§ 38.001.Recovery of Attorney's Fees

The most-invoked fee-shifting statute in Texas, and the 2021 amendment changed who can be made to pay under it.

A person may recover reasonable attorney's fees, in addition to the amount of a valid claim and costs, if the claim is for: rendered services; performed labor; furnished material; freight or express overcharges; lost or damaged freight or express; killed or injured stock; a sworn account; or an oral or written contract.

The eighth category swallows most of the practical work. Nearly every contract dispute in Texas travels under "an oral or written contract," which is why this section appears in so many petitions.

The 2021 amendment is the fact to know about this section. Before it, the statute allowed recovery from "an individual or corporation." That wording had been read to exclude limited liability companies, limited partnerships, and other entity forms that are neither — a gap that turned the availability of fees on a defendant's choice of organizational structure. The amendment replaced it with "an individual or organization," taking the meaning of "organization" from Section 1.002 of the Business Organizations Code, which is broad enough to cover the entity forms the old wording missed.

Four defendants are now expressly excluded: a quasi-governmental entity authorized to perform a function by state law, a religious organization, a charitable organization, and a charitable trust. Those exclusions arrived with the same amendment — the reach was widened and then trimmed at four points.

Fees under this section are recoverable in addition to the claim and costs, and they require an actual recovery on the claim. The procedural prerequisites in the next sections must also be met.