Charges Dropped? Malicious Prosecution Claims in Texas After Thompson v. Clark

Nov 10, 2026 · 7 min read · By Brandon J. Grable

You were arrested and charged. Months later, the case was dismissed. Can you sue the officer who started the prosecution?

Sometimes. A federal malicious prosecution claim under 42 U.S.C. § 1983 is now recognized in Texas, but it has real limits. In an unpublished September 2026 decision, Smith v. Locker, No. 25-50862, 2026 U.S. App. LEXIS 27109 (5th Cir. Sept. 2, 2026) (per curiam) (unpublished), the Fifth Circuit held that qualified immunity barred such a claim over a 2021 arrest near Seguin. Here is how the claim works.

What malicious prosecution is (and how it differs from false arrest)

A false arrest claim is about the arrest itself: did the officer have probable cause to arrest you? (We cover that in our false arrest guide.)

Malicious prosecution is about what came after: a criminal case started or kept going against you without probable cause, which led to your seizure. Think of a charge built on a fabricated report.

A claim the Fifth Circuit recognized only after 2022

In 2003, in Castellano v. Fragozo, the full Fifth Circuit held that "'malicious prosecution' standing alone is no violation of the United States Constitution." That changed in April 2022. In Thompson v. Clark, the Supreme Court confirmed that a Fourth Amendment malicious prosecution claim exists under § 1983, and the Fifth Circuit has since treated its 2003 ruling as overruled.

You do not have to prove you are innocent

Thompson also rejected any requirement that the case end in a way that points to innocence. The Court held that a plaintiff "need only show that his prosecution ended without a conviction."

In Thompson, the charges were dismissed before trial with no explanation, and that was enough. Outcomes like deferred adjudication or pretrial diversion can raise harder questions.

What you have to show in the Fifth Circuit

In February 2023, in Armstrong v. Ashley, the Fifth Circuit listed the elements. Beyond a threshold unlawful Fourth Amendment seizure, the plaintiff must show:

1. A criminal proceeding was started or continued against you.
2. The defendant legally caused it.
3. It ended in your favor.
4. There was no probable cause for it.
5. Malice.
6. Damages.

The seizure piece matters. Because the claim is "housed in the Fourth Amendment," the Supreme Court said, the plaintiff "has to prove that the malicious prosecution resulted in a seizure of the plaintiff."

One valid charge does not automatically sink the claim

The Fifth Circuit once said that if probable cause supported even one charge, the claim failed. In 2024, in Chiaverini v. City of Napoleon (a case from Ohio), the Supreme Court rejected that kind of categorical rule. It held that "valid charges do not create a categorical bar." If a baseless charge, such as one fabricated by officers, caused a detention to start or continue, the Fourth Amendment can be violated "even when a valid charge has also been brought." The Court left open exactly how to show that the baseless charge caused the detention. Even so, the Fifth Circuit has continued to cite its one-charge language since then, so how Chiaverini applies in federal courts in Texas is still being worked out.

Qualified immunity: the bar is high

To get past qualified immunity, a plaintiff usually must show the officer violated law that was clearly established when the officer acted. That bar is high, and malicious prosecution claims face a special timing problem.

• Conduct before April 2022. In Smith v. Locker (September 2, 2026), the Fifth Circuit held that "[b]ecause Thompson was decided in 2022, it does not clearly establish that" deputies' 2021 conduct was unlawful. The opinion is unpublished and is not binding precedent.
• Conduct from April 2022 to mid-February 2023. In Santander v. Salazar (2025), a published opinion, the Fifth Circuit held that because it did not spell out the elements until February 2023, an officer's July 2022 conduct could not have violated clearly established law. In the court's words, "there was no clearly established law in this circuit to violate."
• Conduct after that. Officers can still raise qualified immunity. The question is whether existing cases made clear that this kind of conduct was unlawful.

There is a procedural hurdle too. Under Carswell v. Camp (5th Cir. 2022), when officers raise qualified immunity in a motion to dismiss, the trial court generally may not allow discovery against them until it rules on that defense. In our view, Carswell is wrong. It asks people to plead facts often found only in the government's own files. For now, though, it controls in federal courts in Texas.

Qualified immunity does not protect cities or counties, but claims against them have their own requirements. See our guide to suing a city.

Timing: when the clock starts

A malicious prosecution claim generally does not exist until the criminal case ends in your favor. The Supreme Court has described malicious prosecution as "a type of claim that accrues only once the underlying criminal proceedings have resolved in the plaintiff's favor."

Section 1983 claims borrow the state's general personal-injury deadline, which in Texas is two years. So the clock for this claim generally runs from the date the case ended in your favor, not the date of the arrest. Two points to watch:

• A false arrest claim from the same events can run on a different clock. See our guide to Section 1983 deadlines.
• A Texas state-law malicious prosecution claim is a different claim. It has its own elements, including proof of innocence, and a one-year deadline under Tex. Civ. Prac. & Rem. Code § 16.002(a). See Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 792 n.3 (Tex. 2006); Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997).

City and state notice rules do not apply to the federal claim

People often hear they must send a written notice of claim within a set time, such as the Texas Tort Claims Act's six-month notice or a city charter deadline. Those rules do not apply to a § 1983 claim. The Supreme Court held in Felder v. Casey that a state notice-of-claim statute cannot be applied to § 1983 actions, even when they are filed in state court. It also recognized that notice-of-claim statutes "are inapplicable to federal-court § 1983 litigation." Missing a city's notice deadline does not end a § 1983 claim, though it can matter for state-law claims.

What to gather

If your charges were dismissed and you think the case should never have been filed, collect:

• the dismissal order or other document showing how the case ended, and its date
• the complaint, information, or indictment
• the probable cause affidavit and any police reports
• booking and release records, bond paperwork, and any conditions of release
• names of witnesses, and any video or photos
• records of what the case cost you, such as lost pay and defense fees

Frequently asked questions

My charges were dismissed with no explanation. Does that count as ending "in my favor"?

For the federal claim, generally yes. Under Thompson v. Clark, a prosecution that ended without a conviction meets this element.

Do I have to prove I was innocent?

Not for the federal claim. You do still have to show that there was no probable cause for the charge, along with the other elements.

I was released right after booking. Can I still bring this claim?

The claim requires a Fourth Amendment seizure. Whether release conditions count depends on the facts.

Do I need to send the city a notice of claim first?

Not for a § 1983 claim.

Talk with us

If you have questions about a dismissed criminal case in Texas, you can call Grable PLLC at (210) 963-5297 or email intake@grable.law.

Attorney advertising. This post is general information, not legal advice, and reading it does not create an attorney-client relationship. The law can change, every case depends on its own facts, and past results do not guarantee future outcomes.

Attorney responsible for content: Brandon J. Grable, Grable PLLC, 12451 Starcrest Dr, Suite 206, San Antonio, TX 78216, (210) 963-5297, intake@grable.law. Office visits are by appointment only; calls and emails are accepted 24/7.

Topics: Fourth Amendment · Police Accountability