§ 73.003.Mitigating Factors

A mitigation provision, and everything in it turns on the pleading requirement.

To determine the extent and source of actual damages and to mitigate exemplary damages, the defendant may give evidence of three matters if they have been specially pleaded:

all material facts and circumstances surrounding the claim for damages and defenses to it; all facts and circumstances under which the libelous publication was made; and any public apology, correction, or retraction made and published by the defendant.

Subsection (b) allows evidence of the intention with which the publication was made, to mitigate exemplary damages only, and again only if specially pleaded.

Note the different purposes. The three matters in (a) bear on both actual and exemplary damages; intention bears on exemplary damages alone. That fits the underlying distinction — a publisher's state of mind does not reduce the harm to reputation, but it does bear on whether punishment is warranted.

"Specially pleaded" is a real condition. A defendant who publishes a prominent retraction and then fails to plead it cannot put it before the jury.

The retraction branch connects to the Defamation Mitigation Act in the next subchapter, whose admissibility section makes a correction inadmissible except in mitigation of damages under this subsection — the two provisions are expressly linked.