Tex. Civ. Prac. & Rem. Code § 16.002(a); Kroger Texas Ltd. Partnership v. Suberu, 216 S.W.3d 788 (Tex. 2006); Texas Beef Cattle Co. v. Green, 921 S.W.2d 203 (Tex. 1996)
Malicious prosecution in Texas — one year to sue, and the civil form needs special injury
A claim in Texas district and county courts · Last verified August 26, 2026
Malicious prosecution punishes the person who set the legal machinery on you without cause. Texas recognises two forms — one for a criminal charge, one for a civil suit — and treats both with open suspicion, because a claim that penalises going to the authorities discourages people from going to the authorities.
Two features do most of the work. The deadline is one year, the shortest in Texas civil practice. The civil form requires special injury, and the money you spent defending yourself does not count.
What the claim is
Someone caused a criminal charge or a civil suit to be brought against you, without probable cause and out of malice; it ended in your favour; and it cost you.
Where the right comes from
Common law. The criminal form is stated in Kroger Texas Ltd. Partnership v. Suberu, 216 S.W.3d 788 (Tex. 2006); the civil form in Texas Beef Cattle Co. v. Green, 921 S.W.2d 203 (Tex. 1996).
What a plaintiff has to prove
Criminal malicious prosecution — seven elements:
- A criminal prosecution was commenced against the plaintiff;
- The defendant initiated or procured it;
- It terminated in the plaintiff's favour;
- The plaintiff was innocent;
- There was no probable cause for the proceeding;
- The defendant acted with malice; and
- The plaintiff suffered damages.
Civil malicious prosecution — six elements:
- Civil proceedings were instituted or continued against the plaintiff;
- By or at the insistence of the defendant;
- With malice;
- Without probable cause;
- Terminating in the plaintiff's favour; and
- Causing special damages.
Special injury — the element that ends most civil cases
Texas Beef holds that the civil form requires an interference with the plaintiff's person or property beyond the ordinary losses incident to defending a lawsuit. The court named those ordinary losses: inconvenience, embarrassment, discovery costs, and attorney's fees.
What qualifies is something the court did to you or your property while the case was pending — an arrest, a writ of attachment or sequestration, an injunction, a receivership over your business, a lis pendens that froze a sale.
What does not qualify is the experience of being sued. That is the whole point of the rule: Texas would rather absorb some number of baseless lawsuits than open a second lawsuit every time one fails.
Probable cause, and the presumption behind it
Probable cause is the existence of facts that would excite belief in a reasonable mind that the person charged was guilty, or that the civil claim was valid.
In the criminal form, Suberu attaches a presumption that the complainant acted reasonably and in good faith and had probable cause. The plaintiff must produce evidence that the motives, grounds, beliefs or other information the defendant acted on did not constitute probable cause. Only then does the burden shift.
A person who reported accurate facts to the police and left the decision to the officers has not initiated a prosecution, and Texas has said so repeatedly. The claim reaches the person who lied, withheld what they knew, or pressed the authorities to act.
How long you have to file
One year. CPRC § 16.002(a) requires suit for "malicious prosecution, libel, slander, or breach of promise of marriage" within one year after the day the cause of action accrues.
Accrual is the favourable termination — the dismissal, the acquittal, the take-nothing judgment. A plaintiff waiting to see whether an appeal will be taken can burn the year waiting.
Note the list. Section 16.002(a) reaches malicious prosecution and defamation. It does not reach false imprisonment, which runs on the two-year period in CPRC § 16.003(a), and the two claims are often pleaded together off the same facts with two different clocks.
What has to happen before you file
The underlying case must be over, and over in your favour. A pending appeal means the claim has not ripened. A dismissal on a technicality, a plea in bar, a deferred adjudication or a pre-trial diversion generally is not a favourable termination.
What the claim pays
Actual damages — reputational harm, mental anguish, lost income, and the consequences of the special injury itself.
Exemplary damages. Malice is an element of the claim; the exemplary award needs it shown by clear and convincing evidence under CPRC § 41.003, within the § 41.008 cap.
No attorney's fees for bringing the malicious prosecution suit. Fees from the underlying case may be recoverable as an element of actual damages in the criminal form; in the civil form they are what Texas Beef excluded from special injury.
Who can be sued
The person who initiated or procured the proceeding — the complaining witness, the plaintiff in the underlying suit, the company that pressed charges.
Not the prosecutor or the judge, who are absolutely immune. Not, ordinarily, the police officer, who has official immunity for discretionary acts within the scope of authority performed in good faith.
An employer, where the person who procured the charge acted within the scope of employment — which is how retail theft cases reach the store rather than the loss-prevention officer.
What else it is not
Texas has no general tort for filing a groundless lawsuit. What it has instead is a set of procedural tools:
- TRCP 13 — sanctions for a pleading that is groundless and brought in bad faith or for harassment;
- CPRC chapter 10 — sanctions for a filing without evidentiary support or legal basis;
- CPRC chapter 27, the Texas Citizens Participation Act — early dismissal, with mandatory fees, of a suit based on protected speech or petitioning;
- TRCP 91a — dismissal of a claim with no basis in law or fact.
Those run inside the case that is bothering you, and they are almost always the better route than a second lawsuit with a one-year fuse and a special-injury requirement.
Common defenses
- Probable cause, which defeats the claim outright and carries a presumption in the criminal form.
- No favourable termination — a plea deal, a diversion, a dismissal for reasons unrelated to the merits.
- The defendant did not initiate or procure the proceeding, having reported facts and left the decision to law enforcement.
- Advice of counsel, where the defendant made a full and fair disclosure.
- No special injury, in the civil form.
- Limitations — one year.
- Absolute or official immunity.
What people get wrong
The deadline is one year. Plaintiffs who assume the general two-year tort period lose the claim before they reach the elements.
Winning is not enough. In the civil form, a take-nothing judgment against the person who sued you gives you nothing unless your person or property was interfered with along the way.
Defence costs are not special damages. Texas Beef names attorney's fees among the ordinary losses that do not qualify.
Reporting a crime is not procuring a prosecution. If you gave the police accurate information and they made their own decision, the chain is broken.
Where it came from
The tort arrived from English law with its suspicion already built in. Courts have long worried that a remedy for being sued creates an incentive to sue about being sued, and the doctrine's distinctive features — the short limitations period, the favourable-termination requirement, the presumption of probable cause, the special-injury rule — are all devices for keeping that regression short.
Texas Beef in 1996 is the decision that settled the modern shape of the civil form, holding that the special-injury requirement survives and that the costs of defending are not enough. Suberu in 2006 did the same work on the criminal side, restoring the presumption that a citizen who reports a suspected crime acted in good faith. Between them, the two cases explain why a claim that sounds powerful is won so rarely.
Common questions
How long do I have to sue for malicious prosecution in Texas?
One year from the day the underlying case terminated in your favour.
Can I sue someone for filing a frivolous lawsuit against me?
Only if your person or property was interfered with — an attachment, an injunction, a receivership, an arrest. Otherwise the answer lies in sanctions inside that case, or a TCPA motion.
Can I recover the attorney's fees I paid defending the case?
Not as special damages in the civil form. In the criminal form they may be recoverable as actual damages.
Can I sue the person who called the police on me?
Yes, if they lacked probable cause, acted with malice, and procured the prosecution rather than merely reporting facts. Texas presumes they acted in good faith, and you have to overcome that.
What counts as a favourable termination?
An acquittal, a dismissal on the merits, or a take-nothing judgment. A plea bargain, deferred adjudication or diversion generally does not.
Can I sue the prosecutor?
No. Prosecutors have absolute immunity for their prosecutorial acts.