Austin Wrongful Death Lawyer

By Andrew Traub

Losing someone because another person was careless is a loss no one is ready for. Texas law gives close family members the right to hold the responsible party accountable and to recover for what the death has cost them. The Traub Law Office has represented injured people and their families in Austin since Andrew Traub founded the firm in 2003. There is no fee unless we recover for you, and your first consultation is free.

We handle wrongful death cases in Texas state courts and the federal courts in Texas.

What is a wrongful death claim in Texas?

A wrongful death claim is a lawsuit for a death caused by someone’s “wrongful act, neglect, carelessness, unskillfulness, or default” (Texas Civil Practice and Remedies Code § 71.002). It applies only if the person who died could have sued for the injury had they lived (Texas Civil Practice and Remedies Code § 71.003).

Wrongful death claims can arise from:

• Car crashes, including drunk driving crashes
• Truck and 18-wheeler crashes
• Motorcycle crashes
• Pedestrians and cyclists hit by cars
• Workplace injuries and defective products
• Deaths caused by police force

Who can file a wrongful death lawsuit in Texas?

Texas gives the claim to three groups only: the surviving spouse, the children and the parents of the person who died (Texas Civil Practice and Remedies Code § 71.004). Any one of them can file for the benefit of all of them (Texas Civil Practice and Remedies Code § 71.004). Brothers, sisters and grandparents are not on that list (Texas Civil Practice and Remedies Code § 71.004).

If none of them has filed within three months of the death, the executor or administrator of the estate must bring the claim, unless all of those family members ask them not to (Texas Civil Practice and Remedies Code § 71.004).

Texas law also allows a claim for the death of an unborn child, at any stage of pregnancy (Texas Civil Practice and Remedies Code § 71.001). There are exceptions, for example a claim against the mother, or against a doctor for a lawful medical procedure (Texas Civil Practice and Remedies Code § 71.003).

Wrongful death claim or survival claim?

A death can lead to two separate claims:

• The wrongful death claim is for the family’s own losses (Texas Civil Practice and Remedies Code § 71.004).
• The survival claim is for the injuries the person suffered before they died. It passes to their heirs, legal representatives and estate (Texas Civil Practice and Remedies Code § 71.021).

How long do you have to file?

In Texas you generally have two years from the date of death to file a wrongful death lawsuit (Texas Civil Practice and Remedies Code § 16.003).

Some rules can change that deadline:

• Children under 18. The time a person is under 18 is generally not counted in a limitations period (Texas Civil Practice and Remedies Code § 16.001). Whether this extends a child’s wrongful death claim depends on the facts, so ask a lawyer early rather than relying on it.
• Claims against the government. If a city, county or the state is responsible, for example a crash with a city vehicle, the government is entitled to notice of the claim within six months, and a city’s charter can set a shorter period (Texas Civil Practice and Remedies Code § 101.101).

Evidence goes faster than the deadline. Crash scenes are cleared, vehicles are repaired and video is overwritten.

What can the family recover?

A Texas jury awards damages “proportionate to the injury resulting from the death”, and divides them among the family members entitled to recover, in shares the jury decides (Texas Civil Practice and Remedies Code § 71.010).

Those damages are not limited to money lost. In 1983 the Texas Supreme Court allowed parents who lost a child to recover for mental anguish and for loss of companionship and society, not just financial loss (Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983)). In 1986 it applied the same damages to the parents of an adult child (Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986)).

A wrongful death claim can cover:

• The financial support and services the family has lost (Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986))
• Loss of companionship and society (Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983); Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986))
• Mental anguish (Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983); Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986))
• Through the survival claim, the damages the person could have claimed for their own injuries had they lived (Texas Civil Practice and Remedies Code § 71.021)

Exemplary (punitive) damages

When a death is caused by a willful act or omission or by gross negligence, Texas law allows exemplary damages as well (Texas Civil Practice and Remedies Code § 71.009). The Texas Constitution gives these damages to the surviving spouse and the children and other descendants, “without regard to any criminal proceeding” (Texas Constitution art. XVI, § 26).

The family must prove the facts behind exemplary damages by clear and convincing evidence, and the jury must be unanimous (Texas Civil Practice and Remedies Code § 41.003). Texas caps exemplary damages, but the cap does not apply to certain felonies committed knowingly or intentionally, or to intoxication manslaughter (Texas Civil Practice and Remedies Code § 41.008).

What if your loved one was partly at fault?

Texas uses proportionate responsibility. In a death case, the share of fault the jury gives the person who died counts against the family’s claim (Texas Civil Practice and Remedies Code § 33.011). If that share is more than 50 percent, the family cannot recover (Texas Civil Practice and Remedies Code § 33.001). If it is 50 percent or less, the award is reduced by that percentage (Texas Civil Practice and Remedies Code § 33.012). For example, an award reduced for 20 percent fault becomes 80 percent of the total.

Insurers know this rule well and often argue that the person who died was more at fault than they were. That is one reason to investigate the crash early.

Wrongful death claims against a city or the state

Government drivers cause fatal crashes too. The Texas Tort Claims Act allows a claim against a city, county or the state for a death caused by an employee’s negligent use of a motor vehicle (Texas Civil Practice and Remedies Code § 101.021). These claims have their own limits:

• Damage caps. A city’s liability is capped at $250,000 per person and $500,000 per occurrence for bodily injury or death. Other local governments have lower caps (Texas Civil Practice and Remedies Code § 101.023).
• Notice. The government must get notice of the claim within six months, or sooner if a city charter requires it (Texas Civil Practice and Remedies Code § 101.101).

If a death was caused by police force rather than a crash, the Texas Tort Claims Act generally does not apply, because it excludes assault, battery and other intentional torts (Texas Civil Practice and Remedies Code § 101.057). Those claims usually run through federal civil rights law. See our Austin police brutality lawyer page.

Does a criminal case have to finish first?

No. Texas law says a wrongful death claim is not barred because the death was caused by a felony, or because there may be a criminal case about it (Texas Civil Practice and Remedies Code § 71.006). For exemplary damages, the Texas Constitution says they are owed “without regard to any criminal proceeding” (Texas Constitution art. XVI, § 26).

What to do after a wrongful death

1. Get copies of the death certificate, crash report and medical records.
2. Keep photos, the vehicle and any personal belongings from the scene.
3. Write down the names of witnesses while you can.
4. Do not give a recorded statement to the other side’s insurance company before you talk to a lawyer.
5. Call a lawyer about preserving video and other evidence quickly.

Why call the Traub Law Office

• Andrew Traub founded the firm in 2003.
• We prepare every case as if it is going to trial.
• No fee unless we recover for you.
• Your first consultation is free.
• We take cases in Texas state courts and the federal courts in Texas.

Talk to an Austin wrongful death lawyer

Nothing we do can undo your loss. We can take on the legal work so your family has room to grieve. Call The Traub Law Office at (512) 246-9191 or contact us online for a free consultation.