PJC Business

D AMAGES

PJC 115.43

described as a third-degree felony in Tex. Penal Code § 31.03, and (3) the jury has pre viously found that the defendant committed conduct authorizing recovery of exem plary damages as set out in Tex. Civ. Prac. & Rem. Code § 41.003. See Tex. Civ. Prac. & Rem. Code §41.008(c)(13). If the jury finds conduct that violates Tex. Penal Code ch. 31, and that conduct rises to the level of a third-degree felony, the limitations on exemplary damages awards set out in Tex. Civ. Prac. & Rem. Code § 41.008(b) do not apply. Tex. Civ. Prac. & Rem. Code §41.008(c)(13). See comments below, “‘Value’ and requirement that conduct be described as a third-degree felony” and “Theft of property of elderly individual,” for discussions of the requirements needed to establish that the conduct in question was felonious. Source of instruction and definition. The question and instructions are derived from Tex. Penal Code §§ 1.07(a)(11), (a)(35), 6.03(a), 31.01(2)–(5), 31.03, 31.08; Tex. Civ. Prac. & Rem. Code § 41.008. Bifurcation. If a defendant has requested a bifurcated trial pursuant to Tex. Civ. Prac. & Rem. Code § 41.009, PJC 115.43 should be answered in the first phase of the trial. See Transportation Insurance Co. v. Moriel , 879 S.W.2d 10, 30 (Tex. 1994) (not ing that in second phase of bifurcated trial, jury is “presented evidence relevant only to the amount of punitive damages”) (emphasis added). Caveat—burden of proof. Because Tex. Civ. Prac. & Rem. Code § 41.008 iden tifies no burden of proof and Tex. R. Civ. P. 226a instructs the jury that a “yes” answer must be based on a preponderance of the evidence, this question uses a preponderance of the evidence burden of proof. Tex. R. Civ. P. 226a. For a claimant to recover exem plary damages, the jury charge must require a finding of fraud, malice, or gross negli gence by clear and convincing evidence. See Tex. Civ. Prac. & Rem. Code § 41.003(a). See PJC 115.37 and PJC 115.39 for these findings. The Penal Code provi sions listed in section 41.008 do not establish a cause of action or otherwise authorize exemplary damages. See Tex. Civ. Prac. & Rem. Code §41.003(c). Rather, if the jury finds any of the conduct listed in section 41.008(c), the limitation in section 41.008(b) does not apply. See Tex. Civ. Prac. & Rem. Code §41.008(c). As of the publication date of this edition, no Texas appellate court has definitively addressed the burden of proof for the conduct listed in section 41.008(c). Corporate defendants. For the definition of “person,” see Tex. Penal Code § 1.07(a)(38). Culpable mental state. Tex. Civ. Prac. & Rem. Code §41.008(d) states that “intentionally” has the same meaning assigned in Tex. Penal Code § 6.03(a). No civil court has clarified the mental state to be applied to the jury instructions to be used under Tex. Civ. Prac. & Rem. Code §41.008(c). However, criminal courts have in some instances applied a narrower definition of intent based on whether the offense is result- or conduct-oriented in nature. See McQueen v. State , 781 S.W.2d 600, 603 (Tex. Crim. App. 1989) (explaining difference between result- and conduct-oriented

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