St. Mary's Law Journal


L. Wayne Scott


Section 33.01 of the Texas Family Code uses archaic terms and needs to be updated to eliminate confusion. This section provides an expansive statutory avenue for recovering from the parent damages previously unavailable at common law for a child's acts. However, the extent of parental liability under both of the available statutory provisions—negligence and strict liability—is disputable. While section 33.01 currently uses the terms "willful" and "malicious," these terms should be excluded in favor of "intentional" and "grossly negligent conduct." In an age when tort liability is determined more from an insurance theory than a fault theory, section 33.01 of the Texas Family Code will be an anachronism unless it is construed to impose liability where fault clearly exists. The legislative limits upon parental liability for the ordinary negligence of a child seem outmoded in light of the ready availability of liability insurance. Furthermore, consideration should be given to an expansion of parental liability, and whether it should cover the criminally negligent conduct of a child.


St. Mary's University School of Law