This Memorandum is about the cause of action known as "malicious prosecution" in Texas. However, it is not exhaustive of the subject. For example, the subject of the "special damages" required in a lawsuit alleging this theory of recovery is not discussed here. This Memorandum is designed for you to understand the framework of the cause of action in Texas and to help evaluate whether a particular set of facts presents a possible cause of action for "malicious prosecution." Keep in mind that this Memorandum discusses the law in the State of Texas, and the law may differ in your state or jurisdiction. Actions for malicious prosecution are not favored in law. In regard to criminal prosecutions, public policy favors the exposure of crime, which a recovery against a prosecutor or a citizen filing a complaint about a crime tends to discourage. In the case of civil proceedings, a litigant should be able to have his or her rights determined without the risk of being sued for damages for seeking to enforce those rights. Accordingly, public policy requires strict adherence to the rules governing malicious prosecution actions; any departure from the exact prerequisites for liability may threaten the delicate balance between protecting against wrongful prosecution and encouraging reporting of criminal conduct or protecting the rights of a civil litigant. See Browning-Ferris Industries v. Lieck, 37 Tex. Sup. Ct. J. 851, 881 S.W.2d 288, 290-291 (Tex. 1994) which holds that there should be a strict adherence to the rules discussed in the context of a criminal prosecution. The essential elements of a claim for malicious prosecution are: (1) the institution of proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceeding in plaintiff's favor; and (6) damages to the plaintiff. If the underlying action was a criminal prosecution, the plaintiff must also have been innocent of the charges. If the underlying action about which there was a complaint was a civil case, the plaintiff must have been named as a party in the suit. In the context of a civil case (see also "abuse of process"), the Plaintiff must also allege and prove special damages arising from an interference with his or her person, such as an arrest or detention, or with his or her property, such as an attachment, appointment of a receiver, writ of replevin, or injunction. In a malicious prosecution action, the plaintiff bears the burden of proving that no probable cause existed for instituting the underlying proceedings, and the law initially presumes that a defendant acted reasonably and in good faith and, therefore, had probable cause. Once the plaintiff has met this initial burden, the burden then shifts to the defendant to offer independent proof of probable cause. If the plaintiff, however, does not carry this initial burden, the presumption of probable cause remains unrebutted and the defendant is entitled to judgment as a matter of law. The definition of "probable cause" depends on whether the underlying proceeding was civil or criminal. With respect to a civil proceeding, probable cause exists if the defendant (1) reasonably believed in the existence of the facts on which his or her claim was based; and (2) reasonably believed, or believed in reliance on the advice of counsel that was sought in good faith and given after a full disclosure of the facts within the defendant's knowledge and information, that the claim was valid. Restatement (Second) of Torts §675. With respect to a criminal prosecution, probable cause is the existence of such facts and circumstances as would cause the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor (complainant), that the person charged was guilty of the crime for which he or she was prosecuted. In either case, the definition must be applied to the circumstances as they existed at the time the prosecution began. Thus, the jury in this type of case may properly be instructed to consider only events prior to the institution of proceedings in determining probable cause. The question of probable cause does not depend on the guilt or innocence of the plaintiff, but on whether the defendant had reasonable grounds to believe, and did believe, that the plaintiff was guilty from the facts known to defendant at the time of filing the complaint. Neither the plaintiff's actual innocence or acquittal nor the prosecutor's abandonment of the prosecution show or raise a presumption of lack of probable cause. The test for determining whether probable cause existed in connection with a criminal prosecution depends on whether the defendant actually brought a formal criminal complaint or merely furnished information to law enforcement officers, who then acted independently and used their own discretion in bringing formal charges. In the former situation, the question is what the defendant honestly and reasonably thought the facts were at the time he or she filed the criminal complaint. In the latter situation, the question is what the defendant actually believed, rather than what the defendant reasonably believed. Moreover, the defendant is not liable in such a situation if he or she made a full and fair disclosure of the facts to the prosecuting authorities. On the other hand, in the context of a criminal case, the complainant's failure to fully and fairly disclose all material information or knowing provision of false information to the prosecutor, while relevant to the malice and causation elements of a malicious prosecution action, have no bearing on probable cause. This is because the existence of probable cause depends only on the complainant's reasonable belief, based on the information available to the complainant before criminal proceedings began, that the elements of a crime had been committed.
Furthermore, proof that a defendant provided false information is not sufficient. Proof that the false information ''caused a criminal prosecution'' is also required. For instance, in a malicious prosecution action based on theft charges, the owners of a company planned to book guided hunts based on arrangements made by the guides, but spoke to police after becoming concerned that the guides had misappropriated a deposit. The guides contended that false information was given to the police, including knowingly false information that the business had booked several hunters and that the guides had not reserved any animals. But, even assuming the truth of these contentions, the prosecutor testified that the determinative issue for him was whether the guides had accepted money without being ready, willing, and able to perform their agreement to provide hunting guide services. Because the decision to prosecute was within another's discretion, the guides had the burden of proving that the decision would not have been made but for the false information. Even if the guides' contention was true, the Texas Supreme Court ruled that the false statements were not the determining factor in the decision to commence the prosecution. Although the guides argued that causation could be inferred from the falsity of the statements, the Court disagreed because this was not the only information that the prosecutor and the subsequent grand jury relied on in deciding to prosecute the guides. King v. Graham, 47 Tex. Sup. Ct. J. 85, 126 S.W.3d 75, 78-79 (Tex. 2003). It appears that, in future cases, testimony from the prosecutor will be needed that, but for the false information, no prosecution would have been made. It is anticipated that it will be difficult to obtain this kind of testimony. As a private citizen, the defendant has no duty to inquire of a criminal suspect whether he or she has some alibi or other explanation before filing charges. Once the accuser fairly discloses the facts to the prosecuting officer, the accuser has no duty to conduct further investigation. As in most situations involving our legal rights, a case alleging malicious prosecution is subject to a statute of limitations, meaning that if you fail to file your lawsuit within a specified time period, you lose the right to do so. The statute of limitation in Texas for a lawsuit alleging malicious prosecution is one (1) year. Tex. Civ. Prac. & Rem. Code §16.002. The statute begins to run on termination of the underlying prosecution or suit. When indictments are returned against a plaintiff for several separate, distinct offenses, the statute begins to run on the cause of action for malicious prosecution at the end of each prosecution, not at the end of the prosecution of the last offense. Statutes of limitations questions are often fact-dependent, and you should consult an attorney as soon as possible when you believe that you may have a cause of action. As you can see, there are a number of important issues to be determined before one decides to file a lawsuit alleging malicious prosecution. As mentioned at the outset, "actions for malicious prosecution are not favored in law," and the recent decisions of the Texas Supreme Court only underline that conclusion.