St. Mary's Law Journal


Lawmakers and other supporters of tort reform generally describe enacted tort reform legislation as having a positive effect on consumers. But tort reform can create new hurdles for plaintiffs seeking damage awards in civil litigation. The Texas Legislature’s 2003 House Bill 4 (H.B. 4) amendment to the Texas Civil Practice and Remedies Code (Code) represents the most recent example of major tort reform in Texas. It has yet to be seen whether H.B. 4 will meet promised expectations. What is clear is H.B. 4 will adversely affect Texas plaintiffs seeking exemplary (punitive) damages from a jury. The H.B. 4 amendment added new requirements to the Code in the Chapter 41 damages section, by requiring the jury to unanimously find both liability findings of exemplary damages and the amount of the exemplary damages award. These is in addition to the requirement that they receive a jury instruction when exemplary damages are involved. In all such cases, both the amendments and the current Code require an instruction informing the jury the decision regarding amounts must be unanimous. This is as opposed to the amendment requirements, which do not require an instruction that liability findings be unanimous. Lawyers and judges have struggled to understand the Legislative intent behind the discrepancy. The Texas Supreme Court interpreted H.B. 4 to require a jury instruction informing the jury that its liability findings for exemplary damages must also be unanimous in order for exemplary damages to be awarded to a plaintiff. Yet, the court exceeded the statutory controlling language in requiring an instruction that the jury must be unanimous in its finding for actual damages. Only time will tell how Texas plaintiffs will fare based on the changes brought by H.B. 4 in civil cases involving exemplary damages.


St. Mary's University School of Law