The Statute, the Constitution, the Caselaw, and the Appellate Lawyer as Sleuth

The Texas Commission on Human Rights Act, (1) like federal employment statutes on which it was modeled, provides for an award of fees part of costs for successful plaintiff. In Texas, while entitlement to attorneys' fees is question for court, amount of reasonable and necessary attorneys' fees is typically question of fact for jury to decide. The dramatic question addressed in this practice note is whether Texas legislature's adoption of phrase as part of costs from federal statute reflects an intention to adopt federal procedure for determining attorneys' fees well. ACT I, WHEREIN THE APPELLATE LAWYER IS PRESENTED WITH THE PROBLEM It was dark and stormy night.... Well actually, it's sunny afternoon, and trial counsel for Bill Miller Bar-B-Q Restaurants has asked for meeting with appellate counsel. He has gone to trial in state court on an employment-related claim under Act, which states that one of its purposes is to provide for execution of policies of Title VII of Civil Rights Act of 1964 ... [and] Americans with Disabilities Act. (2) It prohibits employment-related discrimination on basis of race, color, disability, religion, sex, national origin, or age well retaliation against persons complaining about discrimination. (3) For purposes of our story, key provision states that a court may allow prevailing party ... reasonable attorney's fee part of costs. (4) In meeting with appellate counsel, Miller's trial counsel explains that jury found in favor of plaintiff and awarded $30,000 in actual damages. The jury had not been presented with evidence about attorneys' fees and court's charge to jury did not contain question about amount of attorneys' fees reasonably and necessarily incurred by plaintiff. Postverdict, and nearly two months after jury had been excused, plaintiffs counsel filed motion to enter judgment, proposing judgment containing an award of attorneys' fees. Over objection of Miller's trial counsel, trial court conducted non-jury, evidentiary hearing on amount of reasonable and necessary attorneys' fees and awarded plaintiff $60,975 in attorneys' fees. Miller's trial counsel filed motion for new trial that again objected to court's determining amount of fees, which court denied. But Miller's trial counsel remained convinced that under Texas law, jury should determine amount of fee award. Miller's appellate lawyer has experience with federal litigation, so upon being presented with this scenario, and after reviewing section 21.259 of Texas Labor Code, she suspects that phrase fees part of costs probably comes straight from comparable federal employment law--Title VII of Civil Rights Act of 1964. A quick bit of research confirms this suspicion. Title VII provides that the court, in its discretion, may allow prevailing party ... reasonable attorney's fee ... part of costs. (5) The appellate lawyer knows that federal law upon which Texas law is based is persuasive, but not controlling, on interpretation of comparable statute adopted by state. (6) What appellate lawyer does not know is why Texas juries generally determine amount of attorneys' fees to award and whether Act's borrowed language changes general practice. ACT II, WHEREIN THE APPELLATE LAWYER BEGINS TO INVESTIGATE Upon taking case, first thing appellate lawyer does (after filing notice of appeal), is research current law on section 21.259 and jury trials. It's not good. The only two Texas intermediate appellate courts to consider whether losing party is entitled to jury trial on reasonable amount of fees to be awarded under section 21.259 have come out wrong way. The first reported decision was Borg-Warner Protective Services Corporation v. …