Saturday, February 21, 2009

Claiming for Attorney's Fees in Texas

In Texas, a person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for:

(1) rendered services;
(2) performed labor;
(3) furnished material;
(4) freight or express overcharges;
(5) lost or damaged freight or express;
(6) killed or injured stock;
(7) a sworn account; or
(8) an oral or written contract.

See, Tex. Civ. Prac. & Rem. Code § 38.001.

Nearly 100 years ago, the Texas Legislature created a statutory right to attorney’s fees for judgments in select claims. See Act of March 13, 1909, 31st Leg., R.S., ch. 47, § 1, 1909 Tex. Gen. Laws 93, 94 (creating a right to a “reasonable amount” of attorney’s fees, limited to twenty dollars, for persons obtaining judgment for the full amount of their claim in actions for “personal services rendered or for labor done, or for material furnished, or for overcharges on freight or express, or for any claim for lost or damaged freight, or for stock killed or injured”).

Over time, the statute has been modified to expand the types of claims eligible for an award of fees. It was amended in 1923 to allow fees for loss of or damage to express shipments. See Act of March 26, 1923, 38th Leg., R.S., ch. 144, § 1, 1923 Tex. Gen. Laws 312, 312. In 1949, it was amended to allow attorney’s fees upon a judgment “for any amount” recovered. See Act of June 29, 1949, 51st Leg., R.S., ch. 494, § 1, 1949 Tex. Gen. Laws 915, 915. Four years later, the Legislature extended article 2226 to “suits founded upon a sworn account or account.” See Act of April 21, 1953, 53d Leg., R.S., ch. 67, § 1, 1953 Tex. Gen. Laws 101, 101. As the statute evolved, so did Texas jurisprudence.In 1958, the Texas Supreme Court held that a contract for the drilling of an oil well was not an action on a sworn account and thus disallowed attorney’s fees under article 2226. Meaders v. Biskamp, 316 S.W.2d 75, 78 (Tex. 1958). A 1973 court of appeals decision declared that attorney’s fees were generally unavailable in contract actions at that time. M. C. Winters, Inc. v. Cope, 498 S.W.2d 484, 491 (Tex. Civ. App.—Texarkana 1973, no pet.). The high court strictly construed those claims allowing fees. See, e.g., Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814, 820-21 (Tex. 1970) (interpreting article 2226's “labor done” and “personal services” provisions); Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 896 (Tex. 1962) (construing “personal services” rendered under article 2226).

In 1977, the Legislature added “suits founded on oral or written contracts” to the claims for which recovery of attorney’s fees was authorized. See Act of April 25, 1977, 65th Leg., R.S., ch. 76, § 1, 1977 Tex. Gen. Laws 153, 153-54. This modification brought the statute in line with the Legislature’s decision, four years earlier, to make fees recoverable by consumers who successfully pursued similar actions under Texas’ Deceptive Trade Practices Act (“DTPA”). See Act of May 21, 1973, 63d Leg., R.S., ch. 143, § 1, sec. 17.50, 1973 Tex. Gen. Laws 322, 326-27 (creating the remedy of attorney’s fees for the first time for consumers prevailing in an action on an “express or implied warranty”) (current version at Tex. Bus. & Com. Code § 17.50(d) (“Each consumer who prevails shall be awarded court costs and reasonable and necessary attorney’s fees.”)). Two years after authorizing attorney’s fees for suits founded on contract, the Legislature instructed courts to construe the statute liberally “to promote its underlying purposes.” See Act of June 6, 1979, 66th Leg., R.S., ch. 314, § 1, 1979 Tex. Gen. Laws 718, 718.

Most recently, the statute was recodified in a “topic-by-topic revision of the state's general and permanent statute law without substantive change.” See Act of 1985, 69th Leg., R.S., ch. 959, § 1, secs. 1.001, 38.001, 38.005, 1985 Tex. Gen. Laws 3242, 3244, 3278, 3279 (current version at Tex. Civ. Prac. & Rem. Code §§ 1.001, 38.001, and 38.005).

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