Texas Civil Practice and Remedies Code §41.003: the standard for exemplary (punitive) damages

The short answer

Texas Civil Practice and Remedies Code §41.003(a) says that, except as provided by subsection (c), "exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from: (1) fraud; (2) malice; or (3) gross negligence" (CPRC §41.003). Exemplary damages are damages awarded as a penalty or by way of punishment, and the term includes punitive damages (§41.001(5)). The jury must be unanimous, and §41.008 limits the amount, with exceptions for listed felonies.

This entry provides general informational guidance and is not legal advice.

Key facts (as of October 29, 2026)

• Three grounds. Fraud, malice or gross negligence, proved by clear and convincing evidence (§41.003(a)).
• Ordinary negligence is not enough. The burden may not be shifted to the defendant or satisfied by evidence of ordinary negligence, bad faith, or a deceptive trade practice (§41.003(b)).
• A unanimous jury. Exemplary damages may be awarded only if the jury was unanimous on liability for and the amount of exemplary damages (§41.003(d)).
• Punitive damages are included. "'Exemplary damages' includes punitive damages" (§41.001(5)).
• A limit, with felony exceptions. §41.008 limits the amount; the limit does not apply to causes of action based on the felonies it lists, including intoxication assault and intoxication manslaughter (§41.008(c)).
• Last amended in 2003. The history line for §41.003 lists Acts 2003, 78th Leg., ch. 204 as its most recent amendment.

What does §41.003 say?

The official text of Tex. Civ. Prac. & Rem. Code §41.003, as published by the Texas Legislature:

Sec. 41.003. STANDARDS FOR RECOVERY OF EXEMPLARY DAMAGES. (a) Except as provided by Subsection (c), exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from: (1) fraud; (2) malice; or (3) gross negligence.

(b) The claimant must prove by clear and convincing evidence the elements of exemplary damages as provided by this section. This burden of proof may not be shifted to the defendant or satisfied by evidence of ordinary negligence, bad faith, or a deceptive trade practice.

(c) If the claimant relies on a statute establishing a cause of action and authorizing exemplary damages in specified circumstances or in conjunction with a specified culpable mental state, exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the damages result from the specified circumstances or culpable mental state.

(d) Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages.

(e) In all cases where the issue of exemplary damages is submitted to the jury, the following instruction shall be included in the charge of the court: "You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages must be unanimous."

Source: Tex. Civ. Prac. & Rem. Code §41.003, statutes.capitol.texas.gov. Text last checked October 29, 2026.

How does chapter 41 define the key terms?

The official text of four definitions in §41.001:

(2) "Clear and convincing" means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.

(5) "Exemplary damages" means any damages awarded as a penalty or by way of punishment but not for compensatory purposes. Exemplary damages are neither economic nor noneconomic damages. 'Exemplary damages' includes punitive damages.

(7) "Malice" means a specific intent by the defendant to cause substantial injury or harm to the claimant.

(11) "Gross negligence" means an act or omission: (A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Source: Tex. Civ. Prac. & Rem. Code §41.001. Section 41.001(6) adds that "fraud" means fraud other than constructive fraud.

What does it mean in plain language?

• Punishment, not compensation. Exemplary damages are not meant to compensate for a loss. The Code defines them as a penalty or punishment, separate from economic and noneconomic damages.
• A higher standard of proof. "Clear and convincing" evidence must produce a firm belief or conviction in the mind of the judge or jury. Section 41.003(b) says ordinary negligence, bad faith or a deceptive trade practice does not meet the burden.
• Gross negligence has two parts. An objective part (an extreme degree of risk, considering the probability and magnitude of potential harm to others) and a subjective part (actual awareness of the risk, but proceeding anyway with conscious indifference to the rights, safety, or welfare of others).
• Malice is about intent. It means a specific intent by the defendant to cause substantial injury or harm to the claimant.
• Other statutes can set their own conditions. Under subsection (c), when a claimant relies on a statute that authorizes exemplary damages in specified circumstances or with a specified mental state, the claimant must prove those by clear and convincing evidence.
• Unanimity. The jury must agree unanimously both on liability for exemplary damages and on the amount, and the court gives the jury the instruction quoted in subsection (e).

What other rules in chapter 41 apply?

• Other damages first. Except as provided by §41.004(b), exemplary damages may be awarded only if damages other than nominal damages are awarded (§41.004(a)).
• Another person's crime. 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, with exceptions the section lists, such as when the criminal act was committed by an employee of the defendant (§41.005).
• Each defendant separately. When there are two or more defendants, an award of exemplary damages must be specific as to a defendant, and each defendant is liable only for the amount of the award made against that defendant (§41.006).
• Two phases on request. On motion by a defendant, the court shall provide for a bifurcated trial. In the first phase, the trier of fact determines liability for compensatory and exemplary damages and the amount of compensatory damages; if liability for exemplary damages is established, the amount is decided in the second phase (§41.009).
• What the jury considers. Before making an award, the trier of fact shall consider the definition and purposes of exemplary damages, and, subject to §41.008, whether to award them and the amount are within its discretion (§41.010). In determining the amount, it shall consider evidence, if any, relating to "the nature of the wrong", "the character of the conduct involved", "the degree of culpability of the wrongdoer", "the situation and sensibilities of the parties concerned", "the extent to which such conduct offends a public sense of justice and propriety", and the defendant's total assets minus total liabilities, as §41.001(7-a) defines that factor (§41.011(a)).

What does §41.008 say about the amount?

• A limit exists. Section 41.008(b) limits the amount of exemplary damages awarded against a defendant, by a formula tied to the economic and noneconomic damages found. This entry does not restate the formula or its figures. Under §41.008(a), the trier of fact determines the amount of economic damages separately from the amount of other compensatory damages (§41.008).
• Felony exceptions. The limit does not apply to a cause of action against a defendant from whom a plaintiff seeks exemplary damages based on conduct described as a felony in the Penal Code sections listed in §41.008(c), if, except for §§49.07 and 49.08, the conduct was committed knowingly or intentionally. The list includes murder, aggravated assault, sexual assault, injury to a child, elderly individual, or disabled individual (with a health care exclusion), forgery, theft punishable as a felony of the third degree or higher, intoxication assault (§49.07), intoxication manslaughter (§49.08), and trafficking of persons (§41.008(c)). Under §41.008(d), "intentionally" and "knowingly" have the meanings assigned in Penal Code §6.03(a) and (b).
• Not told to the jury. "The provisions of this section may not be made known to a jury by any means, including voir dire, introduction into evidence, argument, or instruction" (§41.008(e)).
• Workers' compensation deaths. The Labor Code's exclusive-remedy rule "does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence", and gross negligence there has the §41.001 meaning (Lab. Code §408.001(b)-(c)). The §408.001 entry quotes the section.

Chapter 41 applies statewide, including in Houston and Harris County courts; no separate local rule was found.

When was this checked, and can it change?

The text above was last checked on October 29, 2026, against the official text published by the Texas Legislature. The Legislature can amend a statute in any session. It convenes in regular session on the second Tuesday in January of each odd-numbered year (Gov't Code §301.001), so the next regular session begins on January 12, 2027. This entry is scheduled to be rechecked against the official text by April 2027 and again after the 2027 regular session ends.

Related guides

• How Texas law shapes a car accident claim
• Drunk-driver crashes and dram shop claims in Texas
• Truck accidents on Texas highways
• Medical expenses "actually paid or incurred": the §41.0105 entry
• Wrongful death and survival: the chapter 71 entry
• Workers' compensation as the exclusive remedy: the §408.001 entry
• Texas car crash law reference: all entries

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