A recent Texas Lawyer story, “Bills Suggest Attorney Fee Cap in Declaratory Actions,” reports that a pair of bills propose a $250,000 cap on attorney fees in declaratory actions against the state government.  When someone sues the state seeking a declaratory judgment, current law allows the court to award costs and fees that are equitable and just.  But Senate Bill 1600 and House Bill 3641 would amend the Texas Uniform Declaratory Judgment Act to add the $250,000 cap on attorney fees.

Shelley Dahlberg, associate deputy attorney general for litigation in the Texas Office of the Attorney General, told members of the House committee that declaratory actions typically either allege that a state agency’s leader is acting outside of his authority, or allege that a statute or agency rule is unconstitutional.

Bryan Blevins, president of the Texas Trial Lawyers Association, told members of the Senate committee that it’s typical for litigants to make declaratory judgments claims in eminent domain and water rights cases, or lawsuits by school districts.  Blevins said that it’s likely that a $250,000 cap would only come into play in the largest and most important cases.  He said that fee awards are “about balancing David vs. Goliath.”

“It’s really about individual rights and property rights.  When there is conflict with the state, and if we don’t have an award of attorney fees, we don’t think those cases could be brought,” Blevins said.  “You want these opportunities for these people to bring these issues.”

Sen. Rodney Ellis (D-Houston), asked Blevins whether the cap might “knock out” redistricting and school finance lawsuits.  Blevins replied that it could create a situation in which plaintiffs couldn’t afford to bring cases.  “It would create a significant disincentive for an attorney to fight the good fight,” he said.