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Statutes > Texas > Civil-practice-and-remedies-code > Title-2-trial-judgment-and-appeal > Chapter-41-damages

CIVIL PRACTICE AND REMEDIES CODE

TITLE 2. TRIAL, JUDGMENT, AND APPEAL

SUBTITLE C. JUDGMENTS

CHAPTER 41. DAMAGES

Sec. 41.001. DEFINITIONS. In this chapter:

(1) "Claimant" means a party, including a plaintiff,

counterclaimant, cross-claimant, or third-party plaintiff,

seeking recovery of damages. In a cause of action in which a

party seeks recovery of damages related to injury to another

person, damage to the property of another person, death of

another person, or other harm to another person, "claimant"

includes both that other person and the party seeking recovery of

damages.

(2) "Clear and convincing" means the measure or degree of proof

that will produce in the mind of the trier of fact a firm belief

or conviction as to the truth of the allegations sought to be

established.

(3) "Defendant" means a party, including a counterdefendant,

cross-defendant, or third-party defendant, from whom a claimant

seeks relief.

(4) "Economic damages" means compensatory damages intended to

compensate a claimant for actual economic or pecuniary loss; the

term does not include exemplary damages or noneconomic damages.

(5) "Exemplary damages" means any damages awarded as a penalty

or by way of punishment but not for compensatory purposes.

Exemplary damages are neither economic nor noneconomic damages.

'Exemplary damages' includes punitive damages.

(6) "Fraud" means fraud other than constructive fraud.

(7) "Malice" means a specific intent by the defendant to cause

substantial injury or harm to the claimant.

(8) "Compensatory damages" means economic and noneconomic

damages. The term does not include exemplary damages.

(9) "Future damages" means damages that are incurred after the

date of the judgment. Future damages do not include exemplary

damages.

(10) "Future loss of earnings" means a pecuniary loss incurred

after the date of the judgment, including:

(A) loss of income, wages, or earning capacity; and

(B) loss of inheritance.

(11) "Gross negligence" means an act or omission:

(A) which when viewed objectively from the standpoint of the

actor at the time of its occurrence involves an extreme degree of

risk, considering the probability and magnitude of the potential

harm to others; and

(B) of which the actor has actual, subjective awareness of the

risk involved, but nevertheless proceeds with conscious

indifference to the rights, safety, or welfare of others.

(12) "Noneconomic damages" means damages awarded for the purpose

of compensating a claimant for physical pain and suffering,

mental or emotional pain or anguish, loss of consortium,

disfigurement, physical impairment, loss of companionship and

society, inconvenience, loss of enjoyment of life, injury to

reputation, and all other nonpecuniary losses of any kind other

than exemplary damages.

(13) "Periodic payments" means the payment of money or its

equivalent to the recipient of future damages at defined

intervals.

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff.

Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1,

eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 13.02,

eff. Sept. 1, 2003.

Sec. 41.002. APPLICABILITY. (a) This chapter applies to any

action in which a claimant seeks damages relating to a cause of

action.

(b) This chapter establishes the maximum damages that may be

awarded in an action subject to this chapter, including an action

for which damages are awarded under another law of this state.

This chapter does not apply to the extent another law establishes

a lower maximum amount of damages for a particular claim.

to which this chapter applies, the provisions of this chapter

prevail over all other law to the extent of any conflict.

(d) Notwithstanding any provision to the contrary, this chapter

does not apply to:

(1) Section 15.21, Business & Commerce Code (Texas Free

Enterprise and Antitrust Act of 1983);

(2) an action brought under the Deceptive Trade

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

Business & Commerce Code) except as specifically provided in

Section 17.50 of that Act;

(3) an action brought under Chapter 36, Human Resources Code; or

(4) an action brought under Chapter 21, Insurance Code.

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff.

Sept. 2, 1987. Amended by Acts 1989, 71st Leg., ch. 380, Sec. 5,

eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 1129, Sec. 16, eff.

Sept. 1, 1989; Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept.

1, 1995; Acts 1995, 74th Leg., ch. 260, Sec. 9, eff. May 30,

1995; Acts 1997, 75th Leg., ch. 165, Sec. 4.01, eff. Sept. 1,

1997; Acts 2003, 78th Leg., ch. 204, Sec. 13.03, eff. Sept. 1,

2003.

Amended by:

Acts 2005, 79th Leg., Ch.

806, Sec. 18, eff. September 1, 2005.

Sec. 41.003. STANDARDS FOR RECOVERY OF EXEMPLARY DAMAGES. (a)

Except as provided by Subsection (c), exemplary damages may be

awarded only if the claimant proves by clear and convincing

evidence that the harm with respect to which the claimant seeks

recovery of exemplary damages results from:

(1) fraud;

(2) malice; or

(3) gross negligence.

(b) The claimant must prove by clear and convincing evidence the

elements of exemplary damages as provided by this section. This

burden of proof may not be shifted to the defendant or satisfied

by evidence of ordinary negligence, bad faith, or a deceptive

trade practice.

action and authorizing exemplary damages in specified

circumstances or in conjunction with a specified culpable mental

state, exemplary damages may be awarded only if the claimant

proves by clear and convincing evidence that the damages result

from the specified circumstances or culpable mental state.

(d) Exemplary damages may be awarded only if the jury was

unanimous in regard to finding liability for and the amount of

exemplary damages.

(e) In all cases where the issue of exemplary damages is

submitted to the jury, the following instruction shall be

included in the charge of the court:

"You are instructed that, in order for you to find exemplary

damages, your answer to the question regarding the amount of such

damages must be unanimous."

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff.

Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1,

eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 13.04,

eff. Sept. 1, 2003.

Sec. 41.004. FACTORS PRECLUDING RECOVERY. (a) Except as

provided by Subsection (b), exemplary damages may be awarded only

if damages other than nominal damages are awarded.

(b) Exemplary damages may not be awarded to a claimant who

elects to have his recovery multiplied under another statute.

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff.

Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1,

eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 13.05,

eff. Sept. 1, 2003.

Sec. 41.005. HARM RESULTING FROM CRIMINAL ACT. (a) In an

action arising from harm resulting from an assault, theft, or

other criminal act, a court may not award exemplary damages

against a defendant because of the criminal act of another.

(b) The exemption provided by Subsection (a) does not apply if:

(1) the criminal act was committed by an employee of the

defendant;

(2) the defendant is criminally responsible as a party to the

criminal act under the provisions of Chapter 7, Penal Code;

(3) the criminal act occurred at a location where, at the time

of the criminal act, the defendant was maintaining a common

nuisance under the provisions of Chapter 125, Civil Practice and

Remedies Code, and had not made reasonable attempts to abate the

nuisance; or

(4) the criminal act resulted from the defendant's intentional

or knowing violation of a statutory duty under Subchapter D,

Chapter 92, Property Code, and the criminal act occurred after

the statutory deadline for compliance with that duty.

employee, the employer may be liable for punitive damages but

only if:

(1) the principal authorized the doing and the manner of the

act;

(2) the agent was unfit and the principal acted with malice in

employing or retaining him;

(3) the agent was employed in a managerial capacity and was

acting in the scope of employment; or

(4) the employer or a manager of the employer ratified or

approved the act.

Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1,

1995.

Sec. 41.006. AWARD SPECIFIC TO DEFENDANT. In any action in

which there are two or more defendants, an award of exemplary

damages must be specific as to a defendant, and each defendant is

liable only for the amount of the award made against that

defendant.

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff.

Sept. 2, 1987. Renumbered from Civil Practice & Remedies Code

Sec. 41.005 by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept.

1, 1995.

Sec. 41.007. PREJUDGMENT INTEREST. Prejudgment interest may not

be assessed or recovered on an award of exemplary damages.

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff.

Sept. 2, 1987. Renumbered from Civil Practice & Remedies Code

Sec. 41.006 by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept.

1, 1995.

Sec. 41.008. LIMITATION ON AMOUNT OF RECOVERY. (a) In an

action in which a claimant seeks recovery of damages, the trier

of fact shall determine the amount of economic damages separately

from the amount of other compensatory damages.

(b) Exemplary damages awarded against a defendant may not exceed

an amount equal to the greater of:

(1)(A) two times the amount of economic damages; plus

(B) an amount equal to any noneconomic damages found by the

jury, not to exceed $750,000; or

(2) $200,000.

defendant from whom a plaintiff seeks recovery of exemplary

damages based on conduct described as a felony in the following

sections of the Penal Code if, except for Sections 49.07 and

49.08, the conduct was committed knowingly or intentionally:

(1) Section 19.02 (murder);

(2) Section 19.03 (capital murder);

(3) Section 20.04 (aggravated kidnapping);

(4) Section 22.02 (aggravated assault);

(5) Section 22.011 (sexual assault);

(6) Section 22.021 (aggravated sexual assault);

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

disabled individual, but not if the conduct occurred while

providing health care as defined by Section 74.001);

(8) Section 32.21 (forgery);

(9) Section 32.43 (commercial bribery);

(10) Section 32.45 (misapplication of fiduciary property or

property of financial institution);

(11) Section 32.46 (securing execution of document by

deception);

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

concealment of writing);

(13) Chapter 31 (theft) the punishment level for which is a

felony of the third degree or higher;

(14) Section 49.07 (intoxication assault);

(15) Section 49.08 (intoxication manslaughter);

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

children); or

(17) Chapter 20A (trafficking of persons).

(d) In this section, "intentionally" and "knowingly" have the

same meanings assigned those terms in Sections 6.03(a) and (b),

Penal Code.

(e) The provisions of this section may not be made known to a

jury by any means, including voir dire, introduction into

evidence, argument, or instruction.

(f) This section does not apply to a cause of action for damages

arising from the manufacture of methamphetamine as described by

Chapter 99.

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff.

Sept. 2, 1987. Renumbered from Civil Practice & Remedies Code

Sec. 41.007 and amended by Acts 1995, 74th Leg., ch. 19, Sec. 1,

eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 643,

Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 204, Sec.

13.06, eff. Sept. 1, 2003.

Amended by:

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

593, Sec. 3.03, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

309, Sec. 2, eff. June 19, 2009.

Sec. 41.009. BIFURCATED TRIAL. (a) On motion by a defendant,

the court shall provide for a bifurcated trial under this

section. A motion under this subsection shall be made prior to

voir dire examination of the jury or at a time specified by a

pretrial court order issued under Rule 166, Texas Rules of Civil

Procedure.

(b) In an action with more than one defendant, the court shall

provide for a bifurcated trial on motion of any defendant.

shall determine:

(1) liability for compensatory and exemplary damages; and

(2) the amount of compensatory damages.

(d) If liability for exemplary damages is established during the

first phase of a bifurcated trial, the trier of fact shall, in

the second phase of the trial, determine the amount of exemplary

damages to be awarded, if any.

Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1,

1995.

Sec. 41.010. CONSIDERATIONS IN MAKING AWARD. (a) Before making

an award of exemplary damages, the trier of fact shall consider

the definition and purposes of exemplary damages as provided by

Section 41.001.

(b) Subject to Section 41.008, the determination of whether to

award exemplary damages and the amount of exemplary damages to be

awarded is within the discretion of the trier of fact.

Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 2003, 78th Leg., ch. 204, Sec. 13.07, eff.

Sept. 1, 2003.

Sec. 41.0105. EVIDENCE RELATING TO AMOUNT OF ECONOMIC DAMAGES.

In addition to any other limitation under law, recovery of

medical or health care expenses incurred is limited to the amount

actually paid or incurred by or on behalf of the claimant.

Added by Acts 2003, 78th Leg., ch. 204, Sec. 13.08, eff. Sept. 1,

2003.

Sec. 41.011. EVIDENCE RELATING TO AMOUNT OF EXEMPLARY DAMAGES.

(a) In determining the amount of exemplary damages, the trier of

fact shall consider evidence, if any, relating to:

(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;

(5) the extent to which such conduct offends a public sense of

justice and propriety; and

(6) the net worth of the defendant.

(b) Evidence that is relevant only to the amount of exemplary

damages that may be awarded is not admissible during the first

phase of a bifurcated trial.

Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1,

1995.

Sec. 41.012. JURY INSTRUCTIONS. In a trial to a jury, the court

shall instruct the jury with regard to Sections 41.001, 41.003,

41.010, and 41.011.

Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1,

1995.

Sec. 41.013. JUDICIAL REVIEW OF AWARD. (a) Except as provided

for in Subsection (b), an appellate court that reviews the

evidence with respect to a finding by a trier of fact concerning

liability for exemplary damages or with respect to the amount of

exemplary damages awarded shall state, in a written opinion, the

court's reasons for upholding or disturbing the finding or award.

The written opinion shall address the evidence or lack of

evidence with specificity, as it relates to the liability for or

amount of exemplary damages, in light of the requirements of this

chapter.

(b) This section does not apply to the supreme court with

respect to its consideration of an application for writ of error.

Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1,

1995.