§ 71.009.Exemplary Damages

One sentence, and it carries constitutional weight beyond its length.

When the death is caused by the wilful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered.

The Texas Constitution guarantees this remedy. Article XVI, Section 26 provides that every person or corporation shall be liable in exemplary damages for the death of any person caused by wilful act or omission or gross neglect. This section is the statutory expression of that provision, which is why it is worded as it is.

The constitutional status matters. An exemplary damages remedy grounded in the constitution is not one the Legislature can remove, and it explains why the damages chapter's caps have been drafted around this claim rather than through it.

The standards come from elsewhere. "Gross negligence" is defined in the damages chapter — an extreme degree of risk viewed objectively, of which the actor had actual subjective awareness but proceeded with conscious indifference. That chapter also supplies the clear and convincing burden and the jury unanimity requirement.

The medical liability chapter imposes its own limit: in a wrongful death or survival health care claim, all damages including exemplary damages are subject to that chapter's indexed cap.