The Texas Supreme Court issued two rulings on April 15, 2016 that favored parties seeking attorney fees. In Sullivan v. Abraham, a First Amendment case, the Court examined the criteria for the award of attorneys’ fees under Texas’ anti-SLAPP law (“strategic lawsuit against public participation”), which requires mandatory awards of reasonable attorney fees and does not allow a court to reduce the amount for equity and justice. The case is significant because the Texas Supreme Court takes great effort interpreting the statute authorizing attorneys’ fees. This opinion is a primer on the importance of language, grammar, and punctuation when considering a statute. Applying these rules, the Court ruled that the law’s language and punctuation mean reasonable attorney fees are awarded to the winner of a motion to dismiss without consideration of factors such as justice and equity.

In Wheelabrator Air Pollution Control v. City of San Antonio, the Texas Supreme Court found that a city does not have governmental immunity from an attorney fee claim dealing with the activities of a city-owned public utility company. Immunity would apply if the case arose from the city’s governmental function, but not if it arose from the city’s proprietary function. The Texas Supreme Court has distinguished between those functions and acts performed as a branch of the state, and those performed in a proprietary, non-governmental capacity. Under Texas law, a governmental act or function are those things done as a branch of the state—such as when a city exercises powers conferred on it for purposes essentially public pertaining to the administration of general laws made to enforce the general policy of the state. An example would be “garbage and solid waste removal, collection and disposal.” Proprietary functions are those functions performed by a city, in its discretion, primarily for the benefit of those within the corporate limits of the municipality. The operation of a public utility by the city was found to be proprietary under Texas law and did not give the city immunity.

By Douglas R. Hafer
Business Trial Lawyer | Curnutt & Hafer, LLP