Chapter 33 of the Texas Civil Practice and Remedies Code: The 51% Bar

Chapter 33 of the Texas Civil Practice and Remedies Code is the state’s proportionate responsibility statute: in a personal injury, wrongful death, or property damage case, the jury gives each person involved a whole-number percentage of fault, and those percentages control both whether the injured person can recover at all and how much each defendant has to pay. If the injured party’s share of fault comes in above 50 percent, the recovery is zero. Below that line, the award shrinks by the claimant’s percentage and by any prior settlements, and each defendant generally pays only their own share.

Which Cases Chapter 33 Governs

The statute reaches two broad categories. It applies to any tort cause of action in which a defendant, settling person, or responsible third party bears some share of fault. That takes in negligence claims like car wrecks, premises liability, and medical malpractice, along with strict liability claims for defective products. It also applies to actions under the Deceptive Trade Practices-Consumer Protection Act when a defendant or third party is found responsible for part of the harm.¹

Three types of claims sit outside the chapter. Actions to collect workers’ compensation benefits under Texas law, and exemplary damage claims against an employer for an employee’s death, are excluded. Exemplary (punitive) damages themselves are carved out, so even in a case where Chapter 33 governs the compensatory side, the punitive portion runs on separate rules. And damage claims arising from methamphetamine manufacturing under Chapter 99 are excluded.¹

How the Jury Assigns Percentages of Fault

The jury’s core task is to assign a percentage of responsibility, stated in whole numbers, to every person who caused or contributed to the injury. The statute requires the jury to look at four groups: each claimant, each defendant still in the case at trial, each settling person who resolved with the claimant before trial, and each responsible third party designated under Section 33.004.²

The fault the jury considers is broad. It covers negligent acts or omissions, defective or unreasonably dangerous products, and any other conduct that violates a legal standard. A person’s percentage can be based on any combination of those theories. One guardrail: the court cannot submit a fault question about a person to the jury unless the evidence supports it. A defendant cannot simply name someone else and hope the jury shifts blame without a factual basis.²

The definition of “claimant” is wider than the person named in the caption. It includes the injured person, anyone seeking damages for that person’s injury or death, and anyone who could seek such damages. In a wrongful death case, every family member with a potential claim is a claimant when the 51 percent rule is applied.³

The 51 Percent Bar

Texas runs a modified comparative fault system with a hard cutoff. If the claimant’s percentage of responsibility is greater than 50 percent, the claimant recovers nothing, no matter how severe the injuries or how much fault others share. The result is a take-nothing judgment.⁴

At 50 percent or below, recovery is still available, but the total award drops by the claimant’s share. A claimant found 30 percent responsible for a $200,000 injury recovers $140,000. A claimant found 50 percent responsible for the same injury recovers $100,000. At 51 percent, the recovery drops to zero. Because percentages must be whole numbers, there is no 50.5. The jury picks a whole number and the outcome follows.²

How the Court Calculates the Award

Once the jury returns total damages and fault percentages, the court applies the formula in two steps. First, the total damages are reduced by the claimant’s percentage of responsibility. Second, the damages are further reduced by the dollar amount of any settlements the claimant reached before trial.⁵

An example: a jury finds $500,000 in total damages and puts the claimant at 20 percent fault. The court cuts the award by 20 percent, leaving $400,000. If the claimant had settled with one defendant earlier for $75,000, the court subtracts that settlement, and the net recovery is $325,000. The remaining defendants owe their proportionate shares of that $325,000 based on their own fault percentages.

Health care liability claims under Chapter 74 use a different settlement credit. In those cases, the remaining defendants can choose between two credit methods: subtracting the dollar amount of all settlements, or subtracting a percentage equal to each settling person’s share of fault as found by the jury. A defendant elects in writing before the case goes to the jury, and the election binds all defendants. If no one elects, or elections conflict, the default is the dollar-amount method.⁵

The two methods can produce very different numbers. If a settling defendant paid $50,000 but the jury later assigns that defendant 40 percent of the fault on a $500,000 verdict, the dollar-amount credit cuts the judgment by $50,000, while the percentage credit cuts it by $200,000.

When a Defendant Pays More Than Their Share

Under Chapter 33, most defendants pay only their own proportionate share. A defendant found 15 percent at fault on a $300,000 judgment owes $45,000 and nothing more, even if the other defendants are insolvent or gone. Proportionate-only liability is the general rule.⁶

Joint and several liability applies in two situations. First, any defendant whose assigned percentage exceeds 50 percent becomes jointly and severally liable for the entire judgment, meaning the claimant can collect the full amount from that one defendant. Second, joint and several liability applies when a defendant acted in concert with another person with the specific intent to do harm, and the underlying conduct falls within a listed set of serious criminal offenses that includes murder, aggravated kidnapping, sexual assault, aggravated assault, and certain felony-level theft offenses. The claimant must prove specific intent to cause substantial harm; negligence or recklessness is not enough.⁶

Responsible Third Parties

One of the most consequential parts of Chapter 33 lets defendants bring non-parties into the fault picture. A defendant can move for leave to designate someone as a “responsible third party,” and if the court grants it, the jury will assign that person a percentage of fault. That percentage comes out of the fault pool available for the named defendants, and because the third party is not in the case, the claimant cannot collect from them.

The motion is due on the 60th day before trial, though a court can allow a late filing for good cause. If no other party objects within 15 days of being served with the motion, the court must grant it. If someone objects, the court still grants it unless the objecting party shows the defendant failed to plead sufficient facts about the third party’s responsibility even after a chance to replead.⁷

After discovery, a party can move to strike the designation on the ground that there is no evidence the third party caused any harm. The court will strike unless the defendant produces enough evidence to raise a genuine factual dispute about the third party’s responsibility. Getting a designation is fairly easy at the front end; keeping it through trial takes actual evidence.⁷

Two limits protect claimants. A defendant cannot designate a responsible third party after limitations has run on the claimant’s claim against that person if the defendant failed to disclose the person on time under the Texas Rules of Civil Procedure. And a designation imposes no liability on the person designated; it cannot be used against them in another lawsuit through res judicata or collateral estoppel.⁷

The practical effect drives strategy on both sides. If the jury assigns a responsible third party 25 percent of the fault, that 25 percent effectively vanishes from the claimant’s recovery, because the third party is not on the hook. Plaintiffs’ attorneys watch these motions closely for that reason.

Contribution Among Defendants

When a jointly and severally liable defendant pays more than their proportionate share, Chapter 33 gives them a right of contribution against the other jointly and severally liable defendants. Among themselves, each is responsible for a share equal to their own fault percentage, and a defendant who overpays can seek reimbursement from a co-defendant who underpaid.⁸

If one jointly and severally liable defendant simply cannot pay, the shortfall gets redistributed among the remaining jointly and severally liable defendants in proportion to their fault percentages. No defendant has any right of contribution against someone who already settled with the claimant before trial. That insulation is one of the main reasons early settlement matters in multi-defendant litigation.⁸

Chapter 33 and Medical Malpractice Caps

Chapter 33 controls how fault is allocated, not how much a claimant can ultimately recover in a medical case. The cap on non-economic and total damages in health care claims lives in Chapter 74. Under Section 74.303, total damages in a wrongful death or survival action against a physician or health care provider are capped at $500,000 per claimant, adjusted for changes in the consumer price index since August 1977. The cap includes exemplary damages but does not cover past or future medical expenses.⁹

Because of the CPI adjustment, which runs from August 29, 1977 to the date of the final judgment or settlement, the effective ceiling in any given case is meaningfully higher than the nominal $500,000 figure. Chapter 33 does its work first on allocation; Chapter 74 then sets the ceiling on what a medical malpractice claimant can actually take home.

1
State of Texas. Texas Civil Practice and Remedies Code 33.002 – Applicability
2
State of Texas. Texas Civil Practice and Remedies Code 33.003 – Determination of Percentage of Responsibility
3
State of Texas. Texas Civil Practice and Remedies Code 33.011 – Definitions
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State of Texas. Texas Civil Practice and Remedies Code 33.001 – Proportionate Responsibility
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State of Texas. Texas Civil Practice and Remedies Code 33.012 – Amount of Recovery
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State of Texas. Texas Civil Practice and Remedies Code 33.013 – Amount of Liability
7
State of Texas. Texas Civil Practice and Remedies Code 33.004 – Designation of Responsible Third Party
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State of Texas. Texas Civil Practice and Remedies Code 33.015 – Contribution
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State of Texas. Texas Civil Practice and Remedies Code 74.303 – Limitation on Damages