By Pacheco Couceiro
After a crash on Expressway 77, a fall at a store in Brownsville, or another injury in the Rio Grande Valley, insurance adjusters and lawyers often talk about “fault” and percentages. Texas uses a system that statutes call proportionate responsibility. In everyday terms, people call it modified comparative fault or the 51% bar. This article explains what Chapter 33 of the Texas Civil Practice and Remedies Code says about when a claimant may recover damages, how a recovery can be reduced, and what “percentage of responsibility” means in the statute. It is process information, not a prediction about any case.
What the 51% bar means
Section 33.001 states: “In an action to which this chapter applies, a claimant may not recover damages if his percentage of responsibility is greater than 50 percent.” If a fact-finder assigns more than 50% of the responsibility to the claimant, the claimant is barred from recovering damages under that chapter. People often call the rule a “51% bar” because responsibility greater than 50%—that is, 51% or more—cuts off recovery. If the claimant’s percentage is 50% or less, the claimant is not barred under §33.001, but the recoverable amount may still be reduced.
When Chapter 33 applies
Section 33.002 says Chapter 33 applies to any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm, and to certain Deceptive Trade Practices Act actions. The same section lists exclusions, including actions to collect workers’ compensation benefits under the workers’ compensation laws of this state, certain exemplary-damages claims, and causes of action for damages arising from the manufacture of methamphetamine as described by Chapter 99. Whether Chapter 33 applies to a particular claim is a legal question that depends on the facts and the pleadings.
How percentages are decided
Section 33.003 directs the trier of fact—usually a jury, or the judge in a bench trial—to determine the percentage of responsibility, stated in whole numbers, for each claimant, each defendant, each settling person, and each responsible third party designated under §33.004. The determination covers each person’s causing or contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct that violates an applicable legal standard, or by any combination of those. Section 33.003(b) adds that the section does not allow a jury question about a person’s conduct without sufficient evidence to support the submission.
Section 33.011(4) defines “percentage of responsibility” as the percentage, stated in whole numbers, attributed to each claimant, defendant, settling person, or responsible third party with respect to causing or contributing to cause in any way the personal injury, property damage, death, or other harm for which recovery is sought.
How a recovery is reduced when the claimant is not barred
Section 33.012(a) says that if the claimant is not barred under §33.001, the court shall reduce the amount of damages to be recovered by a percentage equal to the claimant’s percentage of responsibility. In plain terms, a claimant found 20% responsible generally sees a 20% reduction of damages under that subsection, subject to other rules in the chapter. Section 33.012(b) further reduces damages by the sum of dollar amounts of settlements with one or more persons. Health care liability claims under Chapter 74 have an additional election rule in §33.012(c)–(d).
What defendants may owe
Section 33.013(a) generally limits a liable defendant to the percentage of damages equal to that defendant’s percentage of responsibility. Section 33.013(b) provides joint and several liability for damages recoverable under §33.012 when the defendant’s percentage of responsibility is greater than 50%, or when the defendant, with specific intent to do harm to others, acted in concert with another person in certain Penal Code conduct listed in that subsection and proximately caused the damages. Those rules are detailed; a lawyer can explain how they interact with the facts of a case.
Responsible third parties
Section 33.004 allows a defendant to seek leave to designate a person as a responsible third party by motion, ordinarily filed on or before the 60th day before trial unless the court finds good cause for a later filing. Designation does not by itself impose liability on the designated person and may not be used in another proceeding to impose liability on that person on the basis of res judicata, collateral estoppel, or similar theories (§33.004(i)). After adequate time for discovery, a party may move to strike a designation if there is no evidence that the designated person is responsible for any portion of the alleged injury or damage (§33.004(l)).
Practical steps after an injury in South Texas
Step 1: Write down what happened
Record the date, time, location, weather or lighting, vehicles or products involved, and what each person did before and after the incident. In a crash, note traffic controls, lane positions, and any statements made at the scene.
Step 2: Get medical care and keep records
Seek appropriate medical evaluation. Keep discharge papers, bills, imaging reports, and a simple list of symptoms and work missed. Medical records often become evidence about injuries and causation.
Step 3: Preserve evidence
Save photos, videos, damaged property, clothing, product packaging, and contact information for witnesses. Do not repair or discard items that may show how the incident occurred until you have spoken with a lawyer about preserving them.
Step 4: Be careful with insurance statements
The Texas Department of Insurance auto insurance guide explains consumer basics about auto coverage. Insurers may ask for recorded statements. What you say about how the crash happened can later be used when someone argues about percentages of responsibility. You can ask to speak with a lawyer before giving a detailed statement about fault.
Step 5: Talk with a lawyer early
Proportionate-responsibility issues often turn on evidence, designations of other parties, and settlement credits under Chapter 33. Early advice helps you understand deadlines and what to gather. Our earlier articles also cover Texas personal injury filing deadlines and how to get a Texas crash report.
Frequently asked questions
Does Texas use pure comparative fault?
No. Under §33.001, a claimant may not recover if the claimant’s percentage of responsibility is greater than 50%. That is a modified system with a bar above 50%, not a pure comparative system that always allows some recovery.
If I am found 40% at fault, can I still recover?
Under §33.001, 40% is not greater than 50%, so the claimant is not barred by that section. Under §33.012(a), the court reduces damages by a percentage equal to the claimant’s percentage of responsibility, and other reductions in §33.012 may also apply.
Who decides the percentages?
Section 33.003 assigns that role to the trier of fact, based on the evidence, for each claimant, defendant, settling person, and designated responsible third party.
Does Chapter 33 apply to every injury claim?
Section 33.002 describes the actions to which the chapter applies and lists exclusions, including certain workers’ compensation matters. Ask a lawyer whether Chapter 33 applies to your claim.
What is a responsible third party?
Under §33.011(6), it is any person alleged to have caused or contributed to causing in any way the harm for which recovery is sought, subject to the designation rules in §33.004. Designation alone does not make that person pay a judgment.
Questions in the Rio Grande Valley
Pacheco Couceiro works with people in Brownsville and across South Texas on personal injury matters. If you have questions about how Texas proportionate responsibility and the 51% bar may relate to an injury claim, you can contact our office to talk about your situation.
This article is general information, not legal advice, and reading it does not create an attorney-client relationship.