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Top 20 Texas Family Law Cases: GRAHAM v. FRANCO

Top 20 Texas Family Law Cases Case 7: GRAHAM v. FRANCO.

Our next case in this series is GRAHAM v. FRANCO. This case helped decide personal injury awards for Texas and San Antonio family law attorneys. Prior, the Supreme Court was undecided as to whether personal injury awards granted during a marriage were considered separate or communal property.

How San Antonio Family Law Attorneys Handle Personal Injury Awards

GRAHAM v. FRANCO, 488 S.W.2d 390 (Tex. 1972)

GRAHAM v. FRANCO Background

Mr. and Mrs. Franco were parked on the side of the road with their lights off when they were struck by a truck driven by a man named Roosevelt Tillis but owned by a man named Bill Graham.

The jury found both the truck driver and Mr. Franco at fault for the coalition. There were no findings that Mrs. Franco was negligent in any way. However, the jury also found no damages for Mrs. Franco.

The appellate court affirmed the jury finding Mr. Franco negligent and therefore barred his recovery. As to the finding on Mrs. Franco, the appellate court reversed, stating that this finding was against the great weight and preponderance of the evidence.

The Court Decision

The recovery for personal injuries sustained by a spouse, during a marriage, except for a loss of earning capacity during a marriage, is the separate property of the spouse sustaining the injury. This meant that Mrs. Franco was entitled to her recovery even though her husband was found negligent. The Texas Family Code statute, which codifies this theory of characterization, is constitutional.

Significance of Case

Prior to the Court’s decision in Graham, the issue of characterization of personal injury awards had not been directly decided by the Supreme Court. The Court had previously ruled that a lawsuit of any kind, a “chose in action,” was a property right, and therefore, if it was acquired during a marriage, it was a community property right. The Graham Court specifically reversed Ezell on that issue.

The Court analyzed the change in a legal analysis in Texas. That is, what began as implied exclusion analysis in Arnold v. Leonard, was now an affirmative test as stated in Norris v. Vaughan. Under this view, a cause of action for personal injury was not considered to be entirely community property.

The Court noted that there was some prior authority regarding the right to sue as a property right. However, the Court said the overwhelming authority is that a personal injury suit must be distinguished from a property suit – especially in the context of marriage. Therefore, it follows, any statute prescribing a personal injury suit is constitutional. Finally, the Court confirmed that recovery for medical expenses and lost wages remain characterized as community property.


The next case on our list is IN THE MATTER OF THE ESTATE OF HANAU. This case is significant because it is the first time the Supreme Court affirmed a like sum tracing method.

Justin B. Morley

Mr. Morley primarily practices family law in New Braunfels TX.  He is Board Certified in Family Law by the Texas Board of Legal Specialization, and a frequent writer and speaker on family law topics.  He  has experience in ...

Kristal Cordova Thomson

Ms. Thomson is a family law specialist, board certified in family law by the Texas Board of Legal Specialization. She focuses on divorces with complex or high net worth estates and complicated custody issues. Ms. Thomson has tried numerous cases, but is also highly experienced in negotiated settl...

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