Texas Modified Comparative Negligence: Can You Recover If You Were Partly at Fault?

If you were partly at fault for an injury in Texas, you may still recover damages. Texas calls this system proportionate responsibility. Under Texas Civil Practice and Remedies Code section 33.001 (opens in a new tab), a claimant may not recover if the claimant's percentage of responsibility is greater than 50 percent. If the claimant's responsibility is 50 percent or less, section 33.012 (opens in a new tab) requires the court to reduce damages by that percentage. In a lawsuit, the trier of fact, which is the jury or the judge acting as the jury, assigns the percentages.

This page is general legal information about Texas law, not advice about a particular claim. A qualified Texas attorney can apply these rules to the facts of a specific accident.

What does "greater than 50 percent" mean?

People often call the Texas rule the "51 percent rule," and that label points to the right threshold. The statute itself uses different words. Section 33.001 says a claimant may not recover damages if his percentage of responsibility is "greater than 50 percent." Having some share of the blame does not close the door on a claim. Only a share above 50 percent does.

That wording matters at the edge. A claimant found 50 percent responsible is not barred by section 33.001, although the damages are still reduced. A claimant found 51 percent responsible is barred. Texas also does not use the phrase "modified comparative negligence" in its statute. The statutory name is proportionate responsibility, and in Spanish you may see it called responsabilidad proporcional. The statute is published in English, so the phrase "greater than 50 percent" is the language to look for in the source.

Section 33.002 (opens in a new tab) explains where Chapter 33 applies: tort claims in which a defendant, settling person or responsible third party is found responsible for a percentage of the harm. Personal-injury, vehicle-crash, premises-liability and product-liability claims commonly fall in that group.

How does Texas reduce damages?

When a claimant is not barred, the reduction is a straight percentage. Section 33.012(a) (opens in a new tab) tells the court to reduce the damages the claimant would recover by a percentage equal to the claimant's percentage of responsibility.

This is an illustration of the statute, using made-up numbers. It is not an estimate for any real claim. Suppose a trier of fact finds that a claimant's damages total $100,000.

Settlements add a second step. If the claimant has settled with one or more persons, section 33.012(b) (opens in a new tab) says the court further reduces the damages by the sum of the dollar amounts of all settlements. In the illustration above, a claimant at 20 percent who had already settled with someone for $10,000 would see the $80,000 reduced again by that $10,000. Settlement terms also matter on their own, because a settlement agreement may release claims.

Health-care-liability claims under Chapter 74 work a little differently. Section 33.012(c) lets a defendant elect between the settlement-sum method and a percentage tied to each settling person's responsibility, and section 33.012(d) requires that election to be made in writing and filed before the issues go to the trier of fact. If no election is made, or elections conflict, the statute treats defendants as choosing the settlement-sum method.

Who decides the percentage of responsibility?

In a lawsuit, the trier of fact does. Section 33.003 (opens in a new tab) directs the trier of fact 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 section 33.004. The same section does not allow a question about a person's conduct to go to the trier of fact without enough evidence to support it.

So, the percentages are not a score handed out by an insurer or a formula on a website. They are findings tied to the evidence in the case. The State Bar of Texas publishes pattern jury charges as practice guidance for these questions. They are not statutes. A Texas Judicial Branch opinion (opens in a new tab) describes charge 4.1 as asking whether the negligence of named persons proximately caused the injury or occurrence, with charges 2.1 and 2.4 defining negligence and proximate cause. The State Bar's July/August 2025 report (opens in a new tab) says the committee completed updates for the 2024 volume, including material on pain, mental anguish and personal-injury damages.

What conduct can be considered?

Section 33.003 looks at each person's "causing or contributing to cause in any way" the harm for which damages are sought. That harm can come from a negligent act or omission, a defective or unreasonably dangerous product, or other conduct that violates an applicable legal standard.

The phrase "in any way" reaches further than the moment of impact. In Werner v. Blake (opens in a new tab), the Texas Supreme Court described the statute as covering conduct that causes or contributes to cause the harm in any way, including conduct that makes an injury worse. So a percentage can concern how an injury got worse as well as how the accident started, when the evidence supports it.

Texas negligence analysis generally looks at duty, breach, causation and damages. Duty is a legal question for the court, while negligence and proximate cause are generally fact questions when reasonable minds may differ. The order is sequential: a claimant first needs a legally recognized negligence claim and damages, then the trier of fact assigns percentages under section 33.003, and then sections 33.001 and 33.012 decide the effect on recovery.

Can another person be assigned responsibility?

Yes, through a responsible-third-party designation. Section 33.011(6) (opens in a new tab) defines a responsible third party as a person alleged to have caused or contributed to cause the harm in any way. The definition excludes a seller eligible for indemnity under section 82.002.

Under section 33.004 (opens in a new tab), a defendant asks the court for permission by filing a motion for leave. The motion generally must be filed by the 60th day before trial, unless the court finds good cause for a later filing. Anyone who objects generally must do so by the 15th day after the motion is served. If the court designates the person, that person can be included in the percentage question.

Two limits keep this in proportion. Section 33.004(i) says a designation, or a finding of fault against a designated person, does not by itself impose liability on that person and cannot be used in another proceeding to impose liability. Section 33.004(j) also covers an unknown person alleged to have committed a criminal act. The defendant must make that allegation within 60 days after filing the original answer, plead sufficient facts and identify known characteristics, and the person can be designated as "Jane Doe" or "John Doe" until identified.

What happens when there are several defendants?

Each liable defendant is generally responsible only for the share of damages that matches that defendant's percentage of responsibility. Section 33.013 (opens in a new tab) creates an exception in section 33.013(b). A defendant is jointly and severally liable for the damages recoverable under section 33.012 if the defendant's percentage of responsibility is "greater than 50 percent," or if the defendant acted with specific intent to harm others in concert with another person in conduct the statute lists.

The two thresholds look alike but do different jobs. Section 33.001 decides whether a claimant may recover at all. Section 33.013 decides how liability is spread among defendants once recoverable damages have been determined.

Does the rule apply to pain and emotional distress?

Chapter 33 does not set aside a separate exemption for non-economic damages. Section 33.012(a) refers to "the amount of damages" for the cause of action, so the percentage reduction applies to damages that are legally recoverable and supported by evidence.

Two questions stay separate. The first is whether a particular kind of damages, such as mental anguish, can be recovered and proved. A Texas Judicial Branch opinion (opens in a new tab) states that Texas has authorized mental-anguish damages in virtually all personal-injury actions, including some negligence cases, and a Texas Supreme Court opinion (opens in a new tab) discusses non-economic damages and proof. The second is how the reduction applies to whatever damages are recoverable. For a claimant under the bar, the reduction is the same percentage.

How does this relate to an insurance claim?

An insurance claim and a lawsuit are different processes. An insurer can investigate, review the evidence and take a position on fault or payment. The Texas Department of Insurance says in its auto insurance FAQ (opens in a new tab) that an insurer may refuse a third-party claim if it does not agree that its insured was at fault. If the other driver's insurer refuses to pay, TDI says you may file a claim with your own insurer when you carry applicable collision coverage.

An adjuster's percentage is a claim position. The legal allocation in a lawsuit is made by the trier of fact under section 33.003. TDI's complaint guidance (opens in a new tab) says the agency cannot decide who caused an accident, though a complaint can be filed about how a regulated insurance company handled a claim. If an insurer delays, denies or disputes a claim, see what to do when an insurer disputes your claim (opens in a new tab).

If you disagree with an offer, TDI's claim tips (opens in a new tab) and its page on what to do if your insurance is not paying enough (opens in a new tab) suggest asking for an explanation of the offer and explaining your disagreement to the insurer. These records help in either setting:

• The policy and declarations page, the claim number and the adjuster's contact information.
• Photographs and videos of the scene, vehicles, injuries and property.
• Witness names and contact details, and the police report number.
• Medical records and bills, and wage-loss documentation.
• Repair estimates and receipts, written insurer communications, and any settlement agreement or release.

On coverage, TDI's auto insurance guide (opens in a new tab) lists the Texas minimum liability limits as $30,000 per person, $60,000 per accident and $25,000 for property damage. Time limits for filing a lawsuit are separate; see our guide to the Texas statute of limitations for personal injury.

How does Texas differ from other states?

States divide fault in different ways, so a rule from one state should not be applied in another. A few written examples show the range:

• Maine: Title 14, section 156 (opens in a new tab) says a claim is not defeated merely because the claimant was partly at fault, but damages are reduced. A claimant found equally at fault may not recover.
• Vermont: Title 12, section 1036 (opens in a new tab) permits recovery when the plaintiff's negligence is not greater than the causal total negligence of the defendant or defendants, with a proportional reduction.
• Michigan: section 600.2959 (opens in a new tab) reduces damages by the injured person's comparative fault. If that person's fault is greater than the combined fault of the other persons, economic damages are reduced by the percentage of fault and non-economic damages are not awarded.
• Kentucky: section 411.182 (opens in a new tab) requires fault to be allocated among claimants, defendants, third-party defendants and released persons, and the cited provision has no Texas-style greater-than-50-percent claimant bar.

How a state is classified can also depend on the type of claim and on statutory exceptions, so the statute for the state and claim at issue is the place to confirm the rule.

Frequently asked questions

These short answers cover points that come up often after the basic rule is clear.

Can I recover if I was partly at fault in Texas?

Yes, unless your percentage of responsibility is greater than 50 percent. If recovery is not barred, damages are reduced by your percentage under section 33.012.

What happens at exactly 50 percent responsibility?

The section 33.001 bar does not apply, because the statute says "greater than 50 percent." Section 33.012 still requires a reduction by the claimant's percentage, so a claimant at 50 percent would see damages cut in half.

Can a person who was not sued be included in the percentages?

A defendant may ask the court to designate a responsible third party under section 33.004, generally by the 60th day before trial. Designation alone does not impose liability on that person.

Does an insurance adjuster decide the legal percentage?

An adjuster may take a position on an insurance claim, but in a lawsuit the trier of fact makes the percentage allocation under section 33.003. TDI states that it cannot decide who caused an accident.

How do settlements affect recovery?

Section 33.012(b) generally reduces a later award by the dollar amounts of settlements. Health-care-liability claims carry an additional election under section 33.012(c) and (d).

Where to go next

If fault is part of your claim, you can read how a lawyer's fee works in our guide to what a personal injury lawyer costs, or see whether a lawyer fits your situation in do I need a lawyer for a car accident. To look at Texas personal-injury law firms by city, start with our law firm directory.