malicious prosecution plaintiff might prove their case through circumstantial evidence, testimony from the defendant, or from expert testimony on prosecutorial decision-making. Id. at 189.
The court never suggested, however, that the decision making process of the district attorney was not a necessary component of the plaintiff's case.