CHARLES B. “BRAD” FRYEMEMORANDUM ATTORNEY AND COUNSELOR AT LAW

THE CAUSE OF ACTION FOR “MALICIOUS PROSECUTION IN TEXAS”808 Travis, Suite 1101

Houston, Texas 77002(713) 236-8700

Fax: (713) 229- 8031http://www.charlesbfrye.com

This Memorandum is about the cause of action known as “malicious prosecution” inTexas. However, it is not exhaustive of the subject. For example, the subject of the “specialdamages” required in a lawsuit alleging this theory of recovery is not discussed here. ThisMemorandum is designed for you to understand the framework of the cause of action in Texasand to help evaluate whether a particular set of facts presents a possible cause of action for“malicious prosecution.” Other significant factors are involved, and should be evaluated, beforeyou decide to proceed with this type of lawsuit. Keep in mind that this Memorandum discussesthe 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 criminalprosecutions, public policy favors the exposure of crime, which a recovery against a prosecutoror 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 fordamages for seeking to enforce those rights. Accordingly, public policy requires strict adherenceto the rules governing malicious prosecution actions; any departure from the exact prerequisitesfor liability may threaten the delicate balance between protecting against wrongful prosecutionand encouraging reporting of criminal conduct or protecting the rights of a civil litigant. SeeBrowning-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. Moreover, these rules may not be avoided by bringing the action underanother theory, such as negligence.

The essential elements of a claim for malicious prosecution are: (1) the institution ofproceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in thecommencement of the proceeding; (4) lack of probable cause for the proceeding; (5) terminationof the proceeding in plaintiff's favor; and (6) damages to the plaintiff. If the underlying actionwas 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 plaintiffmust have been named as a party in the suit. In the context of a civil case (see also "abuse ofprocess"), the Plaintiff must also allege and prove special damages arising from an interferencewith his or her person, such as an arrest or detention, or with his or her property, such as anattachment, appointment of a receiver, writ of replevin, or injunction.

In a malicious prosecution action, the plaintiff bears the burden of proving that noprobable 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. Though acriminal defendant enjoys the presumption of innocence in the underlying proceedings, thatperson is not presumed innocent as a plaintiff in a civil malicious prosecution action; instead, theaccuser's good faith is presumed, and the plaintiff must rebut this presumption by producingsufficient evidence that the motives, grounds, beliefs, or other information upon which thedefendant acted did not constitute probable cause.

Once the plaintiff has met this initial burden, the burden then shifts to the defendant tooffer independent proof of probable cause. If the plaintiff, however, does not carry this initialburden, the presumption of probable cause remains unrebutted and the defendant is entitled tojudgment as a matter of law.

The definition of "probable cause" depends on whether the underlying proceeding wascivil or criminal.

With respect to a civil proceeding, probable cause exists if the defendant (1) reasonablybelieved in the existence of the facts on which his or her claim was based; and (2) reasonablybelieved, or believed in reliance on the advice of counsel that was sought in good faith and givenafter a full disclosure of the facts within the defendant's knowledge and information, that theclaim was valid. Restatement (Second) of Torts §675.

With respect to a criminal prosecution, probable cause is the existence of such facts andcircumstances as would cause the belief, in a reasonable mind, acting on the facts within theknowledge of the prosecutor (complainant), that the person charged was guilty of the crime forwhich he or she was prosecuted.

In either case, the definition must be applied to the circumstances as they existed at thetime the prosecution began. Thus, the jury in this type of case may properly be instructed toconsider 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 plaintiffwas guilty from the facts known to defendant at the time of filing the complaint. As held in aline of cases in Texas, the question is not whether plaintiff committed an offense, but whetherdefendant had reasonable grounds to believe that the plaintiff did. Moreover, if there is probablecause for the belief in the guilt of the plaintiff for an offense substantially similar to that forwhich the plaintiff was prosecuted, the defendant is not liable for malicious prosecution. Neitherthe plaintiff's actual innocence or acquittal nor the prosecutor's abandonment of the prosecutionshow or raise a presumption of lack of probable cause.

The test for determining whether probable cause existed in connection with a criminalprosecution depends on whether the defendant actually brought a formal criminal complaint ormerely furnished information to law enforcement officers, who then acted independently andused their own discretion in bringing formal charges. In the former situation, the question is whatthe 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 sucha 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 andfairly disclose all material information or knowing provision of false information to theprosecutor, while relevant to the malice and causation elements of a malicious prosecutionaction, have no bearing on probable cause. This is because the existence of probable causedepends only on the complainant's reasonable belief, based on the information available to thecomplainant before criminal proceedings began, that the elements of a crime had beencommitted. The reasonableness of such a belief is not negated by the failure to disclose fully allrelevant facts to the prosecutor.

Furthermore, proof that a defendant provided false information is not sufficient. Proofthat the false information ''caused a criminal prosecution'' is also required. In other words, theremust be proof that the prosecutor acted based on the false information and that but for such falseinformation the decision would not have been made. For instance, in a malicious prosecutionaction based on theft charges, the owners of a company planned to book guided hunts based onarrangements made by the guides, but spoke to police after becoming concerned that the guideshad misappropriated a deposit. The guides contended that false information was given to thepolice, including knowingly false information that the business had booked several hunters andthat 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 acceptedmoney without being ready, willing, and able to perform their agreement to provide huntingguide services. Because the decision to prosecute was within another's discretion, the guides hadthe 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 statementswere not the determining factor in the decision to commence the prosecution. Although theguides argued that causation could be inferred from the falsity of the statements, the Courtdisagreed because this was not the only information that the prosecutor and the subsequent grandjury relied on in deciding to prosecute the guides. King v. Graham, 47 Tex. Sup. Ct. J. 85, 126S.W.3d 75, 78-79 (Tex. 2003).

Significantly, the decision in the King v. Graham case raises the bar for maliciousprosecution claimants a notch higher than the Texas Supreme Court's prior decisions. It appearsthat, in future cases, testimony from the prosecutor will be needed that, but for the falseinformation, no prosecution would have been made. It is anticipated that it will be difficult toobtain this kind of exculpatory testimony.

The defendant has not acted on probable cause in instituting a criminal prosecution if heor she knew that the plaintiff was not guilty of the charge that the defendant lodged against theplaintiff. Nevertheless, if all the objective elements of a crime reasonably appear to have beencompleted, the complainant has no duty to make a further investigation into the suspect's state ofmind.

As a private citizen, the defendant has no duty to inquire of a criminal suspect whether heor she has some alibi or other explanation before filing charges. Once the accuser fairly disclosesthe 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 issubject to a statute of limitations, meaning that if you fail to file your lawsuit within a specifiedtime 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 theunderlying prosecution or suit. When indictments are returned against a plaintiff for severalseparate, distinct offenses, the statute begins to run on the cause of action for maliciousprosecution at the end of each prosecution, not at the end of the prosecution of the last offense. However, when multiple indictments are sought for the same act, the cause of action formalicious prosecution accrues when the last indictment is dismissed or the defendant is no-billedfor the last time. Statutes of limitations questions are often fact-dependent, and you shouldconsult an attorney as soon as possible when you believe that you may have a cause of action.

The discovery rule does not apply to malicious prosecution actions. In other words, thecause of action accrues, and the limitation period begins to run, when the underlying prosecutionterminates, not when the plaintiff discovers that the underlying prosecution has terminated. Thisis because termination of the underlying prosecution is a matter of public record, and the plaintiffis charged with constructive notice of the contents of public records.

As you can see, there are a number of important issues to be determined before onedecides to file a lawsuit alleging malicious prosecution. As mentioned at the outset, “actions formalicious prosecution are not favored in law,” and the recent decisions of the Texas SupremeCourt only underline that conclusion.