Malicious Prosecution Without Probable Cause In Texas
To prevail on a malicious prosecution claim we need to establish the following elements by a preponderance of the evidence:
(1) a criminal prosecution against plaintiff was commenced;
(2) the defendant caused (initiated or procured) the action;
(3) the prosecution terminated in the plaintiff's favor;
(4) the plaintiff was innocent;
(5) there was an absence of probable cause for the proceedings;
(6) defendant filed the charge with malice; and
(7) plaintiff was damaged by the criminal prosecution. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997).
Actions for malicious prosecution are not favored. See Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 291 (Tex. 1994); Compton v. Calabria, 811 S.W.2d 945, 949 (Tex. App.--Dallas 1991, no writ).
If the elements of the cause are proved, liability is established as with any other cause of action; however, there is little room for error in applying the law. See Browning-Ferris, 881 S.W.2d at 291.
Even a small departure from the exact prerequisites for liability may threaten the delicate balance between protecting against wrongful prosecution and encouraging the reporting of criminal conduct. See id.
There is an initial presumption in malicious prosecution actions that the defendant acted reasonably and in good faith and had probable cause to initiate the underlying criminal proceeding. See Richey, 952 S.W.2d at 517-18.
The probable cause inquiry is narrow. It asks only whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceedings were initiated. See Richey, 952 S.W.2d at 519.
Even a failure to fully and fairly disclose all material information or knowingly providing false information to the prosecutor will not defeat a complainant's probable cause but are relevant to the issues of malice and causation in a malicious prosecution claim. See id.
Richey v. Brookshire Grocery Co discusses the burden that a plaintiff in a malicious prosecution case must carry to overcome the presumption that the defendant had probable cause.
In short, the defendant's duty when reporting a suspected crime to public officials is slight; the plaintiff's burden to show lack of probable cause is heavy.
Richey was a customer who entered a Brookshire food store at approximately 2:30 a.m. the night manager, Farris, saw Richey place a pack of cigarettes in his shopping cart.
Farris then observed Richey "twiddle" the cigarettes in his hand and put them in his coat pocket. See Richey, 952 S.W.2d at 516. Richey checked out, paying for $ 51.75 worth of groceries but not the cigarettes.
Then Richey stopped by a bin in which customers could place items to be donated to charity. He got a sack, filled it with baby food, paid $ 8.89, put the sack in the bin and then left. See Richey, 952 S.W.2d at 517.