Texas exemplary damages, or punitive damages, serve as punishment for the defendant’s conduct. Punitive damages are meant to deter similar behavior in the future.
The injured person receives the benefit of a punitive damages award, but the intention is to teach the wrongdoer a lesson.
Insurance policies may not provide coverage for punitive damages, but even if they do, public policy may still prohibit the use of insurance to pay punitive damages awards.
Because the burden of proof is so high and the jury’s decision must be unanimous, it’s rare that a case receives an exemplary damages award. In fact, only about 3–5% of personal injury cases involve a decision on punitive damages, according to a study published by Cornell Law School. Additionally, even if the court awards punitive damages, very few plaintiffs are successful at recovering that money.
What Texas Law Requires Before a Jury Can Award Punitives
Under Texas Civil Practice and Remedies Code § 41.003, a plaintiff must prove the defendant’s state of mind by clear and convincing evidence, a higher standard than the preponderance-of-the-evidence standard that governs ordinary negligence. The plaintiff must establish one of three culpable mental states: fraud, malice, or gross negligence.
Fraud
Texas defines fraud for punitive-damages purposes as fraud “other than constructive fraud” (Texas Civil Practice and Remedies Code § 41.001(6)). That means an honest mistake, an exaggerated sales pitch, or a failure to disclose will not support punitives. The plaintiff must show a willful intent to deceive and must connect that deception to actual harm.
For example, a Houston merchant selling knock-off handbags as genuine luxury goods is committing fraud, but the buyer’s harm is economic and typically resolved through a refund or a consumer claim, not a personal injury suit.
A supplement company that markets a dangerous pill as safe, ships it across state lines, and causes customers to be hospitalized is a different case. The deception is tied to physical harm, and that combination is what exposes a defendant to exemplary damages.
Malice
Texas defines malice narrowly: a specific intent by the defendant to cause substantial injury or harm to the claimant. It is not a general disregard for safety. It is aimed at the person injured.
Malice most often appears in cases where the defendant also faces criminal charges such as domestic violence, aggravated assault, attempted murder. A criminal conviction does not repay the victim; a criminal court cannot order compensation for medical bills, lost wages, or pain.
But the same evidence that supported the conviction can support a request for punitive damages in a parallel civil case.
Gross Negligence
Gross negligence requires more than carelessness. Under § 41.001(11), the plaintiff must show two things:
- first, that the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm; and
- second, that the defendant had actual, subjective awareness of the risk but proceeded anyway.
That second prong is where most gross negligence claims fail. It is not enough that the defendant should have known the risk was serious. The plaintiff must show the defendant did know and chose to ignore it.
Ordinary Negligence vs. Gross Negligence
Only gross negligence can support a punitive damages award. The difference comes down to the standard of proof and the defendant’s state of mind.
| Element | Ordinary Negligence | Gross Negligence |
|---|---|---|
| Standard of proof | Preponderance of the evidence | Clear and convincing evidence |
| Mental state | Failure to exercise reasonable care | Actual awareness of an extreme risk, consciously ignored |
| Degree of risk | Foreseeable risk of harm | Extreme risk — more than a remote possibility of serious injury |
| Example | Rolling through a stop sign | Driving 100 mph through a school zone |
| Available recovery | Compensatory damages | Compensatory + punitive damages |
That distinction explains the diet supplement hypothetical. If the manufacturer knew the ingredients were dangerous and sold them anyway, that is gross negligence. If it merely failed to test them, that is ordinary negligence, and no amount of harm will convert it into a punitive damages case.
Trucking cases show how this plays out in practice.
In May 2026, an Ector County jury awarded $8.5 million in punitive damages against OPG Logistics after finding the company and its driver grossly negligent in a crash that killed a Midland father of two. The verdict is subject to post-trial motions and appeal, so the final award may change.
The Texas Lawbook reported the jury awarded $40.5 million in compensatory damages and assigned 65% of the responsibility to the company, not the driver.
Evidence showed the driver had been on duty more than 15 hours in violation of federal hours-of-service rules, and the company had no written safety manual, no formal driver instruction, and no periodic safety reviews.
In trucking cases, the corporate defendant’s safety culture is the battleground for punitive damages. Texas courts treat direct claims against the employer, including negligent hiring, training, supervision, and entrustment, as independent grounds for punitive damages separate from the driver’s own conduct.
But a verdict is not a collection. In many trucking cases, the carrier is thinly capitalized or dissolves before judgment, leaving the family with a paper award.
Dram shop cases work the opposite way. The Texas Dram Shop Act is the exclusive remedy against alcohol providers (Texas Alcoholic Beverage Code § 2.03). In Steak & Ale of Texas, Inc. v. Borneman, the 14th Court of Appeals held the Act makes no provision for exemplary damages, and courts have since treated that as foreclosing gross negligence claims against providers.
The Eastland Court of Appeals reaffirmed that punitive damages are not available under the statute in Pando v. Southwest Convenience Stores, L.L.C. So even when a bar overserves a clearly intoxicated patron, compensatory damages are the ceiling.
Medina v. Zuniga, 593 S.W.3d 238 (Tex. 2019): Ruling on Exemplary Damages in Texas
In Medina v. Zuniga, the Texas Supreme Court addressed a gross negligence claim arising from a car accident in 2019.
The defendant driver was a high school student who hit the plaintiff pedestrian as he turned right from a parking lot onto the street. There was evidence the driver had been going too fast in the parking lot and only slowed briefly before turning onto the street.
The driver admitted to only looking to the left before pulling out and did not see the plaintiff approaching from the right.
In overturning the appellate court’s finding of gross negligence, the high court found that while the defendant’s driving behavior was certainly thoughtless, careless, and risky (ordinary negligence), it did not rise to the extreme degree of risk necessary for gross negligence.
The Court’s language is blunt:
“Any of Medina’s negligent acts here are common ingredients in a garden-variety car accident, whether involving a pedestrian or another vehicle. Doubtless, the failure to drive at a safe speed and the failure to look both ways before exiting a parking lot makes an accident more likely. But those failures, even taken together, do not amount to gross negligence. If they did, punitive damages would be routinely available in the most common types of auto accidents. Whatever the threshold for gross negligence is, it must be higher than that. “
For anyone injured in a car accident in Texas, this holding matters.
It means the at-fault driver’s carelessness, even serious carelessness, may not be enough to justify punitive damages.
To recover exemplary damages, your attorney must find evidence that the driver knew of an extreme risk and consciously chose to ignore it.
That is a much higher bar than ordinary negligence, and it is why punitive damages are so rare in car accident cases.
While the victim in a personal injury case may be eligible for compensatory damages, remember that the idea behind punitive damages is to enact further punishment for the community.
They are intended to protect the rest of society on top of repaying the individual victim.
Therefore, the court must consider the degree to which a party’s actions were grossly negligent, malicious, or fraudulent. It also examines similar cases and whether those courts awarded exemplary damages.
Texas Punitive Damages Cap
Under Texas Civil Practice and Remedies Code § 41.008, exemplary damages are limited to the greater of:
- Two times the amount of economic damages, plus an amount equal to any non-economic damages found by the jury, not to exceed $750,000; or
- $200,000
Members of the jury are not allowed to know there are statutory limitations on punitive damages when they determine an award.
A now infamous example is Heslin v. Jones, the Sandy Hook defamation case against Alex Jones, who claimed the shooting was a hoax. The Texas Tribune reported that a Texas district court judge initially chose to enforce the jury’s $45.2 million punitive damages award instead of limiting it using the $4.1 million compensatory award.
The district court’s decision was appealed.
The Texas Third Court of Appeals reduced the punitive damages to $1.5 million in August 2026 to comply with the statutory cap.
How Can a Plaintiff Justify a Request for Punitive Damages in Texas?
Showing clear and convincing evidence requires planning. Collect all relevant evidence showing malice, gross negligence, or fraud.
Demonstrating a person’s state of mind can be extremely challenging, so plaintiffs may need to subpoena the defendant’s texts, phone records, and other materials to persuade the judge and jury.
In addition, the plaintiff must build the most robust case possible to convince each member of the jury of the defendant’s actions and state of mind.
In Texas, the Civil Practice and Remedies Code 41.003(d) states that the jury’s decision about awarding punitive damages must be unanimous. If even one person votes against awarding exemplary damages, the court cannot issue an award beyond compensatory payment.
Evidence the Court Considers When Determining the Amount of Punitive Damages
Once the plaintiff has presented clear and convincing evidence, the court will also consider other important factors to determine the size of the exemplary damages award. This includes evaluating the following:
- The nature of the wrong
- The character of the conduct
- How much blame the wrongdoer deserves
- The situation and sensibilities of the people involved
- How the conduct offends the public’s sense of justice and propriety
- The net worth of the wrongdoer
In cases where the victim’s injuries are difficult to diagnose, or it’s unclear just how detrimental they are, such as traumatic brain injuries, the court may grant a larger award.
The damage amount may also be higher if the amount of non-economic damage (the pain and suffering) is substantial, the plaintiff requires round-the-clock care for life, or the defendant’s actions were egregious.
Even if you successfully prove that the defendant’s conduct rises to the level of gross negligence, malice, or fraud, your own percentage of fault can still affect your recovery. Texas follows a modified comparative negligence system under Texas Civil Practice & Remedies Code Chapter 33.
This matters for punitive damages because the statutory cap is calculated based on your economic and non-economic damages. A reduction in your compensatory award due to comparative negligence can lower the cap on any punitive damages you might receive.
