Under the “American rule,” litigants on each side generally pay their separate legal fees associated with a lawsuit. This is generally so even if one party prevails on the merits of his or her claim or claims. Texas follows this rule.
But, there are exceptions. One of the more routinely utilized exceptions (particularly for breach of contract claims where there is no governing language in the agreement) in the State of Texas is Chapter 38 of the Texas Civil Practice & Remedies Code (“Chapter 38”).
Under Chapter 38, a plaintiff may recover attorney fees if the plaintiff successfully shows: (1) the plaintiff properly plead for a recovery of attorney fees; (2) the plaintiff’s claims fall within a specified category of claims; (3) the plaintiff was represented by an attorney; (4) the defendant was an individual or a corporation (although this is about to change);[i] (5) the plaintiff timely presented the claim to the defendant; (6) the defendant failed to tender timely payment within 30 days after the claim was presented; (7) the plaintiff prevailed on his or her claim; and (8) the plaintiff incurred attorney fees that were reasonable. Tex. Civ. Prac. & Rem. Code §§38.001, .002
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