§ 105.002.Recovery of Fees, Expenses, and Attorney's Fees for Frivolous Claim

The operative provision, and two conditions must both be met.

A party to a civil suit brought by or against a state agency in which the agency asserts a cause of action against the party — originally or as a counterclaim or cross claim — is entitled to recover a total amount not to exceed $1 million for fees, expenses, and reasonable attorney’s fees incurred in defending the agency’s action.

The two conditions are that the court finds the action frivolous, and that it is dismissed or judgment is awarded to the party.

Both are required. Winning is not enough — the claim must also have been frivolous — and a frivolousness finding without a favourable outcome supports nothing.

Including counterclaims and cross claims is important. An agency sued by a citizen frequently responds with a claim of its own, and the chapter reaches that as well as an action the agency began.

The recovery is "in addition to all other costs allowed by law or rule", so it supplements rather than replaces ordinary costs.

The $1 million ceiling is substantial by the standards of this code, and it reflects what defending a determined agency claim can cost.

The chapter addresses a real asymmetry. A state agency litigating has the resources of the state; the party opposite has their own money, and the cost of defending can exceed what is at stake regardless of the merits.

What the chapter does not do is make the recovery easy. A frivolousness finding against a government agency is uncommon, and the following section requires the party to have flagged the claim early by written motion.