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In a Texas civil case, the jury assigns each party a percentage of responsibility, and that can include the attacker if the business asks the court to add him to the question. You can recover unless your own percentage is more than 50 percent, and any percentage on you reduces the recovery. A business generally pays only its own share, but if the jury puts more than 50 percent on the business, it can be held liable for the whole recoverable compensatory award. The statute is Chapter 33 of the Civil Practice and Remedies Code.
This is the part of a sexual assault lawsuit that most surprises survivors, and it is where the business’s own records matter most. Call 713-521-0059 and we will tell you what your case needs and get it started, beginning with written notice to whoever holds the video and records so it is kept.
Usually it will try. Section 33.003 tells the jury to assign a percentage to each claimant, each defendant, each settling person and each “responsible third party,” and the standard reaches any conduct that “violates an applicable legal standard.” On the statute’s face a criminal assault qualifies, and a Houston court of appeals has allowed it. So the attacker can appear on the jury’s question next to the business whose fault is negligent security or negligent hiring, and the defense will ask the jury to put most of the percentage on him.
Texas law does not appear to carve intentional crimes out of this question, but a submission still needs evidence to support it, and you can move to strike a designation that nothing supports after there has been time for discovery (Section 33.004(l)).
He can still be put on the question. Section 33.004(j) lets a defendant that alleges, within 60 days of its original answer, that an unknown person committed a criminal act causing the injury ask the court to designate a “John Doe” or “Jane Doe” as a responsible third party, if the pleading meets the pleading rules, shows a reasonable probability the act was criminal and gives every known identifying characteristic. A Houston court of appeals applied that subsection in a 2024 memorandum opinion in a tenant’s rape case, directing the trial court to let the apartment owner designate “John Doe, Unknown Criminal Assailant.”
Being designated does not make the attacker liable to anyone, and the finding cannot be used in another proceeding to impose liability on him (Section 33.004(i)). The Texas Supreme Court has held that a defendant wrongly denied a timely designation can obtain mandamus relief, so trial courts rarely refuse one. What it can do is move percentage points away from the business. That is why the evidence of what the business knew and did, discussed below, is the center of the case.
The default is several liability: under Section 33.013(a), “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.” Two exceptions make a defendant jointly and severally liable for the full recoverable amount.
The first, Section 33.013(b)(1), is the one that matters in most survivor cases: the defendant’s percentage of responsibility is greater than 50 percent. If the jury puts 51 percent or more on the business, the business can be held for the whole recoverable amount, including the attacker’s share.
The second, Section 33.013(b)(2), applies to a defendant who, with the specific intent to do harm to others, acted in concert with another person to commit certain Penal Code offenses, including sexual assault (Section 22.011) and aggravated sexual assault (Section 22.021). That ordinarily describes an accomplice, not a negligent business. Expect the defense to say so, and expect it to be right in most premises cases. The realistic path to full recovery against a business is persuading the jury that its failures were the larger cause.
It may try. Under Section 33.001 a claimant “may not recover damages if his percentage of responsibility is greater than 50 percent.” If your percentage is 50 percent or less, Section 33.012(a) reduces your recovery by that percentage; it does not end the case. The Texas Supreme Court has described a plaintiff’s own risky conduct as something that is now “absorbed into the allocation of damages through comparative responsibility” rather than a complete bar, in a case where a bar operator was found 51 percent responsible and the injured patron 49 percent. The Court has also held, in a wrongful death case, that a plaintiff’s own illegal conduct is apportioned under Chapter 33 rather than barring recovery, and it has applied the same apportionment between a store that sold alcohol and the intoxicated driver who caused the crash.
Whether a defense can even submit a survivor’s conduct, such as having had a drink or accepting a ride, is contested in these cases, and there may be evidentiary limits. What the statute does say is that a percentage on you reduces rather than eliminates recovery unless it exceeds half.
Under Section 33.012(b), when you settle with one person, the remaining defendants’ liability is reduced by the dollar amount of that settlement, not by the settling person’s percentage, in most cases; health care liability claims follow a different rule. In a case with an attacker and one or more businesses, the order and size of settlements change what the remaining defendants owe, which is a reason to have a lawyer plan the sequence rather than take the first offer.
Chapter 33 divides fault after liability is found. Whether the business owed you a duty at all is a separate and prior question, governed by premises law. The Texas Supreme Court weighs the proximity, recency, frequency, similarity and publicity of prior crimes together to decide whether an assault was foreseeable, and has also recognized a duty where a business had actual knowledge of an imminent risk that night. The records that answer those questions, incident reports, police calls, security logs and video, are the records that disappear first, and they are also what moves the percentage from the attacker to the business. See who is responsible for a sexual assault and negligent security.
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
If you remember nothing else from this page, remember these.
When you call, we listen first. Then we do what your case needs. That usually begins with written notice to the hotel, apartment complex, bar or company holding video and records, so the evidence that decides the percentages is kept.
Where the case calls for it, we bring in the right experts and, where it serves you, co-counsel with the resources a case like this demands. That decision is made in writing, with your consent, and it does not increase your total fee.
We tell you plainly how Chapter 33 is likely to shape your case and what it would take to hold the business to its full share. Schiffer Law Firm is a Houston firm and has handled injury cases in Harris County for 50 plus years. There is no charge to talk, and no attorney’s fee unless there is a recovery.
Written by Jacob Schiffer, Attorney, Schiffer Law Firm. State Bar of Texas No. 24105175.
Call 713-521-0059.
No. A defendant can ask the court to designate him as a responsible third party under Section 33.004, including as a John Doe if he was never identified. The designation alone does not make him liable to anyone.
Generally its 40 percent share only, under Section 33.013(a). The complex pays the whole recoverable amount only if an exception in Section 33.013(b) applies, most often a finding that its own percentage was more than 50.
Yes, if your percentage is 50 percent or less. Your damages are reduced by that percentage. Whether a defense can submit a survivor's conduct at all is contested and depends on the evidence.
Usually not. Section 33.013(b)(2) requires proof that the defendant itself acted with specific intent to do harm and in concert with the attacker, which does not ordinarily describe a negligent business.