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Clause survey / Attorney's fees / Texas

Attorney's fees in Texas

The 2 rules we hold for this clause in Texas, with every authority and the sentences that state it. Nothing on this page was written by a model.

read at the 2026-10-03 barread on 2026-10-06; the reading recorded “defective”

Can the winner recover attorney's fees on this contract claim in Texas?

On a breach-of-contract claim, yes, subject to who the defendant is, to the chapter's presentment preconditions in § 38.002 (represented by an attorney; claim presented; just amount not tendered within 30 days), and to § 38.006, which takes insurer contracts under the named Insurance Code provisions out of the chapter altogether. A person may recover reasonable attorney's fees in addition to the amount of a valid claim and costs, from an individual or ORGANIZATION (other than a quasi-governmental entity authorized to perform a function by state law, a religious organization, a charitable organization, or a charitable trust) if the claim is for rendered services, performed labor, furnished material, freight or express overcharges, lost or damaged freight or express, killed or injured stock, a sworn account, or an oral or written contract. 'Organization' takes its meaning from § 1.002, Business Organizations Code.

The trap

The 2021 amendment cuts both ways and makes older authority unreliable in BOTH directions. It added 'organization' to the entities fees can be recovered from, and at the same time carved out quasi-governmental entities, religious and charitable organizations, and charitable trusts. So pre-2021 case law about which entity forms are amenable to a § 38.001 award can be stale either way. Second trap: this section creates a statutory claim-type right to fees. It is not the same question as whether a contractual prevailing-party clause is enforceable, which this rule does not reach.

as of 2026-09-14

6 authorities

  • statuteTex. Civ. Prac. & Rem. Code § 38.001enacted 2021-09-01
    The words that state the rule
    (b) A person may recover reasonable attorney's fees from an individual or organization other than a quasi-governmental entity authorized to perform a function by state law, a religious organization, a charitable organization, or a charitable trust, 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.
  • statuteTex. Civ. Prac. & Rem. Code § 38.001enacted 2021-09-01
    The words that state the rule
    In this section, "organization" has the meaning assigned by Section 1.002 , Business Organizations Code.
  • statuteTex. Civ. Prac. & Rem. Code § 38.001enacted 2021-09-01
    The words that state the rule
    Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by: Acts 2021, 87th Leg., R.S., Ch. 665 (H.B. 1578 ), Sec. 1, eff. September 1, 2021.
  • statuteTex. Civ. Prac. & Rem. Code § 38.002enacted 1985-09-01
    The words that state the rule
    To recover attorney's fees under this chapter: (1) the claimant must be represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented.
  • statuteTex. Civ. Prac. & Rem. Code § 38.006enacted 2005-09-01
    The words that state the rule
    This chapter does not apply to a contract issued by an insurer that is subject to the provisions of: (1) Title 11, Insurance Code; (2) Chapter 541 , Insurance Code; (3) the Unfair Claim Settlement Practices Act (Subchapter A , Chapter 542 , Insurance Code); or (4) Subchapter B , Chapter 542 , Insurance Code.
  • caseNo. 05-22-01231-CV (Tex. App.—Dallas Feb. 2, 2024)House of Raeford Farms, Inc. v. Somma Food Group, LLCTex. App.—Dallasdecided 2024
    The words that state the rule
    The version of section 38.001 in force when SOMMA commenced this action provided that a “person” asserting a claim for breach of contract could recover “reasonable attorney’s fees from an individual or corporation.” The Legislature amended the statute in 2021 to include other forms of business organizations, but the amendment applies only to those actions initiated after the amendment became effective in September 2021.

“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.

read at the 2026-10-03 barread on 2026-10-06; the reading recorded “defective”

What has to happen before a party can actually collect its contract attorney's fees?

Three things, all of them preconditions, and Jones treated presentment as a matter that must also be PLEADED ('there were pleadings to support the jury's award'). To recover attorney's fees under Chapter 38: the claimant must be represented by an attorney; the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented. Two more sections decide what proving the fee then costs. § 38.003 presumes that the usual and customary attorney's fees for a claim of the type described in § 38.001 are reasonable, and says the presumption may be rebutted; § 38.004 lets the court take judicial notice of the usual and customary fees and of the contents of the case file without further evidence, in a proceeding before the court or in a jury case where the fee amount is submitted to the court by agreement. And one section decides whether any of it applies: under § 38.006 the chapter does not apply to a contract issued by an insurer subject to Title 11 of the Insurance Code, Chapter 541, the Unfair Claim Settlement Practices Act in Subchapter A of Chapter 542, or Subchapter B of Chapter 542.

The trap

Presentment is the one that gets missed. The statute makes it a precondition ('To recover attorney's fees under this chapter ... the claimant must present the claim'), and says nothing about what presentment must look like: no form, no words, no medium. That silence is why it is easy to fail to prove later, and it is why the drafting answer is to present in writing, dated, and keep the copy, so that the 30-day clock in (3) has a provable start. On what counts as presentment the Supreme Court of Texas has spoken, and the answer matches the statute's silence: 'No particular form of presentment is required.' In Jones v. Kelley (Tex. 1981) the Court treated presentment as 'A necessary requisite for the recovery of attorney's fees', presentment of the contract claim to the opposing party AND that party's failure to tender performance, and recorded that various forms have been held sufficient, including both oral and written demands; on the facts there a letter and the transcript of a telephone conversation, neither controverted, established presentment as a matter of law. So an oral demand can satisfy it, which is exactly why writing it down is about proof rather than validity. Whether a presentment defect can be cured after suit is filed is NOT answered by any authority listed here and remains open. One textual aid in the same chapter: § 38.005 directs that the chapter 'shall be liberally construed to promote its underlying purposes'. This is the procedural half of Chapter 38: § 38.001 decides which claims can carry fees at all, and, since 2021, against which defendants (its (b) excludes quasi-governmental entities, religious and charitable organizations and charitable trusts). Jones construed the predecessor statute, art. 2226; Chapter 38 is read as its codification, a succession this rule states but does not quote, and § 38.002's three preconditions have to be satisfied as well.

as of 2026-09-14

11 authorities

  • statuteTex. Civ. Prac. & Rem. Code § 38.002enacted 1985-09-01
    The words that state the rule
    To recover attorney's fees under this chapter: (1) the claimant must be represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented.
  • statuteTex. Civ. Prac. & Rem. Code § 38.003enacted 1985-09-01
    The words that state the rule
    It is presumed that the usual and customary attorney's fees for a claim of the type described in Section 38.001 are reasonable. The presumption may be rebutted.
  • statuteTex. Civ. Prac. & Rem. Code § 38.004enacted 1985-09-01
    The words that state the rule
    The court may take judicial notice of the usual and customary attorney's fees and of the contents of the case file without receiving further evidence in: (1) a proceeding before the court; or (2) a jury case in which the amount of attorney's fees is submitted to the court by agreement.
  • statuteTex. Civ. Prac. & Rem. Code § 38.005enacted 1985-09-01
    The words that state the rule
    Sec. 38.005. LIBERAL CONSTRUCTION. This chapter shall be liberally construed to promote its underlying purposes.
  • statuteTex. Civ. Prac. & Rem. Code § 38.006enacted 2005-09-01
    The words that state the rule
    This chapter does not apply to a contract issued by an insurer that is subject to the provisions of: (1) Title 11, Insurance Code; (2) Chapter 541 , Insurance Code; (3) the Unfair Claim Settlement Practices Act (Subchapter A , Chapter 542 , Insurance Code); or (4) Subchapter B , Chapter 542 , Insurance Code.
  • case614 S.W.2d 95Jones v. KelleyTex.decided 1981read it at the source ↗
    The words that state the rule
    A necessary requisite for the recovery of attorney's fees is the presentment of the contract claim to the opposing party and the failure of that party to tender performance.
  • case614 S.W.2d 95Jones v. KelleyTex.decided 1981read it at the source ↗
    The words that state the rule
    The purpose of the requirement for presentation of a claim is to allow the person against whom it is asserted an opportunity to pay a claim within 30 days after they have notice of the claim without incurring an obligation for attorney's fees. No particular form of presentment is required.
  • case614 S.W.2d 95Jones v. KelleyTex.decided 1981read it at the source ↗
    The words that state the rule
    Various forms of presentment have been held to be sufficient to support an award of attorney's fees under art. 2226. In Huff v. Fidelity Union Life Ins. Co., supra , both oral and written demands were held to be sufficient.
  • case614 S.W.2d 95Jones v. KelleyTex.decided 1981read it at the source ↗
    The words that state the rule
    The letter sent by the Veterans Land Board to the Joneses and the transcript of the telephone conversation between Mrs. Kelley and Mr. Jones establish presentment as a matter of law. Mr. Jones admitted he received the letter, and the contents of the letter and the telephone transcript were never controverted. During the telephone conversation Mrs. Kelley made it very clear that the Kelleys were insisting that the sale go through and were in the process of contacting an attorney. [4] *101 The judgment of the court of civil appeals is reformed to provide for attorney's fees in the amount found by the jury, and as reformed is affirmed.
  • case614 S.W.2d 95Jones v. KelleyTex.decided 1981read it at the source ↗
    The words that state the rule
    The Kelleys' Third Amended Petition specifically pleads: "plaintiffs Kelley made demand on defendants to convey the property made the subject of this lawsuit more than 30 days preceding the filing of this action, but said land was not conveyed...." Thus, there were pleadings to support the jury's award of attorney's fees.
  • statuteTex. Civ. Prac. & Rem. Code § 38.001enacted 2021-09-01
    The words that state the rule
    (b) A person may recover reasonable attorney's fees from an individual or organization other than a quasi-governmental entity authorized to perform a function by state law, a religious organization, a charitable organization, or a charitable trust, 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.

“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.

The same clause elsewhere

27 other states we answer attorney's fees for. Read them side by side in the survey.