§ 134A.005.Attorney's Fees

A narrow, symmetrical fee provision — and one that does not follow the winner.

The court may award reasonable attorney’s fees to the prevailing party if: a claim of misappropriation is made in bad faith; a motion to terminate an injunction is made or resisted in bad faith; or willful and malicious misappropriation exists.

Prevailing alone is not enough. One of the three conditions must also be met, so most successful claimants recover no fees under this chapter — which is the opposite of the Theft Liability Act, where the award is mandatory for whoever prevails.

Two of the three target bad faith, and both cut against claimants and defendants alike. A bad faith claim exposes the plaintiff; bad faith in making or resisting a motion to terminate an injunction can expose either side.

The third rewards the claimant, and it is the same trigger as exemplary damages — wilful and malicious misappropriation, as the definitions provision defines it.

"May" makes every one of them discretionary. Even a claimant who proves wilful and malicious misappropriation has no entitlement to fees.

The bad faith provision is a real deterrent in this field. Trade secret claims are commonly filed against departing employees to slow them down, and a defendant facing one has a fee remedy that most Texas defendants do not.

Note that the chapter’s uniform construction provision means decisions from other uniform-act states on what constitutes bad faith carry weight here.