§ 38.002.Procedure for Recovery of Attorney's Fees

Three prerequisites, and they are the reason many otherwise-good fee claims fail.

To recover under the chapter: the claimant must be represented by an attorney; the claimant must present the claim to the opposing party or a duly authorized agent; and payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented.

Presentment is the requirement that gets missed. The statute does not prescribe a form — no particular words, no certified mail, no magic language. But it must happen, and the claimant must be able to prove it happened and when. A demand letter with a dated copy is the ordinary answer.

The 30 days are a genuine grace period. A defendant who tenders the just amount owed within 30 days of presentment defeats the fee claim entirely, even though it breached the contract. The section is as much an inducement to pay as a fee-shifting rule.

The attorney-representation requirement means a party who prevails without counsel has no claim under the chapter, whatever their costs.

Note that filing suit and serving the petition can serve as presentment, but the 30 days still have to run before fees accrue under the section — which is why presentment before filing is the safer course.