PJC Business

D AMAGES

PJC 115.27

COMMENT When to use. PJC 115.27 should be predicated on a “Yes” answer to PJC 107.4, finding retaliation under the Texas Whistleblower Act, Tex. Gov’t Code §§ 554.001– .010. Source of question and instructions. PJC 115.27 is derived from Tex. Gov’t Code §554.003 and City of Ingleside v. Kneuper , 768 S.W.2d 451, 454 (Tex. App.— Austin 1989, writ denied). Statutory relief. Tex. Gov’t Code § 554.003 provides for recovery of actual dam ages and attorney’s fees for a violation of the Whistleblower Act. The statute, how ever, does not define “actual damages.” The elements given above are not meant to be exclusive, but rather are those most commonly allowed in employment cases. The statute also provides for equitable relief in the nature of an injunction or rein statement of employment and/or benefits, which is to be determined by the trial court. Tex. Gov’t Code §554.003; see Caballero v. Central Power & Light Co. , 858 S.W.2d 359, 361 (Tex. 1993) (equitable relief under Texas Commission on Human Rights Act (now Texas Labor Code chapter 21) is to be determined by judge). Mitigation. For a defensive instruction on mitigation, see PJC 115.8 and 115.25. Attorney’s fees. For submission of attorney’s fees, see PJC 115.60. Exemplary damages unavailable, post – June 15, 1995, cases. Exemplary dam ages are not available under the Texas Whistleblower Act. Tex. Gov’t Code § 554.003(a). Elements of damages submitted separately. The Committee generally recom mends that multiple elements of damages be separately submitted to the jury. Harris County v. Smith , 96 S.W.3d 230, 233–34 (Tex. 2002) (broad-form submission of valid and invalid elements of damages may lead to harmful error if there is a proper objec tion raising insufficiency of the evidence to support one or more of the elements sub mitted); see also Tex. Civ. Prac. & Rem. Code §41.008(a) (“In an action in which a claimant seeks recovery of damages, the trier of fact shall determine the amount of economic damages separately from the amount of other compensatory damages.”). Separating economic from noneconomic damages is required to allow the court to apply the limits on recovery of exemplary damages based on economic and noneco nomic damages as required by Tex. Civ. Prac. & Rem. Code § 41.008(b). Further, “[p]rejudgment interest may not be assessed or recovered on an award of future damages.” Tex. Fin. Code § 304.1045 (wrongful death, personal injury, or prop erty damage cases). Therefore, separation of past and future damages is required. Elements considered separately. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 770 (Tex. 2003), provides an instruction for cases involving undefined or

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