EX PARTE TUSCALOOSA COUNTY

SEE, Justice.

The Court of Civil Appeals, without an opinion, affirmed a judgment in favor of Rufus L. Cosby and against E.E. "Billy" Tinsley and Tuscaloosa County. Tuscaloosa County Comm'n v. Cosby, 796 So.2d 1099 (Ala.Civ.App. 1999). We granted certiorari review. Tinsley and the County argue that they are immune from liability on Cosby's claims. We agree. Therefore, we reverse and remand.

Tinsley is the Tuscaloosa County license inspector. His duties include examining business-license records and instituting criminal proceedings against those who fail or refuse to get a business license when they are required by law to do so. See Ala. Code 1975, § 40-12-10. Tinsley carried out his duties according to the following procedure: The Tuscaloosa County license commissioner's office would provide Tinsley with a list of those who had previously obtained business licenses but who, after the license commissioner sent them a renewal notice, had not renewed their license. The license commissioner's renewal notice instructed recipients to destroy the notice "if not applicable." Tinsley or a member of his staff would then try by telephone or by mail to contact each person on the list. If any of his letters were returned by the Postal Service, then Tinsley or a member of his staff would go to the business address to determine whether the former licensee was still doing business there. To those who did not respond to the telephone calls or letters, Tinsley sent a letter advising that he would initiate court proceedings if they did not purchase a business license within seven days from the date of the letter. Tinsley would request from the Tuscaloosa County warrant clerk an arrest warrant for a person who did not respond to that letter.

In 1992, Rufus L. Cosby obtained a business license for a remodeling business so that he could perform a specific remodeling job in Northport. After he finished that job, which was completed before the 1992-1993 license year began on October 1, 1992, Cosby did no further remodeling work. In the late summer or early fall of 1992, Cosby received a renewal notice from the license commissioner's office. Because he did not intend to do any further business, he did not respond to the notice, which instructed him to destroy it "if not applicable."

When Cosby obtained the 1992 business license, he listed his home address as his business address. Both Cosby and his wife worked outside the home during business hours, and Cosby did not have a telephone answering machine at his home; thus, Tinsley's office staff was unable to reach Cosby by telephone during business hours. In December 1992, Cosby received a letter from Tinsley informing him that he was being cited for failure to renew his business license and that Tinsley would institute criminal proceedings against him if he failed to renew his business license. The letter gave a telephone number for Cosby to call if he had any questions. Cosby disregarded the letter.

In March 1993, a friend of Cosby's, who worked for the Tuscaloosa County Sheriff's Department, told Cosby's wife that Cosby's name had appeared on a computer list, a list indicating that a warrant had been issued for Cosby's arrest. Cosby went to the Sheriff's Department and was processed; the processing included having his fingerprints and photograph taken. He was in the booking area of the jail for about an hour and a half, but was never placed in a cell. His wife signed a bond form, and he was released without having to post a money bond. The bond form stated that Cosby's court date was April 14, 1993.

Cosby went to the district court on April 14; however, his case was actually scheduled for the April 24 docket, and his name was not called on April 14. After sitting through the docket, he talked with Tinsley and explained that he was not doing business. Tinsley told him that the case would be dismissed, and the case was dismissed.

Cosby sued Tinsley, both in his individual capacity and in his official capacity, and Tuscaloosa County. He alleged malicious prosecution, defamation, abuse of process, negligent and/or wanton investigation, negligent and/or wanton administration of the license inspector's official duties, the tort of outrage, and false imprisonment; he sought compensatory and punitive damages. At trial, the circuit court granted the defendants' motion for a judgment as a matter of law as to some of Cosby's claims and submitted to the jury only his claims alleging malicious prosecution, negligence, and wantonness. The jury returned a verdict in favor of Cosby and against Tinsley and the County on all three claims, assessing $25,000 in compensatory damages against Tinsley and the County and $26,000 in punitive damages against Tinsley. The court granted the defendants' motion for a new trial, on the ground of juror misconduct. At a second trial, the court granted the defendants' motion for a judgment as a matter of law as to all claims except the malicious-prosecution claim. On that one claim, the jury returned a verdict in favor of Cosby and against Tinsley and the County, assessing $35,000 in compensatory damages against Tinsley and the County, but assessing no punitive damages. The trial court entered a judgment on that verdict. Tinsley and the County filed a renewed motion for a judgment as a matter of law, which the trial court denied, and a motion for a new trial, which was denied by operation of law after the trial court had failed to rule on it within 90 days. See Rule 59.1, Ala.R.Civ.P. Tinsley and the County appealed to the Court of Civil Appeals, which affirmed the trial court's judgment, without an opinion. Judge Crawley dissented, concluding that Tinsley and the County were immune from liability on Cosby's malicious-prosecution claim.

Tinsley and the County argue that the trial court erred in denying their motion for a judgment as a matter of law because, they argue, they are immune from Cosby's claims. Specifically, they argue that they are agents of the state for the purpose of enforcing the business-license laws and, therefore, that Cosby's claims against the County and against Tinsley in his official capacity are barred by the state's absolute, or sovereign immunity. They also argue that Cosby's claim against Tinsley in his individual capacity is barred by qualified, or discretionary-function, immunity.

Under Ala. Const. of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state, see, e.g., Armory Comm'n of Alabama v. Staudt, 388 So.2d 991, 993 (Ala. 1980), but generally does not extend to counties or county agencies, see, e.g., Wassman v. Mobile County Communications Dist., 665 So.2d 941, 943 (Ala. 1995), or to municipalities or municipal agencies, see Jackson v. City of Florence, 294 Ala. 592, 600, 320 So.2d 68, 75 (1975). Nevertheless, when a county or municipality acts as an agent of the state, it is entitled to share in the state's absolute immunity. See Town of Loxley v. Coleman, 720 So.2d 907, 908-09 (Ala. 1998); Rutledge v. Baldwin County Comm'n, 495 So.2d 49, 53 (Ala. 1986). In Town of Loxley v. Coleman, this Court held that a town and its employee were acting as agents of the state in transporting a prison inmate, reasoning that the town and its employee were engaged in a function that the Alabama Department of Corrections otherwise would have had to perform. 720 So.2d at 908. In Rutledge v. Baldwin County Commission, this Court held that a county was "merely an agent of the Department of Public Safety for the purpose of collecting and transmitting applications and fees for the issuance of original or renewal driver's licenses," because "[that] function is specified by statute and is carried out in accordance with procedures promulgated by the Department of Public Safety." 495 So.2d at 53.

In Tuscaloosa County v. Henderson, 699 So.2d 1274 (Ala.Civ.App. 1997), a case very similar to this one, the Court of Civil Appeals considered and rejected the argument that Tuscaloosa County and Tinsley were agents of the state for the purpose of enforcing the business-license laws. InHenderson, as in this case, the plaintiff sued Tinsley and the County after Tinsley had had the plaintiff arrested for operating a business without a business license when, in fact, he was not operating a business. Tinsley's office had followed the telephone-call and letter procedure outlined above before Tinsley requested a warrant for the plaintiff's arrest. In Henderson, as in this case, the plaintiff was arrested, booked, fingerprinted, and photographed, but the case against him was dismissed when he explained to officials that he was no longer operating a business.

In Henderson, the Court of Civil Appeals held that Tinsley was not immune from the plaintiff's claims because he was "employed by Tuscaloosa County, not by the State of Alabama," and there was "no evidence indicating that the judgments against Tuscaloosa County and Tinsley affect any state interest." 699 So.2d at 1277. Thus, implicitly, the Court of Civil Appeals held that Tinsley was not a state agent. The Court of Civil Appeals held, alternatively, that "even if Tinsley was otherwise entitled to the protection of sovereign immunity, the evidence shows that the nature of Tinsley's actions would prevent immunity from applying," because "Tinsley never actually investigated to determine whether [the plaintiff] was operating a business" without a license, and, therefore, "the evidence presented support[ed] a finding that Tinsley acted with malice, willfulness, or . . . so beyond his authority that sovereign immunity would not apply." Id. Finally, the Court of Civil Appeals held that Tinsley was not entitled to discretionary-function immunity because he had automatically requested warrants for the arrest of persons who failed to renew their business licenses or to respond to his telephone calls or letters, and, the court said, "[t]his process involved no discretion and no judgment on his part." Id.

Judge Crawley and Judge Yates dissented from the Court of Civil Appeals' decision in Henderson, arguing that "Tinsley was an agent of the State of Alabama, not of Tuscaloosa County," because the business-license tax, including the portion to be remitted to the County, is prescribed by state law and Ala. Code 1975, § 40-12-2(f), "unambiguously states that it is the State of Alabama, not the county, that enforces the license statute, even if, as in this case, the tax is a combination state and county tax." 699 So.2d at 1278-79.

Tinsley and the County urge this Court to overrule Henderson. They argue that Henderson was wrongly decided because, even though Tinsley is employed by Tuscaloosa County, he nevertheless acts, they say, as an agent of the state when he seeks an arrest warrant to enforce the business-license laws, because: (1) his job duties are prescribed by state law; (2) half of the business-license fees he collects are remitted to the state, in accordance with Ala. Code 1975, § 40-12-3; (3) the enforcement of the business-license laws is a state function, not a county function, under Ala. Code 1975, § 40-12-2(f); and (4) Tinsley is accountable to the Alabama Department of Revenue if he fails to collect any license fees due the state, under Ala. Code 1975, § 40-12-10(m). They also argue that Tinsley is entitled to discretionary-function immunity because, they contend, his allegedly wrongful act stems from his formulation of the procedure for enforcing the business-license laws.

The state business-license tax is levied under Title 40, Chapter 12, Article 2, of the Alabama Code, Ala. Code 1975, § 40-12-40 et seq. The state business-license tax is payable "to the judge of probate of the county [where the business is located], or to the commissioner of licenses or the state Department of Revenue." Ala. Code 1975, § 40-12-2(a). A corresponding county business-license tax is levied under Ala. Code 1975, § 40-12-2(e), which states:

"There is hereby levied for the use and benefit of and to be paid to the county in which the license is issued, in addition to all license taxes levied under the provisions of Article 2 of this chapter [12], for state purposes and which are payable to the judge of probate or commissioner of licenses, a sum equal to 50 percent of the amount levied for state purposes, except as otherwise specifically provided."

The county business-license tax is payable "to the county in which the license is issued." § 40-12-2(e). The sum of the state and county business-license taxes is shared equally by the state and the county, as provided by Ala. Code 1975, § 40-12-3:

"Whenever . . . both a state and county license tax are levied, the authority charged with the duty of collecting such license tax shall continue to collect the same, and of the total amount collected for such state and county license tax he shall distribute one half thereof to the state and one half thereof to the county, any other provision of law to the contrary notwithstanding."

County commissions are authorized, pursuant to Ala. Code 1975, § 40-12-10(a) and (o), to hire a license inspector and to set the inspector's salary. The license inspector's duties and powers are specified by state law. State law provides:

"It shall be the duty of the license inspector to scrutinize the records and stubs kept in the office of the probate judge and also to examine the license records of each city or town located in the county or counties of which he has been appointed license inspector; and, if it shall be reported to any license inspector or come to his knowledge that any person, persons, firms, or corporations have failed or refused to take out a license for a business or occupation for which a license is required by the state or have failed or refused to take out a license for operating any motor vehicle or trailer for which a license is required by law, the license inspector shall thereupon cite such delinquent to appear before the license inspector at the courthouse of the county in which such citation is issued and to show cause why the license or privilege tax required by law has not been paid and, at the same time, shall file with the probate judge of the county a copy of such citation showing service on the delinquent."

§ 40-12-10(b) (emphasis added). State law further provides that "[t]he license inspector shall be required to report to the Department of Revenue the reason for the failure to collect any licenses due the state." § 40-12-10(m). State law also provides that "[l]icense inspectors shall have the same power to arrest persons violating the revenue laws of the state as is now vested in the sheriffs of the state and shall receive the same fees for such service." § 40-12-10(k). The license inspector is authorized to institute criminal proceedings against persons who fail or refuse to obtain a business license. See Ala. Code 1975, § 40-12-10(d); see also Ala. Code 1975, § 40-12-9(a) (providing criminal penalties for persons operating a business without a business license); § 40-12-10(h) (providing that, when a criminal prosecution is instituted by a license inspector, "44 percent of the fine or penalty thereafter imposed in the case shall be paid to the county general fund[, and] [t]he remainder shall be paid to the Treasury of the state").

These statutory provisions make it evident that a county, through its license inspector, acts as an agent of the state for the purpose of collecting and enforcing the state business-license tax. Accordingly, we agree with Judge Crawley's dissenting opinion in Henderson, 699 So.2d at 1278-79, and, therefore, overrule the majority opinion in that case.

Tinsley was acting as an agent of the state for purposes of enforcing the state's business-license laws. Therefore, to the extent Cosby sued him in his official capacity, he shares in the state's sovereign immunity under § 14. See Matthews v. Alabama Agric. Mechanical Univ., 787 So.2d 691, 698 (Ala. 2000) (noting that an action seeking to recover money damages from a state agent in his official capacity is barred by the state's sovereign immunity, although an action seeking injunctive or declaratory relief against such an agent is not so barred). Because Cosby's claim against the County relies on the doctrine of respondeat superior, the County is likewise immune.

A state agent sued in his individual capacity may be entitled to qualified, or discretionary-function immunity. See, e.g., Defoor v. Evesque, 694 So.2d 1302, 1305 (Ala. 1997) (citing Nance v. Matthews, 622 So.2d 297, 300 (Ala. 1993)). "Qualified immunity shields a State employee from liability if the employee is engaged in a discretionary function, instead of a ministerial one, when the alleged [tort] occurs."Defoor, 694 So.2d at 1305. "[E]xercising judgment in the enforcement of the criminal laws of the State," Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000), is a recognized discretionary function. See also id. at 413 (See, J., dissenting) ("activities of law-enforcement or correctional officers in arresting, attempting to arrest, or releasing persons" are recognized discretionary functions) (quoting the Court's withdrawn Cranman opinion of November 24, 1999). Accordingly, Tinsley made a prima facie showing that the defense of discretionary-function immunity barred Cosby's claims based on Tinsley's decision to have Cosby arrested.

We must now determine whether Cosby rebutted that prima facie showing by presenting substantial evidence indicating that Tinsley acted "willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law." Cranman, 792 So.2d at 402; see also id. at 413 (See, J., dissenting) (quoting an identical phrasing from the withdrawn Cranman opinion of November 24, 1999). We are mindful that the jury found Tinsley liable for malicious prosecution, and that "malice" is an essential element of a claim alleging malicious prosecution. See, e.g., Kmart Corp. v. Perdue, 708 So.2d 106, 108 (Ala. 1997) ("In an action alleging malicious prosecution, the plaintiff must prove (1) that there was a judicial proceeding initiated by the present defendant; (2) that it was initiated without probable cause; (3) that it was initiated with malice on the part of the present defendant; (4) that that judicial proceeding was terminated in favor of the present plaintiff; and (5) that the present plaintiff suffered damage from the prosecution of that earlier action.").

It is well established that for purposes of a malicious-prosecution claim, the element of malice may be inferred from the lack of probable cause, see, e.g., Delchamps, Inc. v. Bryant, 738 So.2d 824, 833 (Ala. 1999); McLeod v. McLeod, 75 Ala. 483, 486 (1883), but this Court has recognized that malice in law, or legal malice, for purposes of a malicious-prosecution claim, is not sufficient to defeat a state agent's defense of discretionary-function immunity. This Court has required the plaintiff to prove that the defendant's conduct was "so egregious as to amount to willful or malicious conduct or conduct engaged in in bad faith," by, for example, showing that the defendant had "a personal ill will against the [plaintiff] and that he maliciously or in bad faith arrested him solely for purposes of harassment." Couch v. City of Sheffield, 708 So.2d 144, 153-54 (Ala. 1998) (affirming the trial court's summary judgment in favor of the defendant, a municipal police officer, who, pursuant to Ala. Code 1975, § 6-5-338, was entitled to discretionary-function immunity in the same manner as a state agent). Thus, for a plaintiff's claim of malicious prosecution against a state agent to be submitted to the jury, where the state agent has moved for a judgment as a matter of law based on the defense of discretionary-function immunity, the plaintiff must have presented substantial evidence of malice in fact, or actual malice. The record contains no evidence indicating that, when Tinsley had a warrant issued for Cosby's arrest, Tinsley had a personal ill will toward Cosby and that he maliciously or in bad faith caused Cosby to be arrested solely for the purpose of harassing him. Therefore, to the extent Cosby sued Tinsley in his individual capacity, Tinsley is entitled to discretionary-function immunity.

Because the County and Tinsley are immune from Cosby's claims, the Court of Civil Appeals erred in affirming the trial court's judgment in favor of Cosby. The judgment of the Court of Civil Appeals is reversed, and the case is remanded for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

Hooper, C.J., and Maddox, Houston, Lyons, and Brown, JJ., concur.

Cook and Johnstone, JJ., concur in part and dissent in part.

SEE, Justice.

SEE, Justice.

APPLICATION OVERRULED.

Houston, Lyons, Brown, Harwood, Woodall, and Stuart, JJ., concur.

Moore, C.J., and Johnstone, J., dissent.