Civil Litigation
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Texas Abuse of Process

©2010 Mark Courtois

There are three elements to this cause of action: 1)The defendant made an illegal, improper or perverted use of a process, a use neither warranted nor authorized by the process; 2) The defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of the process; 3) Damage to the plaintiff as a result of such illegal act.(1)  Texas has generally recognized a cause of action for abuse of process where the a judicial process, such as a writ, has been abused to accomplish an end other than that which the writ was designed to accomplish.(2)  Abuse of process is similar to the tort of malicious prosecution in that both include elements of malice and ulterior motive in the use of a judicial process, but malicious prosecution is a claim that the lawsuit was wrongfully filed and maintained.(3)   By definition, the abuse of process tort is not based on the filing and maintenance of a suit.(4)  Rather, abuse of process has to do with the improper use of a process after it has been issued.(5)  When the process is used for the purpose for which it is intended, even though accompanied by an ulterior motive, no abuse of process occurs.(6)  To constitute abuse of process, the process must have been used to accomplish an end which is beyond the purview of the process and compel a party to do a collateral thing which he could not be compelled to do.(7)

In every decision examining an abuse of process claim, the plaintiff bringing the claim was the defendant in the original proceeding.(8)  To maintain an abuse of process claim, there must be a coercive use of the  process.(9)   Compulsion means something more than requiring a defendant to answer a lawsuit, and therefore,  the mere filing of a complaint or lawsuit is not an improper or illegal use of the process.(10)   Merely issuing or procuring process, even if accompanied by malicious intent or without probable cause is not actionable.(11)   An abuse of process claim requires a showing of a wrongful seizure of property or an actual interference with the person, such as the surrender of property or payment of money.(12)

Notes

1. Bossin v. Towber, 894 S.W.2d 25, 33 (Tex. App.--Houston [14th Dist.] 1994, writ denied).
2. Martin v. Trevino, 578 S.W.2d 763, 769 (Tex. Civ. App.--Corpus Christi 1978, writ ref'd n.r.e.).
3. Graham v. Mary Kay Inc., 25 S.W.3d 749, 756 (Tex. App.– Houston [14th Dist.] 2000, pet. denied); Kale v. Palmer, 791 S.W.2d 628, 633 (Tex. App.– Beaumont 1990, writ denied).
4. Blackstock v. Tatum, 396 S.W.2d 463, 467 (Tex. Civ. App.– Houston 1965, no writ).
5. Graham v. Mary Kay Inc., 25 S.W.3d 749, 756 (Tex.App.-Houston [14th Dist.] 2000, pet. denied).
6. Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 378-79 (Tex. App.--Texarkana 1989, no writ).
7. Id. at 379.
8. RRR Farms, Ltd. v. American Horse Protection Ass'n, Inc., 957 S.W.2d 121, 133 (Tex. App.-- Houston [14th Dist.] 1997, n.w.h.)(citing Detenbeck v. Koester, 886 S.W.2d 477, 479 (Tex. App.--Houston [1st Dist.] 1994, no writ)); see also Blanton v.Morgan, 681 S.W.2d 876, 877 (Tex. App.--El Paso 1985, writ ref'd n.r.e.).
9. RRR Farms, Ltd. v. American Horse Protection Ass'n, Inc., 957 S.W.2d at 134 (Tex. App.-- Houston [14th Dist.] 1997, n.w.h.).
10. Id.
11. Id.
12. Id.