After a drunk-driving crash, most people want two things: to be made whole, and for the driver to face a real consequence. Texas law has a category of damages aimed at that second thing. It’s narrow, it’s hard to get, and in drunk-driving cases specifically it works differently than in almost any other kind of case, in a way that matters a great deal.
The short answer
Texas calls them exemplary damages. Most people say punitive damages. They’re meant to punish and deter, not to compensate, and you can only get them by proving by clear and convincing evidence that the harm resulted from fraud, malice, or gross negligence (Texas Civil Practice & Remedies Code § 41.003). Ordinary carelessness is never enough. Texas caps exemplary damages, but § 41.008(c) removes the cap for conduct that constitutes certain felonies, and intoxication assault and intoxication manslaughter are on that list.
The standard: gross negligence, proved clearly
The usual route in a drunk-driving case is gross negligence, which Texas defines in § 41.001(11) as an act or omission that, viewed objectively from the actor’s standpoint at the time of its occurrence, involved an extreme degree of risk considering the probability and magnitude of the potential harm to others, and of which the actor had actual, subjective awareness of the risk but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.
Two halves: an objectively extreme risk, and the driver’s own awareness of it. Driving drunk is close to the paradigm case, because the risk is extreme and every licensed Texas driver has been told about it. Facts that strengthen it include a very high blood alcohol concentration, prior DWI convictions, driving the wrong way on a freeway, fleeing the scene, extreme speed, or continuing to drive after being warned or cut off.
The burden is also higher than usual. Most of a civil case is proved by a preponderance: more likely than not. Exemplary damages require clear and convincing evidence, and § 41.003(d) requires the jury to be unanimous on both liability for exemplary damages and the amount.
The cap, and the drunk-driving exception
Section 41.008(b) caps exemplary damages at the greater of two figures: $200,000, or two times economic damages plus non-economic damages up to $750,000. That formula is what governs most Texas cases.
But § 41.008(c) says the cap doesn’t apply when the claim is based on conduct described as a felony in a specific list of Penal Code sections, and that list includes intoxication assault (Penal Code § 49.07) and intoxication manslaughter (§ 49.08). For most felonies on that list the statute requires the conduct to have been committed knowingly or intentionally; § 49.07 and § 49.08 are expressly carved out of that requirement. In plain terms: when a drunk driver causes serious bodily injury or death, the statutory cap on exemplary damages may not apply at all.
That is one of the most important and least-known features of Texas drunk-driving injury law, and it changes how these cases should be built from day one.
How this is proved, and where the criminal case helps
The evidence that supports exemplary damages is largely the same evidence the State gathers to prosecute the DWI: breath or blood alcohol results and the chain of custody behind them, standardized field sobriety test performance, drug recognition evaluations, body and dash camera footage, the driver’s history, and where the driver had been drinking. Because the criminal and civil cases run on separate tracks with different burdens of proof, the criminal outcome doesn’t control yours. See how the drunk driver’s criminal case and your injury claim fit together.
This is squarely where my background matters. As an ACS-CHAL Forensic Lawyer-Scientist, a certified Drug Recognition Expert, and an SFST instructor, I’ve spent years on the science of intoxication evidence from the defense side. I know where these tests are strong, where they’re weak, and how to use the strong parts to prove exactly what § 41.003 requires.
The practical question: who actually pays?
An uncapped number is only worth what you can collect. Liability policies frequently contain exclusions bearing on exemplary damages, and many drunk drivers have limited assets, so in most cases we look past the driver. Start with a bar or restaurant that over-served under Texas’s dram shop law and an employer if the driver was working. Then there’s your own uninsured/underinsured motorist coverage. We evaluate a serious case on all of those at once, not just the one with the worst conduct.
Where someone was killed, the claim runs through Texas’s wrongful death and survival statutes. See wrongful death caused by a drunk driver.
Deadlines
Exemplary damages don’t have their own separate clock. They ride along with your underlying injury claim, which in Texas generally must be filed within two years of the crash (Texas Civil Practice & Remedies Code § 16.003). Waiting for the criminal case to finish before doing anything is a common and costly mistake.
Frequently asked questions
Can I get punitive damages from a drunk driver in Texas?
Sometimes. You must prove by clear and convincing evidence that the harm resulted from fraud, malice, or gross negligence (§ 41.003), and the jury must be unanimous on both liability and amount. Driving while intoxicated can support gross negligence, especially with aggravating facts like a very high BAC or prior DWIs.
Is there a cap on punitive damages in Texas?
Generally yes: § 41.008(b) caps them at the greater of $200,000, or two times economic damages plus non-economic damages up to $750,000. But § 41.008(c) removes the cap for conduct described as certain felonies, a list that includes intoxication assault and intoxication manslaughter.
What’s the difference between compensatory and exemplary damages?
Compensatory damages restore what you lost: medical bills, lost income, pain and suffering. Exemplary damages aren’t about your losses at all; they exist to punish especially bad conduct and deter it in the future, and they’re awarded on top of compensatory damages.
Does the drunk driver have to be convicted for me to get exemplary damages?
No. The criminal and civil cases are separate, and your civil claim doesn’t depend on a conviction. A conviction can be powerful proof, but an acquittal or dismissal doesn’t end your claim.
What is gross negligence in Texas?
Under § 41.001(11), it’s an act or omission that, viewed objectively from the actor’s standpoint at the time it happened, involves an extreme degree of risk considering the probability and magnitude of the potential harm to others, and of which the actor had actual, subjective awareness but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.
Seriously injured by a drunk driver?
If a drunk driver caused serious injury or a death in your family in the Houston area, the exemplary-damages analysis should start immediately. The evidence that supports it is time-sensitive. Call Blass Law at (713) 664-4000 or request a free case evaluation. See also our Houston drunk-driving accident page.
Reviewed by Jay Blass Cohen, founder of Blass Law PLLC, ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.