EXPERIENCED PERSONAL INJURY LAWYER SERVING ALL OF TEXAS
Losing a child is something no family should ever face. When that loss results from another person’s negligence or deliberate wrongdoing, grief collides with a legal system that most families have never had to engage before. At Dashner Law Firm | McAllen Injury & Accident Attorney, I work directly with families in McAllen and across Texas who find themselves in exactly that position. This post explains how these cases actually work, what makes child wrongful death claims different from other fatal accident cases, and what families need to know before they take any legal step.
How Attorneys Handle Wrongful Death Claims Involving Children in McAllen?
Child wrongful death cases require a different approach than adult cases, and the difference goes well beyond emotional sensitivity—though that matters too.
First, the legal framework. Under Texas wrongful death law, specifically Tex. Civ. Prac. & Rem. Code § 71.004(a), the surviving spouse, children, and parents of the deceased are the exclusive statutory beneficiaries of a wrongful death claim. When the person who died is a child, the parents are typically the ones who bring the action. One or more qualifying family members may file on behalf of all of them.
Second, the damages calculation is fundamentally different. In adult cases, attorneys calculate lost wages, lost earning capacity, and the economic contributions the deceased would have made to dependents. For a child, there are no current wages. Instead, the damages that attorneys pursue include the parents’ loss of companionship, society, and the relationship they expected to have with their child for the rest of their lives. These are real losses that courts and juries take seriously—they are just harder to quantify, which makes how an attorney presents them critically important.
Third, there is a separate claim that runs alongside the wrongful death action. Under § 71.021, a survival action continues the claim the child held—covering pre-death medical expenses, physical pain, and mental anguish the child experienced before death. These are distinct from the wrongful death damages and belong to the child’s estate. I always make sure families understand that these two claims, while often filed together, serve different legal purposes.
In my experience, one of the most common mistakes families make in McAllen cases is waiting too long to speak with an attorney. The general Texas filing deadline is two years from the date of death under Tex. Civ. Prac. & Rem. Code § 16.003. But the investigation—gathering medical records, preserving accident scene evidence, identifying witnesses, obtaining expert opinions—takes time that cannot be recovered once lost. We start that work immediately.
If a government entity is involved, the timeline compresses significantly. Tex. Civ. Prac. & Rem. Code § 101.101 requires written notice to the governmental unit within six months of the incident, and some city charters require notice even sooner. Government claims also carry recovery caps under § 101.023 that do not apply to private defendants, and punitive damages are not available against a governmental unit. These cases require a different litigation strategy from the outset.
What Kind of Lawyer Handles Wrongful Death Cases?
A Texas personal injury wrongful death attorney handles these cases. More specifically, you want a civil litigation attorney whose practice focuses on personal injury and wrongful death—someone who has taken these cases through discovery, motions, and if necessary, trial.
Wrongful death is not a niche subcategory that only a handful of lawyers handle. But depth of experience matters. The attorney you choose should understand how to work with liability experts, medical professionals, forensic economists, and—in child cases—experts who can help a jury understand the nature of parent-child bonds and the full scope of what parents lose.
I also want to be direct about one thing I see families get wrong: they sometimes hire a general practice attorney because of an existing relationship. That attorney may be excellent at what they do. But wrongful death litigation against an insurance company or a corporation requires familiarity with Texas wrongful death statutes, insurance defense tactics, and the mechanics of civil discovery. If your attorney has not done this before, the learning curve costs the family.
The American Bar Association recommends that families ask prospective attorneys specifically about their experience with cases similar to theirs in type and complexity—not just general personal injury work.
How Accident Attorneys Assist With Wrongful Death Claims?
A fatal accident lawyer does several things that most families cannot do on their own.
Liability investigation is the starting point. In a car crash, that means pulling the police report, ordering event data recorder data from the at-fault vehicle, identifying any traffic camera footage before it is overwritten, and working with an accident reconstruction expert if the circumstances are disputed. In a pedestrian accident or a construction accident, it means identifying the responsible parties—which is often more than one entity—and preserving evidence that those parties would rather disappear.
Insurance negotiation follows. Most fatal accident claims involve an insurance company on the other side. Adjusters are trained to settle claims for as little as possible, and they may contact a grieving family directly in the days after a death. We advise families never to give a recorded statement to the at-fault party’s insurer before speaking with an attorney.
If a fair resolution cannot be reached, the case goes to litigation. That means drafting and filing the petition, serving the defendant, conducting depositions, responding to defense motions, and preparing the case for trial. Most cases resolve before trial, but the credible threat of going to a jury is often what produces a reasonable outcome.
Throughout all of this, an experienced Texas fatal accident attorney also manages the procedural details—ensuring that both the wrongful death claim and the survival action are properly pleaded, that all liable parties are identified and named within the limitations period, and that the family does not inadvertently waive any rights.
How to Find Experienced Wrongful Death Attorneys in Texas?
The best place to start is with attorneys who focus their practice on Texas personal injury and wrongful death law. A few practical steps:
Look at their actual case history. Has the firm handled fatal accident cases—not just personal injury generally? Have they litigated against large insurance carriers and corporate defendants? See our verdicts and settlements to understand the kinds of cases we have handled.
Ask about their approach to your specific case type. A child wrongful death case involving a defective product requires a different skill set than one arising from a DWI crash. An attorney who has seen cases across multiple fact patterns—car accidents, truck accidents, product liability, premises liability—is better positioned to anticipate defense strategies and identify all available theories of recovery.
State bar membership and standing matters. Verify that any attorney you consult is in good standing with the State Bar of Texas. You can do this through the State Bar’s public directory.
Local presence is meaningful in wrongful death litigation. Attorneys who practice regularly in the Rio Grande Valley understand local courts, local judges, and how juries in Hidalgo County respond to different types of evidence. That familiarity has practical value.
Learn more about our team and background to understand how we approach these cases.
Do District Attorneys Bring Wrongful Death Civil Suits?
This is a question I get often, and the answer is no. District attorneys and assistant district attorneys are criminal prosecutors. If someone’s negligence or wrongdoing caused a child’s death, the DA may investigate and potentially prosecute the responsible party for a crime—manslaughter, criminally negligent homicide, or intoxication manslaughter, depending on the facts.
But a criminal prosecution and a civil wrongful death lawsuit are entirely separate proceedings. The DA does not bring the civil case. The DA represents the state of Texas, not the family. The family must hire their own civil attorney to pursue the wrongful death and survival claims.
The two proceedings can run in parallel. A criminal conviction is not required for a civil wrongful death case to succeed—and a criminal acquittal does not bar a civil claim, because the standards of proof are different. Criminal cases require proof beyond a reasonable doubt. Civil cases require a preponderance of the evidence, meaning it is more likely than not that the defendant’s conduct caused the death.
FindLaw’s legal resources on wrongful death provide a useful overview of how civil and criminal proceedings interact, which families navigating both tracks simultaneously often find helpful.
Do Wrongful Death Attorneys Work on Contingency in Texas?
Yes. Virtually all Texas wrongful death attorneys, including our firm, handle these cases on a contingency basis. That means there is no upfront cost to the family. The attorney is paid from the recovery only if the case is won or settled. If there is no recovery, the family owes no attorney’s fee.
This arrangement matters for families facing funeral costs, grief, and the practical disruption that follows the sudden loss of a child. It means access to legal representation does not depend on the family’s ability to pay out of pocket for legal fees.
The Cornell Law School Legal Information Institute provides background on contingency fee arrangements and how they operate in civil litigation.
One thing I want families to understand: contingency representation does not mean an attorney takes every case regardless of its merits. We evaluate the facts, the evidence, and the legal theories carefully before we commit to representing a family. That evaluation protects both the family and the firm—it ensures we take cases we can genuinely pursue with full effort.
Punitive Damages in Child Wrongful Death Cases
Families sometimes ask whether additional damages are available when a child’s death resulted from particularly reckless or intentional conduct—a DWI driver, for example, or a manufacturer that knew its product was dangerous.
Texas law does allow for exemplary damages in wrongful death cases. They are not automatically available, and they are not available simply because the facts are horrific. Under Tex. Civ. Prac. & Rem. Code § 41.002 and related provisions, exemplary damages require clear and convincing evidence of fraud, malice, or gross negligence, and the jury must be unanimous on that finding.
The general cap under § 41.008(b) limits exemplary damages to the greater of $200,000, or two times economic damages plus noneconomic damages not to exceed $750,000. There is an exception under § 41.008(c) for conduct that constitutes certain felonies—including intoxication manslaughter—where that cap does not apply.
If a child was killed by a drunk driver, by a manufacturer whose internal records show they knew about a defect, or by someone acting with deliberate disregard for human life, exemplary damages may be worth pursuing. But they require the right evidence and the right presentation. I will tell a family honestly when the facts support that pursuit and when they do not.
Proportionate Responsibility and Defense Tactics
Texas uses proportionate responsibility under Tex. Civ. Prac. & Rem. Code § 33.001. A claimant may not recover if their percentage of responsibility is found to be more than 50 percent. In child death cases where the family brings the claim, defense attorneys will sometimes argue that a parent’s own conduct contributed to the child’s death. This is a difficult argument to face, and it is one we anticipate and prepare for.
The CDC’s National Center for Health Statistics tracks injury data that can be useful in framing the broader context of child injury patterns and risk factors—information that sometimes becomes relevant when countering defense arguments about foreseeability or parental supervision.
Understanding proportionate responsibility also matters for survival action damages. If a percentage of fault is assigned, the damages from that claim are reduced accordingly under § 33.012. We factor that into how we build the case from the beginning.
Talk to Us About Your Case
If your family has lost a child due to someone else’s negligence, you do not have to figure out the legal side of this alone. Dashner Law Firm | McAllen Injury & Accident Attorney represents families throughout McAllen and across Texas in wrongful death claims. We handle the investigation, the negotiations, and the litigation—so you can focus on your family.
Contact us to schedule a consultation. You can also call us at (956) 303-6170 or visit our office at 813 N Main St #608, McAllen, TX 78501. There is no fee to speak with us, and no cost unless we recover for you.
Written by Geoffrey Dashner. Read more about the author.
