§ 86.004.Claimant Liable for Court Costs and Fees and Attorney's Fees

A fee-shifting provision attached to the bar.

A claimant who is barred from recovery under this chapter is liable to the person against whom the claim is brought for court costs and fees and reasonable attorney's fees incurred in defending against the claim.

The consequence is automatic on the bar applying. No finding of bad faith or frivolousness is required — a claim defeated by the chapter carries the defendant's fees.

That is a substantial deterrent, and evidently the point. A property owner or business facing a claim by someone injured while committing an offence would otherwise bear its own defence costs even on winning, which for a modest claim is reason enough to settle.

The exposure runs to the claimant personally, and the section does not condition it on the claimant's ability to pay.

It applies to derivative claimants too. A family whose wrongful death claim is barred by the derivative provision is barred "under this chapter," and this section attaches.

The combination — a bar plus mandatory fees — means these claims are rarely brought where the chapter plainly applies, which is presumably the intended effect.