PJC Business

D AMAGES

PJC 115.43

3. given solely to detect the commission of an offense. See Tex. Penal Code §31.01(3)(B)–(D). If the defendant’s knowledge of a fact is in issue (as in option 1 above), the definition of “knowing conduct” found at Tex. Penal Code § 6.03(b) should be given. Theft of services and trade secrets. Tex. Penal Code §31.04 should be con sulted if the alleged theft was of services rather than of property, and Tex. Penal Code § 31.05 should be consulted if the alleged theft was of a trade secret. “Value” and requirement that conduct be described as a third-degree felony. Tex. Civ. Prac. & Rem. Code §41.008(c)(13) requires that the theft be at a level of a third-degree felony or higher in order to lift the limitation or cap on exemplary dam ages awards. The general criterion for a third-degree felony is that the property or ser vice have a value of $30,000 or higher but less than $150,000. Tex. Penal Code §31.03(e)(5). The optional language in the basic question in PJC 115.43 makes this inquiry, if there is a dispute about the value of what was stolen. Tex. Penal Code § 31.08 contains additional criteria for ascertaining value to determine the level of the offense, and Tex. Penal Code §31.03 contains additional, nonmonetary criteria for ascertaining the level of the offense. Theft of property of elderly individual. If the owner of the property appropri ated at the time of the offense was an elderly individual, the offense is a third-degree felony if the value of the property stolen is $2,500 or more. Tex. Penal Code §31.03(f)(3). “Elderly individual” means a person sixty-five years of age or older. Tex. Penal Code § 31.01(10). Unanimity. PJC 115.43 does not require a unanimous jury finding of the conduct listed in Tex. Civ. Prac. & Rem. Code § 41.008(c). Under chapter 41 of the Texas Civil Practice and Remedies Code, “exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary dam ages.” Tex. Civ. Prac. & Rem. Code § 41.003(d). This is consistent with Tex. R. Civ. P. 292(b), which requires jury unanimity for awards of exemplary damages—an excep tion to the general rule (stated in rule 292(a)) that the agreement of ten of twelve jurors is required to render a verdict. Section 41.003 specifically provides an instruction on unanimity that addresses the amount of damages. Tex. Civ. Prac. & Rem. Code §41.003(e) (“You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages must be unani mous.”). However, nothing in chapter 41 purports to address the number of jurors who must agree on the findings required by section 41.008(c) for exceeding the usual limit on exemplary damages set by section 41.008(b). Texas Rule of Civil Procedure 226a provides that, unless otherwise instructed, “the answers to the questions must be based on the decision of at least 10 of the 12 [5 of the 6] jurors. The same 10 [5] jurors must agree on every answer. Do not agree to be bound by a vote of anything less than 10 [5] jurors, even if it would be a majority.” Tex. R. Civ. P. 226a. As of the publication date

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