If you’re reading this, something terrible has happened to your family, and no page on the internet is going to fix it. What follows is the practical information families ask me for in the first weeks: who can bring a claim, what the law allows you to recover, and what deadlines are running while you’re grieving. I’m sorry you need it.
The short answer
When a drunk driver kills someone in Texas, two separate claims usually exist. A wrongful death claim under Texas Civil Practice & Remedies Code Chapter 71 belongs to the surviving spouse, children, and parents, for their own losses. A survival claim under § 71.021 belongs to the estate, for what your loved one suffered before death. Both generally must be filed within two years. And because intoxication manslaughter is on the felony list in § 41.008(c), the usual cap on exemplary damages may not apply.
Who can bring a wrongful death claim in Texas
Texas is specific and, for some families, painfully narrow. Under § 71.004, the action is for the exclusive benefit of the surviving spouse, children, and parents of the deceased. Adopted children and adoptive parents are included. Siblings (even siblings who were the closest person in the world to the deceased) cannot bring a Texas wrongful death claim, and neither can grandparents in that capacity.
Any one or more of those beneficiaries may file, and the claim is brought for the benefit of all of them. If none of them files within three calendar months of the death, § 71.004(c) directs the executor or administrator of the estate to bring the action, unless all the beneficiaries ask them not to.
The survival claim is different, and separate
Section 71.021 keeps your loved one’s own personal-injury claim alive after death. It passes to the heirs, legal representatives, and estate, and it covers what they experienced. That means the conscious pain and suffering and mental anguish between the crash and death, plus the medical expenses incurred trying to save them. Funeral and burial costs come in here too. When death wasn’t instant, this claim can be substantial, and it’s a separate recovery from the wrongful death claim, not part of it.
What families can recover
In the wrongful death claim, each eligible family member’s own losses are considered, not the estate’s. Texas juries are asked about the loss of companionship and society, the mental anguish the family has suffered and will suffer, the financial contributions the deceased would have made, the loss of care, maintenance, services, advice, and counsel, and loss of inheritance (what the person would likely have saved and left behind). Damages are evaluated one person at a time. A surviving spouse can be awarded a very different amount than a young child, and an elderly parent’s award may look nothing like either.
An important point families often ask about: in an ordinary Texas motor-vehicle negligence case there is no cap on non-economic damages like mental anguish and loss of companionship. The well-known caps apply to medical malpractice (§ 74.301) and to claims against governmental units (§ 101.023), the latter mattering when a city, county, or METRO vehicle is involved.
Exemplary damages, and the drunk-driving exception
Texas allows exemplary damages where death results from a wilful act or omission or gross negligence. Inside the wrongful death chapter itself, § 71.009 provides that exemplary as well as actual damages may be recovered, which means the beneficiaries § 71.004 identifies (spouse, children, and parents) are the ones who can pursue them. The Texas Constitution says something similar in Art. XVI, § 26, but read it closely: it names the surviving husband, widow, and heirs of the body, a narrower group that doesn’t include parents. Either way, Chapter 41 sets the terms (clear and convincing evidence and a unanimous jury) and § 41.008(c) removes the statutory cap for conduct described as certain felonies, and intoxication manslaughter (Penal Code § 49.08) is on that list. Our page on punitive damages in Texas drunk-driving cases explains how that works in detail.
One limit worth knowing early: if the vehicle belonged to a city, county, or state agency, the claim runs through the Texas Tort Claims Act, and § 101.024 is blunt about it: that chapter does not authorize exemplary damages. Damages against a governmental unit are capped, and exemplary damages are off the table entirely. It is one more reason the identity of the defendant matters from day one.
Everyone who may be responsible
The driver is rarely the only source of recovery, and in fatal cases the driver’s own insurance is often nowhere near adequate. The full analysis usually includes the bar, restaurant, or store that served the driver (see Texas dram shop law), an employer if the driver was on the job, a vehicle owner who entrusted the car to someone they shouldn’t have, and your own family’s uninsured/underinsured motorist coverage, which often applies even though the crash wasn’t in your car. All of these should be investigated at once, early, because the evidence behind several of them expires quickly.
The criminal case is not your case
There will be a criminal prosecution, and you’ll have rights as a victim’s family: to be informed, to be heard, to give a victim impact statement. What you won’t have is control: the prosecutor decides the charge and any plea, and a criminal court’s restitution order is not designed to make a family whole. Your civil case is the one you control, and it doesn’t depend on a conviction, because the burdens of proof are different. See how the criminal case and the civil claim fit together.
Deadlines, and why waiting hurts
A Texas wrongful death claim generally must be filed within two years of the date of death (§ 16.003(b)), and claims involving a governmental entity carry much shorter formal notice deadlines, sometimes a matter of months. The three-month provision in § 71.004(c) is separate and affects who files, not whether the claim survives. And the practical clock is shorter still: bar surveillance video is overwritten in days, vehicles get repaired or crushed, and witnesses scatter.
No family should have to think about any of this in the first weeks. Hand it to a lawyer and let us carry it.
Frequently asked questions
Who can file a wrongful death lawsuit in Texas?
Only the surviving spouse, children (including adopted children), and parents of the deceased, under Texas Civil Practice & Remedies Code § 71.004. Siblings and grandparents cannot bring the claim in that capacity. If no beneficiary files within three calendar months of the death, the estate’s executor or administrator generally must.
What’s the difference between a wrongful death claim and a survival claim?
A wrongful death claim compensates the family for their own losses: companionship, mental anguish, financial support. A survival claim under § 71.021 belongs to the estate and covers what the deceased personally suffered before death, including conscious pain and suffering, medical expenses, and funeral costs.
How long do I have to file a wrongful death claim in Texas?
Generally two years from the date of death (§ 16.003(b)). Claims involving a governmental entity have much shorter notice deadlines, and key evidence such as surveillance video can disappear within days.
Can we get punitive damages if a drunk driver killed our family member?
Potentially, with clear and convincing evidence of gross negligence and a unanimous jury. Because intoxication manslaughter is among the felonies listed in § 41.008(c), the statutory cap on exemplary damages may not apply. The clear exception is a claim against a governmental unit, where § 101.024 bars exemplary damages entirely.
Do we have to wait for the criminal case to end?
No, and waiting is usually a mistake. The civil claim is separate, runs on its own two-year deadline, and doesn’t require a conviction. The civil burden of proof is lower than the criminal one.
If your family lost someone to a drunk driver
Call Blass Law at (713) 664-4000 or request a free case evaluation. There’s no charge to talk, and we’ll handle the investigation and the deadlines so your family can grieve. 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.