Texas Proportionate Responsibility for Out-of-State Counsel

Chapter 33 of the Civil Practice and Remedies Code is short, and its consequences are not. Counsel arriving from a pure comparative jurisdiction tend to underestimate two features of it.

The 51% bar

A claimant who is found more than fifty percent responsible recovers nothing. Not a reduced share — nothing.

At or below fifty percent, damages are reduced by the claimant’s percentage. So the difference between a fifty and a fifty-one finding is the entire case, and jury questions in a contested-liability file are worth preparing with that cliff in mind.

Responsible third parties

Section 33.004 permits a defendant to designate a responsible third party: someone not joined in the suit, whose conduct the jury may nonetheless apportion fault to.

The designation must generally be made at least sixty days before trial. Its effect is to allow the defendant to spread fault onto a party the plaintiff cannot recover from — a settled defendant, an immune employer, a bankrupt contractor, or a person whose identity is unknown.

• Settling parties are submitted, and their percentage reduces the recovery against those remaining.
• An unknown criminal actor may be designated in a premises security case, which is the designation that most often surprises out-of-state counsel.
• There is no requirement that the designated party be solvent, present, or reachable.

The practical consequence is that a plaintiff can win at trial and collect far less than the verdict, because a substantial share of fault sits on someone who will never pay.

Joint and several liability, and where it survives

Texas abolished pure joint and several liability. A defendant is severally liable for its own percentage only, unless it is found more than fifty percent responsible, in which case joint and several liability attaches for the whole.

There is also a narrow set of intentional-conduct exceptions under section 33.013. Outside those, the arithmetic of collection is per-defendant.

What this means for working the file

• Identify every potentially responsible party early rather than at the designation deadline. The defense will.
• Treat contributory conduct as a threshold issue, not a discount. Discovery aimed at pushing a claimant from fifty to fifty-one is aimed at the whole case.
• Model the verdict form before settling with any defendant. A settlement that leaves a large empty chair on the form can cost more than it recovers.
• In premises security cases, expect the assailant to be designated.

None of this is unusual once you have practiced here. All of it is easy to miss on a first Texas file, and the sixty-day designation deadline arrives sooner than an out-of-state schedule expects.