OPINION
We withdraw our opinion of October 27, 1992 and vacate the judgment of October 27, 1992. The following are now the court’s opinion and judgment.
*66 Ellis County State Bank, Tracy Fletcher, John A. Hastings, Jr., and Don Harris (collectively “Ellis Bank”) appeal the malicious prosecution action brought by Glenn Keever. In six points of error, Ellis Bank asserts that the evidence is insufficient to show that it acted with malice and without probable cause and insufficient to support the award of future medical expenses. Ellis Bank further contends that the trial court erred in (1) failing to instruct the jury that the burden of proof was clear and convincing evidence, (2) allowing an excessive award of punitive damages, and (3) awarding prejudgment interest on future and punitive damages. We sustain Ellis Bank’s second point of error concerning prejudgment interest on punitive damages and overrule its remaining points of error. Accordingly, we reverse the trial court’s award of prejudgment interest on punitive damages and render that Keever not recover prejudgment interest on punitive damages and affirm the remainder of the judgment.
FACTS AND PROCEDURAL HISTORY
In February 1987, Glenn Keever executed a 90-day note for $6,000 with the First State Bank of Milford. As collateral for the loan, the bank took a security interest in office equipment and furniture. On May 4, 1987, Keever filed for protection under Chapter 13 of the bankruptcy code. On May 7,1987, the note came due. In June 1987, Don Harris purchased all of the assets, including the loan to Keever, from the First State Bank of Milford. Harris obtained a new charter and renamed the bank Ellis County State Bank. Tracy Fletcher, the executive vice president, attempted to collect the loan from Keever.
Plaintiffs Testimony
When Fletcher first called to discuss the note, Keever informed her of the bankruptcy filing and provided his case number and attorney’s name. Subsequently, Fletcher made several telephone calls and sent a registered letter to Keever stating that the note was in default. The letter made formal demand for payment in full or return of the collateral. Keever called Fletcher to inform her that a creditors’ meeting was scheduled for October 23,1987. At the creditors’ meeting, the bankruptcy court instructed Keever to include Ellis County State Bank on the matrix and to turn over the collateral to the bank. In November, Fletcher failed to keep an appointment with Keever to pick up the collateral.
In February 1988, John Hastings, the attorney for Ellis County State Bank, sent Keever a registered letter and called him on the telephone. The February 29 letter stated that Keever was in violation of hindering a secured creditor and instructed Keever to return the collateral. In response to this letter, Keever called Hastings and told him that he was in bankruptcy and gave him the case number. Hastings contacted Keever’s bankruptcy attorney, John Glaze, and made additional arrangements for the bank to pick up the collateral. The bank failed to make its August 26 appointment to collect the collateral.
Defense Testimony
Defense testimony differs significantly from the testimony presented by Keever. As a result of several past due notices and phone calls, Keever agreed to pay the bank $1,000 plus interest and sign a new note. With Keever failing to uphold this agreement, Fletcher made a formal written demand for the collateral on August 28, 1987. On October 20, 1987, Keever informed Fletcher that he filed for bankruptcy in May 1987. Consequently, Fletcher immediately turned the matter over to the bank’s attorney, John Hastings.
Unable to verify Keever’s bankruptcy, Hastings and Fletcher continued attempts to retrieve the collateral. Keever failed to show up at the appointment made to pick up the collateral. Hastings sought an appointment with the grand jury to seek an indictment for hindering a secured creditor. After making this appointment, Hastings continued attempts to negotiate with Glaze, writing the attorney several times and speaking with him over the telephone.
Unsuccessful in their attempts to collect the collateral, Hastings and Fletcher testified before the grand jury. At the malicious prosecution trial, Hastings and Fletcher stated that they testified truthfully before the *67 grand jury and did not attempt to mislead or deceive the grand jury in their testimony. Both Hastings and Fletcher testified that they informed the grand jury about Keever’s bankruptcy.
Indictment and Arrest
In December 1987, Ellis Bank brought the case before the Ellis County grand jury to seek an indictment against Keever for hindering a secured creditor. Ellis Bank did not pursue the indictment until November 15, 1988. Hastings and Fletcher testified before the grand jury. Keever did not appear before the grand jury. The grand jury issued an indictment on November 15, 1988, which was later dismissed due to a typographical error. On November 29, 1988, a second indictment issued. On December 2, 1988, Keever learned of the indictment and turned himself into the police. Keever was arrested and incarcerated until making bail. Keever was arraigned on December 28, 1988 and plead not guilty. The criminal district court quashed the indictment, and the district attorney declined to seek reindictment. On August 30, 1990, Ellis Bank received the collateral.
Malicious Prosecution Action
Subsequently, Keever brought a malicious prosecution action against Don Harris, Tracy Fletcher, John A. Hastings, Jr., and Ellis Bank. At the trial, Keever testified that as a result of the criminal indictment, he suffered from post-traumatic stress disorder and depression. At the conclusion of the trial, the jury awarded Keever actual damages of $110,600, jointly and severally against all Defendants. The jury awarded punitive damages of $1,000,000 against the bank; $25,000 against Fletcher; $260,000 against Hastings; and $250,000 against Harris.
SUFFICIENCY OF THE EVIDENCE
In three points of error, Ellis Bank asserts that the evidence is insufficient to show that Ellis Bank acted with malice and without probable cause in pursuing an indictment for hindering a secured creditor and insufficient to support the jury finding of future medical expenses.
When determining a factual sufficiency point of error, this Court must consider and weigh all the evidence in the case. We should set aside the verdict and remand the cause for a new trial if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust, regardless of whether the record contains some evidence of probative force in support of the verdict.
Pool v. Ford Motor Co.,
Probable Cause
In its sixth point of error, Ellis Bank asserts that the evidence is insufficient to show that it acted without probable cause in instituting criminal proceedings against Keever. Ellis Bank asserts that no probable cause existed because Ellis Bank and its employees testified truthfully before the grand jury and made no attempt to deceive the prosecutor or the grand jury.
A claim for malicious prosecution entails the following seven essential elements:
1. A criminal prosecution was commenced against the plaintiff;
2. The prosecution was caused by the defendants or by and through their aid and cooperation;
3. The prosecution terminated in favor of the plaintiff;
4. The plaintiff was innocent;
5. The defendants lacked probable cause to bringing about the proceeding;
6. The defendants acted with malice in bringing about the proceeding; and
7. The plaintiff suffered damages as a result.
Compton v. Calabria,
The burden of proving that no probable cause existed for instituting the proceedings in a malicious prosecution case is *68 initially upon the plaintiff. There is, invariably, an initial presumption that if a defendant acted reasonably and in good faith, he had probable cause. The presumption disappears, however, when the plaintiff produces evidence that the motives, grounds, beliefs, and other evidence upon which the defendant acted were indeed not probable cause for commencing the proceedings that the defendant instituted. Id. at 949.
Probable cause for a criminal prosecution has been defined as the existence of such facts and circumstances as would excite belief in the mind of a reasonable person, acting on facts within his knowledge, that the person charged was guilty of the crime for which he was prosecuted.
Id.
at 950. A party who files or causes to be filed a criminal complaint against another person does so with probable cause if, in good faith, she makes a full and fair disclosure of the facts and circumstances known to her, and the complaint is filed on the basis of that disclosure.
Ada Oil Co. v. Dillaberry,
When facts that might have a bearing on the element of probable cause in a malicious prosecution action are undisputed, the issue of probable cause is a question of law to be decided by the court.
Montgomery Ward & Co. v. Kirkland,
In the present case, the facts surrounding the bank’s attempt to secure payment of the note or retrieve the collateral are conflicting and contested. Only Hastings and Fletcher testified before the grand jury. In the malicious prosecution action, both Hastings and Fletcher testified that they believed probable cause existed to institute criminal proceedings, they testified truthfully before the grand jury, and they did not attempt to mislead or deceive the grand jury in their testimony. Likewise, Keever related his version of the events and attempted to discredit Fletcher and Hastings and their testimony.
Both Hastings and Fletcher testified that they told the grand jury about Keever’s bankruptcy. Mary Lou Shipley, the district attorney, testified that she did not learn of Keever’s bankruptcy until after the grand jury hearing. The record reflects that the jury could determine that neither Fletcher nor Hastings told the grand jury about Keever’s bankruptcy. Keever testified that he was ready and willing to release the equipment to bank officials. Keever explained that Ellis Bank failed to follow through with scheduled appointments to pick up the collateral. Keever argued that Fletcher and Hastings falsely testified to the grand jury concerning attempts to retrieve the collateral.
If Ellis Bank did not act in good faith, probable cause did not exist. The record contains evidence upon which the jury could determine that Ellis Bank withheld material information and presented false testimony to the grand jury. Such evidence is factually sufficient to support the jury’s finding that Ellis Bank acted without probable cause in instituting criminal proceedings against Keever. Any conflicts in the evidence and the inferences to be drawn were for the jury to resolve.
See Herbert v. Herbert,
Malice
In its fifth point of error, Ellis Bank asserts that insufficient evidence exists to *69 support the jury’s finding that Ellis Bank acted with malice. Ellis Bank contends that it never exhibited any malice toward Keever, and it gave him more than 18 months after his note was due to return the collateral before instituting criminal proceedings.
Malice has been defined as ill will or evil motive or such gross indifference or reckless disregard for the rights of others as to amount to wanton and willful action, knowingly and unreasonably done.
Fisher v. Beach,
Upon hearing the evidence and assessing the demeanor and credibility of the witnesses, the jury found that Ellis Bank acted with malice in prosecuting Keever. After reviewing the record, we find Ellis Bank’s lack of sufficient evidence contention without merit. The jury was presented with conflicting evidence, and it made a determination as to Ellis Bank’s actions. Keever testified that he told Fletcher about filing for bankruptcy during their first conversation; hence, the jury could determine that Ellis Bank knowingly sent demand letters while Keever was in bankruptcy. The record contains evidence that Ellis Bank withheld material information and presented false testimony to the grand jury. Failure to make a full and fair disclosure of all information can be evidence of a hostile motive.
Diamond Shamrock,
This Court found the evidence factually sufficient to support the jury’s finding of no probable cause. Likewise, this same evidence is factually sufficient to establish malice as it shows a reckless disregard for Keever’s rights.
See Fisher,
Future Medical Expenses
In its fourth point of error, Ellis Bank asserts that insufficient evidence exists to support the trial court’s award of future medical expenses. Ellis Bank argues that Keever failed to prove that he would incur any future medical expenses due to any physical problems and that the expenses due to psychological problems are based upon reasonable medical probability.
Texas follows the reasonable probability rule for future damages for personal injuries.
Hughett v. Dwyre,
The record shows that Dr. Gant testified that Keever was suffering from depression and post-traumatic stress disorder and would need to be hospitalized for six months to one year. Dr. Gant then testified that the cost of such treatment for one year would range from $190,000 to $400,000. Such evidence is factually sufficient to support the jury’s answer to the issue of future medical expenses. We overrule Ellis Bank’s fourth point of error.
JURY CHARGE
In its first point of error, Ellis Bank asserts that the trial court erred in failing to
*70
instruct the jury that the plaintiffs burden of proof was clear and convincing evidence. Ellis Bank asserts that the trial court incorrectly instructed the jury that the plaintiff was required to prove his case only by a “preponderance of the evidence” when case law establishes a burden of “clear and convincing evidence.”
See Wal-Mart Stores, Inc. v. Medina,
Actions for malicious prosecution are not favored in the law.
Compton,
The Supreme Court of Texas has specifically spoken on the Texas standard of proof in
State v. Turner,
Some courts in other jurisdictions make a distinction between the standard of clear and convincing evidence and the usual civil standard of the preponderance of the evidence; however, Texas Courts review evidence by but two standards: factual sufficiency and legal sufficiency. The requirement of clear and convincing evidence is merely another method of requiring a cause of action be supported by factually sufficient evidence.
Id.
at 565. The statement that “proof must be positive, clear and satisfactory” is an admonition to exercise great caution in weighing the evidence.
Rhodes v. Cahill,
Under the present state of the law, Texas courts are bound to instruct the jury in an ordinary civil ease that all factual issues are to be determined by the preponderance of the evidence standard. The trial court so instructed the jury in this case, and consequently, there is no error. Ellis Bank’s first point of error is overruled.
AMOUNT OF PUNITIVE DAMAGES
In its third point of error, Ellis Bank asserts that the trial court erred in failing to order remittitur as to the amount of exemplary damages. Ellis Bank contends that the award of punitive damages is controlled by section 41.007 of the Texas Civil Practice and Remedies Code, which limits the amount of exemplary damages. See Tex.Civ.Prac. & Rem.Code Ann. § 41.007 (Vernon Supp.1992). Keever asserts that chapter 41 is not applicable to an action for malicious prosecution.
Section 41.002(a) provides:
This chapter applies to an action in which a claimant seeks exemplary damages relating to a cause of action as defined by Section 33.001.
Tex.Civ.Prac. & Rem.Code Ann. § 41.002 (Vernon Supp.1992). Section 33.001 describes actions to recover damages for negligence resulting in personal injury, property damage, or death and actions for strict tort liability, strict products liability, or breach of warranty under Chapter 2 of the Texas Business & Commerce Code. Tex.Civ.Prac.
&
Rem.Code Ann. § 33.001 (Vernon Supp.1992). The theory in this case, malicious prosecution, does not fall into any of the categories listed in section 33.001. Chapter 41 of the Texas Civil Practice and Remedies Code does not apply and does not supersede the common law regarding punitive damages.
Cf. Transfer Products v. Tex.Par Energy,
At common law, an award of exemplary damages rests in the jury’s discre
*71
tion and will not be set aside as excessive unless the amount is so large as to indicate that it is the result of passion and prejudice or that evidence has been disregarded.
Aetna Casualty & Sur. Co. v. Joseph,
In determining whether an exemplary damage award is reasonable, this Court evaluates the facts of each case, taking into account (1) the nature of the wrong, (2) the character of the conduct involved, (3) the degree of culpability of the wrongdoer, (4) the situation and sensibilities of the parties concerned, and (5) the extent to which the conduct offends the public sense of justice and propriety.
Wright v. Gifford-Hill & Co.,
Our review of the sufficiency of the evidence under Ellis Bank’s fifth and sixth points of error indicates ample evidentiary support for the jury’s finding that Ellis Bank acted with malice. The evidence of Ellis Bank’s malicious conduct is sufficient to support an award of punitive damages. Where the jury finds that Keever suffered actual damages of $110,600 and finds malice on the part of Ellis Bank, an award of $1,000,000 is not patently unreasonable. This Court cannot say under these facts that the award was so excessive as to indicate passion or prejudice on the part of the jury. Because the evidence is factually sufficient to support the jury’s award of exemplary damages, the jury verdict will not be disturbed. We overrule Ellis Bank’s third point of error.
PREJUDGMENT INTEREST
In its second point of error, Ellis Bank asserts that the trial court erred in awarding prejudgment interest on future and punitive damages.
Future Damages
Ellis Bank asserts that the trial court erred in awarding prejudgment interest on future medical expenses. Ellis Bank contends that an award of prejudgment interest on future damages violates several provisions of the Texas Constitution. Ellis Bank further argues that an award of prejudgment interest on future damages is excessive and usurious under article 5069 of the Texas Revised Civil Statutes Annotated.
A. Article 5069-1.05, Section 6
The award of prejudgment interest on future damages is governed by article 5069-1.05, section 6 of the Texas Revised Civil Statutes Annotated. Section 6 provides:
Judgments in wrongful death, personal injury, and property damage eases must include prejudgment interest.
Tex.Rev.Civ.Stat.Ann. art. 5069-1.05, § 6(a) (Vernon Supp.1992) (emphasis added). The language of the statute makes no distinction between damages awarded in the judgment for past damages and damages awarded for future damages.
C & H Nationwide v. Thompson,
There is little doubt that malicious prosecution is a personal injury case covered by the statute.
Cf. Southwestern Bell Telephone v. Wilson,
B. Open Courts Provision
Ellis Bank further asserts that an award of prejudgment interest on future damages in a personal injury ease denies due process, in violation of the open courts provision. Ellis Bank argues that the legislature codified the common law method of recovery of prejudgment interest without including the well-established common law defenses. Therefore, article 5069-1.05, section 6 places such a costly surcharge or penalty on the determination of settlement value that it hinders the defendant’s access to the courts.
Article I, section 13 of the Texas Constitution provides
All courts shall be open, and every person for an injury done him, and his lands, goods, person or reputation, shall have remedy by due course of law.
The right of access to the courts is a substantial right, and the legislature cannot arbitrarily or unreasonably interfere with a litigant’s right of access.
LeCroy v. Hanlon,
The question here is whether prejudgment interest on future damages, as provided for in article 5069-1.05, section 6 is an arbitrary and unreasonable interference with the right of access to the courts. Senator Montford explains
Article 5069-1.05, section 6 codifies Cavnar with respect to including personal injury, property damage, and wrongful death cases among the kinds of suits in which prejudgment interest is recoverable. Section 6(a) also expands the Cavnar reach of prejudgment interest, which included only damages that have accrued by the time of judgment to apply also to future damages included in the judgment.
Barber & Montford, supra, at 104-105 (citations omitted). This new prejudgment interest statute represents a situation where the Legislature weighed the same competing equity/fairness considerations as the courts, but came out with a different conclusion and resolution as a matter of public policy. Barber & Montford, supra, at 104-105.
It is true that in some cases the new prejudgment interest statute creates a stronger bargaining position for the injured plaintiff than existed under Cavnar and Texas case law. Nevertheless, Ellis Bank fails to show that article 5069-1.05, section 6 unconstitutionally interferes with its right of access to the courts. The legislature reasoned that expanding recoverable prejudgment interest to future damages while shortening the accrual period for most cases, changing from daily-compound to annual-simple interest, tolling accrual for settlement offers, and providing trial court discretion regarding accrual and nonaccrual for periods of delay represents a balance of competing interests. See Barber & Montford, supra, at 106-107. The Texas Legislature has not arbitrarily or unreasonably denied Ellis Bank the right of access to the court.
C. Equal Protection Clause
Additionally, Ellis Bank argues that an award of prejudgment interest on future damages in personal injury cases violates the Equal Protection Clause of the Texas Constitution because there is no rational legislative
*73
basis for treating certain contract defendants differently from certain personal injury defendants. When neither a “suspect classification” nor interference with a “fundamental right” is involved, we must sustain a challenged statutory classification if it is “rationally related to a legitimate state interest.”
See Spring Branch I.S.D. v. Stamos,
D. Usurious or Excessive Interest
Next, Ellis Bank asserts that the assessment of prejudgment interest is excessive and usurious. Ellis Bank argues that article 5069-1.01(a) defines interest as “the compensation allowed by law for the use or forbearance or detention of money.” Tex. Rev.CivStatANN. art. 5069-1.01(a) (Vernon 1987). Hence, to charge an interest on future damages is usurious because there are no compensable damages upon which to charge prejudgment interest.
The term interest encompasses two distinct forms of compensation: interest as interest (eo nomine) and interest as damages. Interest as interest is compensation allowed by law or fixed by the parties for the use or detention of money. Interest as damages is compensation allowed by law as additional damages for lost use of the money due as damages during the lapse of time between the accrual of the claim and the date of judgment.
Cavnar v. Quality Control Parking, Inc.,
Ellis Bank contends that interest on future damages is an excessive fine in violation of Article I, section 13 of the Texas Constitution. Article I, section 13 provides that excessive fines shall not be imposed. Generally, prescribing fines is a matter within the discretion of the legislature. A fine is not unconstitutionally excessive, and the courts will not override the legislature’s discretion, “except in extraordinary cases, where it becomes so manifestly violative of the constitutional inhibition as to shock the sense of mankind.”
Pennington v. Singleton,
Punitive Damages
Ellis Bank contends that this cause of action is governed by section 41.006 of the Texas Civil Practice and Remedies Code, which prohibits prejudgment interest on exemplary damages. See Tex.Civ.PRAC. & Rem. Code Ann. § 41.006 (Vernon Supp.1992). Keever asserts that chapter 41 does not apply, and the common law prohibition of pre *74 judgment interest on exemplary damages was overruled by the enactment of article 5069-1.05, section 6. Tex.Rev.Civ.Stat.ANN. art. 5069-1.05, § 6 (Vernon Supp.1992).
Chapter 41 of the Texas Civil Practice and Remedies Code only applies to a claimant seeking exemplary damages relating to a cause of action as defined by section 33.001. Tex.Civ.PRAC. & Rem.Code Ann. § 41.002(a) (Vernon Supp.1992). Malicious prosecution does not fall into any category listed in section 33.001.
See
Tex.Civ.Prao. & Rem.Code Ann. § 33.001 (Vernon Supp.1992). Therefore, chapter 41 of the Texas Civil Practice and Remedies Code does not apply and does not supersede the common law regarding exemplary damages. At common law, prejudgment interest was not allowed on exemplary damages.
See Granite Constr. Co. v. Mendoza,
Keever asserts that the common law prohibition of prejudgment interest on exemplary damages was overruled by the enactment of article 5069-1.05, section 6. Tex. Rev.Civ.Stat.Ann. art. 5069-1.05, § 6 (Vernon Supp.1992). Keever contends that the statute makes no distinction between compensatory and exemplary damages, and therefore, compels the accrual of prejudgment interest on an award of punitive damages. We disagree. It was not the intent of the comprehensive tort reform act of 1987 to overrule Cavnar with respect to allowing prejudgment interest on punitive damages. Senator Montford explains
Under the Cavnar case line, prejudgment interest cannot be recovered upon punitive damages. The result is the same under the tort reform laws passed by the 70th Legislature.
Barber & Montford, supra, at 114. Based on Texas ease law, therefore, the award of prejudgment interest on punitive damages was improper. The trial court erred in assessing prejudgment interest on the punitive damages awarded. We sustain Ellis Bank’s point of error concerning prejudgment interest on punitive damages.
Accordingly, we reverse the trial court’s award of prejudgment interest on punitive damages and render judgment that Keever cannot recover interest on punitive damages, and affirm the remainder of the judgment.