A recent Texas Lawyer story, “Fourth Court Creates Split on Attorney Fee Question,” reports that splitting from two intermediate appellate courts, San Antonio’s Fourth Court of Appeals recently set precedent in state employment discrimination law by ruling that a party has the right for a jury—not a judge—to decide how much to award in attorney fees. Employment lawyers who bring cases under the Texas Commission on Human Rights Act—which mirrors Title VII of the Civil Rights Act—might change their method of seeking attorney fees after taking note of Bill Miller Bar-B-Q v. Gonzales.
Fourth Court Chief Justice Catherine Stone wrote that the Texas Constitution provides the right to a jury trial “on contested issues of fact in all causes.” “Because the underlying lawsuit is a ‘cause,’ Bill Miller Bar-B-Q is constitutionally entitled to a jury trial on all contested issues of fact," wrote Stone. “The reasonableness of statutory attorney fees is a fact question for a jury’s determination.”
Leslie Hyman, a partner in Pulman Cappuccio who represented Bill Miller, noted that the opinion creates a “split of authority” about whether a jury decides the fee amount in human rights act cases. “In the counties covered by the El Paso and Corpus Christi courts of appeal, there is no such right, and the trial judge makes that determination,” wrote Hyman in an email. But such parties in the counties of the Fourth Court now have a right to a jury trial about attorney fees.
The Oct. 29 opinion noted that a jury found that Bill Miller terminated plaintiff Faith H. Gonzales “because of her opposition to and complaints of discriminatory conduct.” The jury awarded Gonzales $30,000 in back pay. Later, the court signed a final judgment that also awarded Gonzales $60,975 in attorney fees and more for post-judgment motions and appeal.
On appeal to the Fourth Court, Bill Miller argued that the amount of attorney fees is a jury question, and it would be unconstitutional if the human rights act denied the company its jury trial on attorney fees. The opinion noted that El Paso and Corpus Christi’s intermediate appellate court have held that the trial court should determine the fee amount.
But in a different case, the Texas Supreme Court considered a “similarly silent fee-shifting provision” and ruled that the parties were entitled “to have the jury determine the disputed issue of the reasonableness of the attorney fees,” said in the opinion.
The Fourth Court rejected an argument by Gonzales that federal law—which—calls on a judge to decide the fee amount—should guide the Fourth Court’s reading of the human rights act. “This court will not adopt a federal standard that would result in an interpretation that renders [Texas Labor Code] Section 21.259 unconstitutional by depriving litigants of the rights to have a jury determine a reasonable amount of attorney fees to be awarded,” wrote Stone.
Bill Miller argued that Gonzales had waived her fee award by failing to request a jury question on the amount. But the Fourth Court remanded the case instead. “Given the circumstances presented in this case, and our disagreement with our two sister courts that have address the issue, we hold that the cause should be remanded in the interest of justice for a new trial limited to the issue of attorney fees,” wrote Stone.