CIVIL PRACTICE & REMEDIES CODE
CHAPTER 33. PROPORTIONATE RESPONSIBILITY
SUBCHAPTER A. PROPORTIONATE RESPONSIBILITY
§ 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, § 1, eff. Sept. 1, 1985. Amended
by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.04, eff. Sept. 2,
1987; Acts 1995, 74th Leg., ch. 136, § 1, eff. Sept. 1, 1995.
§ 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(b) Repealed by Acts 2003, 78th Leg., ch. 204, § 4.10(1).
(c) This chapter does not apply to:
(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(d) to (h) Repealed by Acts 2003, 78th Leg., ch. 204, §
4.10(1).
Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.05, eff.
Sept. 2, 1987. Amended by Acts 1989, 71st Leg., ch. 380, § 4,
eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 136, § 1, eff.
Sept. 1, 1995; Acts 1995, 74th Leg., ch. 414, § 17, eff. Sept. 1,
1995; Acts 2001, 77th Leg., ch. 643, § 2, eff. Sept. 1, 2001;
Acts 2003, 78th Leg., ch. 204, § 4.01, 4.10(1), eff. Sept. 1,
2003.
§ 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, § 2.06, eff.
Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 136, § 1,
eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, § 4.02, eff.
Sept. 1, 2003.
§ 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, §
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, § 1, eff. Sept. 1, 1995.
Amended by Acts 2003, 78th Leg., ch. 204, § 4.03, 4.04, 4.10(2),
eff. Sept. 1, 2003.
SUBCHAPTER B. CONTRIBUTION
§ 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, §
4.10(3).
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended
by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.07, eff. Sept. 2,
1987; Acts 1995, 74th Leg., ch. 136, § 1, eff. Sept. 1, 1995;
Acts 2003, 78th Leg., ch. 204, § 4.05, 4.10(3), eff. Sept. 1,
2003.
§ 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 a percentage
equal to each settling person's percentage of responsibility.
(c) Notwithstanding Subsection (b), if the claimant in a
health 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.
Text of subsec. (d) as added by Acts 1995, 74th Leg., ch. 136, § 1
(d) 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.
Text of subsec. (d) as added by Acts 2003, 78th Leg., ch. 204, §
4.06
(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).
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended
by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.08, eff. Sept. 2,
1987; Acts 1995, 74th Leg., ch. 136, § 1, eff. Sept. 1, 1995;
Acts 2003, 78th Leg., ch. 204, § 4.06, 4.10(4), eff. Sept. 1,
2003.
§ 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);
(C) Section 20.04 (aggravated kidnapping);
(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); or
(M) conduct described in Chapter 31 the
punishment level for which is a felony of the third degree or
higher.
(c) Repealed by Acts 2003, 78th Leg., ch. 204, § 4.10(5).
(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, § 1, eff. Sept. 1, 1985. Amended
by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.09, eff. Sept. 2,
1987; Acts 1995, 74th Leg., ch. 136, § 1, eff. Sept. 1, 1995;
Acts 2003, 78th Leg., ch. 204, § 4.07, 4.10(5), eff. Sept. 1,
2003.
§ 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.
(c) If for any reason a liable defendant does not pay or
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, § 1, eff. Sept. 1, 1985. Amended
by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.11, eff. Sept. 2,
1987; Acts 1995, 74th Leg., ch. 136, § 1, eff. Sept. 1, 1995.
§ 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.
(c) The trier of fact shall determine as a separate issue or
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, § 1, eff. Sept. 1, 1985. Amended
by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.11A, eff. Sept. 2,
1987; Acts 1995, 74th Leg., ch. 136, § 1, eff. Sept. 1, 1995.
§ 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, § 1, eff. Sept. 1, 1995.
Amended by Acts 2003, 78th Leg., ch. 204, § 4.08, eff. Sept. 1,
2003.
