In Texas litigation—whether it’s a contract dispute, eviction, divorce, probate fight, or business lawsuit—one of the most common (and most misunderstood) questions is:
“Can the court make me pay the other side’s attorney’s fees?”
The answer is: sometimes—but only if a statute or contract allows it. Texas follows what is commonly called the American Rule.
The American Rule in Texas
Under the American Rule, each party generally pays its own attorney’s fees unless a statute or a contract provides otherwise.
The Texas Supreme Court has consistently recognized that attorney’s fees are recoverable only if authorized by statute or by contract.
So let’s break down the most common situations where attorney’s fees are recoverable in Texas.
1. Attorney’s Fees in Breach of Contract Cases
One of the most important statutes for civil litigators is:
📜 Texas Civil Practice & Remedies Code § 38.001
“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…
(8) an oral or written contract.”
This statute allows recovery of reasonable attorney’s fees in successful contract claims.
Important Nuance
Section 38.001 applies to certain defendants (historically individuals and corporations), and the case law has evolved regarding other business entities. This is a technical issue that can matter in business litigation.
If you’re suing on a promissory note, unpaid invoice, real estate contract, or business agreement, this statute is often the key to recovering fees.
2. Attorney’s Fees in Family Law Cases
Family law courts in Texas have broad discretion to award attorney’s fees.
📜 Texas Family Code § 6.708(c)
In divorce cases, the court may award reasonable attorney’s fees as part of the just and right division of property.
📜 Texas Family Code § 106.002
In suits affecting the parent-child relationship (custody, modification, enforcement), the court may render judgment for reasonable attorney’s fees and expenses.
In practice, courts may:
- Order one spouse to pay the other’s fees,
- Order interim attorney’s fees during the case,
- Or award fees as part of enforcement proceedings.
This becomes especially relevant in high-conflict custody or enforcement litigation.
3. Attorney’s Fees in DTPA Cases
The Texas Deceptive Trade Practices Act (DTPA) has its own fee provisions.
📜 Texas Business & Commerce Code § 17.50(d)
If a consumer prevails under the DTPA, the court shall award reasonable and necessary attorney’s fees.
That mandatory language (“shall”) is powerful.
On the flip side, if a consumer files a groundless or bad-faith DTPA claim, the defendant may recover attorney’s fees.
4. Contractual Attorney’s Fee Clauses
Many contracts include language like:
“The prevailing party shall recover reasonable attorney’s fees and costs.”
These provisions are enforceable under Texas law. In commercial litigation—LLC operating agreements, real estate contracts, partnership disputes—this clause often determines who pays fees.
If you sign a contract with a fee-shifting clause, you are agreeing in advance that the loser may pay the winner’s fees.
5. Probate and Trust Litigation
In probate matters, courts also have statutory authority to award attorney’s fees.
For example:
📜 Texas Estates Code § 352.052
In certain probate proceedings, the court may allow necessary and reasonable attorney’s fees.
Fee awards often arise in:
- Will contests
- Heirship disputes
- Trust litigation
- Fiduciary removal actions
Unlike contract cases, probate courts often look at whether the fees were incurred in “good faith” and for the benefit of the estate.
6. Evictions and Landlord–Tenant Disputes
In residential eviction cases:
📜 Texas Property Code § 24.006
A landlord may recover attorney’s fees if the lease allows for recovery and proper notice was given.
That means the lease language matters. If the lease includes a fee clause and statutory notice requirements are satisfied, fees can be awarded in a forcible detainer action.
What Makes Attorney’s Fees “Reasonable”?
Even when fees are recoverable, they must be reasonable and necessary.
Texas courts evaluate factors such as:
- Time and labor required
- Complexity of the case
- Skill required
- Customary local fees
- Results obtained
These factors are commonly known as the Arthur Andersen factors, from Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997).
Courts may reduce requested fees if they find them excessive or unsupported.
Can You Recover Fees on Appeal?
Yes—if the underlying statute or contract allows fees, they may include conditional appellate fees.
For example:
- “$25,000 if appealed to the court of appeals.”
- “Additional fees if review is sought in the Texas Supreme Court.”
These must typically be supported by testimony and properly pleaded.
Practical Takeaways
- You do not automatically recover attorney’s fees just because you win.
- There must be a statute or contract authorizing it.
- Some statutes (like DTPA) make fees mandatory.
- Others give the court discretion.
- Lease language and contract drafting can significantly affect fee recovery.
In many cases, attorney’s fees drive settlement discussions more than the underlying damages.
Final Thought
Attorney’s fees in Texas are highly technical and can dramatically change the economics of a lawsuit.
Whether you’re:
- Suing on a contract,
- Defending a DTPA claim,
- Litigating a divorce,
- Handling a probate dispute,
- Or pursuing eviction,
Understanding fee-shifting rules is critical to assessing risk.
If you are facing litigation in Texas and want a strategic evaluation of exposure—including potential attorney’s fee liability—consult with a qualified Texas attorney who understands how fee-shifting statutes and contractual provisions apply to your case.
At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.
