§ 37.009.Costs

Fourteen words of statutory text, and one of the most litigated fee provisions in Texas.

In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.

The provision is remarkable for what it does not require. It does not require the applicant to have prevailed, does not distinguish claimant from defendant, and does not tie the award to the outcome at all.

So a losing party may be awarded fees, and a prevailing party may be awarded none.

Four conditions are stated, and they are cumulative. Fees must be reasonable, necessary, equitable, and just — the first two questions of fact, the second two matters for the court’s discretion.

That division is the practical structure of a fee contest. Reasonableness and necessity are proved by evidence; whether an award is equitable and just is not.

"May" makes the whole thing discretionary, so no party is entitled to fees by winning.

The breadth explains a familiar litigation tactic. A declaratory counterclaim added to a case that would otherwise carry no fee entitlement is sometimes filed to open this provision — and courts are alert to a declaratory claim that adds nothing to what is already in issue.

The discretion to refuse a declaration is the companion to that. A declaratory claim that duplicates the main action neither terminates an uncertainty nor earns fees.

The section applies to "any proceeding under this chapter", which includes a claim brought defensively and the supplemental relief proceeding.