Chapter 33 of the Texas Civil Practice and Remedies Code: Proportionate Fault

Chapter 33 of the Texas Civil Practice and Remedies Code is the statute that divides fault in most Texas tort cases. A jury assigns a whole-number percentage of responsibility to the injured party, each defendant, anyone who already settled, and any designated third party. Those percentages then decide two things: whether the injured party can recover anything at all, and how much each defendant has to pay.

The system is called “proportionate responsibility,” and it has one feature that decides more Texas injury cases than any other single rule. If the injured party is found more than 50 percent at fault, the recovery is zero.¹

Which Cases Chapter 33 Governs

Chapter 33 applies to any cause of action based on tort in which a defendant, settling person, or responsible third party is alleged to be at fault. That covers 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 someone is found responsible for a share of the harm.²

Three things sit outside the chapter. Workers’ compensation claims under Texas law, including exemplary damage claims against an employer for an employee’s death, are excluded. Exemplary (punitive) damages are carved out and governed by separate rules even when Chapter 33 controls the compensatory side of the same case. And damage claims arising from methamphetamine manufacturing under Chapter 99 are excluded.²

The exemplary damages carve-out surprises people. A single trial can allocate fault under Chapter 33 for the compensatory damages while handling the punitive damages piece under an entirely different set of rules.

The 51 Percent Bar

Texas uses modified comparative fault with a hard cutoff. A plaintiff who is 50 percent at fault or less can still recover, but the award is reduced by that percentage. A plaintiff found 30 percent responsible on a $200,000 injury recovers $140,000. At 50 percent, the same injury yields $100,000. At 51 percent, it drops to zero and the case ends in a take-nothing judgment, no matter how badly the plaintiff was hurt or how much blame rests on the defendants.¹

Because the statute requires percentages in whole numbers, there is no 50.5 percent. The jury picks an integer and the binary outcome follows.³

How the Jury Divides Up Fault

The jury assigns a percentage to each claimant, each defendant still in the case at trial, each settling person, and each responsible third party designated under Section 33.004. The fault can come from negligent acts or omissions, from defective or unreasonably dangerous products, or from any other conduct violating a legal standard. The jury can mix those theories in a single allocation.³

The court cannot put a fault question to the jury about any person unless there is sufficient evidence to support submitting it. A defendant cannot just name someone and hope the jury shifts blame.³

Responsible Third Parties and the Empty Chair

One of the most consequential pieces of Chapter 33 lets a defendant pull non-parties into the fault calculation. A defendant can move for leave to designate a “responsible third party,” meaning someone the defendant blames even though that person has not been sued. If the court grants the motion, the jury assigns that third party a percentage, and that percentage comes out of the pool available for the actual defendants.⁴

The motion must be filed by the 60th day before trial, though the court can allow a late filing for good cause. Objections are due within 15 days of service. If no one objects, the court must grant the motion. If someone does object, the court grants it anyway unless the defendant failed to plead sufficient facts and did not fix the pleading when given a chance. Later, after discovery, any party can move to strike the designation. The court strikes it unless the defendant produces enough evidence to raise a genuine factual dispute about the third party’s responsibility.⁴

Two guardrails protect plaintiffs. A defendant cannot designate a responsible third party after limitations has run on the claim against that person if the defendant failed to disclose them in a timely manner under the Texas Rules of Civil Procedure. And the designation itself imposes no liability on the designated person; it cannot be used in another lawsuit against them through res judicata or collateral estoppel.⁴

Why this matters: the designated third party is not a defendant, so the claimant cannot collect from them. If the jury puts 25 percent on a responsible third party, that 25 percent disappears from the recovery. An empty chair at trial is one of the quickest ways for a plaintiff’s award to shrink.

Joint and Several Liability

The default rule is that each defendant pays only their own share. A defendant found 15 percent at fault on a $300,000 judgment owes $45,000, even if the co-defendants are broke or gone.⁵

Joint and several liability, where one defendant can be forced to pay the entire judgment, applies in two situations. The first is when a defendant’s percentage of responsibility is greater than 50 percent. The second is when the defendant acted in concert with another person with the specific intent to do harm, and the underlying conduct falls within a list of serious criminal offenses that includes murder, aggravated kidnapping, sexual assault, aggravated assault, and certain felony theft offenses. The criminal-conduct exception requires proof of a conscious desire to do substantial harm; negligence or recklessness is not enough.⁵

Calculating the Final Recovery

After the verdict, the court applies a two-step formula. First, total damages are reduced by the claimant’s percentage of responsibility. Second, the court subtracts the total dollar amount of any pretrial settlements.⁶

Run it with numbers. The jury finds $500,000 in damages and puts the plaintiff at 20 percent fault. The award drops to $400,000. If the plaintiff had settled with one defendant for $75,000 before trial, the court subtracts that too, leaving $325,000. The remaining defendants then owe their proportionate shares of the $325,000 based on the fault percentages the jury assigned them.

A Different Settlement Credit in Health Care Cases

Health care liability claims under Chapter 74 use a different credit rule. The remaining defendants can choose between subtracting the dollar amount of the settlements or subtracting a percentage equal to each settling person’s fault share as found by the jury. The election is made in writing before the case goes to the jury and binds all defendants. If no one elects, or if elections conflict, the dollar-amount method is the default.⁶

The two methods can produce very different results. If a settling defendant paid $50,000 but the jury puts 40 percent of the fault on them in a $500,000 case, the dollar credit reduces the judgment by $50,000 while the percentage credit reduces it by $200,000. Defense counsel in medical malpractice cases run both numbers before choosing.

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 others. Each jointly and severally liable defendant is ultimately responsible among themselves for a share matching their own fault percentage, and a defendant who overpays can recover from one who underpaid.⁷

If one of those defendants cannot pay, the shortfall is redistributed among the remaining jointly and severally liable defendants in proportion to their fault. No defendant has any right of contribution against a person who settled with the claimant before trial. That is a big reason settlement timing matters in multi-defendant cases: once you settle, the remaining defendants cannot come back at you for contribution.⁷

Defined Terms That Carry More Weight Than They Look

A “claimant” is broader than the person who filed the lawsuit. It includes the injured person, anyone seeking damages for that person’s injury or death, and anyone who could seek those damages. In a wrongful death case, every family member with a potential claim counts as a claimant for applying the 51 percent bar.⁸

A “settling person” is anyone who has paid or promised anything of monetary value to the claimant to resolve potential liability. A “responsible third party” is anyone alleged to have caused or contributed to the harm through negligence, a defective product, or other conduct violating a legal standard, but who is not a named defendant. A seller entitled to indemnity under Section 82.002 of the Civil Practice and Remedies Code cannot be designated as a responsible third party.⁸

1
State of Texas. Texas Civil Practice and Remedies Code 33.001 – Proportionate Responsibility
2
State of Texas. Texas Civil Practice and Remedies Code 33.002 – Applicability
3
State of Texas. Texas Civil Practice and Remedies Code 33.003 – Determination of Percentage of Responsibility
4
State of Texas. Texas Civil Practice and Remedies Code 33.004 – Designation of Responsible Third Party
5
State of Texas. Texas Civil Practice and Remedies Code 33.013 – Amount of Liability
6
State of Texas. Texas Civil Practice and Remedies Code 33.012 – Amount of Recovery
7
State of Texas. Texas Civil Practice and Remedies Code 33.015 – Contribution
8
State of Texas. Texas Civil Practice and Remedies Code 33.011 – Definitions