CHAPTER 33. PROPORTIONATE RESPONSIBILITY

State Codes and Statutes

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CIVIL PRACTICE AND REMEDIES CODE

TITLE 2. TRIAL, JUDGMENT, AND APPEAL

SUBTITLE C. JUDGMENTS

CHAPTER 33. PROPORTIONATE RESPONSIBILITY

SUBCHAPTER A. PROPORTIONATE RESPONSIBILITY

Sec. 33.001. PROPORTIONATE RESPONSIBILITY. In an action to

which this chapter applies, a claimant may not recover damages if

his percentage of responsibility is greater than 50 percent.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.04, eff.

Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept.

1, 1995.

Sec. 33.002. APPLICABILITY. (a) This chapter applies to:

(1) any cause of action based on tort in which a defendant,

settling person, or responsible third party is found responsible

for a percentage of the harm for which relief is sought; or

(2) any action brought under the Deceptive Trade

Practices-Consumer Protection Act (Subchapter E, Chapter 17,

Business & Commerce Code) in which a defendant, settling

person, or responsible third party is found responsible for a

percentage of the harm for which relief is sought.

(b) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 4.10(1).

(1) an action to collect workers' compensation benefits under

the workers' compensation laws of this state (Subtitle A, Title

5, Labor Code) or actions against an employer for exemplary

damages arising out of the death of an employee;

(2) a claim for exemplary damages included in an action to which

this chapter otherwise applies; or

(3) a cause of action for damages arising from the manufacture

of methamphetamine as described by Chapter 99.

(d) to (h) Repealed by Acts 2003, 78th Leg., ch. 204, Sec.

4.10(1).

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.05, eff.

Sept. 2, 1987. Amended by Acts 1989, 71st Leg., ch. 380, Sec. 4,

eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff.

Sept. 1, 1995; Acts 1995, 74th Leg., ch. 414, Sec. 17, eff. Sept.

1, 1995; Acts 2001, 77th Leg., ch. 643, Sec. 2, eff. Sept. 1,

2001; Acts 2003, 78th Leg., ch. 204, Sec. 4.01, 4.10(1), eff.

Sept. 1, 2003.

Sec. 33.003. DETERMINATION OF PERCENTAGE OF RESPONSIBILITY. (a)

The trier of fact, as to each cause of action asserted, shall

determine the percentage of responsibility, stated in whole

numbers, for the following persons with respect to each person's

causing or contributing to cause in any way the harm for which

recovery of damages is sought, whether by negligent act or

omission, by any defective or unreasonably dangerous product, by

other conduct or activity that violates an applicable legal

standard, or by any combination of these:

(1) each claimant;

(2) each defendant;

(3) each settling person; and

(4) each responsible third party who has been designated under

Section 33.004.

(b) This section does not allow a submission to the jury of a

question regarding conduct by any person without sufficient

evidence to support the submission.

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.06, eff.

Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 136, Sec. 1,

eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 4.02,

eff. Sept. 1, 2003.

Sec. 33.004. DESIGNATION OF RESPONSIBLE THIRD PARTY. (a) A

defendant may seek to designate a person as a responsible third

party by filing a motion for leave to designate that person as a

responsible third party. The motion must be filed on or before

the 60th day before the trial date unless the court finds good

cause to allow the motion to be filed at a later date.

(b) Nothing in this section affects the third-party practice as

previously recognized in the rules and statutes of this state

with regard to the assertion by a defendant of rights to

contribution or indemnity. Nothing in this section affects the

filing of cross-claims or counterclaims.

(c), (d) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 4.10(2).

(e) If a person is designated under this section as a

responsible third party, a claimant is not barred by limitations

from seeking to join that person, even though such joinder would

otherwise be barred by limitations, if the claimant seeks to join

that person not later than 60 days after that person is

designated as a responsible third party.

(f) A court shall grant leave to designate the named person as a

responsible third party unless another party files an objection

to the motion for leave on or before the 15th day after the date

the motion is served.

(g) If an objection to the motion for leave is timely filed, the

court shall grant leave to designate the person as a responsible

third party unless the objecting party establishes:

(1) the defendant did not plead sufficient facts concerning the

alleged responsibility of the person to satisfy the pleading

requirement of the Texas Rules of Civil Procedure; and

(2) after having been granted leave to replead, the defendant

failed to plead sufficient facts concerning the alleged

responsibility of the person to satisfy the pleading requirements

of the Texas Rules of Civil Procedure.

(h) By granting a motion for leave to designate a person as a

responsible third party, the person named in the motion is

designated as a responsible third party for purposes of this

chapter without further action by the court or any party.

(i) The filing or granting of a motion for leave to designate a

person as a responsible third party or a finding of fault against

the person:

(1) does not by itself impose liability on the person; and

(2) may not be used in any other proceeding, on the basis of res

judicata, collateral estoppel, or any other legal theory, to

impose liability on the person.

(j) Notwithstanding any other provision of this section, if, not

later than 60 days after the filing of the defendant's original

answer, the defendant alleges in an answer filed with the court

that an unknown person committed a criminal act that was a cause

of the loss or injury that is the subject of the lawsuit, the

court shall grant a motion for leave to designate the unknown

person as a responsible third party if:

(1) the court determines that the defendant has pleaded facts

sufficient for the court to determine that there is a reasonable

probability that the act of the unknown person was criminal;

(2) the defendant has stated in the answer all identifying

characteristics of the unknown person, known at the time of the

answer; and

(3) the allegation satisfies the pleading requirements of the

Texas Rules of Civil Procedure.

(k) An unknown person designated as a responsible third party

under Subsection (j) is denominated as "Jane Doe" or "John Doe"

until the person's identity is known.

(l) After adequate time for discovery, a party may move to

strike the designation of a responsible third party on the ground

that there is no evidence that the designated person is

responsible for any portion of the claimant's alleged injury or

damage. The court shall grant the motion to strike unless a

defendant produces sufficient evidence to raise a genuine issue

of fact regarding the designated person's responsibility for the

claimant's injury or damage.

Added by Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 2003, 78th Leg., ch. 204, Sec. 4.03, 4.04,

4.10(2), eff. Sept. 1, 2003.

SUBCHAPTER B. CONTRIBUTION

Sec. 33.011. DEFINITIONS. In this chapter:

(1) "Claimant" means a person seeking recovery of damages,

including a plaintiff, counterclaimant, cross-claimant, or

third-party plaintiff. In an action in which a party seeks

recovery of damages for injury to another person, damage to the

property of another person, death of another person, or other

harm to another person, "claimant" includes:

(A) the person who was injured, was harmed, or died or whose

property was damaged; and

(B) any person who is seeking, has sought, or could seek

recovery of damages for the injury, harm, or death of that person

or for the damage to the property of that person.

(2) "Defendant" includes any person from whom, at the time of

the submission of the case to the trier of fact, a claimant seeks

recovery of damages.

(3) "Liable defendant" means a defendant against whom a judgment

can be entered for at least a portion of the damages awarded to

the claimant.

(4) "Percentage of responsibility" means that percentage, stated

in whole numbers, attributed by the trier of fact to each

claimant, each defendant, each settling person, or each

responsible third party with respect to causing or contributing

to cause in any way, whether by negligent act or omission, by any

defective or unreasonably dangerous product, by other conduct or

activity violative of the applicable legal standard, or by any

combination of the foregoing, the personal injury, property

damage, death, or other harm for which recovery of damages is

sought.

(5) "Settling person" means a person who has, at any time, paid

or promised to pay money or anything of monetary value to a

claimant in consideration of potential liability with respect to

the personal injury, property damage, death, or other harm for

which recovery of damages is sought.

(6) "Responsible third party" means any person who is alleged to

have caused or contributed to causing in any way the harm for

which recovery of damages is sought, whether by negligent act or

omission, by any defective or unreasonably dangerous product, by

other conduct or activity that violates an applicable legal

standard, or by any combination of these. The term "responsible

third party" does not include a seller eligible for indemnity

under Section 82.002.

(7) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 4.10(3).

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.07, eff.

Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept.

1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 4.05, 4.10(3), eff.

Sept. 1, 2003.

Sec. 33.012. AMOUNT OF RECOVERY. (a) If the claimant is not

barred from recovery under Section 33.001, the court shall reduce

the amount of damages to be recovered by the claimant with

respect to a cause of action by a percentage equal to the

claimant's percentage of responsibility.

(b) If the claimant has settled with one or more persons, the

court shall further reduce the amount of damages to be recovered

by the claimant with respect to a cause of action by the sum of

the dollar amounts of all settlements.

care liability claim filed under Chapter 74 has settled with one

or more persons, the court shall further reduce the amount of

damages to be recovered by the claimant with respect to a cause

of action by an amount equal to one of the following, as elected

by the defendant:

(1) the sum of the dollar amounts of all settlements; or

(2) a percentage equal to each settling person's percentage of

responsibility as found by the trier of fact.

(d) An election made under Subsection (c) shall be made by any

defendant filing a written election before the issues of the

action are submitted to the trier of fact and when made, shall be

binding on all defendants. If no defendant makes this election or

if conflicting elections are made, all defendants are considered

to have elected Subsection (c)(1).

(e) This section shall not apply to benefits paid by or on

behalf of an employer to an employee pursuant to workers'

compensation insurance coverage, as defined in Section

401.011(44), Labor Code, in effect at the time of the act, event,

or occurrence made the basis of claimant's suit.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.08, eff.

Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept.

1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 4.06, 4.10(4), eff.

Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

277, Sec. 1, eff. June 9, 2005.

Acts 2005, 79th Leg., Ch.

728, Sec. 23.001(6), eff. September 1, 2005.

Sec. 33.013. AMOUNT OF LIABILITY. (a) Except as provided in

Subsection (b), a liable defendant is liable to a claimant only

for the percentage of the damages found by the trier of fact

equal to that defendant's percentage of responsibility with

respect to the personal injury, property damage, death, or other

harm for which the damages are allowed.

(b) Notwithstanding Subsection (a), each liable defendant is, in

addition to his liability under Subsection (a), jointly and

severally liable for the damages recoverable by the claimant

under Section 33.012 with respect to a cause of action if:

(1) the percentage of responsibility attributed to the defendant

with respect to a cause of action is greater than 50 percent; or

(2) the defendant, with the specific intent to do harm to

others, acted in concert with another person to engage in the

conduct described in the following provisions of the Penal Code

and in so doing proximately caused the damages legally

recoverable by the claimant:

(A) Section 19.02 (murder);

(B) Section 19.03 (capital murder);

(D) Section 22.02 (aggravated assault);

(E) Section 22.011 (sexual assault);

(F) Section 22.021 (aggravated sexual assault);

(G) Section 22.04 (injury to a child, elderly individual, or

disabled individual);

(H) Section 32.21 (forgery);

(I) Section 32.43 (commercial bribery);

(J) Section 32.45 (misapplication of fiduciary property or

property of financial institution);

(K) Section 32.46 (securing execution of document by deception);

(L) Section 32.47 (fraudulent destruction, removal, or

concealment of writing);

(M) conduct described in Chapter 31 the punishment level for

which is a felony of the third degree or higher; or

(N) Section 21.02 (continuous sexual abuse of young child or

children).

(d) This section does not create a cause of action.

(e) Notwithstanding anything to the contrary stated in the

provisions of the Penal Code listed in Subsection (b)(2), that

subsection applies only if the claimant proves the defendant

acted or failed to act with specific intent to do harm. A

defendant acts with specific intent to do harm with respect to

the nature of the defendant's conduct and the result of the

person's conduct when it is the person's conscious effort or

desire to engage in the conduct for the purpose of doing

substantial harm to others.

(f) The jury may not be made aware through voir dire,

introduction into evidence, instruction, or any other means that

the conduct to which Subsection (b)(2) refers is defined by the

Penal Code.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.09, eff.

Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept.

1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 4.07, 4.10(5), eff.

Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

593, Sec. 3.02, eff. September 1, 2007.

Sec. 33.015. CONTRIBUTION. (a) If a defendant who is jointly

and severally liable under Section 33.013 pays a percentage of

the damages for which the defendant is jointly and severally

liable greater than his percentage of responsibility, that

defendant has a right of contribution for the overpayment against

each other liable defendant to the extent that the other liable

defendant has not paid the percentage of the damages found by the

trier of fact equal to that other defendant's percentage of

responsibility.

(b) As among themselves, each of the defendants who is jointly

and severally liable under Section 33.013 is liable for the

damages recoverable by the claimant under Section 33.012 in

proportion to his respective percentage of responsibility. If a

defendant who is jointly and severally liable pays a larger

proportion of those damages than is required by his percentage of

responsibility, that defendant has a right of contribution for

the overpayment against each other defendant with whom he is

jointly and severally liable under Section 33.013 to the extent

that the other defendant has not paid the proportion of those

damages required by that other defendant's percentage of

responsibility.

contribute the portion of the damages required by his percentage

of responsibility, the amount of the damages not paid or

contributed by that defendant shall be paid or contributed by the

remaining defendants who are jointly and severally liable for

those damages. The additional amount to be paid or contributed by

each of the defendants who is jointly and severally liable for

those damages shall be in proportion to his respective percentage

of responsibility.

(d) No defendant has a right of contribution against any

settling person.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.11, eff.

Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept.

1, 1995.

Sec. 33.016. CLAIM AGAINST CONTRIBUTION DEFENDANT. (a) In this

section, "contribution defendant" means any defendant,

counterdefendant, or third-party defendant from whom any party

seeks contribution with respect to any portion of damages for

which that party may be liable, but from whom the claimant seeks

no relief at the time of submission.

(b) Each liable defendant is entitled to contribution from each

person who is not a settling person and who is liable to the

claimant for a percentage of responsibility but from whom the

claimant seeks no relief at the time of submission. A party may

assert this contribution right against any such person as a

contribution defendant in the claimant's action.

finding of fact the percentage of responsibility with respect to

each contribution defendant and these findings shall be solely

for purposes of this section and Section 33.015 and not as a part

of the percentages of responsibility determined under Section

33.003. Only the percentage of responsibility of each defendant

and contribution defendant shall be included in this

determination.

(d) As among liable defendants, including each defendant who is

jointly and severally liable under Section 33.013, each

contribution defendant's percentage of responsibility is to be

included for all purposes of Section 33.015. The amount to be

contributed by each contribution defendant pursuant to Section

33.015 shall be in proportion to his respective percentage of

responsibility relative to the sum of percentages of

responsibility of all liable defendants and liable contribution

defendants.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.11A,

eff. Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, Sec. 1, eff.

Sept. 1, 1995.

Sec. 33.017. PRESERVATION OF EXISTING RIGHTS OF INDEMNITY.

Nothing in this chapter shall be construed to affect any rights

of indemnity granted by any statute, by contract, or by common

law. To the extent of any conflict between this chapter and any

right to indemnification granted by statute, contract, or common

law, those rights of indemnification shall prevail over the

provisions of this chapter.

Added by Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 2003, 78th Leg., ch. 204, Sec. 4.08, eff.

Sept. 1, 2003.

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