PJC Business

D AMAGES

PJC 115.41

Caveat—burden of proof. Because Tex. Civ. Prac. & Rem. Code § 41.008 iden tifies no burden of proof and Tex. R. Civ. P. 226a instructs the jury that a “yes” answer must be based on a preponderance of the evidence, this question uses a preponderance of the evidence burden of proof. Tex. R. Civ. P. 226a. For a claimant to recover exem plary damages, the jury charge must require a finding of fraud, malice, or gross negli gence by clear and convincing evidence. See Tex. Civ. Prac. & Rem. Code § 41.003(a). See PJC 115.37 and PJC 115.39 for these findings. The Penal Code provi sions listed in section 41.008 do not establish a cause of action or otherwise authorize exemplary damages. See Tex. Civ. Prac. & Rem. Code §41.003(c). Rather, if the jury finds any of the conduct listed in section 41.008(c), the limitation in section 41.008(b) does not apply. See Tex. Civ. Prac. & Rem. Code §41.008(c). As of the publication date of this edition, no Texas appellate court has definitively addressed the burden of proof for the conduct listed in section 41.008(c). Corporate defendants. For the definition of “person,” see Tex. Penal Code § 1.07(a)(38). Culpable mental state. Tex. Civ. Prac. & Rem. Code §41.008(d) states that “intentionally” has the same meaning assigned in Tex. Penal Code § 6.03(a). No civil court has clarified the mental state to be applied to the jury instructions to be used under Tex. Civ. Prac. & Rem. Code §41.008(c). However, criminal courts have in some instances applied a narrower definition of intent based on whether the offense is result- or conduct-oriented in nature. See McQueen v. State , 781 S.W.2d 600, 603 (Tex. Crim. App. 1989) (explaining difference between result- and conduct-oriented crimes); Alvarado v. State , 704 S.W.2d 36, 39–40 (Tex. Crim. App. 1985) (en banc) (op. on reh’g) (result-oriented crime; reversible error to instruct jury to find guilt based on intent either to engage in conduct or for result to occur, or both). “If the gravamen of an offense is the result of conduct, the jury charge on culpable mental state should be tailored to the result of conduct and likewise for nature-of-con duct offenses.” Price v. State , 457 S.W.3d 437, 441 (Tex. Crim. App. 2015). Accord ingly, if the gravamen of an offense is the result of the conduct, the definition of “intentionally” might be modified as follows: A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result. If the gravamen of an offense is the nature of the conduct, the definition of “inten tionally” might be modified as follows: A person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct.

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