Malicious Prosecution and Your Rights in Texas


A criminal case in Texas is nothing more than an allegation or accusation. It is not a conviction until prosecutors present their evidence to convince a judge or jurors of the defendant’s guilt beyond a reasonable doubt.

There are many times, however, that the discovery of new evidence does not support the allegations, or the defense might offer evidence of its own that casts doubt on the prosecution case. When that occurs, the accused could be declared not guilty.


When Prosecutors Act In Good Faith — Immunity

The purpose of criminal laws is to maintain order and protect society. Prosecutors are given a great deal of discretion in deciding if criminal charges should be filed against a person. A district attorney who acts in good faith when deciding to move forward with a criminal prosecution is usually immune from liability if the case ends in favor of the accused.

The laws recognize that prosecutors make decisions based on the evidence available to them at any single point in time. The evidence might later change. For example, an eyewitness to a crime might identify the accused in a lineup, but cross examination by the defense at trial might cast doubt on the accuracy of the identification based on the lighting and other conditions that existed at the time of the crime.

As much as society wants prosecutors to be able to do their jobs without fear of being sued by a defendant, there are limits to the immunity granted to them. People have a right to be safe from unjustified and unwarranted prosecutions that abuse the legal process.


Malicious Prosecution – Proving a Cause of Action

A Houston resident who believes that a criminal prosecution was initiated in bad faith may have the right to sue for damages in a tort action. A tort is a civil wrong for which the injured party might be entitled to recover money damages.

The tort of malicious criminal prosecution requires the defendant in the former criminal action who is now the plaintiff in the civil lawsuit to prove the following:

  • A criminal prosecution was filed against the plaintiff by the defendant, the person being sued in the civil action.
  • The criminal case ended in favor of the plaintiff with a dismissal or a not guilty verdict.
  • The prosecutor lacked probable cause to initiate or continue the criminal case.
  • The criminal case was pursued for a malicious or other improper purpose.
  • The plaintiff suffered damages as a result of the criminal prosecution.


Active Involvement of the Prosecutor

The individual named as a defendant in a civil lawsuit for malicious prosecution must have been an active participant in the criminal case. For instance, a county prosecutor might be named as a defendant in a civil case if the prosecutor supervised and directed his or her deputies who actually handled the trial. The same county prosecutor might not be a proper party in the lawsuit if he or she assigned a deputy to a case without taking an active role in it.


Criminal Case Ended in Plaintiff’s Favor

Unless a criminal case ends in a dismissal or in a not guilty verdict, it might be difficult to prove malicious prosecution. A plea of guilty to a lesser charge than the one originally filed would make a claim for malicious prosecution unlikely.


Proving Probable Cause

Probable cause is a belief, supported by the available the facts and evidence, that would lead a reasonable person to conclude that a crime has been committed and the accused is the person who committed that crime. Probable cause is not the same as proving guilt beyond a reasonable doubt to obtain a criminal conviction.


Bad Faith on the Part of Prosecutors

A mistake or an error in judgment on the part of a prosecutor is usually not enough to support a claim of malicious prosecution. Evidence that a prosecutor knowingly withheld evidence that could have proven an accused individual’s innocence is an example of bad faith.


Special Damages in Houston

The fact that a defendant in a criminal case was forced to pay legal fees to successfully defend against the charges is not sufficient in a Texas malicious prosecution lawsuit as proof of damages. The law requires the injured party to produce evidence proving that the criminal prosecution interfered with his or her person or property. Examples might include an arrest or physical restraint of the accused.


Harris County Statute of Limitations

A lawsuit for malicious prosecution must be filed within one year from the date of termination of the criminal prosecution. Failure to file within that time could result in the loss of the right to sue.


A Houston Attorney Could Help

Malicious prosecution cases involve complex legal principles that must be complied with in order to be successful. An attorney in Houston might be able to address the questions and concerns that a person has about the right to compensation following the end of a criminal case.

Contact attorney Rand Mintzer today at (713) 862-8880 or email We will fight hard to protect your rights and future.


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