Recovery of Attorney’s Fees in Texas

By Josh Borsellino

Clients often want to know whether they will be able to recover their attorney’s fees before they make the decision to file a lawsuit. The answer, as is usually the case in the practice of law, is “it depends.” The recovery of attorney’s fees in Texas is dependent on a number of factors – the type of claim involved, whether the party is suing or being sued, and whether the party is successful, among others. The last two issues are relatively easily resolved – a defendant in a lawsuit rarely recovers its attorney’s fees, and a plaintiff is generally entitled to recover its fees only if it is successful. This article will provide a brief overview of the types of claims which allow the recovery of attorney’s fees in Texas.

Attorney’s fees in Texas are generally not available unless expressly authorized by a specific statute. Thus, general tort claims such as negligence, fraud, tortious interference with contract, slander, etc. do not allow even a successful plaintiff to recover its attorney’s fees. What claims do allow attorney’s fees in Texas? The three most common claims which specifically allow the recovery of attorney’s fees are breach of contract claims, claims under the Texas Deceptive Trade Practices Act, and declaratory judgment actions. Chapter 38 of the Texas Civil Practice and Remedies code provides that attorney’s fees may be recovered when a plaintiff prevails on a claim involving:

(1) rendered services,
(2) performed labor,
(3) furnished materials,
(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

The Texas Deceptive Trade Practices act also allows a successful plaintiff to recover attorney’s fees. Finally, Chapter 37 of the Texas Civil Practice and Remedies Code allows a court to award attorney’s fees if the court enters a declaratory judgment in favor of a party. There are many other statutes which allow a successful party to recover attorney’s fees in Texas, though they are used with much less frequency than the three covered in this article.

If you have a potential lawsuit and would like to discuss your legal rights and remedies, please contact the civil department at Bailey and Galyen at 817.276.6000.

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