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The driver, and often the business that served him. Texas dram shop law makes a provider liable where it was apparent at the time of service that the person was obviously intoxicated to the extent that he presented a clear danger to himself and others, and that intoxication proximately caused the damages.
That matters because a drunk driver often carries only the state minimum policy. Two more points matter early: the exemplary damages cap may not apply against the driver, and a criminal conviction is not required for your civil case. What cannot wait is the evidence. Crash records, vehicle data, camera footage and the bar’s service records are on an automatic timer. Call 713-521-0059.
Penal Code Section 49.01(2) defines intoxicated two ways. The first is not having the normal use of mental or physical faculties by reason of alcohol, a controlled substance, a drug, a dangerous drug, a combination of them or any other substance. The second is having an alcohol concentration of 0.08 or more.
Note the first branch, because a driver under 0.08 can still be intoxicated under Texas law. A refusal to test is not, by itself, a defense to your civil claim.
Other limits apply in other settings. Under Section 522.081 of the Transportation Code, a commercial driver’s license holder is disqualified from driving a commercial vehicle for one year if tested at 0.04 or more while operating a commercial vehicle. A minor commits an offense by operating a motor vehicle in a public place with any detectable amount of alcohol.
The terms DWI and DUI are used loosely, but Texas separates them. DWI under Penal Code Section 49.04 applies to any driver who is intoxicated while operating a motor vehicle in a public place. DUI under Alcoholic Beverage Code Section 106.041 is a separate offense that applies only to minors, with any detectable amount of alcohol. In Texas the two are not interchangeable.
Chapter 2 of the Alcoholic Beverage Code provides that serving, selling or providing alcohol may be the basis of a statutory cause of action on proof of two things.
Section 2.02(c) separately makes an adult 21 or older liable for damages proximately caused by the intoxication of a minor, in the circumstances the statute describes.
The proof is on the premises, and it is on a timer. Point of sale records show how many drinks were served and over what period. Surveillance video shows the person’s condition at the bar. Server schedules show who poured, and training records show whether staff were certified. Much of it can be gone within weeks, and it is rarely handed over without a request.
Exemplary damages require clear and convincing evidence of fraud, malice or gross negligence under Section 41.003. Section 41.008 normally caps them.
Section 41.008(c) removes that cap where the claim is based on conduct described as a felony in a listed set of Penal Code sections, committed knowingly or intentionally. Two of them are Section 49.07, intoxication assault, and Section 49.08, intoxication manslaughter. For those two, the statute does not require that the conduct was knowing or intentional. The exception reaches only the defendant whose conduct it was, which is usually the driver. An uncapped exemplary damages claim can change how an insurer values your case, and it is often overlooked.
Proof of intoxication often comes from the criminal file, which can include the officer’s report, test results and video from the stop or the arrest. Those records can often be requested in the civil case, and the earlier the request goes out, the more of it is likely to still exist.
In a serious case, the recovery may come from more than one place.
UM and UIM coverage has its own procedural rules in Texas. They include the requirement of a judgment establishing the other driver’s liability and damages before the carrier owes anything. Check your own policy early by finding the declarations page, which lists each coverage and its limits. If you cannot find it, your agent or carrier can send a copy. Our page on uninsured and underinsured motorist claims explains more.
Commonly recovered expenses and damages include:
Medical damages are measured by what was actually paid or incurred under Section 41.0105, not the amount billed. Cost and necessity can be proven by affidavit under Section 18.001, unless a controverting affidavit is properly served. The affidavit does not prove causation. If someone was killed, the family has a wrongful death claim under Chapter 71. The estate has a separate survival claim for what the person suffered before death. Both should be pleaded.
Your own share of fault matters too. Under Section 33.001, you recover nothing if you are found more than 50 percent responsible. Otherwise, Section 33.012 reduces the award by your percentage of responsibility, even at exactly 50 percent.
Under Section 16.003(a), suit generally must be filed within two years after the day the claim accrues, which is usually the date of the injury. For a death claim, Section 16.003(b) runs the period from the date of death. If the drunk driver was a government employee on duty, the Tort Claims Act notice deadline also applies. The City of Houston requires written notice within 90 days.
Families often wait for the prosecution to finish before calling a lawyer. That is understandable, but it is usually the wrong order, because the criminal case can run for a year or more.
The civil case is separate and uses a lower burden of proof. An acquittal or a dismissal does not by itself end it. The bar’s video and the point of sale data will not wait that long.
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.
In the first weeks, you will likely hear from the driver’s insurer. You do not have to decide anything on that first call. Write down what you remember about the crash while it is fresh. If you do not know where the driver had been drinking, receipts, phone records and the crash report often show it. That one fact can decide whether your case is limited to the driver’s minimum policy. The bar’s surveillance and point of sale data are usually the first things lost. A preservation letter can go out right away, costs nothing and commits you to nothing.
We start by finding where the driver was served, and the first step is written notice to that business and to anyone holding video or vehicle data, so it is kept. Then we identify every source of coverage, including your own uninsured and underinsured motorist policy and any employer. We handle the evidence so you can focus on recovery.
Schiffer Law Firm is a Houston personal injury firm with 50 plus years of combined experience representing injured people across Texas.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Call 713-521-0059.
Often yes. Chapter 2 of the Alcoholic Beverage Code allows a claim where it was apparent at the time of service that the person was obviously intoxicated to the extent that he presented a clear danger to himself and others, and that intoxication proximately caused the damages.
Often not. Where the driver's conduct amounts to intoxication assault under Penal Code Section 49.07 or intoxication manslaughter under Section 49.08, Section 41.008(c) of the Civil Practice and Remedies Code removes the cap against that driver. For those two offenses, it does not require that the conduct was knowing or intentional.
Usually not, and waiting often costs evidence. The civil claim is separate and uses a lower burden of proof. Bar surveillance video and point of sale records are often overwritten long before a prosecution ends.
A civil claim does not require a conviction. An acquittal or a dismissal does not by itself end it, because the two systems ask different questions and apply different burdens of proof. What your claim does need is evidence, and much of it is on an automatic timer.
That is common. Look to your own uninsured and underinsured motorist coverage, to a dram shop claim against the business that served the driver, and to an employer if the driver was working at the time.
DWI under Penal Code Section 49.04 applies to any intoxicated driver, adult or minor. DUI in Texas is a separate offense under the Alcoholic Beverage Code that applies only to minors. Elsewhere the terms are often used interchangeably. In Texas they are not.