§ 30.022.Award of Attorney's Fees in Actions Challenging Abortion Laws

A fee-shifting provision enacted in 2021 as part of Senate Bill 8, and its structure differs from ordinary fee statutes in several respects.

Notwithstanding any other law, a person — including an entity, attorney, or law firm — who seeks declaratory or injunctive relief to prevent Texas, a political subdivision, a governmental entity, a public official, or any person in Texas from enforcing any law that regulates or restricts abortion or that limits taxpayer funding for those who perform or promote abortions, in any state or federal court, or who represents any litigant seeking such relief, is jointly and severally liable for the prevailing party's costs and attorney's fees.

The liability reaches counsel. Attorneys and law firms are named, and representing a litigant is itself a basis for liability.

Subsection (b) defines "prevailing party" broadly. A party prevails if a court dismisses any such claim, regardless of the reason for the dismissal, or enters judgment in the party's favour. A dismissal on jurisdictional or procedural grounds counts.

Subsection (c) creates a separate action. A prevailing party may sue to recover regardless of whether it sought fees in the underlying action, within three years of the dismissal or judgment becoming final or the time for appellate review expiring.

Subsection (d) forecloses three defences to that action: that fees were not sought in the underlying case; that the court there declined to recognize or enforce this section; or that the court there held the section invalid, unconstitutional, or preempted — notwithstanding the doctrines of issue or claim preclusion.

That last provision is the unusual one. It directs that a prior court's ruling on this section's validity does not bind the later fee action, displacing preclusion doctrine by statute.