CIVIL PRACTICE & REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 71. WRONGFUL DEATH; SURVIVAL; INJURIES OCCURRING OUT OF
STATE
SUBCHAPTER A. WRONGFUL DEATH
§ 71.001. DEFINITIONS. In this subchapter:
(1) 'Corporation' means a municipal, private, public,
or quasi-public corporation other than a county or a common or
independent school district.
(2) 'Person' means an individual, association of
individuals, joint-stock company, or corporation or a trustee or
receiver of an individual, association of individuals, joint-stock
company, or corporation.
(3) 'Death' includes, for an individual who is an
unborn child, the failure to be born alive.
(4) 'Individual' includes an unborn child at every
stage of gestation from fertilization until birth.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended
by Acts 2003, 78th Leg., ch. 822, § 1.01, eff. Sept. 1, 2003.
§ 71.002. CAUSE OF ACTION. (a) An action for actual
damages arising from an injury that causes an individual's death
may be brought if liability exists under this section.
(b) A person is liable for damages arising from an injury
that causes an individual's death if the injury was caused by the
person's or his agent's or servant's wrongful act, neglect,
carelessness, unskillfulness, or default.
(c) A person is liable for damages arising from an injury
that causes an individual's death if:
(1) the person is a proprietor, owner, charterer, or
hirer of an industrial or public utility plant or of a railroad,
street railway, steamboat, stagecoach, or other vehicle for the
transportation of goods or passengers; and
(2) the injury was caused by the person's or his
agent's or servant's wrongful act, neglect, carelessness,
unskillfulness, or default.
(d) A person is liable for damages arising from an injury
that causes an individual's death if:
(1) the person is a receiver, trustee, or other person
in charge of or in control of a railroad, street railway, steamboat,
stagecoach, or other vehicle for the transportation of goods or
passengers, of an industrial or public utility plant, or of other
machinery; and
(2) the injury was caused by:
(A) the person's wrongful act, neglect,
carelessness, unskillfulness, or default;
(B) the person's servant's or agent's wrongful
act, neglect, carelessness, unfitness, unskillfulness, or default;
or
(C) a bad or unsafe condition of the railroad,
street railway, or other machinery under the person's control or
operation.
(e) A person is liable for damages arising from an injury
that causes an individual's death if:
(1) the person is a receiver, trustee, or other person
in charge of or in control of a railroad, street railway, steamboat,
stagecoach, or other vehicle for the transportation of goods or
passengers, of an industrial or public utility plant, or of other
machinery; and
(2) the action could have been brought against the
owner of the railroad, street railway, or other machinery if he had
been acting as operator.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
§ 71.003. APPLICATION; CERTAIN CONDUCT
EXCEPTED. (a) This subchapter applies only if the individual
injured would have been entitled to bring an action for the injury
if the individual had lived or had been born alive.
(b) This subchapter applies whether the injury occurs
inside or outside this state.
(c) This subchapter does not apply to a claim for the death
of an individual who is an unborn child that is brought against:
(1) the mother of the unborn child;
(2) a physician or other licensed health care
provider, if the death is the intended result of a lawful medical
procedure performed by the physician or health care provider with
the requisite consent;
(3) a person who dispenses or administers a drug in
accordance with law, if the death is the result of the dispensation
or administration of the drug; or
(4) a physician or other health care provider licensed
in this state, if the death directly or indirectly is caused by,
associated with, arises out of, or relates to a lawful medical or
health care practice or procedure of the physician or the health
care provider.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended
by Acts 2003, 78th Leg., ch. 822, § 1.02, eff. Sept. 1, 2003.
§ 71.004. BENEFITTING FROM AND BRINGING
ACTION. (a) An action to recover damages as provided by this
subchapter is for the exclusive benefit of the surviving spouse,
children, and parents of the deceased.
(b) The surviving spouse, children, and parents of the
deceased may bring the action or one or more of those individuals
may bring the action for the benefit of all.
(c) If none of the individuals entitled to bring an action
have begun the action within three calendar months after the death
of the injured individual, his executor or administrator shall
bring and prosecute the action unless requested not to by all those
individuals.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
§ 71.005. EVIDENCE RELATING TO MARITAL STATUS. In an
action under this subchapter, evidence of the actual ceremonial
remarriage of the surviving spouse is admissible, if it is true, but
the defense is prohibited from directly or indirectly mentioning or
alluding to a common-law marriage, an extramarital relationship, or
the marital prospects of the surviving spouse.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
§ 71.0055. EVIDENCE OF PREGNANCY. In an action under
this subchapter for the death of an individual who is an unborn
child, the plaintiff shall provide medical or other evidence that
the mother of the individual was pregnant at the time of the
individual's death.
Added by Acts 2003, 78th Leg., ch. 822, § 1.03, eff. Sept. 1,
2003.
§ 71.006. EFFECT OF FELONIOUS ACT. An action under this
subchapter is not precluded because the death is caused by a
felonious act or because there may be a criminal proceeding in
relation to the felony.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
§ 71.007. INEFFECTIVE AGREEMENT. An agreement between
the owner of a railroad, street railway, steamboat, stagecoach, or
other vehicle for the transportation of goods or passengers, of an
industrial or public utility plant, or of other machinery and an
individual, corporation, trustee, receiver, lessee, joint-stock
association, or other entity in control of or operating the
vehicle, plant, or other machinery does not release the owner or the
entity controlling or operating the vehicle, plant, or other
machinery from liability provided by this subchapter.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
§ 71.008. DEATH OF DEFENDANT. (a) If a defendant dies
while an action under this subchapter is pending or if the
individual against whom the action may have been instituted dies
before the action is begun, the executor or administrator of the
estate may be made a defendant, and the action may be prosecuted as
though the defendant or individual were alive.
(b) A judgment in favor of the plaintiff shall be paid in due
course of administration.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
§ 71.009. EXEMPLARY DAMAGES. When the death is caused
by the wilful act or omission or gross negligence of the defendant,
exemplary as well as actual damages may be recovered.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
§ 71.010. AWARD AND APPORTIONMENT OF DAMAGES. (a) The
jury may award damages in an amount proportionate to the injury
resulting from the death.
(b) The damages awarded shall be divided, in shares as found
by the jury in its verdict, among the individuals who are entitled
to recover and who are alive at that time.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
§ 71.011. DAMAGES NOT SUBJECT TO DEBTS. Damages
recovered in an action under this subchapter are not subject to the
debts of the deceased.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
§ 71.012. QUALIFICATION OF FOREIGN PERSONAL
REPRESENTATIVE. If the executor or administrator of the estate of
a nonresident individual is the plaintiff in an action under this
subchapter, the foreign personal representative of the estate who
has complied with the requirements of Section 95, Texas Probate
Code, for the probate of a foreign will is not required to apply for
ancillary letters testamentary under Section 105, Texas Probate
Code, to bring and prosecute the action.
Added by Acts 1999, 76th Leg., ch. 382, § 1, eff. May 29, 1999.
SUBCHAPTER B. SURVIVAL
§ 71.021. SURVIVAL OF CAUSE OF ACTION. (a) A cause of
action for personal injury to the health, reputation, or person of
an injured person does not abate because of the death of the injured
person or because of the death of a person liable for the injury.
(b) A personal injury action survives to and in favor of the
heirs, legal representatives, and estate of the injured person.
The action survives against the liable person and the person's
legal representatives.
(c) The suit may be instituted and prosecuted as if the
liable person were alive.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
§ 71.022. QUALIFICATION OF FOREIGN PERSONAL
REPRESENTATIVE. If the executor or administrator of the estate of
a nonresident individual is the plaintiff in an action under this
subchapter, the foreign personal representative of the estate who
has complied with the requirements of Section 95, Texas Probate
Code, for the probate of a foreign will is not required to apply for
ancillary letters testamentary under Section 105, Texas Probate
Code, to bring and prosecute the action.
Added by Acts 1999, 76th Leg., ch. 382, § 2, eff. May 29, 1999.
SUBCHAPTER C. DEATH OR INJURY CAUSED BY ACT OR OMISSION OUT OF STATE
§ 71.031. ACT OR OMISSION OUT OF STATE. (a) An action
for damages for the death or personal injury of a citizen of this
state, of the United States, or of a foreign country may be enforced
in the courts of this state, although the wrongful act, neglect, or
default causing the death or injury takes place in a foreign state
or country, if:
(1) a law of the foreign state or country or of this
state gives a right to maintain an action for damages for the death
or injury;
(2) the action is begun in this state within the time
provided by the laws of this state for beginning the action;
(3) for a resident of a foreign state or country, the
action is begun in this state within the time provided by the laws
of the foreign state or country in which the wrongful act, neglect,
or default took place; and
(4) in the case of a citizen of a foreign country, the
country has equal treaty rights with the United States on behalf of
its citizens.
(b) Except as provided by Subsection (a), all matters
pertaining to procedure in the prosecution or maintenance of the
action in the courts of this state are governed by the law of this
state.
(c) The court shall apply the rules of substantive law that
are appropriate under the facts of the case.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended
by Acts 1997, 75th Leg., ch. 424, § 3, eff. May 29, 1997.
SUBCHAPTER D. FORUM NON CONVENIENS
§ 71.051. FORUM NON CONVENIENS. (a) Repealed by Acts
2003, 78th Leg., ch. 204, § 3.09.
(b) If a court of this state, on written motion of a party,
finds that in the interest of justice and for the convenience of the
parties a claim or action to which this section applies would be
more properly heard in a forum outside this state, the court shall
decline to exercise jurisdiction under the doctrine of forum non
conveniens and shall stay or dismiss the claim or action. In
determining whether to grant a motion to stay or dismiss an action
under the doctrine of forum non conveniens, the court may consider
whether:
(1) an alternate forum exists in which the claim or
action may be tried;
(2) the alternate forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of
this state would work a substantial injustice to the moving party;
(4) the alternate forum, as a result of the submission
of the parties or otherwise, can exercise jurisdiction over all the
defendants properly joined to the plaintiff's claim;
(5) the balance of the private interests of the
parties and the public interest of the state predominate in favor of
the claim or action being brought in an alternate forum; and
(6) the stay or dismissal would not result in
unreasonable duplication or proliferation of litigation.
(c) The court may set terms and conditions for staying or
dismissing a claim or action under this section as the interests of
justice may require, giving due regard to the rights of the parties
to the claim or action. If a moving party violates a term or
condition of a stay or dismissal, the court shall withdraw the order
staying or dismissing the claim or action and proceed as if the
order had never been issued. Notwithstanding any other law, the
court shall have continuing jurisdiction for purposes of this
subsection.
(d) A request for stay or dismissal under this section is
timely if it is filed not later than 180 days after the time
required for filing a motion to transfer venue of the claim or
action. The court may rule on a motion filed under this section only
after a hearing with notice to all parties not less than 21 days
before the date specified for the hearing. The court shall afford
all of the parties ample opportunity to obtain discovery of
information relevant to the motion prior to a hearing on a motion
under this section. The moving party shall have the responsibility
to request and obtain a hearing on such motion at a reasonable time
prior to commencement of the trial, and in no case shall the hearing
be held less than 30 days prior to trial.
(e) The court may not stay or dismiss a plaintiff's claim
under Subsection (b) if the plaintiff is a legal resident of this
state. If an action involves both plaintiffs who are legal
residents of this state and plaintiffs who are not, the court may
not stay or dismiss the action under Subsection (b) if the
plaintiffs who are legal residents of this state are properly
joined in the action and the action arose out of a single
occurrence. The court shall dismiss a claim under Subsection (b) if
the court finds by a preponderance of the evidence that a party was
joined solely for the purpose of obtaining or maintaining
jurisdiction in this state and the party's claim would be more
properly heard in a forum outside this state.
(f) A court may not stay or dismiss a claim or action
pursuant to Subsection (b) if a party opposing the motion under
Subsection (b) alleges and makes a prima facie showing that an act
or omission that was a proximate or producing cause of the injury or
death occurred in this state. The prima facie showing need not be
made by a preponderance of the evidence and shall be deemed to be
satisfied if the party produces credible evidence in support of the
pleading, which evidence need not be in admissible form and may
include affidavits, deposition testimony, discovery responses, or
other verified evidence.
(g) Any time limit established by this section may be
extended by the court at the request of any party for good cause
shown.
(h) In this section:
(1) 'Legal resident' means an individual who intends
the specified political subdivision to be his permanent residence
and who intends to return to the specified political subdivision
despite temporary residence elsewhere or despite temporary
absences, without regard to the individual's country of citizenship
or national origin. The term does not include an individual who
adopts a residence in the specified political subdivision in bad
faith for purposes of avoiding the application of this section.
(2) 'Plaintiff' means a party seeking recovery of
damages for personal injury or wrongful death. In a cause of action
in which a party seeks recovery of damages for personal injury to or
the wrongful death of another person, 'plaintiff' includes both
that other person and the party seeking such recovery. The term
does not include a counterclaimant, cross-claimant, or third-party
plaintiff or a person who is assigned a cause of action for personal
injury, or who accepts an appointment as a personal representative
in a wrongful death action, in bad faith for purposes of affecting
in any way the application of this section.
(i) This section applies to actions for personal injury or
wrongful death. This section shall govern the courts of this state
in determining issues under the doctrine of forum non conveniens in
the actions to which it applies, notwithstanding Section 71.031(a)
or any other law.
Added by Acts 1993, 73rd Leg., ch. 4, § 1, eff. Aug. 30, 1993.
Amended by Acts 1995, 74th Leg., ch. 567, § 1, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 424, § 1, eff. May 29, 1997;
Acts 2003, 78th Leg., ch. 204, § 3.04, 3.09, eff. Sept. 1, 2003.
