STAYING ALIVE THE SURVIVABILITY AND ASSIGNABILITY OF A DECEPTIVE

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					                            COMMENT

 STAYING ALIVE?: THE SURVIVABILITY AND
  ASSIGNABILITY OF A DECEPTIVE TRADE
  PRACTICE CAUSE OF ACTION IN TEXAS*

                                  Table of Contents


I.    INTRODUCTION ........................................................................352

II.   BACKGROUND REGARDING SURVIVAL AND
      ASSIGNMENTS..........................................................................355

III. CURRENT STATE OF TEXAS LAW REGARDING SURVIVAL
     AND ASSIGNMENT OF A DTPA CAUSE OF ACTION .................356
     A. Background.....................................................................356
     B. Punitive vs. Remedial: Conflicting Views
         on the DTPA....................................................................358
         1. DTPA is Punitive....................................................358
         2. DTPA is Remedial ..................................................365
         3. Effects of the Survival Statute ...............................371
         4. Conclusion...............................................................372
     C. Personal vs. Property Cause of Action...........................373
         1. Bay Ridge Utility District v. 4M Laundry............373
         2. Jackson v. Thweatt.................................................374
     D. Consumer Status and Assignability..............................375
     E. Other Jurisdictions.........................................................376

IV. ANALYSIS .................................................................................377
    A. Considering the DTPA as a Whole ................................377
       1. Remedial or Punitive? ............................................377
       2. Personal or Property: Arguments Considered.......382


    *   This paper was selected as the recipient of the 1998 Venzke Law Firm
Award for the most outstanding paper in the area of tort litigation.



                                             351
352                      HOUSTON LAW REVIEW                                         [36:351

      B. Narrower Focus: Should Courts Consider
         the Underlying Claims? .................................................383
      C. Damages Possible Under the Current DTPA................385
      D. The Special Case of Personal Injury Actions
         Brought under the DTPA and the Effect of the
         Texas Survival Statute...................................................385
      E. Policy Considerations .....................................................386

V.    CONCLUSION ...........................................................................387


                                I.    INTRODUCTION
      The Texas Deceptive Trade Practices-Consumer Protection
Act (“DTPA”) became effective on May 21, 19731 and was passed
in response to the inequality that existed between consumers and
vendors.2 Prior to 1973, Texas consumer law “was governed by
the legal and practical attitude embodied in the maxim ‘caveat
emptor.’”3 This philosophy of the vendor-consumer relationship
placed a great burden on consumers.4 Professor Richard
Alderman summarized the plight of the pre-DTPA consumer:
     For the most part consumers were left to rely on their
     own wits when it came to protecting themselves from
     false, misleading, and deceptive acts or practices. Even
     in those instances where legal redress existed, attorneys
     were hesitant to handle the cases because the small


     1. See TEX. BUS . & COM . CODE ANN. §§ 17.41-.63 (Vernon 1987 & Supp.
1999). Since its passage in 1973, see DTPA, ch. 143, 1973 Tex. Gen. Laws 322, the
Texas Legislature has amended the DTPA in nearly every session. See Act of Apr.
24, 1975, ch. 62, 1975 Tex. Gen. Laws 149; Act of May 5, 1977, ch. 216, 1977 Tex.
Gen. Laws 600; Act of June 13, 1979, ch. 603, 1979 Tex. Gen. laws 1327; Act of June
8, 1981, ch. 307, 1981 Tex. Gen. Laws 863; Act of June 19, 1983, ch. 833, 1983 Tex.
Gen. Laws 4943; Act of June 12 1985, ch. 564, 1985 Tex. Gen. Law 2165; Act of June
11, 1987, ch. 280, 1987 Tex. Gen. Laws 1641; Act of June 8, 1995, ch. 414, 1995 Tex.
Gen. Laws 2988. All citations to the DTPA herein are to the most recent version,
unless otherwise indicated.
     2. See generally John L. Hill, Introduction to Consumer Law Symposium, 8
ST. MARY’S L.J. 609, 609-11 (1977) (discussing consumer rights and remedies prior
to the enactment of the DTPA). Judge Hill became the Texas Attorney General in
January of 1973 and was a major proponent of the DTPA. See id. at 612.
     3. RICHARD M. ALDERMAN, THE LAWYER’S G UIDE TO THE TEXAS DECEPTIVE
TRADE PRACTICES ACT § 1.01, at 1-1 (1996). Caveat emptor is defined as “[l]et the
buyer b  eware. This maxim summarizes the rule that a purchaser must examine,
judge, and test for himself.” BLACK’S LAW DICTIONARY 222 (6th ed. 1990).
     4. See Hill, supra note 2, at 609-12 (detailing the limitations of pre-DTPA law
to remedy the complaints of deceived consumers). Judge Hill stated that “[b]y
extending to the consumer the same cause of action for deceptive practices formerly
available only to the attorney general, the DTPA substantially lightened the burden
of proof required of the consumer in common law actions for fraud.” Id. at 613.
1999]                       STAYING ALIVE?                                       353

     amounts involved and the inability to recover attorneys’
     fees made most consumer cases uneconomical.5
     The Texas Legislature and proponents of the DTPA hoped to
remedy these problems through the Act.6 Accordingly, the
Legislature stated: “This subchapter shall be liberally construed
and applied to promote its underlying purposes, which are to
protect consumers against false, misleading, and deceptive
business practices, unconscionable actions, and breaches of
warranty and to provide efficient and economical procedures to
secure such protection.”7
     At the heart of the DTPA, and its stated purpose, is
protection of the consumer.8 Although the definition of
“consumer” has changed many times under the statute,9
establishing consumer status remains a prerequisite to
maintaining a DTPA cause of action.10 But what happens when
the original consumer is no longer alive to enforce his or her
cause of action under the DTPA or has assigned the cause of
action to a third party? The DTPA does not speak directly to
these two related issues and courts have reached opposing
results.11
     This Comment will set forth the current state of Texas law
regarding the assignability and survivability of a DTPA cause of
action. Part II addresses the legal background regarding survival
and assignments of causes of action in general. Part III considers
three modes of analysis the courts have used to deal with

     5. ALDERMAN, supra note 3, § 1.01, at 1-1.
     6. See Hill, supra note 2, at 612 (stating that “both strengthened public
enforcement tools and the creation of an effective private remedy” were necessary to
create a better bargaining balance between vendors and consumers).
     7. TEX. BUS . & COM . CODE ANN. § 17.44(a) (Vernon 1987 & Supp. 1999).
     8. See id.; see also Hill, supra note 2, at 612 (noting that, as Texas Attorney
General, Judge Hill’s “first m   ajor task was to improve Texas law to better protect
the consumer”).
     9. The original definition of consumer was “an individual who seeks or
acquires by purchase or lease, any goods or services.” TEX. BUS . & COM . CODE ANN.
§ 17.45(4) (Vernon 1974). Under the current version of the Act, consumer is defined
as
     an individual, partnership, corporation, this state, or a subdivision or
     agency of this state who seeks or acquires by purchase or lease, any goods
     or services, except that the term does not include a business consumer that
     has assets of $25 million or more, or that is owned or controlled by a
     corporation or entity with assets of $25 million or more.
TEX. BUS . & COM . CODE ANN. § 17.45(4) (Vernon 1987).
    10. See ALDERMAN, supra note 3, § 2.01, at 11 (“The first step in any DTPA
lawsuit is, therefore, to establish that the plaintiff is a ‘consumer’ as that term is
defined in . . . the Act.”).
    11. Refer to Part III infra (discussing the current state of Texas law regarding
survivability and assignability of a cause of action under the DTPA).
354                    HOUSTON LAW REVIEW                                    [36:351

survival under the DTPA, revealing strong arguments both for
and against survival. Specifically, Part III discusses: whether the
DTPA is punitive or remedial in nature; whether a DTPA action
should be characterized as a personal or a property cause of
action; the effect of the definition of “consumer” on third parties
maintaining a DTPA cause of action; and the effect of the Texas
Survival Statute.12 Additionally, Part III considers other
jurisdictions and discusses their analyses of whether consumer
protection statutes should survive. Part IV analyzes the
arguments behind both positions, examining carefully the goals
of the DTPA and the nature of the damages awarded thereunder.
This section considers specifically whether a DTPA cause of
action should survive and be assignable in the context of a breach
of warranty suit.13 Finally, Part V reaches the conclusion that at
a compromise between the conflicting viewpoints is within reach.
Although courts have justified their holdings that a DTPA cause
of action does not survive and is not assignable, the different
types of damages awarded under the Act allow for this
compromise.14




    12. The Texas Survival Statute provides:
     (a) A cause of action for personal injury to the health, reputation, or person
     of an injured person does not abate because of the death of the injured
     person or because of the death of a person liable for the injury.
     (b) A personal injury action survives to and in favor of the heirs, legal
     representatives, and estate of the injured person. The action survives
     against the liable person and the person’s legal representatives.
TEX. CIV . PRAC. & REM . CODE ANN. § 71.021(a)-(b) (Vernon 1997).
    13. The DTPA states: “A consumer may maintain an action where any of the
following constitute a producing cause of economic damages or damages for mental
anguish: . . . (2) breach of an express or implied warranty . . . .” TEX. BUS . & COM .
CODE ANN. § 17.50(a) (Vernon Supp. 1999).
    14. Refer to Part IV infra. The DTPA, in its current form, awards varying
amounts of damages depending on the defendant’s knowledge or intent. See TEX.
BUS . & COM . CODE ANN. § 17.50(b)(1) (Vernon Supp. 1999). The section currently
states:
     In a suit filed under this section, each consumer who prevails may obtain:
     (1) the amount of economic damages found by the trier of fact. If the trier of
     fact finds that the conduct of the defendant was committed knowingly, the
     consumer may also r     ecover damages for mental anguish, as found by the
     trier of fact, and the trier of fact may award not more than three times the
     amount of economic damages; or if the trier of fact finds the conduct was
     committed intentionally, the consumer may recover damages for mental
     anguish, as found by the trier of fact, and the trier of fact may award not
     more than three times the amount of damages for mental anguish and
     economic damages . . . .
Id.
1999]                        STAYING ALIVE?                                        355

   II. BACKGROUND REGARDING SURVIVAL AND ASSIGNMENTS
     The survivability of a cause of action depends on whether
common-law principles or a statute that provides for survival
controls the cause of action.15 The common law is the applicable
rule of decision unless a survival statute directly supplants it.16
At common law, actions affecting primarily property and
property rights survived, whereas an action asserting a purely
personal right terminated upon the death of the aggrieved
party.17 Newly created, statutory causes of action must be
considered with common-law principles in mind.18
     The general rule regarding a statutory cause of action is that
it “does not survive unless its survival is specifically provided for
in the statute itself or in another statute.”19 Recent cases have
slightly modified this strict rule, and one can more accurately
state it as “when the substance of a particular cause of action
places it in a category of actions that survive at common law, the
action may survive even though the statute creating it does not
provide for its survival.”20 In summarizing the rule on survival of
statutory causes of action, one commentator stated that “while


    15. See United States Cas. Co. v. Rice, 18 S.W.2d 760, 761 (Tex. Civ. App.—
Dallas 1929, writ ref’d) (explaining that the applicable rule of decision is the
common law, “unless modified or abrogated by statute”); see also Thomes v. Porter,
761 S.W.2d 592, 594 (Tex. App.—Fort Worth 1988, no writ); First Nat’l Bank v.
Hackworth, 673 S.W.2d 218, 220 (Tex. App.—San Antonio 1984, no writ) (en banc).
This Comment devotes substantial attention to Thomes and Hackworth, not only for
their holdings regarding survival of causes of a      ction, but also for their opposing
views regarding the survival of a DTPA cause of action. It is important to note at the
outset that these two cases rely on the same precedents, United States Casualty and
Johnson v. Rolls, 97 Tex. 453, 79 S.W. 513 (1904), to reach diametric results.
Compare Thomes, 761 S.W.2d at 594 (allowing survival), with Hackworth, 673
S.W.2d at 221 (refusing to allow survival).
    16. See Thomes, 761 S.W.2d at 594; Hackworth 673 S.W.2d at 220; United
States Cas., 18 S.W.2d at 761.
    17. See Johnson, 79 S.W. at 514 (noting that all causes of action die with the
person “except such damages as grow out of acts affecting the property rights of the
injured party”); see also Thomes, 761 S.W.2d at 594 (citing Johnson); Hackworth, 673
S.W.2d at 220 (citing Johnson).
    18. See Thomes, 761 S.W.2d at 594 (citing Board of Trustees v. Cruz, 458
S.W.2d 700, 703 (Tex. Civ. App.—San Antonio 1970, writ ref’d n.r.e.), for the
proposition that “[i]f a statute does not specifically address the survivability of a
cause of action, the court must apply existing common law rules”).
    19. 1 AM . JUR. 2D Abatement, Survival, and Revival § 62 (1994); see also
Johnson, 79 S.W. at 514 (declaring that because the case did not fall within any of
the statutory provisions for survival of the causes of action, the court must look to
the common law for the rule of decision).
    20. 1 AM . JUR. 2D Abatement, Survival, and Revival § 62. Texas courts have
not specifically adopted this rule, but some cases discussed in this Comment rely on
the rationale. Refer to Part III.B.2 infra (discussing cases that look to the common
law for similarities with the statutory cause of action to determine survivability).
356                   HOUSTON LAW REVIEW                                   [36:351

actions to enforce a penalty do not survive the death of either
party, remedial actions survive even though the damages
assessed may technically be called penalties.”21 This view is
consistent with Texas law, which has held that the right to
recover p unitive damages, under the common law, is considered a
purely personal right and does not survive.22 In other words,
survivability turns on the characterization of the statute.
     Generally, survival is a primary factor in determining
whether a cause of action is assignable.23 In Texas, however, the
inverse is true as the general test of survivability is whether a
cause of action is assignable.24

          III. CURRENT STATE OF TEXAS LAW REGARDING
      SURVIVAL AND ASSIGNMENT OF A DTPA CAUSE OF ACTION

A. Background

     The Texas Supreme Court first considered the survivability
of a DTPA cause of action in Shell Oil Co. v. Chapman.25 In Shell
Oil, Bobby Chapman purchased and used the defendant’s
mislabeled oil in his trucks, causing extensive damage to those
vehicles.26 After Mr. Chapman’s death, his wife sued for
negligence, products liability, breach of warranty, and violations
of the DTPA.27 Shell argued that DTPA “damages do not survive
to the estate of one victimized by the deceptive acts,”28 and
asserted that First National Bank of Kerrville v. Hackworth29

    21. Russell G. Donaldson, Annotation, Survivability of Action Brought Under
Truth in L   ending Act (15 USCS §§ 1601 et seq.), 53 A.L.R. FED. 431, 432 (1981)
(arguing that the primary issue is whether one can characterize the statutory cause
of action as remedial or penal).
    22. See Scoggins v. Southwestern Elec. Serv. Co., 434 S.W.2d 376, 379 (Tex.
Civ. App.—Tyler 1968, writ ref’d n.r.e.) (“Since the right to recover exemplary
damages has generally been considered to be a personal one which abated with the
death of the injured party, the recovery of such damages by the injured party’s
survivor must be expressly created by Constitution or Statute.”).
    23. See 6 AM . JUR. 2D Assignments § 30 (1963).
    24. See Traver v. State Farm Mut. Auto. Ins. Co., 930 S.W.2d 862, 867 (Tex.
App.—Fort Worth 1996) (“In the absence of a statute, the test most commonly used
to determine survivability is whether or not the cause of action may be assigned.”),
rev’d on other grounds, 980 S.W.2d 625 (Tex. 1998); Harding v. State Nat’l Bank, 387
S.W.2d 768, 769 (Tex. Civ. App.—El Paso 1965, no writ) (recognizing assignability as
the test for survivability).
    25. 682 S.W.2d 257 (Tex. 1984).
    26. See id. at 258 (noting that the actual oil weight differed from the labeled
weight, a fact of which Shell was aware).
    27. See id.
    28. Id. at 259.
    29. 673 S.W.2d 218 (Tex. App.—San Antonio 1984, no writ) (en banc).
1999]                        STAYING ALIVE?                                       357

controlled.30 In Hackworth, the court held that a DTPA cause of
action does not survive to the estate.31 However, the court in
Shell Oil avoided addressing whether the DTPA cause of action
survived by holding that the damaged trucks were part of the
community estate, thereby enabling Mrs. Chapman to bring the
suit in her own right.32
     The Texas Supreme Court had one other chance to resolve
the issue in 1992 when the Fifth Circuit considered Wellborn v.
Sears, Roebuck & Co.33 Affirming the district court’s holding, the
Fifth Circuit sent the following certified question to the Texas
Supreme Court: “Does a decedent’s cause of action under the
Texas Deceptive Trade Practices-Consumer Protection Act
survive under the Texas Survival Statute?”34 The Texas Supreme
Court, however, declined to answer this question.35
Consequently, because the Texas Supreme Court has failed to
resolve the survivability of the DTPA, the lower courts must now
sort it out for themselves.
     In only one case in Texas, Allstate Insurance Co. v. Kelly,36
has an appellate level court attempted to address whether a
DTPA cause of action is assignable. In Allstate, the plaintiff’s
cause of action arose out of Allstate’s failure to settle for the
policy limit in a suit for personal injuries arising out of an
automobile accident.37 In the original personal injury suit, the
plaintiff, Sandra Kelly, received a jury award well in excess of



    30. See Shell Oil, 682 S.W.2d at 259.
    31. See id. at 221. For a complete discussion of Hackworth, refer to Part III.B.1.
infra.
    32. See Shell Oil, 682 S.W.2d at 259 (reserving the question of DTPA survival
damages “to another day”).
    33. 970 F.2d 1420 (5th Cir. 1992).
    34. Id. at 1430.
    35. It is unclear whether the case was settled before an answer could be given
or if the Texas Supreme Court chose not to answer. In either case, there is no further
history on Wellborn.
    36. 680 S.W.2d 595 (Tex. App.—Tyler 1984, writ ref’d n.r.e.). This discussion of
Allstate focuses on assignability. For a further discussion of Allstate, refer to notes
72-76 infra and accompanying text.
    37. See Allstate, 680 S.W.2d at 598 (noting that “the liability policy contained
provisions triggering the application of the rule in Stowers”). For an explanation of
the Stowers duty, see Traver v. State Farm Mut. Auto. Ins. Co., 930 S.W.2d 862, 867
(Tex. App.—Fort Worth 1996) (“Under Texas law, insurers must exercise that degree
of care and diligence which an ordinarily prudent person would exercise in the
management of his own business in responding to settlement demands within policy
limits.”), rev’d on other grounds, 980 S.W.2d 625 (Tex. 1998); see also Texas Farmers
Ins. Co. v. Soriano, 881 S.W.2d 312, 314 (Tex. 1994); American Physicians Ins. Exch.
v. Garcia, 876 S.W.2d 842, 848 (Tex. 1994); G.A. Stowers Furniture Co. v. American
Indem. Co., 15 S.W.2d 544, 547 (Tex. Comm’n App. 1929, holding approved).
358                    HOUSTON LAW REVIEW                                     [36:351

the policy amount against Willie Alves, the defendant.38 After the
judgment, Ms. Kelly and Mr. Alves entered into an agreement
which the Tyler Court of Appeals characterized as an
“assignment.”39 Allstate instituted a declaratory judgment action
against both Mr. Alves and Ms. Kelly; Mr. Alves counterclaimed
alleging negligence, violations of the Insurance Code, and
violations of the DTPA for failing to settle within policy limits.40
In discussing the transaction between Mr. Alves and Ms. Kelly,
the court used the word “assigned” and held that “such
assignment of the causes of action extends not only to the
negligence and gross negligence causes of action, but to any cause
of action provided by DTPA and [the Texas Insurance Code].”41
Unfortunately, what appears to be court approval of assignment
of a DTPA cause of action is in reality poor wording. A close
reading of the agreement between Mr. Alves and Ms. Kelly
reveals that it was not an assignment, but merely an agreement
in which Ms. Kelly promised not to execute on the judgment in
return for two-thirds of Mr. Alves’s recovery from Allstate.42 In
addition, Mr. Alves maintained the DTPA-based counterclaim
against Allstate, not Ms. Kelly.43 In the end, what the court
characterized as an assignment was in reality an agreement not
to execute and, thus, is not a recognition of the assignability of a
DTPA cause of action.44

B. Punitive vs. Remedial: Conflicting Views on the DTPA

      1. DTPA is Punitive

   a. First National Bank of Kerrville v. Hackworth.
Hackworth is the leading opinion holding that a DTPA cause of


    38. See Allstate Ins. Co., 680 S.W.2d at 598 (noting that the policy amount was
$50,000 and the jury entered judgment against Mr. Alves for $521,453.57).
    39. See id. at 610 (describing the agreement as a split between the original
plaintiff and defendant, agreeing to share any judgment recovered against Allstate,
with two-thirds of the proceeds going to Ms. Kelly and one-third to Mr. Alves).
    40. See id. at 598. The jury awarded actual damages of $582,413.12 in favor of
                                                         he
Mr. Alves and Ms. Kelly, which was trebled under t DTPA, as well as punitive
damages. See id. at 598-99.
    41. Id. at 610.
    42. See id. at 609 (setting out verbatim the agreement between Mr. Alves and
Ms. Kelly).
    43. See id. at 598.
    44. It is also significant to note that of the cases cited later in this Comment
that deal with the assignability or survivability of a DTPA cause of action, none have
cited Allstate for that proposition. One case that discussed Allstate is Investors Title
Insurance Co. v. Herzig, 413 S.E.2d 268 (N.C. 1992). Refer to Part III.E infra
(discussing Investors Title Insurance Co.).
1999]                        STAYING ALIVE?                                        359

action does not survive. Alleging DTPA violations, Rubelle
Hackworth claimed that the bank had incorrectly paid
$53,480.00 out of her account on forged or altered checks.45 After
filing suit, but before trial, Ms. Hackworth died and her estate
was substituted as the plaintiff.46 The jury awarded the estate
actual damages in the amount of $53,480.00; additionally, the
trial court trebled that amount and awarded attorney’s fees to
the estate.47
     The San Antonio Court of Appeals held that any DTPA cause
of action that Ms. Hackworth possessed “was extinguished upon
her death and did not survive in favor of her estate or
representatives.”48 The court relied mainly on the punitive nature
of the damages awarded under the DTPA. The court argued that
“[d]amages allowed as punishment to the wrongdoer and not as
compensation for actual damages suffered are punitive in
nature.”49 Additionally, the court noted that punitive damages
are designed to deter others from committing similar offenses,50
citing Pennington v. Singleton.51 In Pennington, the Texas
Supreme Court announced that the purpose of awarding DTPA
damages in excess of compensatory damages is to deter deceptive
practices.52 Based on this precedent, the court in Hackworth
concluded that treble damages and the award of attorney fees “is
clearly punitive in nature.”53



    45. See First National Bank of Kerrville v. Hackworth, 673 S.W.2d 218, 220
(Tex. App.—San Antonio 1984, no writ) (en banc) (explaining that the four allegedly
fraudulent transactions occurred in May of 1978).
    46. See id.
    47. See id. (awarding trebled damages and attorney’s fees pursuant to the
DTPA). The relevant statute read: “In a suit filed under this section, each consumer
who prevails may obtain: (1) three times the amount of actual damages plus court
costs and attorneys’ fees reasonable in relation to the amount of work expended.”
TEX. BUS . & COM . CODE ANN. § 17.50 (Vernon Supp. 1982). The plaintiff brought
this suit in 1978 under the original version of the DTPA, prior to any amendments.
This mandatory trebling provision was in effect until the 1979 amendments to the
DTPA. See ALDERMAN, supra note 3, at B-50 (reprinting the text of the 1979
amendments to the DTPA which added the requirement that the defendant’s
conduct be “committed knowingly” before the jury could award damages in excess of
actual damages).
    48. Hackworth, 673 S.W.2d at 220.
    49. Id. (citing Burlington-Rock Island R.R. Co. v. Newsom, 239 S.W.2d 734, 737
(Tex. Civ. App.—Waco 1951, no writ)).
    50. See id.
    51. 606 S.W.2d 682 (Tex. 1980).
    52. See id. at 690-91 (“Another purpose of liability in excess of actual damages
is to deter violations of the Act. . . . Additionally, not only the defendant, but other
sellers must be discouraged from deceptive and misleading trade practices.”).
    53. Hackworth, 673 S.W.2d at 220.
360                    HOUSTON LAW REVIEW                                   [36:351

     Because the DTPA does not expressly provide for the
survivability of a DTPA cause of action, the court resorted to the
common-law principle that “[t]he right to recover punitive
damages is considered a purely personal right,” and concluded
that the DTPA cause of action did not survive to the estate of Ms.
Hackworth.54
     In Hackworth, the court alternatively held that the estate
was not a consumer and, therefore, could not recover under the
DTPA.55 This determination was unnecessary because of the
primary holding, but the court was attempting to harmonize its
holding with Mahan Volkswagen, Inc. v. Hall.56 In Mahan, the
court allowed the family of the deceased to collect treble damages
under the DTPA based on the Texas Survival Statute.57 However,
the court held that for the family to recover under the DTPA, it
had to rely only on “those elements of damages which are
attributable to the decedent’s cause of action,”58 thereby implying
that the family was not a consumer. Therefore, it appears that
Mahan and Hackworth are consistent in their view of survivors
as non-consumers, but inconsistent regarding survival of the
decedent’s cause of action.59
     The Hackworth court affirmed the jury’s award in part and
concluded that the plaintiffs were entitled to actual damages, but
were not entitled to any damages based on DTPA violations.60

    b. Other Cases. Other courts have addressed whether
DTPA damages are punitive in nature. The San Antonio Court of
Appeals handed down the most recent decision in Mendoza v.
American National Insurance Co.61 Mendoza involved a claim
brought for violations of the Texas Insurance Code and the
DTPA.62 Specifically, the plaintiff complained of the insurance

   54. Id. at 220 (citing Scoggins v. Southwestern Elec. Serv. Co., 434 S.W.2d 376,
379 (Tex. Civ. App.—Tyler 1968, writ ref’d n.r.e.)).
   55. See id. at 221. The applicable definition of consumer, under the 1973
version of the DTPA, was: “[A]n individual who seeks or acquires by purchase or
lease, any goods or services.” TEX. BUS . & COM . CODE ANN. § 17.45(4) (Vernon 1974).
   56. 648 S.W.2d 324 (Tex. App.—Houston [1st Dist.] 1982, writ ref’d n.r.e.).
   57. See id. at 334 (holding that some damages survived and could be trebled
under the DTPA, but only those that belonged to the decedent, not the survivors).
For the text of the Texas Survival Statute, refer to note 12 supra.
   58. Mahan, 648 S.W.2d at 334. The decedent’s damages included physical pain,
mental anguish, funeral expenses, and property damage. See id.
   59. For a discussion of Mahan, refer to Part III.B.3 infra and accompanying
text.
   60. See Hackworth, 673 S.W.2d at 224 (reversing all DTPA judgments against
the bank).
   61. 932 S.W.2d 605 (Tex. App.—San Antonio 1996, no writ).
   62. See id. at 607; see also TEX. INS . CODE ANN. art. 21.21, § 16(a) (Vernon
1999]                        STAYING ALIVE?                                       361

company’s oral promise to extend the payment due date of the
premium.63 The insured died two days after the oral promise, and
the beneficiary sued to recover funds on the canceled policy.64
The court, considering whether the estate had a cause of action,
affirmed Hackworth’s proposition that “a cause of action under
the DTPA does not survive because the statute does not provide
for survival and recovery thereunder is punitive in nature.”65 The
court also confirmed that an estate is not a consumer under the
DTPA.66 Thus, besides reaffirming both prongs of its Hackworth
holding, the court extended the scope of its holding to the
Insurance Code.67
     Also addressing the punitive nature of DTPA treble
damages, the Texas Supreme Court considered whether a party
can recover both exemplary damages and treble damages in
Birchfield v. Texarkana Memorial Hospital.68 The suit involved a
medical malpractice claim for negligence, gross negligence, and
DTPA claims under the 1973 version of the DTPA.69 The

Supp. 1999) (creating causes of action for deceptive acts in the insurance business).
The statute, in its current form, states:
     Any person who has sustained actual damages caused by another’s
     engaging in an act or practice declared in Section 4 of this Article to be
     unfair methods of competition or unfair or deceptive acts or practices in the
     business of insurance or in any practice specifically enumerated in a
     subdivision of Section 17.46(b), Business & Commerce Code, as an unlawful
     deceptive trade practice may maintain an action against the person or
     persons engaging in such acts or practices. To maintain an action for a
     deceptive act or practice enumerated in Section 17.46(b), Business &
     Commerce Code, a person must show that the person has relied on the act
     or practice to the person’s detriment.
Id.
          Additionally, conduct that violates article 21.21 is actionable under the
DTPA. See TEX. BUS . & COM . CODE ANN. § 17.50(a)(4) (Vernon Supp. 1999). This
provision states: “A consumer may maintain an action where any of the following
constitute a producing cause of economic damages or damages for mental
anguish: . . . (4) the use or employment by any person of an act or practice in
violation of Article 21.21, Insurance Code.” Id.; see also Webb v. International
Trucking Co., 909 S.W.2d 220, 224 (Tex. App.—San Antonio 1995, no writ) (allowing
third party recovery under article 21.21 of the Insurance Code and § 17.46 of the
DTPA).
    63. See Mendoza, 932 S.W.2d at 607 (noting that the agent extended the
premium due date by four days).
    64. See id.
    65. Id. at 609 (quoting Hackworth, 673 S.W.2d at 220-21). The court recognized
that other courts disagreed with this conclusion (specifically, the Fort Worth court in
Thomes), but held to its position as asserted in Hackworth. See id. at 609 n.4.
    66. See id. at 609 (“following and extending the decision . . . in Hackworth”).
    67. See id. (holding that “[t]he same reasoning applied in evaluating the
survivability of DTPA claims in Hackworth also applies to claims under the
Insurance Code”).
    68. 747 S.W.2d 361 (Tex. 1987).
    69. See id. at 364 (noting the DTPA claims were based on misrepresentations
362                    HOUSTON LAW REVIEW                                     [36:351

plaintiffs argued that they were entitled to both exemplary and
treble damages.70 In addressing this argument, the court stated:
    In the absence of separate and distinct findings of actual
    damages on both the acts of negligence and the deceptive
    acts or practices, an award of exemplary damages and
    statutory treble damages would be necessarily
    predicated upon the same findings of actual damages
    and would amount to a double recovery of punitive
    damages.71
In Birchfield, thus, the Texas Supreme Court equated the
recovery of treble damages with the recovery of punitive
damages.
     Prior to Birchfield, in Kelly, the Tyler Court of Appeals
considered the possibility of double recovery, that included both
exemplary and punitive damages, in the insurance context.72 The
suit involved a Stowers duty,73 and the jury awarded the
defendants, based on their counterclaim, both punitive damages
and treble damages.74 Addressing the issue of double recovery,
the court held that even though the verdict contained multiple
findings of deceptive acts and negligent conduct on the part of
Allstate, these acts were the producing cause of the same
damages.75 Therefore, the court concluded that “the award in the
judgment of both treble and exemplary damages cannot stand
because it does amount to a double recovery of punishment
damages . . . .”76
     The Texas Supreme Court addressed treble damages in
Stewart Title Guaranty Co. v. Sterling.77 In Stewart, the court
considered the award of treble damages for deceptive acts under
the Texas Insurance Code,78 and whether a credit for settlements

the doctor made regarding the hospital’s ability to handle premature babies).
   70. See id. at 367.
   71. Id.; see also Holland v. Hayden, 901 S.W.2d 763, 766 (Tex. App.—Houston
[14th Dist.] 1995, writ denied) (following the Birchfield rationale in a discussion
concerning exemplary damages and DTPA recovery).
   72. For a discussion of Kelly, refer to notes 36-44 supra and accompanying text.
   73. Refer to note 37 supra and accompanying text (explaining the Stowers
duty).
   74. See Allstate Ins. Co. v. Kelly, 680 S.W.2d 595, 598-99 (Tex. App.—Tyler
1984, writ ref’d n.r.e.) (noting that Allstate instituted a declaratory judgment action
and the defendants raised their Stowers cause of action as a counterclaim).
   75. See id. at 606 (noting the “axiomatic” rule that exemplary damages cannot
be awarded in the absence of actual damages).
   76. Id.
   77. 822 S.W.2d 1 (Tex. 1991).
   78. See id. at 9. The relevant section of the Texas Insurance Code states:
    In a suit filed under this section, any plaintiff who prevails may obtain: (1)
    the amount of actual damages plus court costs and reasonable and
1999]                       STAYING ALIVE?                                      363

made by other alleged tortfeasors should be applied to the
judgement before or after trebling the actual damages.79 In
considering when to apply the credit, the court stated:
    It is self-evident that the treble damages provision of
    Article 21.21, § 16 is punitive in nature and designed to
    deter violations of the Insurance Code. . . . Scienter was
    not required to trigger the trebling provision. These
    factors clearly establish the punitive intent of the
    provision; therefore, application of the credit prior to
    trebling would frustrate this legislative purpose.80
This analysis clearly demonstrates that the court considered
treble damages, provided for in a statute similar to the DTPA, to
be punitive damages. Clearly, this logic is applicable to DTPA
treble damages. Although the DTPA currently requires proof of
knowledge before an award of treble damages,81 the “punitive
intent” of the damages has not changed.
     In Riverside National Bank v. Lewis,82 the Houston First
Court of Appeals also determined that treble damages are punitive
in nature.83 The court, considering the original version of the
DTPA,84 stated: “We hold that a plaintiff should not, however,
recover both exemplary damages and the treble damages provided
in the DTPA, based on the same act, as that would amount, at
least in part, to a double recovery of exemplary damages.”85

     necessary attorneys’ fees. If the trier of fact finds that the defendant
     knowingly committed the acts complained of, the trier of fact may award
     not more than three times the amount of actual damages . . . .
TEX. INS . CODE ANN. art. 21.21, § 16(b) (Vernon Supp. 1999).
    79. See Sterling, 822 S.W.2d at 8 (noting that this issue, in relation to the
Insurance Code, was one of first impression).
    80. Id. at 9.
    81. See TEX. BUS . & COM . CODE ANN. § 17.50(b) (Vernon Supp. 1999). For the
text of this section, refer to note 14 supra.
    82. 572 S.W.2d 553 (Tex. App.—Houston [1st Dist.] 1978), aff’d in part, rev’d
and remanded in part, and rev’d and rendered in part, 603 S.W.2d 169 (Tex. 1980).
    83. See id. at 561.
    84. The 1973 version of § 17.43 of the DTPA stated: “The provisions of this
subchapter are not exclusive. The remedies provided in this subchapter are in
addition to any other procedures or remedies provided for in any other law.” TEX.
BUS . & COM . CODE ANN. § 17.43 (Vernon 1974). This section was amended in 1979
to specifically disallow recovery “under both this subchapter and another law of both
actual damages and penalties for the same act or practice.” TEX. BUS . & COM . CODE
ANN. § 17.43 (Vernon Supp. 1982). The current version of § 17.43 states:
     The provisions of this subchapter are not exclusive. The remedies provided
     in this subchapter are in addition to any other procedures or remedies
     provided for in any other law; provided, however, that no recovery shall be
     permitted under both this subchapter and another law of both damages and
     penalties for the same act or practice.
TEX. BUS . & COM . CODE ANN. § 17.43 (Vernon Supp. 1999).
    85. Riverside Nat’l Bank, 572 S.W.2d at 561.
364                   HOUSTON LAW REVIEW                                  [36:351

Concerning the purpose of treble damages, the court stated that
“they serve as exemplary damages to punish the wrongdoer for his
misconduct.”86 These statements clearly show that this court
considered DTPA treble damages to be punitive in nature.87
     One can make a final argument that DTPA treble damages
are punitive in nature through an analogy to the Emergency
Price Control Act,88 a federal statute that, similar to the DTPA,
provides for the award of triple damages and attorneys’ fees.89 In
Dearborn Stove Co. v. Caples,90 the Texas Supreme Court
considered the damages allowed under the Emergency Price
Control Act.91 In Dearborn, the defendant illegally overcharged
rent, thereby creating a federal cause of action.92 The original
plaintiff then assigned the cause of action to another party.93 In
considering the assignment, the court held that “[w]hile
petitioner thus acquired the right to recover the actual
overcharge . . . , it acquired no right to [the assignor’s] claim for
double that amount (which would make up the balance of the
‘triple damages’) and attorney fees, because the latter claim was
not assignable.”94 The injured party could not assign the treble
damages and attorney’s fees because they do not survive death.95
This case not only shows that treble damages should be
considered punitive, but provides support for the Hackworth
rationale that punitive damages do not survive.96

   86. Id. (quoting John Robert Forshey, Comment, Applicability of the Texas
Deceptive Trade Practices Act to Attorneys, 30 BAYLOR L. REV ., 65, 73 (1978)).
   87. See also Butler v. Joseph’s Wine Shop, Inc., 633 S.W.2d 926, 932-33 (Tex.
App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.) (adopting the rationale of
Riverside and prohibiting the recovery of both treble and exemplary damages based
on the same act); Charlie Thomas Courtesy Ford v. Avalos, 619 S.W.2d 9, 11 (Tex.
App.—Houston [1st Dist.] 1981, no writ) (relying on Riverside to reform the trial
court’s judgment that “in effect, improperly allows a double recovery of punitive
damages”).
   88. Ch. 26, 56 Stat. 23 (1942) (terminated 1947).
   89. See id. 26, § 205(e), 56 Stat. at 34.
   90. 236 S.W.2d 486 (Tex. 1951).
   91. See id. at 487.
   92. See id. at 490 (noting that the rent charged exceeded the amount permitted
under the federal Emergency Price Control Act by $174.99).
   93. See id.
   94. Id. (following its own decision in Basham v. Smith, 233 S.W.2d 297 (Tex.
1950)).
   95. See id. (noting that some federal courts had reached a different result
under the Sherman Act, which allowed for treble damages to be assigned, but the
court did “not assign controlling importance” to those decisions); see also Basham,
233 S.W.2d at 302 (finding that the Sherman Act cases do not control the
determination of treble damages under the Emergency Price Control Act).
   96. See First Nat’l Bank v. Hackworth, 673 S.W.2d 218, 220 (Tex. App.—San
Antonio 1984, no writ) (en banc) (stating the common-law rule that actions for
purely personal rights terminate at death and concluding that punitive damages,
1999]                       STAYING ALIVE?                                       365

     Finally, there is evidence that the Legislature considers
DTPA treble damages to be punitive in nature. The original
version of section 17.43 of the DTPA stated: “The provisions of
this subchapter are not exclusive. The remedies provided in this
subchapter are in addition to any other procedures or remedies
provided for in any other law.”97 This provision implies that
DTPA treble and exemplary damages, awarded under another
law, are available for the same violation.98 After multiple court
interpretations of section 17.43, however, the Legislature
amended that provision.99 In its current form, this provision
states:
    The provisions of this subchapter are not exclusive. The
    remedies provided in this subchapter are in addition to
    any other procedures or remedies provided for in any
    other law; provided, however, that no recovery shall be
    permitted under both this subchapter and another law of
    both damages and penalties for the same act or
    practice.100
The revision to section 17.43 appears to be premised upon a
legislative recognition that treble damages are punitive in nature
and approval of court holdings that reached this conclusion.101
     What emerges from these cases and the change in section
17.43 is that by disallowing double recovery for the same act,
courts and the Legislature equate punitive damages with treble
damages under the DTPA. This inexorable conclusion bolsters
the arguments the San Antonio Court of Appeals advanced in
Hackworth.102

      2. DTPA is Remedial

    a. The Dissent in Hackworth. In his dissenting opinion in
Hackworth, Justice Tijerina, joined by Justices Esquivel and
Reeves, argued that the DTPA was remedial, rather than


such as DTPA treble damages, are personal in nature).
    97. TEX. BUS . & COM . CODE ANN. § 17.43 (Vernon 1974).
    98. See Butler v. Joseph’s Wine Shop, Inc., 633 S.W.2d 926, 932 (Tex. App.—
Houston [14th Dist.] 1982, writ ref’d n.r.e.) (explaining the appellee’s argument that
the award of both treble and exemplary damages was allowable under the original
version of the DTPA).
    99. See TEX. BUS . & COM . CODE ANN. § 17.43 (Vernon Supp. 1982) (setting
forth the 1979 amendments to the DTPA).
  100. Id. § 17.43 (Vernon Supp. 1999) (emphasis added).
  101. Refer to Part Part III.B.1 supra (discussing court interpretations of treble
damages as penalties).
  102. Refer to Part III.B.1.a supra (discussing the holding and rationale of
Hackworth).
366                    HOUSTON LAW REVIEW                                    [36:351

punitive, in nature.103 The dissent called the DTPA “remedial,
broad in scope and application,” and concluded that Ms.
Hackworth’s cause of action was not extinguished upon death.104
     The apparent reason for the differing result in Hackworth is
perspective. The majority focused almost exclusively on the
damages and the purpose those damages serve. The dissent
focused on the DTPA as a whole and the Act’s goals in general,
rather than the goals of the damages.105
     Interestingly, the dissent also asserted a property argument,
noting that the loss of funds harmed the estate.106 Put simply,
because the estate had been injured, it should have had standing
to sue.107 This equitable argument, however, overlooks the fact
that the majority affirmed the award of actual damages and,
therefore, the estate did not suffer a loss.108

     b. Thomes v. Porter.109 In Thomes, the Fort Worth Court of
Appeals seized upon the concepts the dissent articulated in
Hackworth and concluded that a DTPA cause of action does
survive.110 The suit evolved out of the purchase of a house from
the developers of a subdivision.111 The house was sold with the
standard warranties,112 and soon after the purchase a defect was
discovered.113 The owner of the house died, but not before she
discovered additional defects in the house.114 The executrix of the
deceased home buyer’s estate brought suit for breach of express

   103. See First Nat’l Bank v. Hackworth, 673 S.W.2d 218, 227 (Tex. App.—San
Antonio 1984, no writ) (en banc) (Tijerina, J., dissenting).
   104. See id. (Tijerina, J., dissenting) (quoting Woods v. Littleton, 554 S.W.2d
662, 665 (Tex. 1977), for the proposition that, in interpreting the DTPA, courts must
“look diligently for the intention of the Legislature, keeping in view at all times the
old law, the evil and the remedy.”); see also TEX. BUS . & COM . CODE ANN. § 17.44(a)
(Vernon Supp. 1999) (calling for liberal construction and application of the DTPA).
   105. See Hackworth, 673 S.W.2d at 227 (Tijerina, J., dissenting) (arguing that,
based on the general objectives of the DTPA, a cause of action thereunder should
survive).
   106. See id. (Tijerina, J., dissenting) (recognizing the well-established rule that
a bank which pays a forged or altered check must bear the loss rather than the
account holder).
   107. See id. (Tijerina, J., dissenting).
   108. See id. at 224 (affirming the judgment against the bank as to actual
damages, but refusing to award any damages based on the DTPA).
   109. 761 S.W.2d 592 (Tex. App.—Fort Worth 1988, no writ).
   110. See id. at 595.
   111. See id. at 593.
   112. See id. (noting the consumer’s claim that the house was “warranted to be
free from defects and built in a good and workmanlike manner”).
   113. See id. (adding that there was a visible crack on the walls of the house only
one month after purchase).
   114. See id. (reporting that the purchaser, Florence Kerr, died three months
after she had purchased the house from Tall Timbers Garden Homes Limited).
1999]                       STAYING ALIVE?                                      367

and implied warranties, DTPA violations, statutory and common-
law fraud, and negligence.115 The trial court awarded the estate
actual damages and the exemplary damages allowable at the
time.116 On appeal, the defendant argued, based on Hackworth,
that the decedent’s cause of action under the DTPA did not
survive to the estate.117 The court rejected the Hackworth
analysis and conducted its own inquiry into whether the cause of
action survived.118
     In Thomes, the court, similar to that in Hackworth, began its
analysis by reasoning that the DTPA does not provide for the
survivability of a cause of action and acknowledged that “[i]f a
statute does not specifically address the survivability of a cause
of action, the court must apply existing common law
principles.”119 Nevertheless, the court determined that the DTPA
is “an amalgam of common law fraud, contracts, and tort
considerations.”120 Based on the common-law survival of a breach
of contract claim,121 the call for liberal construction of the
DTPA,122 and the overall intent of the DTPA to help consumers,123
the court concluded that “it is obvious that a cause of action
under the DTPA should survive the death of the consumer.”124
The court felt that “[t]o hold otherwise would be to ignore the
intent of the legislature in enacting the DTPA and to allow
violators to escape the intent just because their victims had the



   115. See id. (commenting that the executrix did not sue until negotiations and
repeated attempts by the builder to correct the defects had taken place).
   116. See id. (stating that the trial court’s award of $18,000 in actual damages,
$33,000 in attorney’s fees, two times actual damages up to $1000, and $10,000 in
additional damages was allowed under the version of the DTPA then in force).
   117. See id. (noting that Hackworth was an en banc decision with a four
majority, three dissent opinion).
   118. See id. at 593-94 (discussing the Hackworth decision and announcing that
the court “disagree[s] with [the Hackworth] holding”).
   119. Id. (citing Firemen & Policemen’s Pension Fund v. Cruz, 458 S.W.2d 700,
703 (Tex. App.—San Antonio 1970, writ ref’d n.r.e.)).
   120. Id.
   121. See id. (emphasizing that a breach of contract cause of action survives
under the common law, as do suits for wrongful acquisition of property by fraud or
deceit, which are analogous to the DTPA claim the plaintiff raised); see also Firemen
& Policemen’s Pension Fund, 458 S.W.2d at 703 (restating the “general rule” that a
breach of contract claim “survives the death of either party”).
   122. See TEX. BUS . & COM . CODE ANN. § 17.44 (Vernon 1974) (providing for
liberal construction of the DTPA so as “to promote its underlying purposes”).
   123. See Thomes, 761 S.W.2d at 594 (stating that the primary purpose of the
DTPA was to provide consumers with a cause of action “without the burden of proof
and numerous defenses encountered in a common law fraud or breach of warranty
suit”).
   124. Id.
368                    HOUSTON LAW REVIEW                                     [36:351

misfortune of dying before they were able to initiate suit.”125
Considering these factors, the court held that “a consumer’s
cause of action under the DTPA survives a consumer’s death,
inures to the benefit of the estate of the deceased consumer, and
may be properly brought by it.”126
     Further, the court further the nature of the DTPA damages.
Rather than characterizing the damages as punitive, the court
considered the purposes behind the treble damage provision of
the DTPA.127 They acknowledged “that one of the functions of
exemplary damages permitted by the DTPA is to punish the
wrongdoer.”128 Nevertheless, the court asserted that “[i]t is
crystal clear that the punitive aspect of the additional damages
permitted under the DTPA is but one cog in the overall scheme
enacted by the legislature to protect consumers from deceptive
trade practices.”129 The court identified the following purposes: to
encourage privately initiated consumer litigation; to deter
violations of the DTPA; and to discourage deceptive and
misleading trade practices.130 Because of these purposes, the
court held that treble or exemplary damages were not punitive
and the estate could properly recover them.131
     Additionally, and based on the same rationale, the court held
that the right to r ecover attorney’s fees under the DTPA “is more
remedial in nature than punitive, and is provided so that
consumers will have additional incentive and fewer obstacles to
pursue their claims.”132
     Overall, the Fort Worth Court of Appeals construed the
DTPA broadly and liberally. Rather than concentrating on the
damages, the court emphasized the remedial goals and purposes
of the DTPA, as well as the common-law rules underlying breach
of warranty claims, to reach its conclusion.133

  125. Id.
  126. Id. (regarding the executrix’s consumer status as irrelevant because Ms.
Kerr was a consumer and, thus, it was her cause of action).
  127. See id. at 595.
  128. Id.
  129. Id. (noting that the public policy reasons for DTPA treble damages include
important considerations beyond merely punishing the wrongdoer).
  130. See id. (relying on Pennington v. Singleton, 606 S.W.2d 682, 690-91 (Tex.
1980), for the goals of excess liability under the DTPA).
  131. See id. (holding that the right to treble damages and the DTPA claim
survived the death of the consumer).
  132. Id. at 595-96 (recognizing that one of the stated purposes of the DTPA is “to
promote efficient and economical procedures” to secure protection under the act).
  133. See id. at 594 (“Under common law, an action for breach of contract,
express or implied, survives the death of either party.”); Firemen & Policemen’s
Pension Fund v. Cruz, 458 S.W.2d 700, 703 (Tex. Civ. App.—San Antonio 1970, writ
ref’d n.r.e.) (stating the general, common-law rule that a cause of action for breach of
1999]                       STAYING ALIVE?                                       369

     c. Other Cases. The Fort Worth Court of Appeals has
maintained its position that a DTPA cause of action does not
survive and, furthermore, has extended its rationale. In Traver v.
State Farm Mutual Automobile Insurance Co.,134 the court
addressed the issue of an executor’s standing to bring a Stowers
cause of action,135 which formed the basis of the DTPA claims.136
The court, following its analysis in Thomes, looked to the
underlying cause of action, the Stowers claim, and found that it is
assignable.137 Because a Stowers claim is assignable, the court
held that the claim survived to the estate, and any cause of
action based on the Stowers claim survived.138
     Although other cases imply that a DTPA cause of action is
assignable, the most persuasive is Gregorcyk v. Al Hogan
Builder, Inc.,139 in which the Corpus Christi Court of Appeals
affirmed the trial court’s take-nothing judgment notwithstanding
the verdict.140 In Gregorcyk, the plaintiff, a home buyer, sued the
builder for construction defects.141 The court disallowed all of the


contract will survive the death of either party); Hutchings v. Bates, 393 S.W.2d 338,
343-44 (Tex. Civ. App.—Corpus Christi 1965) (asserting that if the contract does not
require personal performance, a promise to pay may still be enforceable after the
death of the promisor), aff’d, 406 S.W.2d 419 (Tex. 1966).
          For an additional interpretation of statutory causes of action and survival,
see Upton County v. Brown, 960 S.W.2d 808 (Tex. App.—El Paso 1997, no writ). In
Upton County, the court considered whether a cause of action under the Texas
Whistleblower Act, 68th Leg., R.S., ch. 832, 1983 Tex. Gen. Laws 4751, repealed by
Act of May 4 1993, 73d Leg., R.S., ch. 268, § 46(1), 1993 Tex. Gen. Laws 583, 986
(recodified as TEX. GOV ’T CODE ANN. §§ 554.001-.009 (Vernon 1994)) and § 1983
should survive. See Upton County, 960 S.W.2d at 816-18. The court concluded that
the Whistleblower Act was remedial in nature and that the claim should survive. See
id. at 817. The court also concluded that the § 1983 cause of action should survive.
See id. at 817-18 (noting that, similar to the Texas Whistleblower Act, 42 U.S.C. §
1983 does not address the survivability of a claim under that statute). This case
provides a current analysis of statutory causes of action and applies the Thomes
reasoning with respect to the survivability of these causes of action. See id. at 817
(deciding that the statutes were remedial so they should survive, just as the Thomes
court considered the DTPA to be remedial, and therefore, survivable).
  134. 930 S.W.2d 862 (Tex. App.—Fort Worth 1996), rev’d on other grounds, 680
S.W.2d 625 (Tex. 1998).
  135. Refer to note 37 supra (explaining a Stowers cause of action).
  136. See Traver, 930 S.W.2d at 866-67.
  137. See id. at 867 (stating that the court “recognize[s] that an insured’s right to
sue for failure to settle is subject to assignment”); see also Charles v. Tamez, 878
S.W.2d 201, 208 (Tex. App.—Corpus Christi 1994, writ denied).
  138. See Traver, 930 S.W.2d at 867 (noting that the DTPA claim would also
survive, but because the Stowers claim failed, the DTPA claim also failed).
  139. 884 S.W.2d 523 (Tex. App.—Corpus Christi 1994, writ denied).
  140. See id. at 526 (affirming the trial court’s judgment, but on a different
basis).
  141. See id. at 524 (stating that the homebuyers believed the defendant had
used substandard materials).
370                    HOUSTON LAW REVIEW                                    [36:351

plaintiff’s claims because they had previously executed an
assignment of all causes of action to an insurance company.142
Through this ruling, the court also disallowed the plaintiffs’
DTPA claims.143 As the disallowance implies, the court
considered the DTPA claims assignable to the insurance
company. Assignment was not an issue in the case, and the court
did not specifically approve of the assignability of a DTPA cause
of action; nevertheless, the court apparently considered the
claims assignable.144
     The implication that a DTPA cause of action is assignable is
evident in Trimble v. Itz.145 Trimble is significant because it is a
decision from the San Antonio Court of Appeals—the same court
that decided Hackworth and Mendoza.146 The facts in Trimble
involved whether an insurance company, as subrogor, “may step
into its insured’s shoes and assume their consumer status for
purposes of the DTPA.”147 Even though the court ruled that the
insurance company was not a consumer,148 by considering the
issue the court implicitly recognized that a DTPA cause o f action
is assignable.149 Perhaps this altered view turns on the difference
between assignment and subrogation. Nevertheless, it is certain
that the San Antonio Court of Appeals did not abandon its
position regarding survival, as is evidenced by its decision in
Mendoza, which it decided one year after Trimble.
     Another case in which a court indicates that a DTPA cause
of action is assignable is National Bugmobiles, Inc. v. Jobi



  142. See id. at 524-25 (indicating that the plaintiffs assigned to Home Owners
Warranty Insurance Corporation “all their right, title and interest in each and all
claims”).
  143. See id. at 526 (noting that the Gregorcyks had assigned all claims
concerning the defects that had been remedied, and there were no cognizable claims
apart from those remedied items).
  144. See also Hart v. First Fed. Sav. & Loan Ass’n, 727 S.W.2d 723, 725 (Tex.
App.—Austin 1987, no writ) (indicating that a DTPA cause of action could be
assigned, although not considering the issue specifically because of its holding that a
valid assignment did not occur and, therefore, the appellants lacked standing).
  145. 898 S.W.2d 370 (Tex. App.—San Antonio 1995), writ denied per curiam,
906 S.W.2d 481 (Tex. 1995).
  146. Refer to Part III.B.1 & notes 51-67 supra and accompanying text
(discussing the San Antonio Court of Appeal’s decisions in Hackworth and Mendoza).
  147. Trimble, 898 S.W.2d at 371-72 (recognizing that State Farm was the actual
plaintiff pursuing the claim).
  148. See id. at 372 (explaining further that the insurance company had assets
greater than $25 million, thus removing it from the definition of consumer under the
DTPA).
  149. See id. (noting that State Farm did not produce any cases which held that a
subrogee, who was not a consumer, could assume that status of its subrogor for
purposes of a DTPA cause of action).
1999]                        STAYING ALIVE?                                       371

Properties.150 In this action, a homeowner sued an exterminator
under the DTPA based on a breach of warranty.151 At first glance,
the case appears to stand for the proposition that a DTPA cause
of action is assignable because the plaintiff was not the original
owner of the house when the termite warranty was issued.152
However, the court actually dealt with the assignment of a
warranty, not the assignment of a DTPA cause of action.153 Due
to the distinction between a warranty and a cause of action, the
plaintiffs were suing in their own right and not relying on the
prior owner’s cause of action.154
     The two issues are easily confused; however, this Comment
deals only with assigned DTPA causes of action, not warranties.
Normally, in the case of an assigned warranty, the issue whether
a DTPA cause of action is assignable would not arise because the
plaintiff would be suing in his or her own right.155 Therefore, as
long as the plaintiff could prove consumer status,156 the plaintiff
would not have a problem bringing the suit under the DTPA.

      3. Effects of the Survival Statute

     a. Hofer v. Lavender.157 In Hofer, the Texas Supreme Court
considered whether punitive damages should survive.158 The
court held that under the Texas Survival Statute, a right e xisted
to collect punitive damages from the estate of the deceased
tortfeasor despite the defendant’s death, and that the damages
run to the beneficiaries of the victim’s estate.159
     Two commentators believe that Hofer has resolved the
question regarding survivability of a DTPA cause of action.160 As
they see the issue, “even if one accepts the San Antonio court of


  150. 773 S.W.2d 616 (Tex. App.—Corpus Christi 1989, writ denied).
  151. See id. at 617 (stating further that the homeowner was also suing for
negligence for the exterminator’s failure to treat the house for termites at no charge,
as the contract provided).
  152. See id. at 618-19 (noting that an estate originally owned the house and
transferred it to the plaintiff after the termite inspection).
  153. See id. at 619.
  154. See id. (adding that the estate made the initial decisions regarding the
treatment and warranty).
  155. See id. at 618-19.
  156. See id. at 621 (discussing the plaintiff’s standing as a consumer).
  157. 679 S.W.2d 470 (Tex. 1984).
  158. See id. at 470 (“The first of two issues involved in this case is whether
exemplary damages may be recovered from the estate of a tortfeasor.”).
  159. See id. at 475 (comparing Texas case law to that of Florida, Iowa,
Minnesota, Nevada, and West Virginia).
  160. See Paul N. Gold & George (Tex) Quesada, Personal Injury Actions Under
the DTPA, 21 ST. MARY’S L.J. 711, 722 (1990).
372                     HOUSTON LAW REVIEW                                      [36:351

appeals’ reasoning that the [DTPA] is punitive and not remedial,
DTPA actions should survive to benefit the injured decedent’s
estate.”161

     b. Mahan Volkswagen v. Hall.162 In Mahan Volkswagen,
the First District Houston Court of Appeals held that a DTPA
cause of action survives, thereby allowing the decedent’s children
to bring suit.163 Mahan Volkswagen is different from those cases
previously considered because the defective product that formed
the basis of the DTPA claim was responsible for the death of the
consumer.164 The DTPA claims were based on an implied
warranty of fitness.165 The court decided that the decedent could
have sued under the DTPA and that the plaintiff’s cause of action
survived to the children under the Texas Survival Statute.166
However, the court based its holding on the personal injury
aspect of the accident and did not distinguish between the
injuries and the suit for breach of warranty.167 Additionally, the
court held that the decedent was a consumer under the DTPA
and that the “cause of action under the [DTPA] survived to
[decedent’s] heirs and the legal representatives of her estate.”168
The court did not expound on the basis for its conclusion, but it is
important for two reasons: (1) the case provides added authority
for the conclusion that a DTPA cause of action does survive; and
(2) it gives an alternate basis for reaching that conclusion,
especially in a personal injury context.

    4. Conclusion. What is clear from the above discussion is
that at least two Texas courts of appeal are split on whether a


   161. Id. (noting that Hofer “distinguishes survival actions from wrongful death
actions and explicitly permits sanctions against an estate for the decedent’s
misdeeds” (footnotes omitted)); see also 1 AM . JUR. 2D Abatement, Survival, and
Revival § 52 (1994) (asserting that “the survival of a cause of action is mutual, so
that if it survives in favor of executors or administrators it also survives against
them”).
   162. 648 S.W.2d 324 (Tex. App.—Houston [1st Dist.] 1982, writ ref’d n.r.e.).
   163. See id. at 335.
   164. See id. at 327 (noting that the product in question was an automobile that
allegedly had defective brakes).
   165. See id. at 331 (stating that the 1973 version of the DTPA governed the
plaintiff’s claims).
   166. See id. at 332.
   167. See id. (asserting that “the decedent could have sued for damages to her car
and for her personal injuries under [the DTPA], and her cause of action would have
survived to the benefit of her children under [the Survival Statute]”).
   168. Id. at 333. On rehearing, the court limited the damages that could be
trebled to those “which are attributable to the decedent’s cause of action . . . .” Id. at
334 (providing examples of those damages as physical pain, mental anguish, funeral
expenses, and property damage).
1999]                        STAYING ALIVE?                                         373

DTPA cause of action survives the death of a plaintiff.
Apparently, this split is based on a difference in opinion as to
whether the award of treble damages under the DTPA is punitive
or remedial in nature and a conflict regarding which common-law
rules are applicable.

C. Personal vs. Property Cause of Action

     Under the common law, a personal cause of action does not
survive and, thus, is not assignable.169 A personal action is one
that involves injury to the person in which any effect on property
or property rights is incidental.170 In both Hackworth and
Thomes, the courts agreed that the DTPA asserts a purely
personal right.171 Whether a cause of action involves personal
injury or property damage can determine the survivability.

     1. Bay Ridge Utility District v. 4M L       aundry.172 In 4M
Laundry, the court considered whether a civil rights cause of
action is assignable and,173 in the process, appeared to adopt the
rationale expressed in Hackworth. In considering the
assignment, the Houston First District Court of Appeals
announced: “Under Texas law, in the absence of an express
statutory provision to the contrary, a statutory cause of action is
not assignable if it is personal to the one who holds it and would
not survive his death.”174 The court distinguished between civil
rights violations that injure business or property, and those that
injure personal rights.175
     In deciding what type of injuries are personal, the court
commented on Hackworth.176 The court agreed with the
defendant’s interpretation that Hackworth stands “for the

   169. See 1 AM . JUR. 2D Abatement, Survival, and Revival § 65 (1994) (“[A] cause
of action to enforce a penalty generally does not survive the death of either party if it
is penal or personal rather than contractual in nature.”).
   170. See id. § 52.
   171. See Thomes v. Porter, 761 S.W.2d 592, 594 (Tex. App.—Fort Worth 1988,
no writ) (observing that the appeal involved the survival of a “purely personal
right”); First Nat’l Bank v. Hackworth, 673 S.W.2d 218, 220-21 (Tex. App.—San
Antonio 1984, no writ) (en banc) (arguing that, because of the punitive nature of
DTPA damages, the right asserted was purely personal).
   172. 717 S.W.2d 92 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.).
   173. See id. at 95 (noting that the causes of action were assigned to another
company that bought all interests in 4M Laundry and its land).
   174. Id. at 96 (noting that a court must determine the assignability of civil
rights claims under § 1983 according to the law of the forum state); see also
Dearborn Stove Co. v. Caples, 236 S.W.2d 486, 490 (Tex. 1951) (construing the
Emergency Price Control Act’s treble damages provision as personal).
   175. See 4M Laundry, 717 S.W.2d at 96.
   176. See id. at 97.
374                    HOUSTON LAW REVIEW                                   [36:351

principle that a statutory cause of action that is personal is not
assignable.”177 Specifically approving the Hackworth holding
regarding the survivability of a DTPA cause of action, the court
stated that it “agree[s], when, as in Hackworth the question
relate[s] to r ecovery of punitive damages for a personal claim, not
a tort against property rights.”178 It is unclear how to reconcile
this view in light of Mahan Volkswagen, a case in which that
court held, only four years earlier, that a DTPA cause of action
was personal and, therefore, survived.179 The factor that
distinguishes these two cases is the effect of the survival statute.

     2. Jackson v. Thweatt.180 Jackson raised an alternative
argument regarding statutory causes of action. In Jackson, the
Texas Supreme Court considered the assignment of FDIC notes,
but also discussed assignments in general.181 The court reviewed
a Corpus Juris Secundum piece regarding assignments182 and
announced a rule emerging from that source: “[R]ights ‘personal’
to the assignor are those which, although relating to the property
assigned, constitute accrued causes of action that may be
asserted independently of ownership of the property.”183
     The application of this rule to the DTPA is clear, at least in
the breach of warranty context. In the Texas version of the
Uniform Commercial Code, the Legislature declared that a cause
of action for breach of warranty accrues when the breach
occurs,184 and the “breach of warranty occurs when tender of
delivery is made” or at discovery.185 This formulation indicates
that the cause of action accrues at tender or discovery, and there

  177. Id.
  178. Id.
  179. See Mahan Volkswagen, Inc. v. Hall, 648 S.W.2d 324, 333 (Tex. App.—
Houston [1st Dist.] 1982, writ ref’d n.r.e.) (holding that a decedent’s DTPA cause of
action survived to her heirs and legal representative of her estate).
  180. 883 S.W.2d 171 (Tex. 1994).
  181. See id. at 176.
  182. See generally 6A C.J.S. Assignments § 76 (1975).
  183. Jackson, 883 S.W.2d at 176 (holding that the right in question had no value
separate from ownership of the assets and did not meet the announced rule so as to
be considered personal).
                                                             T
  184. See TEX. BUS . & COM . CODE ANN. § 2.725(b) ( ex. UCC) (Vernon Supp.
1998).
  185. Id. This provision states:
     A cause of action accrues when the breach occurs, regardless of the
     aggrieved party’s lack of knowledge of the breach. A breach of warranty
     occurs when tender of delivery is made, except that where a warranty
     explicitly extends to future performance of the goods and discovery of the
     breach must await the time of such performance the cause of action accrues
     when the breach is or should have been discovered.
Id.
1999]                        STAYING ALIVE?                                        375

is no requirement that the party still possess the goods or
property to bring suit.186 Using this analysis and existing Texas
caselaw, one can conclude that a DTPA cause of action meets this
definition of “personal”187 and, therefore, is not assignable.

D. Consumer Status and Assignability

     The consumer status requirement plays an integral part in
considering the survivability and assignability of a DTPA cause
of action. To bring a cause of action under the DTPA, the plaintiff
must prove that he or she is a consumer within the meaning of
the Act.188 As noted in Hackworth, an estate’s status as a
consumer is questionable.189 In other cases, consumer status has
been the central issue.190 The question turns on whether, even if
the courts allowed survival or assignment, the assignee has to
independently prove consumer status, or whether the court
assumes consumer status.
     To this inquiry, two possible answers exist. Hackworth
presents the first view. In Hackworth, the court held that “the
estate and representatives of [the] estate cannot recover in this
action under the DTPA because they are not ‘consumers’ as
defined in § 17.45(4).”191 The San Antonio Court of Appeals also
expressed this view in Trimble, in which the court held that the
insurance company, as subrogee, had to prove its consumer
status independently.192 The insurance company, however, could


  186. See ALDERMAN, supra note 3, § 2.031, at 13 (analyzing Texas cases to reach
the conclusion that “[a]lthough some earlier decisions had held that to qualify as a
consumer, the entity must consummate the transaction, rather than merely seek to
enter into it, it is now well recognized that actual acquisition of goods or services is
not required” (footnotes omitted)).
  187. See Jackson, 883 S.W.2d at 176.
  188. See TEX. BUS . & COM . CODE ANN. § 17.45(4) (Vernon 1987) (defining a
consumer as “an individual, partnership, corporation, this state, or a subdivision or
agency of this state who seeks or acquires by purchase or lease, any goods or
services”).
  189. See First Nat’l Bank v. Hackworth, 673 S.W.2d 218, 221 (Tex. App.—San
Antonio 1984, no writ) (en banc) (holding that an estate could not recover under the
DTPA because it did not fall within the definition of “consumer”).
  190. See Trimble v. Itz, 898 S.W.2d 370, 372 (Tex. App.—San Antonio 1995, writ
denied) (holding that an insurance company, as subrogee, cannot assume consumer
status and, therefore, could not bring a DTPA cause of action); March v. Thiery, 729
S.W.2d 889, 896 (Tex. App.—Corpus Christi 1987, no writ) (holding that the children
of a deceased home buyer “do not meet the DTPA definition of ‘consumer’ and
therefore may not maintain an action under the Act”).
  191. Hackworth, 673 S.W.2d at 221 (noting, further, that the definition of
“consumer” does not include an estate).
  192. See Trimble, 898 S.W.2d at 372 (holding that the insurance company did
not “qualify as a consumer in its own right and [could] not assume the consumer
status of its insured/subrogor for purposes of pursuing a DTPA claim”).
376                   HOUSTON LAW REVIEW                                  [36:351

not do so because the statute specifically excludes entities with
assets over twenty-five million dollars from the definition of
“consumer.”193
     The second view is to consider the assignor or survivor equal
to the deceased and allow them to assume consumer status. The
Thomes court accepted this view and stated that because the
decedent’s “cause of action survives, whether [the estate] in this
instance is the consumer is immaterial since she is not asserting
her own cause of action, but rather that of the deceased.”194
Based on the traditional rules of assignments,195 this argument
appears to be stronger than the preceding alternative. Of course,
both of these arguments are irrelevant if a court initially holds
that a DTPA cause of action does not survive before it analyzes
the elements of the claim.

E. Other Jurisdictions
    Texas is not unique in its attempts to assist consumers
through statutory remedies, and other states’ courts have
struggled with the same issues regarding survival and
assignments of similar causes of action. These cases rely on
varying rationales for their decisions, including: (1) comparing
the consumer protection statutes to the common law and
evaluating the statutes in light of survival statutes; (2) the
remedial nature of the consumer protection statutes; and (3) the
varying ways in which to characterize the damages.196 Obviously,


  193. See id.; see also TEX. BUS . & COM . CODE ANN. § 17.45(4) (Vernon 1987).
  194. Thomes v. Porter, 761 S.W.2d 592, 594 (Tex. App.—Fort Worth 1988, no
writ) (holding that a DTPA cause of action survives the consumer’s death and may
be properly brought by the estate).
  195. See, e.g., AM . JUR. 2D Assignments § 102 (1963) (“As a general rule [the
assignee] takes the subject of the assignment with all the rights and remedies
possessed by or available to the assignor . . . .”).
  196. See, e.g., Gemini Physical Therapy & Rehabilitation, Inc. v. State Farm
Mut. Auto. Ins. Co., 40 F.3d 63, 66 (3d Cir. 1994) (examining Pennsylvania law and
concluding that the court will not infer the assignment of a consumer protection
cause of action); Duncavage v. Allen, 497 N.E.2d 433, 442 (Ill. App. Ct. 1986)
(holding that a claim for exemplary damages did not survive because they are
punitive in nature and no statute expressly authorized the survival of punitive
damages); People ex rel. Fahner v. Testa, 445 N.E.2d 1249, 1253-54 (Ill. App. Ct.
1983) (holding that a cause of action under Illinois’s consumer protection statute
survives because the defendant’s acts could be construed as fraud and deceit, which
survived under the consumer law); Levy v. Edmund Buick-Pontiac, Ltd., 637 A.2d
600, 602 (N.J. Super. Ct. Law Div. 1993) (holding the assignment invalid because
the assignee did not suffer any injury); Motzer Dodge Jeep Eagle, Inc. v. Ohio
Attorney Gen., 642 N.E.2d 20, 27 (Ohio Ct. App. 1994) (holding that the deceptive
sales practices cause of action did not survive because the action did not exist at
common law and no statutory authority allowed survival); State v. Therrien, 633
A.2d 272, 276 (Vt. 1993) (holding that a consumer fraud cause of action “pursued
1999]                       STAYING ALIVE?                                      377

these decisions are based on either common law or statutes that
vary in form and content from the DTPA, but the general policies
remain applicable.197
     One case that deserves special attention is Investors Title
Insurance Co. v. Herzig.198 In Investors Title, the North Carolina
Supreme Court adopted the view that claims of unfair or deceptive
trade practices are not assignable.199 The court also raised
legitimate concerns regarding the assignability of causes of action
under consumer protection statutes.200 It noted that “[i]f a claim
under the Act is deemed assignable, the consumer would not be
provided the protection afforded by this statutory provision.
Rather, the recovery of trebled damages would result in a third
party receiving a windfall from another person’s injury.”201 The
court further envisioned a system in which insurance companies
and other powerful parties “could buy these potentially profitable
causes of action and ultimately profit from another’s injuries.”202 A
system such as this one would serve to “further negat[e] the
statutory intent of protecting the consumer.”203 Clearly, these
concerns are equally applicable to Texas.

                                 IV. ANALYSIS
    The cases discussed above provide conflicting analytical
frameworks from which to approach the issue of whether a DTPA
cause of action is survivable and assignable. By and large, the
determining factor is the approach the courts use to interpret the
DTPA.

A. Considering the DTPA as a Whole

    1. Remedial or Punitive? The first possible approach is to
consider the DTPA itself, without relying on the underlying

under the remedial terms of the protective legislation survive[s] the death of the
wrongdoer”); Kagele v. Aetna Life & Cas. Co., 698 P.2d 90, 94 (Wash. Ct. App. 1985)
(holding that only the insured had standing to bring suit for a violation of
Washington’s Consumer Protection Act).
   197. Refer to Part III.A-D (discussing many of these same rationales).
   198. 413 S.E.2d 268 (N.C. 1992).
   199. See id. at 271 (noting that nonassignability is the exception but asserting
that allowing the assignment of unfair trade practice claims “violates [North
Carolina] public policy and will not be enforced”).
   200. See id. at 272 (“The question before us focuses on what effect assignability
of the claim would have upon the legislative intent and spirit of the Act.”).
   201. Id.
   202. Id.
   203. Id. The court further expressed concern that such a system “would wreak
havoc by creating a market for claims of a personal nature.” Id.
378                    HOUSTON LAW REVIEW                                     [36:351

claims that make up the statute as determining factors.204 The
San Antonio Court of Appeals adopted this approach in
Hackworth and, to some extent, Thomes, with respect to the
remedial or punitive distinction.205
     The dispute between the San Antonio and Fort Worth
Courts of Appeal can be considered to be one of perspective. If
courts view the DTPA from a distance and consider its
overarching goals,206 it appears correct to view the DTPA as
remedial.207 However, if courts look to the damages the DTPA
proscribes (from which the remedies emanate), then the DTPA is
punitive.208
     In Thomes, the court took the view that the DTPA was
remedial. The court stated that “it is obvious that a cause of
action under the DTPA should survive the death of the
consumer.”209 This statement reveals one problem with the
reasoning in Thomes. By stating that a DTPA cause of action
“should survive,” the court implicitly acknowledged that one
possible result under the established law is that the cause of
action should not survive. The court recognized that “[t]he DTPA
does not provide for survival of the cause of action contained
within its terms, and of course did not exist under common
law.”210 Nevertheless, the court believed that the need for liberal
construction of the DTPA justified further examination.211 In
other words, the court knew the result it wanted to reach—
survival of the DTPA cause of action—but it recognized that
precedent did not necessarily dictate this result.212

  204. See, e.g., Thomes v. Porter, 761 S.W.2d 592, 594 (Tex. App.—Fort Worth
1988, no writ) (observing that the DTPA “is purely a creation of the legislature and
an amalgam of common law fraud, contracts, and tort considerations”).
  205. Refer to Parts III.B.1.a, III.B.2.b supra.
  206. See TEX. BUS . & COM . CODE ANN. § 17.44(a) (Vernon Supp. 1999). This
section, in its current form, states: “This subchapter shall be liberally construed and
applied to promote its underlying purposes, which are to protect consumers against
false, misleading, and deceptive business practices, unconscionable actions, and
breaches of warranty and to provide efficient and economical procedures to secure
such protection.” Id.
  207. See Thomes, 761 S.W.2d at 595-96.
  208. See First Nat’l Bank v. Hackworth, 673 S.W.2d 218, 220 (Tex. App.—San
Antonio 1984, no writ) (en banc).
  209. Thomes, 761 S.W.2d at 594 (explaining further that “[t]o hold otherwise
would be to ignore the intent of the legislature in enacting the DTPA and to allow
violators to escape the intent just because their victims had the misfortune of dying
before they were able to initiate suit”).
  210. Id.
  211. See id.
  212. See id. at 593-94. In Thomes, the court recognized the Hackworth decision
but did not disagree with its rationale, only with its conclusion regarding t e      h
character of DTPA damages. See id. In fact, both courts agreed they were dealing
1999]                        STAYING ALIVE?                                       379

     To arrive at its conclusion that the cause of action “should
survive,”213 the court analogized the common-law rules regarding
assignment of breach of contract claims to the DTPA214 and
construed the DTPA liberally.215 This analysis required a logical
leap. To summarize the analysis, the court advanced the
following argument: breach of contract claims survive; the DTPA
is similar to a breach of contract claim; liberal construction
should be applied; and therefore, the DTPA survives. However,
the premises do not require arriving at that conclusion. The court
justified its conclusion because, in its opinion, the holding
advanced the purposes of the DTPA.216 Notwithstanding this
reasoning, reaching this result implicates a policy decision that
other courts may or may not make.
     Overall, reading the Thomes opinion demonstrates that the
court reached the result that it thought was “right” and that it
wanted to reach, though the current law did not necessarily
dictate this result.217 Of course, courts do at times alter the law,
but in Thomes, for policy reasons, the court reached a result by
stretching and shaping the law, not by applying the express
provisions of the statute.218
     Even if one adopts the rationale in Thomes, the justifications
for survival of a DTPA cause of action weaken when considering
treble damages. The Thomes court stated that “[t]o hold [the
DTPA does not survive] would be to ignore the intent of the
legislature in enacting the DTPA and to allow violators to escape
the intent just because their victims had the misfortune of dying
before they were able to initiate suit.”219 By focusing on punishing

with a “purely personal right.” Id. at 594.
  213. Id.
  214. See id. (arguing that under common law, actions for breach of contract and
wrongful acquisition of property by fraud or deceit survive the death of either party).
  215. See id.
  216. See id. (arguing that a contrary holding would “confound the purposes of
the [A]ct”).
  217. See id. (stating that a DTPA claim “should survive the death of the
consumer,” thus acknowledging that it would have been possible to reach the
opposite result).
  218. The Thomes opinion seems to acknowledge the common-law result, but
overrides this conclusion to observe “the intent of the legislature in enacting the
DTPA . . . .” Id. However, the Hackworth court, while attempting to ascertain the
intent of the Legislature, applied alternative rules of construction. See First Nat’l
Bank v. Hackworth, 673 S.W.2d 218, 221 (Tex. App.—San Antonio 1984, no writ) (en
banc). The Hackworth court assumed that the Legislature passes acts “with full
knowledge of the existing condition of the law and subject thereto unless the
contrary is clearly demonstrated.” Id. Therefore, it appears that both the Thomes
and Hackworth courts were aware of the common-law result, and their difference in
perspective developed from different rules of statutory construction.
  219. Thomes, 761 S.W.2d at 594.
380                    HOUSTON LAW REVIEW                                   [36:351

“violators,” however, the court recognized the punitive nature of
the DTPA.220 The court attempted to dismiss the punitive aspects
of treble damages as “but one cog in the overall scheme” of the
DTPA to protect consumers.221 However, it had to admit that “one
of the functions of exemplary damages permitted by the DTPA is
to punish the wrongdoer.”222 The other functions the court
mentioned include encouragement of privately litigated
consumer disputes and the need to deter others sellers likely to
commit fraudulent and deceptive acts.223
     In response to the court’s encouragement argument, treble
damages are unnecessary because the award of costs and
attorneys’ fees224 and validation of their claim should be enough
of an incentive for most consumers. Additionally, this argument
recognizes the punitive aspect of the treble damages because the
DTPA effectively considers the consumer a policing agent—ready
to enforce the penalty for a violation.225 Finally, the deterrence
argument the court advanced, as well as the goal of correcting
behavior in sellers, merely enhances the punishment aspect of
treble damages.226 Because it is difficult to view treble damages
as anything but punitive, the Thomes policy argument carries
more weight when treble damages are not involved.
     Therefore, the reasoning in Thomes is not as strong as it
first appears, especially when applied to treble damages. In
Thomes, the court asserted that the proper result is to find the
DTPA to be remedial, rather than punitive, in nature.227
However, the court failed to justify its holding in the law and,

  220. See id. at 595 (stating that a “purpose of liability in excess of actual
damages is to deter violations of the DTPA”).
  221. Id. at 595.
  222. Id. (qualifying this statement by adding that punishment is not the only
function of the DTPA).
  223. See id.
  224. See TEX. BUS . & COM . CODE ANN. § 17.50(d) (Vernon Supp. 1999).
Additionally, most cases do not involve treble damages because the Legislature has
removed the mandatory trebling provisions and substituted a knowledge
requirement. Compare TEX. BUS . & COM . CODE ANN. § 17.50(b)(1) (Vernon 1987)
(providing that “the court shall award two times that portion of the actual damages
that does not exceed $1,000”), with TEX. BUS . & COM . CODE ANN. § 17.50(b)(1)
(Vernon Supp. 1999) (omitting this provision). For the current text of this provision
refer to note 14 supra.
  225. See Hill, supra note 2, at 613 (asserting that the DTPA “extend[ed] to the
consumer the same cause of action for deceptive practices formerly available only to
the attorney general”).
  226. See Riverside Nat’l Bank v. Lewis, 572 S.W.2d 553, 561 (Tex. Civ. App.—
Houston [1st Dist.] 1978) (stating that one purpose of treble damages is to punish
tortfeasors), aff’d in part, rev’d and remanded in part, and rev’d and rendered in
part, 603 S.W.2d 169 (Tex. 1980).
  227. Refer to Part III.B.2.b supra (discussing the Thomes decision).
1999]                       STAYING ALIVE?                                      381

instead, only relied on policy, yet the policy arguments are not as
strong when considering treble damages. Therefore, the DTPA,
rather than being remedial with punitive aspects, as the Thomes
court suggests, is really punitive with remedial aspects,
especially when dealing with exemplary damages.
     In Hackworth, the court advanced this latter view, and it is
one that carries more weight. It is difficult to argue that treble
damages are not punitive, and Texas courts have consistently
held that they are punitive in nature.228 However, this reasoning
does not settle the argument because the trend in courts is to
disregard the characterization of the damages and consider the
statute as a whole.229
     Considering the DTPA as a whole would require Texas
courts to develop a test to determine if a statutory cause of action
is remedial or punitive in nature. Many courts have
acknowledged the need for such a test,230 and its creation is of
primary importance in determining whether a cause of action
survives.231 The test that best distinguishes penal from remedial
causes of action is defined as follows:
    A penal action has been characterized as one founded
    entirely upon a statute which subjects a wrongdoer to
    liability in favor of the person wronged as a punishment
    for the wrongful act, without limiting such liability to the
    actual damages suffered. On the other hand, where the
    action is intended to recover compensation based on the
    loss sustained by the plaintiff, it is remedial in nature.232
    Of course, this test is not the only possible one,233 but it best
characterizes the distinction between remedial and penal causes


  228. Refer Part III.B.1.b supra (discussing treble damages under other statutes
and the past characterization of DTPA damages in suits seeking both treble and
exemplary damages).
  229. See, e.g., Donaldson, supra note 21, at 432 (noting that the general rule
today is that “remedial actions survive even though the damages assessed may
technically be called penalties”); see also 1 AM . JUR. 2D Survival § 65 (1994)
(explaining that causes of action “that are remedial or contractual survive though
they may be called penalties in the particular statute”).
  230. See 1 AM . JUR. 2D Actions § 36 (1994) (citing multiple cases and compiling
rules for distinguishing between penal and remedial statutes).
  231. See id. (“It is often important to determine whether an action is to be
classed as a penal or a remedial action, as, for example, when it becomes necessary
to determine whether a cause of action survives the death of a party.”).
  232. Id.
  233. See id. (noting that other authorities disregard excess liability and believe
the “true test is whether the wrong to be remedied or punished is primarily to an
individual or to the state”). The American Jurisprudence piece continues by noting:
     The distinction has also been expressed by stating that where liability is
     imposed for a violation of its provisions, a statute is penal, but where the
382                    HOUSTON LAW REVIEW                                     [36:351

of action. Based on the definition above, the DTPA cause of action
fits the description of a penal action.234 Therefore, based on the
characterization of treble damages as punitive,235 Thomes’s faulty
analysis of treble damages,236 and the above guidelines regarding
characterization of the cause of action, courts should conclude
that the DTPA treble damages are punitive and, thus, should not
survive the death of the aggrieved party. In addition, courts could
take the analysis a step further and characterize the whole
DTPA as punitive.

    2. Personal or Property: Arguments Considered. The
personal or property distinction also adds weight to the notion
that a DTPA cause of action should not survive. Viewing the
DTPA as a whole and considering the arguments the First
District Court of Appeals raised in 4M Laundry and the Texas
Supreme Court raised in Jackson, the DTPA asserts purely
personal rights.237 Because they are personal rights, the only
party that asserts them should be the one who holds them.238
Under this reasoning, a DTPA cause of action cannot survive.
Nevertheless, this position was not the one the court took in
Hackworth when it focused on the treble damage aspect.239 Due to

    statute is merely declaratory of a common-law right, coupled with a means
    or way enacted for its enforcement, giving a remedy for an injury against
    the person by whom it is committed, and either limiting the recovery to the
    amount of loss sustained or to cumulative damages, it is a remedial statute.
Id.
   234. The DTPA also fits the second definition set out in the previous footnote.
The only construction that does not characterize the DTPA as penal is when liability
is disregarded; the sole test is whether the wrong is to the individual or to the state.
Even under this test, however, the result is arguable, based the DTPA’s goal to allow
individual suits to replace public enforcement. See Hill, supra note 2, at 611.
   235. Refer to Part III.B.1 supra (concluding that treble damages are inherently
punitive).
   236. Refer to notes 209-27 supra and accompanying text (discussing the
problems with Thomes).
   237. Refer to Part III.C supra. See also Thomes v. Porter, 761 S.W.2d 592, 594
(Tex. App.—Fort Worth 1988, no writ) (observing that the case required the court to
“analyz[e] the question of whether a purely personal right terminates with the death
of an aggrieved party”).
   238. Refer to notes 169-70 supra and accompanying text (discussing the fact
that a purely personal right terminates with the death of the aggrieved party). See
also 1 AM . JUR. 2D Abatement, Survival, and Revival § 58 (1994) (“In the absence of
statutory provision to the contrary, rights of action for purely personal torts are not
assignable, and do not survive.”).
   239. See First Nat’l Bank v. Hackworth, 673 S.W.2d 218, 220-21 (Tex. App.—
San Antonio 1984, no writ) (en banc). But see Mendoza v. American Nat’l Ins. Co.,
932 S.W.2d 605, 607 (Tex. App.—San Antonio 1996, no writ) (considering whether a
DTPA claim based on Texas Insurance Code violations should survive). In Mendoza,
the court reaffirmed its decision in Hackworth but did not consider splitting survival
of the damages between actual and treble, even though trebling was not mandatory.
1999]                        STAYING ALIVE?                                         383

the position of many courts, this argument is more difficult to
defend.240 Therefore, the personal, statutory nature of the DTPA
adds weight to, but is not determinative of, the argument that a
DTPA cause of action should not survive.

B. Narrower Focus: Should Courts Consider the Underlying
   Claims?
     As indicated in the discussion of Thomes,241 an alternative
approach exists as to the question of whether a DTPA cause of
action survives. To disregard an examination of the DTPA itself,
a court could simply look to the common law for the answer.242
This process would examine the underlying claims to determine
the survival of the DTPA based on whether the underlying claim
survives.243 This approach is evident in the analysis in Thomes.244
This approach differs from a consideration of the DTPA as a
whole because the underlying claims would be determinative of
survival. The validity of this approach is best analyzed through
by examining a breach of warranty claim.
     Under the common law, a breach of warranty claim would
survive the death of the aggrieved party.245 In fact, most actions


See id. at 609. This ruling indicates that the court viewed all DTPA damages as
punitive.
   240. See Wolff v. Commercial Standard Ins. Co., 345 S.W.2d 565, 568 (Tex. Civ.
App.—Houston 1961, writ ref’d n.r.e.). The court continued by noting that causes of
actions for “wrongs done to the person” remain nonassignable. Id.
   241. Refer to Part III.B.2.b supra.
   242. See, e.g., Thomes, 761 S.W.2d at 594 (examining the common law as the
applicable rule of decision).
   243. See id. (approaching the issue from the common-law perspective and
examining the underlying actions that make up the DTPA); 1 AM . JUR. 2D
Abatement, Survival, and Revival § 62 (1994) (stating that “when the substance of a
particular cause of action places it in a category of actions that survive at common
law, the action may survive even though the statute creating it does not provide for
its survival”); Lorette Bauarschi, Comment, Survival Under the Texas Deceptive
Trade Practices Act, 28 HOUS . L. R . 591, 607 (1991) (“Since the DTPA fails to
                                        EV
provide for survival, the courts must analyze a cause of action under the DTPA
according to its nature and its assignability to determine whether it survives.”).
   244. See Thomes, 761 S.W.2d at 594 (noting that common-law causes of action
which make up the DTPA, such as breach of contract and wrongful acquisition of
property by fraud, survive the death of the aggrieved party under common law).
   245. See id. (relying on Firemen & Policemen’s Pension Fund v. Cruz, 458
S.W.2d 700, 703 (Tex. Civ. App.—San Antonio 1970, writ ref’d n.r.e.), Hutchings v.
Bates, 393 S.W.2d 338, 343-44 (Tex. Civ. App.—Corpus Christi 1965) (holding that
an action for breach of contract, express or implied, survives the death of either
party), aff’d, 406 S.W.2d 419 (Tex. 1966), and to support the proposition that the
breach of warranty and misrepresentation claims brought under the DTPA should
survive); see also Pace v. McEwen, 574 S.W.2d 792, 800 (Tex. Civ. App.—El Paso
1978, writ ref’d n.r.e.) (noting that suits for wrongful acquisition of property by fraud
and deceit survive).
384                    HOUSTON LAW REVIEW                                     [36:351

that form the basis of a DTPA claim survive.246 However, the
survivability of the underlying claim does not mean that the
DTPA should automatically survive. The Texas Supreme Court
was clear in La Sara Grain Co. v. First National Bank of
Mercedes247 that “[t]he DTPA does not define the term ‘warranty.’
Furthermore, the act does not create any warranties; therefore
any warranty must be established independently of the act.”248
This view means that “the DTPA provides relief for the consumer
only after a warranty is established and a breach shown.”249
Importantly, the courts have conclusively established that the
DTPA is a cause of action separate and distinct from any
warranty claims.250
     Based on this logic, the rules that apply to warranties do not
necessarily apply to the DTPA. The fact that a breach of
warranty cause of action survives under common law should not
affect whether a DTPA cause of action survives, because they are
separate and distinct causes.251 It would violate the rationale of
La Sara Grain to allow the fact that a breach of warranty
survives to bootstrap DTPA survival. Of course, courts can still
look to the common law for guidance, as the Thomes court did,252
but they are not bound by these rules. Therefore, courts should
not focus on the underlying claims, especially a breach of
warranty claim, when considering whether a DTPA cause of
action survives. The courts should focus on the DTPA itself and
apply common-law principles of survival to the Act.253


  246. See Bauarschi, supra note 243, at 613 (maintaining that it “appears that
most actions a consumer may bring under the DTPA survive either at common law
or via the survival statute”).
  247. 673 S.W.2d 558 (Tex. 1984).
  248. Id. at 565; see also Charles E. Beard, Inc. v. Cameronics Tech. Corp., 729 F.
Supp. 528, 530 (E.D. Tex. 1989) (stating that the Act does not create warranties and,
therefore, “[a]ny warranty actionable under the DTPA must be established
independently of the Act”); Alvarado v. Bolton, 749 S.W.2d 47, 49 (Tex. 1988)
(Wallace, J., dissenting) (arguing that the DTPA neither defines “warranty” nor
creates any warranties); Bunting v. Fodor, 586 S.W.2d 144, 146 (Tex. Civ. App.—
Houston [1st Dist.] 1979, no writ) (explaining that the act expressly states that it
does not create any warranties).
  249. ALDERMAN, supra note 3, § 5.02, at 5-2 (discussing the holding of La Sara
Grain Co. and its effect on establishing a warranty).
  250. See id.
  251. See La Sara Grain Co., 673 S.W.2d at 565 (explaining that warranties are
established independently of the act).
  252. See Thomes v. Porter, 761 S.W.2d 592, 594 (Tex. App.—Fort Worth 1988,
no writ) (stating that if a statute is silent as to survivability of a cause of action,
common-law rules are applicable).
  253. See Firemen & Policemen’s Pension Fund v. Cruz, 458 S.W.2d 700, 703
(Tex. Civ. App.—San Antonio 1970, writ ref’d n.r.e.) (“There is no provision in the
statute relative to the survivability or abatement of such claim; therefore, same
1999]                       STAYING ALIVE?                                      385

C. Damages Possible Under the Current DTPA

     One fact that has yet to be considered is that the DTPA does
not always award treble damages. Under the statute as currently
amended, the trier of fact may award treble damages based on a
showing that “the conduct of the defendant was committed
knowingly.”254 Because not every DTPA action involves treble
damages, not every DTPA action may be considered punitive
under the above definition. When treble damages are excluded,
the DTPA appears more remedial in nature because the damages
are based on the actual loss the plaintiff sustained.255
     Of course, the DTPA is a relatively new statutory creation,
which by its language does not automatically survive. But when
considering actual damages only, the Thomes policy arguments
are much stronger, favoring survival of a non-treble DTPA
claim.256
     This leads to a unique split in characterization of the DTPA
and one that could lead to diametric results. There is no reason
that courts cannot choose a middle ground and allow the truly
remedial DTPA causes of action to survive and bar survival of
punitive claims.257 Because attorneys’ fees could still be awarded,
plaintiffs would still bring DTPA claims even though treble
damages were unavailable258 and the non-damage benefits of
suing under the DTPA.259 “A statute may be penal in one respect
and remedial in another.”260 Such is the case with the DTPA.

D. The Special Case of Personal Injury Actions Brought under
   the DTPA and the Effect of the Texas Survival Statute
     It would be convenient if courts could fashion a broad rule, as
outlined above. However, the many different claims falling under


must be decided under the common law.”).
   254. TEXAS BUS . & COM . CODE ANN. § 17.50(b)(1) (Vernon Supp. 1999)
(including mental anguish damages upon such a finding). For the text of this
provision, refer to note 14 supra.
   255. See 1 AM . JUR. 2D Actions § 36 (1994) (explaining that “where the action is
intended to recover compensation based on the loss sustained by the plaintiff, it is
remedial in nature”).
   256. Refer to Part III.B.2.b supra (discussing the court’s analysis in Thomes).
   257. See, e.g., Dearborn Stove Co. v. Caples, 236 S.W.2d 486 (Tex. 1951)
(distinguishing between the survival of actual and punitive damages awarded under
the same statute).
   258. See TEX. BUS . & COM . CODE ANN. § 17.50(d).
   259. See ALDERMAN, supra note 3, § 1.02, at 1-3 (observing that in addition to
damages, the DTPA eliminates most common-law defenses and establishes a
standard close to strict liability).
   260. 1 AM . JUR. 2D Actions § 36.
386                    HOUSTON LAW REVIEW                                    [36:351

the DTPA prevent such a rule.261 Courts, at times, will be forced to
look to the underlying complaint to determine whether a cause of
action should survive. For example, if the cause of action involves
personal injury, it implicates the Texas Survival Statute.262
Various courts have considered this issue,263 and its resolution
plays an important role when a plaintiff brings a personal injury
claim under the DTPA. Such was the case in Mahan Volkswagen,
in which a defective automobile, forming the basis of the DTPA
claim, caused the death.264 Based on the broad language of the
survival statute,265 claims such as those raised in Mahan
Volkswagen should survive to the estate. This is not because of the
DTPA; rather, it is because the Legislature has chosen to allow
“personal injury” suits to survive.266 Additionally, treble damages
in personal injury cases brought under the DTPA could survive,
based on Hofer,267 assuming that the trier of fact does not award
other exemplary damages for the same act.268 In the context of
personal injury, therefore, an exception to the general rule barring
survival of a DTPA cause of action is necessary.

E. Policy Considerations
    There are some important policy considerations that also
need to be considered. It is tempting to dismiss the issue of


   261. See TEX. BUS . & COM . CODE ANN. § 17.50(a) (authorizing four general
types of actions: violation of the laundry list in § 17.46; breach of an express or
implied warranty; unconscionable action; or violation of art. 21.21 of the Texas
Insurance Code); see also ALDERMAN, supra note 3, § 4.01, at 4-1 (observing that the
DTPA is “actually four laws in one”).
   262. See TEX. CIV . PRAC. & REM . CODE ANN. § 71.021(a)-(b) (Vernon 1997).
   263. Refer to Part III.B.3 (discussing Hofer and Mahan Volkswagen).
   264. See Mahan Volkswagen, Inc. v. Hall, 648 S.W.2d 324, 327 (Tex. App.—
                                                                           i
Houston [1st Dist.] 1982, writ ref’d n.r.e.) (explaining that the case nvolved a
defective automobile and deceptive trade practices in conjunction with the sale of the
automobile two days prior to the fatal accident).
   265. See TEX. CIV . PRAC. & REM . CODE ANN. § 71.021.
   266. See id. (mandating that a cause of action for personal injury does not abate
because of the injured person’s death, but survives in favor of the heirs, legal
representatives, and estate of the injured person).
   267. See Hofer v. Lavender, 679 S.W.2d 470, 472 (Tex. 1984) (“Because of the
survival statute, it is now accepted that death of the injured party does not bar a
recovery of exemplary damages by the estate”); see also Gold & Quesada, supra note
160, at 722 (explaining the effects of Hofer on DTPA treble damages).
   268. See Mayo v. John Hancock Mut. Life Ins. Co., 711 S.W.2d 5, 6-7 (Tex. 1986)
(allowing recovery of actual and punitive damages under both another law and the
DTPA because they “would not constitute recovery ‘for the same act or practice’”);
Gold & Quesada, supra note 160, at 719 (noting the rule that the DTPA “will not
allow exemplary and statutory treble damages in the absence of separate and
distinct findings of actual damages on both the act of negligence and the deceptive
acts or practices”).
1999]                      STAYING ALIVE?                                     387

survivability because it may not be clear why there should be
concern if an estate is allowed to bring a deceased’s cause of
action for DTPA violations. The importance arises from the effect
survival has on assignments.269 If courts rule that a DTPA cause
of action survives, then they have paved the way for allowing
assignments of a DTPA cause of action.270 This scenario would
take the DTPA even further away from its roots as a consumer
protection statute and create an opportunity for treble damages
to be collected by a remote third party.271 “The assignment of an
unfair practice claim would wreak havoc by creating a market for
claims of a personal nature.”272 A court must weigh these
concerns in a decision regarding survival of a DTPA cause of
action.

                              V. CONCLUSION
     Based on the above analysis, courts can formulate a rule
regarding survival of statutory causes of action, one that is also
applicable outside the DTPA. With regard to the DTPA, however,
courts may conclude that the DTPA’s treble damages are
punitive in nature, that the rights asserted under the DTPA are
purely personal rights, and that a DTPA cause of action should
not survive. Although this conclusion is justifiable, it is extreme
and courts should seek a middle ground. They could reach an
appropriate compromise in this area by allowing compensatory
damages to survive under the DTPA, but barring survival and
assignment of DTPA treble damages. This solution would
recognize the policy concerns of the Thomes court, the punitive
nature of DTPA treble damages, and the arguments advanced in
Hackworth. Because of the survival statute, there would need to
be an additional exception for situations in which the basis of the
suit is personal injury. However, in a breach of warranty suit,
treble damages should not survive.
     The Legislature could easily resolve this issue should it
choose to amend the DTPA and expressly provide for survival. To
date, the Legislature has not chosen to do so. Therefore, courts
must continue to consider the issue. An additional possibility for

  269. Refer to Part II supra (discussing the link between survival and
assignment of causes of action).
  270. Refer to notes 23-24 supra and accompanying text (equating survivability
with assignability).
  271. See Investors Title Ins. Co. v. Herzig, 413 S.E.2d 268, 272 (N.C. 1992)
(raising concerns that insurance companies and other powerful parties “could buy
these potentially profitable causes of action and ultimately profit from another’s
injuries”).
  272. Id. (arguing against the assignability of DTPA claims).
388              HOUSTON LAW REVIEW                        [36:351

resolution could come from the Texas Supreme Court, should it
decide to hear the issue. When it does, it will be faced with this
confusing and muddled background. If the court confronts this
issue, it will have to harmonize these strains of law, policy, and
precedent.

                                          Matthew C. Rawlinson