1. (a) Except as provided by Subsection (c), exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from:

   1. (1) fraud;
   2. (2) malice; or
   3. (3) gross negligence.
2. (b) The claimant must prove by clear and convincing evidence the elements of exemplary damages as provided by this section. This burden of proof may not be shifted to the defendant or satisfied by evidence of ordinary negligence, bad faith, or a deceptive trade practice.
3. (c) If the claimant relies on a statute establishing a cause of action and authorizing exemplary damages in specified circumstances or in conjunction with a specified culpable mental state, exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the damages result from the specified circumstances or culpable mental state.
4. (d) Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages.

5. (e) In all cases where the issue of exemplary damages is submitted to the jury, the following instruction shall be included in the charge of the court:

   "You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages must be unanimous."

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987.

Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995;

Acts 2003, 78th Leg., ch. 204, Sec. 13.04, eff. Sept. 1, 2003.