I was hit by a drunk driver in Texas. What are my rights?

You have a civil case, and it does not depend on the criminal one

When a drunk driver hurts you, two separate cases can come out of the same crash. The State prosecutes the driver for DWI, or for intoxication assault if someone suffered serious bodily injury, or intoxication manslaughter if someone died. That case is between the driver and the State. You are a witness in it, not a party.

Your case is the civil one: a claim for your medical bills, lost income, pain, and everything else the crash took. It runs on its own track. You do not need a conviction to bring it, and you do not have to wait for the criminal case to finish. The civil standard of proof is lower than the criminal one, so a driver can be acquitted, or plead to something lesser, and still be fully responsible to you. The two-year deadline to file suit runs whether or not the criminal case is still pending.

The criminal case is still useful. Breath or blood results, the officer’s observations, field sobriety videos and a guilty plea can become evidence in yours.

Punitive damages, and why the usual cap may not apply

Most injury cases pay for what was lost. A drunk-driving case can also support exemplary damages — what most people call punitive damages — which exist to punish conduct and deter it. To get them, Texas requires clear and convincing evidence of gross negligence, and a unanimous jury. Choosing to drive while intoxicated is the kind of conduct those damages were written for.

Texas normally caps exemplary damages. But the Legislature carved out specific felonies, and two of them are intoxication assault and intoxication manslaughter. When the driver’s conduct meets the definition of either one, the cap does not apply. That can change the value of a case substantially, and it is one reason the details of the criminal charge matter to your civil claim.

The bar or restaurant that kept serving them

Texas has a dram shop law. A bar, restaurant, club or store that sells or serves alcohol can be held responsible for the damage a drunk customer causes — but only if it was apparent to the server that the person was obviously intoxicated to the point of presenting a clear danger to themselves and others, and the intoxication caused the crash.

That is a real standard, and it has to be proven. The evidence usually looks like this: how long the driver was there, how many drinks were on the tab or the card receipt, what the staff saw, and what the security video shows about how the person was walking and talking. Receipts are kept; video usually is not. A business that trains its employees through an approved seller training program can also have a defense if it did not encourage the violation.

Texas generally does not hold private party hosts responsible for adult guests who drink and drive. The exception is an adult 21 or older, other than a parent, guardian or spouse, who knowingly serves alcohol to someone under 18, or allows it to be served on property the adult owns or leases.

A dram shop claim matters for a simple reason. Many drunk drivers carry only the state minimum auto insurance, or none. The business that overserved them usually carries far more.

When the drunk driver has little or no insurance

Where the driver’s policy is too small, the other sources are your own uninsured/underinsured motorist coverage, your personal injury protection, the driver’s employer if they were driving for work, and any business that served them. Texas also has a Crime Victims’ Compensation program that can help with certain costs for victims of intoxication offenses. Finding and lining up every one of those sources is our job, and it is where the recovery in these cases often comes from.

What to keep, and what to leave alone

Keep anything that shows the driver’s condition or where they had been: what they said at the scene, anything you smelled or saw, a receipt, a wristband, a name of a bar. Do not contact the driver, and do not post about the crash online. Anything you write can be read by the defense in both the criminal and the civil case.

Authority: Tex. Civ. Prac. & Rem. Code ch. 41 (exemplary damages) · Tex. Alco. Bev. Code §§ 2.01–2.03 (dram shop liability) · Tex. Penal Code ch. 49 (intoxication offenses)