Texas has spent the last several decades building one of the most defendant-friendly tort frameworks in the country. The reforms did not happen all at once; they accumulated through legislation in 1995, 2003, 2011, and other years, and the protections they provide are real. But they are also conditional. The tools only work for defendants who know how to invoke them, and timing matters as much as substance.
Here are three of the most useful tools in the modern Texas tort defense arsenal — and a few notes on how to actually use them.
1. The Texas Citizens Participation Act.
The TCPA, codified at Chapter 27 of the Civil Practice and Remedies Code, is sometimes called the Texas anti-SLAPP statute. It is one of the most powerful early-dismissal mechanisms in American civil practice, and it sweeps far more broadly than most defendants realize. If a claim is based on, relates to, or is in response to a defendant’s exercise of free speech, the right to petition, or the right of association — broadly defined — the defendant can file a TCPA motion to dismiss within sixty days of being served. The plaintiff then has the burden of producing clear and specific evidence supporting each essential element of every challenged claim. If they cannot, the case gets dismissed, and the defendant is awarded mandatory attorney’s fees.
The trap is the deadline. Sixty days from service. Miss it, and the tool is gone. The TCPA has also been narrowed over the years — particularly in the 2019 amendments — and the analysis of whether a particular claim falls within its scope requires careful work. But for cases involving online reviews, statements about public concerns, employer references, business communications, and a wide range of other speech-adjacent disputes, the TCPA is often the single most valuable thing a defense lawyer can do in the first two months of a case.
2. Proportionate responsibility.
Chapter 33 of the Civil Practice and Remedies Code does two important things at once. First, it bars any recovery by a claimant whose responsibility for an occurrence exceeds fifty percent. Second, it allows fault to be apportioned to non-parties — people or entities who are not in the lawsuit but whose conduct contributed to the harm. The combination is powerful. A defendant who can convince a jury to assign meaningful percentages of fault to the plaintiff, to a co-defendant, or to a designated responsible third party can dramatically reduce or eliminate exposure.
The practical key is identifying responsible third parties early and designating them within the statutory window. The Chapter 33 designation process has its own procedural requirements, and missing them forfeits the ability to ask the jury to allocate fault to people who really should bear part of the blame.
3. The exemplary damages cap.
Punitive damages — what Texas calls exemplary damages — used to be the wild card in tort cases. A jury could award almost any number, and the consequences for the defendant were unpredictable. Chapter 41 of the Civil Practice and Remedies Code changed that. With limited exceptions, exemplary damages in Texas are capped at the greater of two times economic damages plus an amount equal to non-economic damages up to $750,000, or $200,000. The math gets a little involved, but the point is that the upper bound on punitive exposure in most cases is now calculable from the start of the case.
The cap matters most in case valuation. A demand that ignores the statutory cap is a demand that does not understand Texas law. Defense counsel who walk into mediation having already worked out the maximum possible exemplary award have a meaningful advantage in the negotiation.
These tools work — when they are used.
Tort reform did not turn Texas into a defendant’s paradise. Plaintiffs still win cases. Juries still award substantial verdicts. But the framework gives defendants real tools, and the difference between using them and overlooking them often determines how a case ends.
If you are facing a tort claim — defamation, fraud, business tort, intentional tort, or otherwise — in Texarkana, Bowie County, or anywhere in the surrounding region, Jeff Elliott Law Firm handles tort defense across Northeast Texas and Southwest Arkansas, and we are glad to discuss the specifics.