CHAPTER 71. WRONGFUL DEATH; SURVIVAL; INJURIES OCCURRING OUT OF STATE
CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 71. WRONGFUL DEATH; SURVIVAL; INJURIES OCCURRING OUT OF
STATE
SUBCHAPTER A. WRONGFUL DEATH
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Amended by Acts 2003, 78th Leg., ch. 822, Sec. 1.01, eff. Sept.
1, 2003.
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Amended by Acts 2003, 78th Leg., ch. 822, Sec. 1.02, eff. Sept.
1, 2003.
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Sec. 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, Sec. 1.03, eff. Sept. 1,
2003.
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Sec. 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, Sec. 1, eff. May 29,
1999.
SUBCHAPTER B. SURVIVAL
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Sec. 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, Sec. 2, eff. May 29,
1999.
SUBCHAPTER C. DEATH OR INJURY CAUSED BY ACT OR OMISSION OUT OF
STATE
Sec. 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, Sec. 1, eff. Sept. 1, 1985.
Amended by Acts 1997, 75th Leg., ch. 424, Sec. 3, eff. May 29,
1997.
SUBCHAPTER D. FORUM NON CONVENIENS
Sec. 71.051. FORUM NON CONVENIENS. (a) Repealed by Acts 2003,
78th Leg., ch. 204, Sec. 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 shall 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, which shall include
consideration of the extent to which an injury or death resulted
from acts or omissions that occurred in this state; 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 that grants a motion to stay or dismiss an action
under the doctrine of forum non conveniens shall set forth
specific findings of fact and conclusions of law.
(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, Sec. 1, eff. Aug. 30, 1993.
Amended by Acts 1995, 74th Leg., ch. 567, Sec. 1, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 424, Sec. 1, eff. May 29, 1997;
Acts 2003, 78th Leg., ch. 204, Sec. 3.04, 3.09, eff. Sept. 1,
2003.
Amended by:
Acts 2005, 79th Leg., Ch.
248, Sec. 1, eff. September 1, 2005.