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What is malicious prosecution and abuse of process? What is the difference between the two?

San Antonio, TX |

Kind of a spin off from last question, what are the "rules" for filing a malicious prosecution claim, I thought you did this to a judge or DA's office? A person can sue another person for this? And what about abuse of process what are the differences? Any help would be great. Thank You

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Attorney answers 1


To prevail in a suit alleging malicious prosecution of a civil claim, the plaintiff must establish: (1) the institution or continuation of civil 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) special damages. The underlying civil suit has not terminated in favor of the plaintiff until the appeals process for that underlying suit has been exhausted. Concerning special injury, it is insufficient that a party has suffered the ordinary losses incident to defending a civil suit, such as inconvenience, embarrassment, discovery cost, and attorney's fees. The mere filing of a lawsuit cannot satisfy the special injury requirement. There must be some physical interference with a party's person or property in the form of an arrest, attachment, injunction, or sequestration. While this rule may leave a party without a remedy for indirect losses, the countervailing policies supporting this heightened threshold in malicious prosecution cases are compelling and well established in Texas law. Once the special injury hurdle has been cleared, that injury serves as a threshold for recovery of the full range of damages incurred as a result of the malicious litigation. Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996).

Also, a person cannot be liable for malicious prosecution, if the decision whether to prosecute is left to the discretion of another, including a law enforcement official or the grand jury, unless the person provides information which he/she knows is false. Thus, proof that a complainant has knowingly furnished false information is necessary for liability, when the decision to prosecute is within another’s discretion. But such proof alone is not sufficient. There must also be proof that the false information caused a criminal prosecution. In other words, there must be proof that the prosecutor acted, based on the false information and that but for such false information the decision would not have been made. While causation might be drawn by inference in a case, in which the only information on which the official relied in deciding to prosecute was false, that is not the situation in this case. See King v. Graham, No. 01-0171 (Tex. 11/7/2003).

You would have a difficult time suing a judge or prosecutor. They both have immunity that would be difficult to overcome.

As for abuse of process, please review the Avvo legal guide penned by James Girards, and set out at the following link:

Good luck.