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Texas law allows punitive damages, which the statute calls exemplary damages, against a person who commits a sexual assault, and the usual cap on those damages generally does not apply to him. Recovering punitive damages from a business that failed to prevent the assault is much harder: Section 41.005 of the Civil Practice and Remedies Code generally bars them for another person’s crime unless a statutory exception applies, and even then the cap usually remains.
None of this limits the compensatory damages a business can owe you for your injuries. It limits one category of damages against one kind of defendant. 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.
Exemplary damages are damages “awarded as a penalty or by way of punishment but not for compensatory purposes” (Section 41.001(5)). They are awarded against a specific defendant for that defendant’s own conduct, and under Section 41.006 each defendant is liable only for the amount awarded against it. An award against the attacker is not collectible from a business co-defendant simply because both are in the same lawsuit.
Malice means “a specific intent by the defendant to cause substantial injury or harm to the claimant” (Section 41.001(7)). Gross negligence has an objective part and a subjective part: an act or omission that, viewed from the defendant’s standpoint at the time, involved an extreme degree of risk considering the probability and magnitude of the potential harm, and the defendant’s actual, subjective awareness of that risk, with conscious indifference to the rights, safety or welfare of others (Section 41.001(11), as the Texas Supreme Court has described it). An attacker’s conduct will often fit malice. A business is usually pursued on gross negligence, which is a demanding standard; a Houston court of appeals held a hotel was entitled to judgment on gross negligence where there was no evidence it actually knew its bellman posed any risk.
Under Section 41.003 the claimant must prove by clear and convincing evidence that the harm resulted from fraud, malice or gross negligence. Ordinary negligence is not enough. The jury must be unanimous on both liability for exemplary damages and the amount, and exemplary damages are generally available only if the jury awards damages other than nominal damages (Section 41.004(a)).
Generally not, and this is the rule most survivors have not heard. Section 41.005(a) states: “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.” A sexual assault is an assault and a criminal act, so a claim against a business for an assault committed by someone else ordinarily starts inside that bar.
The Fourteenth Court of Appeals in Houston has applied it twice, even where a jury found the business grossly negligent or malicious: in a massage franchise case, the exemplary damages award against the franchisor was reversed because the survivor’s own pleading tied her harm to the therapist’s crime, and in a nursing home case involving an attempted sexual assault by another resident, an award against the facility was vacated for the same reason despite a malice finding. Those are two decisions of one intermediate court, and the Texas Supreme Court has not decided the question itself; this is what that court has done, not a rule the Supreme Court has adopted.
Section 41.005(b) says the bar “does not apply” if the criminal act was committed by an employee of the defendant; if the defendant is criminally responsible as a party to the criminal act under Chapter 7 of the Penal Code; if the act occurred at a location where the defendant was maintaining a common nuisance under Chapter 125 of the Civil Practice and Remedies Code and had not made reasonable attempts to abate it; or if the act resulted from the defendant’s intentional or knowing violation of a statutory duty under Subchapter D, Chapter 92 of the Property Code after the deadline for compliance.
The employee exception has a second gate. Section 41.005(c) provides that even then the employer may be liable for punitive damages “but only if” one of four things is shown: the principal authorized the act and the manner of it; the agent was unfit and the principal acted with malice in employing or retaining him; the agent was employed in a managerial capacity and was acting in the scope of employment; or the employer or a manager ratified or approved the act. In an employee sexual assault case the second ground is the usual one, and it requires malice in the hiring or retention, not merely carelessness. A negligent hiring claim can succeed on compensatory damages and still fall short here.
Section 41.008(b) limits exemplary damages awarded against a defendant to the greater of two times the amount of economic damages plus an amount equal to any noneconomic damages found by the jury, not to exceed $750,000, or $200,000. Those figures are the statutory cap on this one category of damages; they say nothing about what any case is worth, and the jury is not told about them.
Section 41.008(c) removes the cap for “a cause of action against a defendant from whom a plaintiff seeks recovery of exemplary damages based on conduct described as a felony” in listed Penal Code sections, if the conduct was committed knowingly or intentionally. Sexual assault (Section 22.011), aggravated sexual assault (Section 22.021), continuous sexual abuse of a young child or disabled individual (Section 21.02) and trafficking of persons (Chapter 20A) are on the list. Indecency with a child (Section 21.11) is not.
The exception is written in terms of the defendant’s own conduct. It typically reaches the attacker, whose conduct is the felony, and not a business that was negligent. A business pursued for gross negligence would ordinarily remain under the cap. There may be facts, such as trafficking or party liability, in which a business’s own conduct is alleged to meet a listed felony; whether the exception could ever reach a business is a question for the facts of a particular case.
On a defendant’s timely motion, the trial is split (Section 41.009). The jury first decides liability and compensatory damages and whether the defendant is liable for exemplary damages; only if it answers yes does a second phase decide the amount, where evidence such as net worth comes in. Net worth discovery requires a court finding of a substantial likelihood of success on the exemplary damages claim (Section 41.0115). No prejudgment interest runs on exemplary damages (Section 41.007).
The practical picture: the attacker is the defendant most exposed to punitive damages and least protected by the cap, and often the least able to pay. The business is the defendant most likely to be insured, and the most protected from this one category of damages. Your compensatory claim against the business is not limited by any of it.
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 business holding video and records, so the evidence of what it knew is kept while the damages questions above are worked through.
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 which categories of damages appear to be open against each defendant and what each would take. 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.
It lifts the Section 41.005(a) bar, but Section 41.005(c) still requires one of four showings, most often that the employee was unfit and the employer acted with malice in hiring or keeping him, and gross negligence or malice must still be proven by clear and convincing evidence.
The exception is tied to the defendant whose own conduct is the listed felony. It typically reaches the attacker, not a business that was negligent, which ordinarily remains under the Section 41.008(b) cap.
Not as Section 41.008(c) is written today. Continuous sexual abuse of a young child or disabled individual under Penal Code Section 21.02 is listed; Section 21.11 is not.
No. Section 41.005 addresses exemplary damages only. Medical costs, counseling, lost income and the other harms you suffered are governed by other law and are not limited by it.