PJC General Negligence 2024

E XEMPLARY D AMAGES

PJC 31.12

f. promotion of prostitution or online promotion of prostitution; or g. aggravated promotion of prostitution or aggravated online promotion of prostitution; or h. compelling prostitution; or i. sexual performance by a child; or j. employment harmful to children; or k. possession or promotion of child pornography; or 8. receive a benefit from participating in a venture that involves an activity described in element 7 or engage in sexual conduct with a child transported in the manner described in ele ment 7? See Tex. Penal Code §20A.02. If more than one of elements 1 through 8 (and of the subparts of 3 and 7) listed above is used, each must be separated by the word “or” because a finding of any one of the circumstances defined by the instructions would support removing the cap on exemplary damages under Tex. Civ. Prac. & Rem. Code § 41.008(c)(17). Bifurcation. If a defendant has requested a bifurcated trial pursuant to Tex. Civ. Prac. & Rem. Code §41.009, PJC 31.12 should be answered in the first phase of the trial. See Transportation Insurance Co. v. Moriel , 879 S.W.2d 10, 30 (Tex. 1994) (not ing that in second phase of bifurcated trial, jury is “presented evidence relevant only to the amount of punitive damages”) (emphasis added). 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 4.2 and 10.15 for these findings. The Penal Code provisions listed in section 41.008 do not establish a cause of action or otherwise authorize exem plary 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).

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