§ 41.010.Considerations in Making Award

A framing provision that tells the fact-finder what it is doing before it does it.

Before making an award, the trier of fact shall consider the definition and purposes of exemplary damages as provided by the definitions section — that is, damages awarded as a penalty or by way of punishment but not for compensatory purposes.

The instruction guards against the most natural error a jury makes here: treating the punitive award as a top-up of compensation for a plaintiff whose injuries feel undercompensated. The definition says the opposite. Compensation is complete before this question is reached.

Subsection (b) confirms discretion. Subject to the cap, whether to award exemplary damages and how much is within the discretion of the trier of fact. There is no formula, no multiplier, and no entitlement — a jury that finds gross negligence by clear and convincing evidence may still award nothing.

That discretion is bounded on all sides. The gateway standards and unanimity requirement come first, the evidentiary factors direct what may be considered, the jury instruction section requires the court to instruct on this provision, and the cap limits the result.