Geoffrey Dugger v. Mary Ann Arredondo, Individually and as Representative of the Estate of Joel Martinez

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 11-0549
444444444444

GEOFFREY DUGGER, PETITIONER,

v.

MARY ANN ARREDONDO, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF JOEL MARTINEZ, DECEASED, RESPONDENTS

4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444

Argued November 6, 2012

JUSTICE GREEN delivered the opinion of the Court, in which CHIEF JUSTICE JEFFERSON ,
JUSTICE JOHNSON , JUSTICE GUZMAN , JUSTICE LEHRMANN , and JUSTICE BOYD joined.

JUSTICE HECHT filed a dissenting opinion, in which JUSTICE WILLETT and JUSTICE DEVINE
joined.

In this wrongful death suit, we consider the viability of the common law “unlawful acts

doctrine” as an affirmative defense in light of Texas’s proportionate responsibility scheme and the

statutory affirmative defense provided in section 93.001 of the Texas Civil Practice and Remedies

Code. Under the unlawful acts doctrine, a plaintiff cannot recover damages if it can be shown that,

at the time of injury, the plaintiff was engaged in an illegal act that contributed to the injury. See

Gulf, C. & S. F. Ry. Co. v. Johnson, 9 S.W. 602, 603 (Tex. 1888). The trial court rendered summary
judgment for the defendant on his affirmative defense based on the unlawful acts doctrine. The

court of appeals reversed, holding that section 93.001 superseded the unlawful acts doctrine. 347

S.W.3d 757, 768–69 (Tex. App.—Dallas 2011, pet. granted). We affirm the judgment of the court

of appeals, but on different grounds. We hold that the Legislature’s adoption of the proportionate

responsibility scheme in Chapter 33 of the Civil Practice and Remedies Code evidenced its clear

intention that a plaintiff’s illegal conduct not falling within a statutorily-recognized affirmative

defense be apportioned rather than barring recovery completely. The common law unlawful acts

doctrine cannot coexist with this scheme. Accordingly, we affirm the court of appeals’ judgment

that reversed the summary judgment and remanded the case to the trial court for further proceedings.

I. Factual and Procedural Background

On February 2, 2007, Geoffrey Dugger went to his friend Joel Martinez’s house. While

getting ready to leave the house, Dugger saw Martinez put in his pocket “cheese”—a mixture of

black-tar heroin and Tylenol PM. After purchasing tequila and a cigar, which they later filled with

marijuana to make a “blunt,” the two men returned to the house where Dugger lived with his parents.

While in Dugger’s bedroom and backyard, both men consumed several tequila drinks, snorted lines

of cheese, and smoked marijuana. Later in the evening, Martinez fell asleep while watching

television. About thirty minutes later, Dugger noticed that Martinez was making a choking sound

and subsequently began vomiting. Dugger yelled for his parents, and they came down the hall to his

bedroom. Instead of calling 911, Dugger called Martinez’s mother, Mary Ann Arredondo, and told

her that Martinez had been drinking and was throwing up. Arredondo told Dugger to let Martinez

sleep it off. After another fifteen minutes had passed, Dugger’s father called 911. The police arrived

2
about five minutes later, shortly after midnight. The paramedics arrived about ten minutes after the

police. Dugger did not tell the police or paramedics that Martinez had ingested heroin, only that he

drank tequila and smoked marijuana. The paramedics treated Martinez for alcohol poisoning, but

their efforts proved unavailing. Martinez died less than two hours after the call to 911.

Arredondo sued Dugger under the wrongful death and survival statutes, alleging that Dugger

was negligent both in failing to call 911 immediately and in failing to disclose Martinez’s heroin use

to the paramedics. See TEX . CIV . PRAC. & REM . CODE §§ 71.002(a)–(b), .021. In his answer, Dugger

asserted an affirmative defense based on the common law unlawful acts doctrine, which bars a

plaintiff from recovery if, at the time of injury, he was engaged in an unlawful act that was

“inextricably intertwined with the claim and the alleged damages would not have occurred but for

the illegal act.” Sharpe v. Turley, 191 S.W.3d 362, 366 (Tex. App.—Dallas 2006, pet. denied);

accord Johnson, 9 S.W. at 603; Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 347 (Tex. 1992)

(providing that any defenses that would be available against the decedent if he or she were alive may

be asserted against his or her estate). Dugger then moved for summary judgment on his affirmative

defense based on the unlawful acts doctrine, which the trial court granted.1 The trial court denied

1
Arredondo argues that Dugger owed Martinez a duty because he created a dangerous situation by allowing
drugs to be consumed at his house and therefore had a duty to prevent injury to others. See Buchanan v. Rose, 159
S.W .2d 109, 110 (Tex. 1942) (“[I]f a party negligently creates a dangerous situation it then becomes his duty to do
something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise
of their lawful rights may be injured thereby.”). Arredondo also asserts that because Dugger chose to partially disclose
the nature of Martinez’s medical distress to the paramedics, he was “deemed to have assumed a duty to tell the whole
truth.” Union Pac. Res. Grp., Inc. v. Rhône-Poulenc, Inc., 247 F.3d 574, 584 (5th Cir. 2001) (discussing the duty to
disclose in the fraud context (citing R ESTATEM EN T (S ECO N D ) O F T O RTS § 552(2)(b) (1976))). Finally, Arredondo argues
that Dugger owed Martinez a duty under section 38.15(a)(2) of the Texas Penal Code, which states that “[a] person
commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with: . . .
(2) a person who is employed to provide emergency medical services including the transportation of ill or injured persons
while the person is performing that duty.” T EX . P EN AL C O D E § 38.15(a)(2). W e need not address this issue because the

3
Arredondo’s motion for rehearing and motion for new trial. Arredondo appealed, arguing that

section 93.001 of the Civil Practice and Remedies Code replaced the common law unlawful acts

doctrine, and that the statutory affirmative defense did not apply in this case.2 The court of appeals

reversed, holding that section 93.001 supersedes the common law unlawful acts doctrine.3 347

S.W.3d at 769. We granted Dugger’s petition. 55 Sup. Ct. J. 757 (Tex. June 8, 2012).

II. Analysis of Unlawful Acts Doctrine Jurisprudence

The issue before us is whether the common law unlawful acts doctrine remains available as

an affirmative defense to completely bar a plaintiff’s recovery in tort cases in light of Texas’s

proportionate responsibility scheme and the Legislature’s more recent enactment providing for an

affirmative defense based on a plaintiff’s felonious conduct. Dugger argues that an affirmative

defense based on the unlawful acts doctrine is available in personal injury and wrongful death cases

even when the elements of section 93.001’s statutory affirmative defense are not satisfied.

Arredondo argues that the unlawful acts doctrine conflicts not only with section 93.001, but also with

the proportionate responsibility scheme in Chapter 33 of the Civil Practice and Remedies Code,

trial court rendered judgment solely on Dugger’s traditional motion for summary judgment based on the unlawful acts
doctrine, and that is the only issue before us.

2
In her response to Dugger’s motion for summary judgment, Arredondo argued that Texas’s proportionate
responsibility scheme superseded the unlawful acts doctrine. Arredondo did not raise the argument directly when
challenging the summary judgment on appeal, but does include it in her argument at this Court. See T EX . R. A PP . P.
38.1(f) (“The brief must state concisely all issues or points presented for review. The statement of an issue or point will
be treated as covering every subsidiary question that is fairly included.”).

3
Arredondo brings her claims under sections 71.002(b) and 71.006 of the W rongful Death Act. T EX . C IV .
P RAC . & R EM . C O D E §§ 71.002(b), .006. At the court of appeals, Arredondo argued that the W rongful Death Act
abrogated the common law unlawful acts doctrine, but she does not make that argument to this Court. Accordingly, that
issue is not before us and we do not address it.

4
which replaced former common law defenses that provided a complete bar to recovery in tort cases.

See TEX . CIV . PRAC. & REM . CODE §§ 33.001–.004. We agree with Arredondo that the Legislature’s

enactment of Chapter 33’s proportionate responsibility scheme and section 93.001 are dispositive

in this case.

“[S]tatutes can modify common law rules, but before we construe one to do so, we must look

carefully to be sure that was what the Legislature intended.” Energy Serv. Co. of Bowie v. Superior

Snubbing Servs., Inc., 236 S.W.3d 190, 194 (Tex. 2007). In construing statutes, our goal is to give

effect to the intent expressed by the language in the statute. City of Rockwall v. Hughes, 246 S.W.3d

621, 625 (Tex. 2008) (citing State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006)). We begin our

analysis by reviewing the common law unlawful acts doctrine.

A. The Unlawful Acts Doctrine

More than 120 years ago, this Court recognized the common law unlawful acts doctrine as

barring a plaintiff from recovering damages if it could be shown that, at the time of injury, the

plaintiff was engaged in an illegal act that contributed to the injury.4 See Johnson, 9 S.W. at 603.

The doctrine originated with the principle of in pari delicto or “unclean hands” in the contract

context, but was extended to tort causes of action. See Rico v. Flores, 405 F. Supp. 2d 746, 759–61

(S.D. Tex. 2005) (describing the use of the unlawful acts and in pari delicto doctrines in Texas

jurisprudence), rev’d on other grounds, 481 F.3d 234 (5th Cir. 2007). The doctrine is based on the

public policy that wrongdoers should not be compensated for their immoral acts. See, e.g., Ward v.

4
The unlawful acts doctrine is also referred to as the “outlaw doctrine,” the “ex turpi rule,” the “wrongful-
conduct rule,” and the “serious misconduct doctrine.” See Joseph H. King, Jr., Outlaws and Outlier Doctrines: The
Serious Misconduct Bar in Tort Law, 43 W M . & M ARY L. R EV . 1011, 1019 & n.35 (2002).

5
Emmett, 37 S.W.3d 500, 502 (Tex. App.—San Antonio 2001, no pet.); Saks v. Sawtelle, Goode,

Davidson & Troilo, 880 S.W.2d 466, 470–71 (Tex. App.—San Antonio 1994, writ denied).

As early as 1888, we recognized that “no action will lie to recover a claim for damages, if

to establish it the plaintiff requires aid from an illegal transaction, or is under the necessity of

showing or in any manner depending upon an illegal act to which he is a party.” Johnson, 9 S.W.

at 603 (holding that the unlawful acts doctrine did not apply because there was no allegation or

proof showing that, at the time of the injury, the plaintiff did any illegal act contributing to his

injury). Since then, “[c]ourts throughout Texas . . . have used this rule, along with public policy

principles, to prevent a plaintiff from recovering damages that arose out of his or her own illegal

conduct.” Ward, 37 S.W.3d at 502 (internal citations omitted). Courts applying the unlawful acts

doctrine have required that the plaintiff’s illegal act be “inextricably intertwined” with the claim for

the illegal act to bar recovery. See, e.g., id. at 503. An illegal act is “inextricably intertwined with

the claim” if a plaintiff cannot prove a claim without having to prove his or her own illegal act. See,

e.g., Norman v. B.V. Christie & Co., 363 S.W.2d 175, 177–78 (Tex. Civ. App.—Houston 1962, writ

ref’d n.r.e.) (quoting Stone v. Robinson, 234 S.W. 1094, 1095 (Tex. 1921)). In Texas tort cases, the

doctrine has most recently arisen in medical and legal malpractice cases. See, e.g., Ward, 37 S.W.3d

at 501; Saks, 880 S.W.2d at 470.

Recently, scholars and courts have disagreed over the viability of the unlawful acts doctrine

in modern jurisprudence. The Restatement (Second) of Torts and respected legal scholars reject the

principle that tortious or criminal conduct can completely bar recovery. See RESTATEMENT

(SECOND ) OF TORTS § 889 (1979); W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS 232

6
(5th ed. 1984); see generally Joseph H. King, Jr., Outlaws and Outlier Doctrines: The Serious

Misconduct Bar in Tort Law, 43 WM . & MARY L. REV . 1011 (2002) (suggesting that the unlawful

acts doctrine, or “serious misconduct bar,” should be abandoned by American courts). Several courts

and legislatures, on the other hand, have approved of the unlawful acts doctrine in statutes and case

law. See, e.g., ALASKA STAT . § 09.65.210 (2012) (setting out a detailed statutory affirmative defense

based on the unlawful acts doctrine); Barker v. Kallash, 468 N.E.2d 39, 43–44 (N.Y. 1984) (holding

that a teenager who was injured while constructing a “pipe bomb” could not recover from the young

boy who supplied the gun powder); see also Vincent R. Johnson, The Unlawful Conduct Defense

in Legal Malpractice, 77 UMKC L. REV . 43, 45 (2008) (“Today, in an important range of cases,

statutes and court decisions, in many states, now provide that injuries arising from the plaintiff’s

serious unlawful conduct are not compensable under tort law.”).

Since Texas’s shift to the proportionate responsibility scheme, discussed below, most Texas

courts have used a plaintiff’s unlawful act to measure proportionate responsibility and reduce

recovery, rather than completely bar the plaintiff from recovering damages. See, e.g., Fifth Club, Inc.

v. Ramirez, 196 S.W.3d 788, 790, 797–98 (Tex. 2006) (allowing a publicly intoxicated plaintiff to

recover for injures sustained by a security guard); Thomas v. Uzoka, 290 S.W.3d 437, 445–46 (Tex.

App.—Houston [14th Dist.] 2009, pet. denied) (permitting a decedent’s wife to recover despite the

decedent’s failure to wear a seatbelt). We turn next to Chapter 33’s proportionate responsibility

scheme and consider whether the Legislature intended it to abrogate the common law unlawful acts

doctrine as a complete bar to a plaintiff’s recovery.

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 B. Chapter 33—Proportionate Responsibility

Before the Legislature enacted the proportionate responsibility scheme, Texas followed the

all-or-nothing system of contributory negligence. Parker v. Highland Park, Inc., 565 S.W.2d 512,

518 (Tex. 1978). Under contributory negligence, if a plaintiff was even one percent at fault, he or

she could not recover. See id. In 1973, the Legislature adopted article 2212a, the first comparative

negligence statute, “evidenc[ing] a clear policy purpose to apportion negligence according to the

fault of the actors.” Id.; see also Act of April 9, 1973, 63d Leg., R.S., ch. 28, §§ 1–2, 4–5, art.

2212a, 1973 Tex. Gen. Laws 41, 41–43, repealed by Act of June 16, 1985, 69th Leg., R.S., ch. 959,

§ 1, sec. 33.001, 1985 Tex. Gen. Laws 3242, 3270–71. Later, article 2212a was replaced with the

comparative responsibility framework in Chapter 33 of the Civil Practice and Remedies Code. See

TEX . CIV . PRAC. & REM . CODE §§ 33.001–.004; see also Act of June 16, 1985, 69th Leg., R.S., ch.

959, § 1, secs. 33.001–.004, 1985 Tex. Gen. Laws 3242, 3270–71, amended by Act of June 16, 1987,

70th Leg., 1st C.S., ch. 2, §§ 2.03–.12, secs. 33.001–.004, 1987 Tex. Gen. Laws 37, 41–44; JCW

Elecs., Inc. v. Garza, 257 S.W.3d 701, 703 (Tex. 2008) (setting out the evolution of the comparative

fault rules in Texas). In 1995, the Legislature modified Chapter 33 by replacing comparative

responsibility with proportionate responsibility. Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 1,

1995 Tex. Gen. Laws 971, 971–75 (amended 2003) (current version at TEX . CIV . PRAC. & REM .

CODE §§ 33.001–.004); see JCW Elecs., 257 S.W.3d at 703. Section 33.003 currently provides:

(a) The trier of fact, as to each cause of action asserted, shall determine the
percentage of responsibility, stated in whole numbers, for the following persons with
respect to each person’s causing or contributing to cause in any way the harm for
which recovery of damages is sought, whether by negligent act or omission, by any

8
 defective or unreasonably dangerous product, by other conduct or activity that
violates an applicable legal standard, or by any combination of these:

(1) each claimant;

(2) each defendant;

(3) each settling person; and

(4) each responsible third party who has been designated under Section
33.004.

TEX . CIV . PRAC. & REM . CODE § 33.003(a). The proportionate responsibility scheme applies to “any

cause of action based on tort in which a defendant, settling person, or responsible third party is found

responsible for a percentage of the harm for which relief is sought.” Id. § 33.002.

C. Unlawful Conduct in Wrongful Death Cases

The wrongful death statute provides that “[a] person is liable for damages arising from an

injury that causes an individual’s death if the injury was caused by the person’s or his agent’s or

servant’s wrongful act, neglect, carelessness, unskillfulness, or default.” Id. § 71.002(b). Parents

may bring a wrongful death action on behalf of their deceased children. See id. § 71.004.

It is clear from the statute and our precedent that Chapter 33 applies to wrongful death

claims. See, e.g., Russell, 841 S.W.2d at 347. By its terms, Chapter 33 expressly applies to “any

cause of action based on tort.” TEX . CIV . PRAC. & REM . CODE § 33.002. In addition, we have held

that, under the wrongful death statute, a defendant may assert any defense against the claimant that

he might have asserted against the decedent, if the decedent were alive. Russell, 841 S.W.2d at 347.

This formerly included the defense of contributory negligence. See id. (citing Vassallo v.

Nederl-Amerik Stoomv Maats Holland, 344 S.W.2d 421, 424 (Tex. 1961)). Further, we have

9
recognized federal case law that holds that Texas comparative negligence precluded recovery in a

wrongful death case because the decedent’s negligence was greater than the tortfeasor’s. See id. at

347 n.7 (citing Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1009 (5th Cir. 1986)). Finally, courts

throughout the state generally accept that proportionate responsibility applies to wrongful death

cases. See, e.g., Pastor v. Champs Rest., Inc., 750 S.W.2d 335, 358 (Tex. App.—Houston [14th

Dist.] 1988, no writ) (remanding the case to the trial court to compare the decedent’s negligence and

bar’s negligence in wrongful death case); Velasquez v. Levingston, 598 S.W.2d 346, 349 (Tex. Civ.

App.—Corpus Christi 1980, no writ) (holding that recovery was precluded by then operative Texas

comparative negligence statute because the decedent’s negligence was greater than the tortfeasor’s).

Because Chapter 33’s proportionate responsibility scheme applies to wrongful death cases,

and therefore applies to Arredondo’s case, we must determine whether the common law unlawful

acts doctrine is available as an affirmative defense under the proportionate responsibility framework.

We conclude that it is not. The plain language of section 33.003 clearly indicates that the common

law unlawful acts doctrine is no longer a viable defense. Section 33.003 provides, in pertinent part:

The trier of fact . . . shall determine the percentage of responsibility . . . with respect
to each person’s causing or contributing to cause in any way the harm for which
recovery of damages is sought, whether by negligent act or omission, by any
defective or unreasonably dangerous product, by other conduct or activity that
violates an applicable legal standard . . . .

See TEX . CIV . PRAC. & REM . CODE § 33.003(a) (emphasis added). The language of the statute

indicates the Legislature’s desire to compare responsibility for injuries rather than bar recovery, even

if the claimant was partly at fault or violated some legal standard. See Parker, 565 S.W.2d at 518

10
(discussing article 2212a, which is now Chapter 33). Therefore, we hold that Chapter 33 controls

over the unlawful acts doctrine in the wrongful death context.

The dissent contends that the unlawful acts doctrine and Chapter 33 may coexist as separate

legal concepts. See ___ S.W.3d at ___. Nothing in Chapter 33 or in our case law suggests that the

unlawful acts doctrine acts as an exception to the proportionate responsibility scheme, however. See

Parker, 565 S.W.2d at 518 (holding that Chapter 33 replaces common law doctrines that lead to a

“system of absolute victory or total defeat”). Proportionate responsibility abrogated former common

law doctrines that barred a plaintiff’s recovery because of the plaintiff’s conduct—like assumption

of the risk, imminent peril, and last clear chance—in favor of submission of a question on

proportionate responsibility. See Del Lago Partners, Inc. v. Smith, 307 S.W. 3d 762, 772 (Tex.

2010). When the Legislature intends an exception to Chapter 33’s broad scheme, it creates specific

exceptions for matters that are outside the scope of proportionate responsibility. See F.F.P.

Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 690–91 (Tex. 2007). In the context of

criminal actions, for example, the Legislature did just that, removing certain criminal acts performed

in concert with another person from the proportionate responsibility scheme and instead imposing

joint and several liability. See Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.002, 1995

Tex. Gen. Laws 971, 972, repealed by Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 4.10, sec.

33.002, 2003 Tex. Gen. Laws 859, 859. We find no such indication that the Legislature intended

a plaintiff’s unlawful conduct to be treated differently from the other common law defenses under

the former contributory negligence scheme, or that the Legislature intended it to be an exception to

proportionate responsibility. We hold that the unlawful acts doctrine fits within the categories of

11
former common law defenses that are now exclusively controlled by Chapter 33’s proportionate

responsibility scheme.

Further, we have accepted the concept that those who voluntarily put themselves in

dangerous situations are not necessarily barred from recovering from other negligent individuals.

For example, we have held that an individual who voluntarily became intoxicated and was injured

while driving his car may recover against the establishment that served him the alcohol. See Smith

v. Sewell, 858 S.W.2d 350, 355 (Tex. 1993). While “[h]istorically, an individual who voluntarily

became intoxicated was precluded from suing a tavern owner for his own injuries,” id. at 352 (citing

1 JAMES H. MOSHER, LIQUOR LIABILITY LAW § 2.02[6][a](1990)), the Legislature in 1987

established a cause of action against providers of alcohol under certain circumstances by enacting

Chapter 2 of the Alcoholic Beverage Code. See TEX . ALCO . BEV . CODE § 2.03; see also Act of June

11, 1987, 70th Leg., R.S., ch. 303, § 3, sec. 202, 1987 Tex. Gen. Laws 1673, 1674. Therefore, in

Smith v. Sewell, we held that, under Chapter 2, an individual who was voluntarily intoxicated was

not barred from recovery, and that Chapter 33 was applicable to a cause of action under Chapter 2

against an alcoholic beverage provider. See 858 S.W.2d at 355–56. We noted that “when it is the

intoxicated individual who is injured due to his own intoxication, it is particularly appropriate that

his conduct in contributing to his injury should be considered in assessing the amount of recovery,

if any, to which he is entitled.” Id. at 356. It follows that, like the rule prohibiting voluntarily

intoxicated individuals from recovering from a tavern owner, the adoption of the proportionate

responsibility framework abrogated use of the common law unlawful acts doctrine to bar recovery

in the tort context.

12
 Dugger cites several cases in which a plaintiff was precluded from recovering damages in

the legal malpractice context due to the plaintiff’s underlying criminal conduct. See, e.g., Sharpe

v. Turley, 191 S.W.3d 362, 365–69 (Tex. App—Dallas 2006, pet. denied); Saks v. Sawtelle, Goode,

Davdison & Trolio, 880 S.W.2d 466, 467 (Tex. App—San Antonio 1994, writ denied); Dover v.

Baker, Brown, Sharman & Parker, 859 S.W.2d 441, 450–51 (Tex. App.—Houston [1st Dist.] 1993,

no writ). While the public policy underlying the unlawful acts doctrine may be similar to the policy

behind those cases, the context makes those cases unique. In Peeler v. Hughes & Luce, 909 S.W.2d

494 (Tex. 1995), we held that a client’s criminal conduct, as a matter of law, was the sole proximate

or producing cause of the client’s conviction, and that the client could not bring a legal malpractice

claim unless she had been exonerated from the criminal conviction. Id. at 496–98. Because the

client’s conduct, and not the attorney’s, is the sole cause of any injury resulting from conviction, the

plaintiff cannot satisfy the causation element of a legal malpractice claim absent exoneration. See

id. While some courts of appeals have extended that reasoning to civil defendants bringing legal

malpractice actions, we have not directly addressed that issue. See, e.g., Sharpe, 191 S.W.3d at 369

(precluding a plaintiff from recovering from an attorney after a finding that summary judgment

evidence established that the plaintiff’s conduct forming the basis of the underlying civil fraud claim

was unlawful). As it is not before us, we do not do so now, and we limit the holding in this case to

personal injury and wrongful death cases.

We next consider section 93.001 of the Civil Practice and Remedies Code and how it

interacts with Chapter 33.

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 III. Section 93.001 of the Civil Practice and Remedies Code

In 1987, the Legislature enacted section 93.001 of the Civil Practice and Remedies Code,

providing an affirmative defense to civil actions brought by convicted criminals seeking to recover

damages for injuries arising out of their felonious acts.5 See TEX . CIV . PRAC. & REM . CODE

§ 93.001; see also Act of June 19, 1987, 70th Leg., R.S., ch. 824, § 1, sec. 93.001, 1987 Tex. Gen.

Laws 2856, 2856. The statute provides:

(a) It is an affirmative defense to a civil action for damages for personal injury or
death that the plaintiff, at the time the cause of action arose, was:

(1) committing a felony, for which the plaintiff has been finally convicted,
that was the sole cause of the damages sustained by the plaintiff; or

(2) committing or attempting to commit suicide, and the plaintiff’s conduct
in committing or attempting to commit suicide was the sole cause of the
damages sustained; provided, however, if the suicide or attempted suicide
was caused in whole or in part by a failure of the party or any defendant to
comply with an applicable legal standard, then which suicide or attempted
suicide shall not be a defense.

(b) This section does not apply in any action brought by an employee, or the
surviving beneficiaries of an employee, under the Workers’ Compensation Law of
Texas, or in any action against an insurer based on a contract of insurance, a statute,
or common law.

(c) In an action to which this section applies, this section shall prevail over any other
law.

5
Section 86.002 of the Civil Practice and Remedies Code is a similar expression of the legislative policy that
convicted criminals may not recover for injuries sustained while committing a crime. See T EX . C IV . P RAC . & R EM . C O DE
§ 86.002. Arredondo does not rely on section 86.002 to support her argument that the unlawful acts doctrine has been
superseded. Thus, we do not address it.

14
TEX . CIV . PRAC. & REM . CODE § 93.001. It is undisputed that section 93.001 may not be used as an

affirmative defense in this case. Martinez was never finally convicted, nor is there any indication

that Martinez committed suicide as required by subsection 93.001(a)(2). See id.

We must still consider the language of section 93.001, however, to determine whether it

evinces legislative intent that the common law unlawful acts doctrine remain available as an

affirmative defense when the statutory affirmative defense is not, as Dugger argues. Subsection

93.001(a) initially indicates broad applicability to personal injury and wrongful death cases, but then

limits the availability of the affirmative defense to two circumstances. See id. § 93.001(a). First,

subsection 93.001(a)(1) limits the affirmative defense to cases in which both (1) the plaintiff was

finally convicted, and (2) the felony was the sole cause of the damages. See id. The phrase “for

which the plaintiff has been finally convicted” is an expression of a narrow policy of the state that

convicted wrongdoers who committed the most serious crimes should not be permitted to recover.

Id. § 93.001(a)(1). The narrow focus of subsection 93.001(a)(1) might, in effect, preclude its utility,

as the dissent notes, where the plaintiff dies before conviction. See ___S.W.3d at ___. Yet this

anomaly is less evidence of absurdity than recognition of the Legislature’s policy choice that only

criminals actually convicted of the most serious crimes will be barred from recovery. Although

there is some overlap with the policy underlying the common law unlawful acts doctrine, the statute

embodies this policy in a limited and narrow way. Second, subsection 93.001(a)(2) limits the

affirmative defense to instances in which the plaintiff was committing or attempting suicide. This

is entirely beyond the scope of the unlawful acts doctrine, although the policy underlying the

common law doctrine certainly lends support for the suicide affirmative defense. But, again,

15
although Dugger argues that the broad unlawful acts doctrine survived Chapter 33 and section

93.001, nothing in the statute suggests such legislative intent. See generally TEX . CIV . PRAC. & REM .

CODE § 93.001. In fact, subsections 93.001(b) and (c) clearly contemplate that the affirmative

defense is not available in all cases, and subsection 93.001(a) specifies the narrow circumstances in

which a plaintiff’s recovery is barred by the plaintiff’s conduct.

Arredondo argues that the language in subsection 93.001(c), stating “this section shall prevail

over any other law,” expresses the Legislature’s intention for this statute to supersede the unlawful

acts doctrine. Dugger contends that the phrase “an action in which this section applies,” limits the

statutory affirmative defense to cases in which (1) there has been a final conviction, or (2) there has

been a suicide or attempted suicide, but the common law unlawful acts doctrine is available in all

other personal injury or wrongful death actions. In considering these competing interpretations, we

presume the Legislature enacts a statute with knowledge of existing law. Acker v. Tex. Water

Comm’n, 790 S.W.2d 299, 301 (Tex. 1990) (citing McBride v. Clayton, 166 S.W.2d 125, 128 (Tex.

1942)). When section 93.001 was enacted in 1987, article 2212a’s comparative negligence already

existed. Compare Act of June 19, 1987, 70th Leg., R.S., ch. 824, § 1, sec. 93.001, 1987 Tex. Gen.

Laws 2856, 2856 (enactment of § 93.001 in 1987), with Act of April 9, 1973, 63d Leg., R.S., ch. 28,

§§ 1–2, 4–5, art. 2212a, 1973 Tex. Gen. Laws 41, 41–43 (repealed 1985) (art. 2212a in effect in

1987). Chapter 33, as amended in 1987—the same legislative session as the enactment of section

93.001—provided that “[i]n an action to recover damages for negligence resulting in personal injury,

property damage, or death . . . a claimant may recover damages only if his percentage of

responsibility is less than or equal to 50 percent.” Act of June 16, 1987, 70th Leg., 1st C.S., ch. 2,

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§ 2.04, sec. 33.001(a), 1987 Tex. Gen. Laws 37, 41 (amended 1993); compare id. (amendment of

Chapter 33 in 1987 by 70th Legislature), with Act of June 19, 1987, 70th Leg., R.S., ch. 824, § 1,

sec. 93.001, 1987 Tex. Gen. Laws 2856, 2856 (enactment of § 93.001 in 1987 by 70th Legislature).

Although section 93.001 does not expressly state what “other law” it prevails over, the Legislature

likely intended it to prevail over Chapter 33’s proportionate responsibility scheme, which had already

abrogated the common law unlawful acts doctrine defense. See TEX . CIV . PRAC. & REM . CODE

§ 93.001. The dissent suggests that section 93.001 is a mere reaffirmation by the Legislature of the

continued vitality of the unlawful acts doctrine in the context in which a plaintiff was engaged in

criminal conduct and subsequently convicted. ___ S.W.3d at ___. In light of Chapter 33’s

abrogation of common law defenses that provide a complete bar to plaintiff’s recovery—including

the unlawful acts doctrine—we interpret subsection 93.001(c) as an indication that the Legislature

intended the statutory affirmative defense to resurrect only a small portion of the unlawful acts

doctrine, providing a complete bar to recovery only in the certain limited circumstances articulated

by subsections 93.001(a)(1) and (2). See TEX . CIV . PRAC. & REM . CODE § 93.001(c).

IV. Public Policy

Dugger and the dissent argue that if we do not uphold the unlawful acts doctrine, it will be

easier for criminals to bring suits and recover. See ___ S.W.3d at ___. On the other hand,

Arredondo argues that recognizing the unlawful acts doctrine could lead to a slippery slope where

it would be impossible for many people to access the judicial system and try their claims because

they were engaged in an unlawful act while sustaining injuries. Additionally, the Texas Civil Rights

Project, as amicus curiae, contends that a broad unlawful acts doctrine could allow people who

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commit serious tortious conduct against others to have civil immunity merely because the claimant

was not in compliance with every law at the time of the tortious conduct. Cf. City of Lancaster v.

Chambers, 883 S.W.2d 650, 653–55 (Tex. 1994) (holding that an injured passenger in a fleeing

vehicle could maintain a suit for unreasonable chase because officers owed a duty of reasonable

care).

The Legislature has resolved this conflict, however, with the enactment of proportionate

responsibility. A plaintiff’s actions are taken into account in calculating recovery, but do not

completely bar recovery unless his or her actions account for more than fifty percent of the

responsibility or satisfy the elements of the statutory affirmative defense in section 93.001. TEX .

CIV . PRAC. & REM . CODE . §§ 33.001, .003; id. § 93.001. Further, sections 93.001 and 86.002 of the

Civil Practice and Remedies Code speak to the policy of the state that in only a very limited set of

circumstances will a plaintiff be barred from recovery. See Fairfield Ins. Co. v. Stephens Martin

Paving, LP, 246 S.W.3d 653, 665 (Tex. 2008) (“The Legislature determines public policy through

the statutes it passes.” (citing Town of Flower Mound v. Stafford Estates Ltd. P’ship, 135 S.W.3d

620, 628 (Tex. 2004))). To hold that the unlawful acts doctrine applies broadly in the tort context

despite the plain language of Chapter 33 and the legislative policy expressed in section 93.001 would

render section 93.001 meaningless. See Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551

(Tex. 1981) (“To hold otherwise would violate the rule of statutory construction that the

[L]egislature is never presumed to do a useless act.”). Nor does this interpretation compel the

conclusion that the Legislature intended to make it easier for criminals to bring suit. Following a

broad trend, the Legislature has embraced proportionate responsibility. See RESTATEMENT (THIRD )

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OF TORTS : APPORTIONMENT OF LIABILITY , § 1 cmt. a (2000) (highlighting the almost universal shift

from contributory negligence to comparative responsibility). The limited nature of the statutory

affirmative defense in section 93.001, requiring a conviction in order to bar suit, reflects that trend

as well as the Legislature’s prerogative to recognize an exception that applies only under very narrow

circumstances.

V. Conclusion

We hold that the common law unlawful acts doctrine is not available as an affirmative

defense in personal injury and wrongful death cases. Like other common law assumption-of-the-risk

defenses, it was abrogated by Chapter 33’s proportionate responsibility scheme. Unless the

requirements of the affirmative defense in section 93.001 are satisfied, a plaintiff’s share of

responsibility for his or her injuries should be compared against the defendant’s. We therefore

affirm the judgment of the court of appeals, which reversed the summary judgment and remanded

the case to the trial court.

________________________________
Paul W. Green
Justice

OPINION DELIVERED: August 30, 2013

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