PJC Business

PJC 115.41

D AMAGES

Because section 41.008(d) does not indicate whether the definition of “intention ally” as narrowed in these examples should be used, and civil courts have not spoken on the issue, the Committee has adopted the complete statutory definition of intention ally from Tex. Penal Code § 6.03(a) for use in the charge. Alternative language for “alter.” In an appropriate case, the terms remove , con ceal , destroy , substitute , or impair the verity [ legibility ] [ availability ] of may be substi tuted for the word alter . See Tex. Penal Code § 32.47(a). “Writing.” In an appropriate case, submit the definition of “writing” as provided in Tex. Penal Code § 32.47(b). Not applicable to governmental records. Because Tex. Penal Code § 32.47 does not apply to writings that are “governmental records,” PJC 115.41 is not applicable in a case in which the writing in question is such a record. See Tex. Penal Code § 32.47(a). See Tex. Penal Code § 37.01(2) for a definition of “governmental record.” Felonious conduct. Tex. Civ. Prac. & Rem. Code §41.008(c) provides that the limitation or cap on exemplary damages may be lifted only if the plaintiff’s damages are based on conduct “described as a felony” in Tex. Penal Code § 32.47. The criminal conduct described in Tex. Penal Code § 32.47 rises to felonious conduct if— 1. the writing is a will or codicil of another, whether or not the maker is alive or dead and whether or not it has been admitted to probate; or 2. the writing is a deed, mortgage, deed of trust, security instrument, security agreement, or other writing for which the law provides public recording or filing, whether or not the writing has been acknowledged; or 3. the writing is attached to tangible property to indicate the price for the sale of that property, the actor engaged in the conduct described in Tex. Penal Code § 32.47(a) with respect to the writing for the purpose of obtaining the property for a lesser price indicated by a separate writing, and the difference between the impaired writing and the lesser price indicated by the other writing is $2,500 or more. Tex. Penal Code § 32.47(d), (e). Unanimity. PJC 115.41 does not require a unanimous jury finding of the conduct listed in Tex. Civ. Prac. & Rem. Code § 41.008(c). Under chapter 41 of the Texas Civil Practice and Remedies Code, “exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary dam ages.” Tex. Civ. Prac. & Rem. Code § 41.003(d). This is consistent with Tex. R. Civ. P. 292(b), which requires jury unanimity for awards of exemplary damages—an excep tion to the general rule (stated in rule 292(a)) that the agreement of ten of twelve jurors is required to render a verdict. Section 41.003 specifically provides an instruction on unanimity that addresses the amount of damages. Tex. Civ. Prac. & Rem. Code §41.003(e) (“You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages must be unani-

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