Survival of a Cause of Action in Texas

While survival actions do not arise frequently, they do occur often enough in Texas that a short discussion of them is warranted in this blog. Usually they occur when a family member brings a claim on behalf of the estate and also on the family member’s behalf, individually. For purposes of this blog discussion, the claims or cause of actions are for a non-personal injury claims.  A few issues should immediately come to mind. Does the person bringing the claim have standing and/or capacity to bring the claim, how long does the representative have to bring the claim in Texas and if a claim is viable, what damages, if any, are recoverable by that person under Texas law?

A plaintiff asserting a survival action on behalf of a decedent must have standing and legal capacity to sue. Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). Standing in the survival context is whether the person is personally aggrieved and has a justifiable interest, while capacity refers to the legal authority to prosecute the action. Without standing, a court lacks subject matter jurisdiction. Capacity is a defect raised by a verified pleading in the court. See Tex. R. Civ. P. 93.  As to capacity, a decedent’s estate is not recognized as a legal entity and may not use or be sued in its own name. Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, 850-51 (Tex. 2005).  If a legal representative of the estate has been appointed, the representative is the appropriate person to bring an action on behalf of the estate, because the representative is charged with the estate’s administration and technically represents all persons, creditors, and heirs with an interest in the estate. Therefore, only an estate’s personal representative has capacity to bring a survival action on behalf of the estate. Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, 850-51 (Tex. 2005).

Heirs at law can maintain a survival suit during the four year period that Texas law allows for instituting administration proceedings if they allege and prove that no administration is pending and none necessary. Shepherd v. Ledford, 962 S.W.2d 28, 31-32 (Tex. 1998). A key point to remember is that a survivial action is completely derivative of the decedent’s rights. The wrong that is being sued upon is something that occurred to the decedent and the damages recoverable are those sustained by the decedent when the decedent was alive and not any damages claimed independently by the representative. In other words, it is the damage suffered solely by the decedent who would have received it had it been obtained prior to his death.  See Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992).

Because the damages recoverable under the survival statute are limited to damages sustained by decedent prior to death, property damages are also recoverable. Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 35 (Tex. 1963).  Under limited circumstances, exemplary damages may also be recovered in a survival action. Gen Chem Corp. v. De La Lastra, 852 S.W.2d 916, 924 (Tex. 1993).  The circumstances under which exemplary damages may be awarded and statutory limits on the amounts of such damages are governed by statute and common law and apply to personal injury actions.  Exemplary damages are not available for claims solely related to property damage.  See e.g., Tex. Civ. Prac. & Rem. Code ann. §71.012 (survival action for personal injury).  See Aldridge v. Stout, 36 S.W.2d 1110 (Tex.App.—Fort Worth 1931, n.w.h.) (holding that actual damages to property can be recovered for value of property but not for exemplary damages); see also Ferrill’s Administratrix v. Mooney’s Executors, 33 Tex. 219, 1870 WL 5730 (Tex. 1870) (allowing recovery of actual damages and in dicta stating exemplary damages not available).  While a representative or heir can recover the value of the damage to personal property, they cannot recover exemplary damages.  A claim for property damage in this context usually arises when there is an allegation of conversion or wrongful repossession.  Both wrongful repossession and conversion claims would normally allow recovery for exemplary damages but not in a survival cause of action solely for property damages. As a result, the potential exposure of a defendant is reduced significantly.

The opinions contained in this blog are the author’s and any comments, suggestions and replies should be directed to John Jones at


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