Congrats. You’ve won your breach-of-contract case. Can you recover your attorneys’ fees? To give the old lawyerly answer, it depends. Fee recovery is neither automatic nor does it depend on express contract language. Rather, recovery is a function of statute, namely Chapter 38 of the Texas Civil Practice and Remedies Code and depends on statutory authorization, procedural compliance, and sufficient evidence supporting the amount claimed.
Chapter 38 turns on presentment. Abraham Lincoln advised to “[d]iscourage litigation. Persuade your neighbors to compromise whenever you can.” This advice reflects an important principle behind Chapter 38 of the Texas Civil Practice and Remedies Code: An opposing party should have an opportunity to resolve a qualifying claim before incurring statutory liability for attorney’s fees.
- When Does Chapter 38 Apply?
Section 38.001(b) authorizes reasonable attorney’s fees for specified claims, including qualifying claims for services rendered, labor performed, materials furnished, and breach of an oral or written contract. The provision was amended effective September 1, 2021, expanding recovery against certain entities while retaining statutory limitations.
In Green International, Inc. v. Solis, 951 S.W.2d 384 (Tex. 1997), the Supreme Court of Texas explained that a claimant generally must prevail on a qualifying claim and recover damages to obtain fees under the statute. Thus, establishing a breach alone does not necessarily establish entitlement to attorney’s fees. The first step is to identify the applicable statutory basis and determine whether the claim falls within its scope.
- Presentment: The 30 Day Requirement
Section 38.002 continues by requiring that the claimant: (1) be represented by an attorney, (2) present the claim to the opposing party or an authorized agent, and (3) allow 30 days to expire without tender of payment for the just amount owed.
In Jones v. Kelley, 614 S.W.2d 95 (Tex. 1981), the Supreme Court of Texas explained the purpose of presentment: to give the opposing party an opportunity to pay the claim within 30 days without incurring liability for attorney’s fees. Presentment need not follow a particular form, but it must communicate the claim and request compliance.
The recent Fifth District Court of Appeals decision in Pennington v. Fields, 05-24-00812-CV (Tex. App. Mar 25, 2026) reinforces this distinction. The Pennington court explained that a settlement offer conditioned on mutual releases and additional negotiated documents is not necessarily an unconditional tender of the amount owed. The court reversed and remanded the attorney’s-fee determination.
Accordingly, a demand should clearly identify the obligation and requested payment. The claimant should also preserve evidence of when it was communicated. A conditional settlement proposal should not be assumed to satisfy or defeat the statutory requirements.
- Proving Reasonable And Necessary Fees
Statutory entitlement does not establish the amount recoverable. Section 38.003 creates a rebuttable presumption that usual and customary attorney’s fees are reasonable, but the claimant must still support the award with adequate evidence.
In Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 2019), the Supreme Court of Texas held that the starting point is the reasonable hours worked multiplied by a reasonable hourly rate. The Court stated that the claimant must provide sufficient evidence of the services performed, the individuals performing them, the approximate timing, the reasonable hours required, and reasonable hourly rates. Id.
The Court’s approach reflects the principle stated in Hensley v. Eckerhart, 461 U.S. 424 (1983): “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”
Detailed billing records and task-specific evidence therefore provide a stronger foundation than an unsupported estimate of total fees.
4. How Should A Free Claim Be Preserved?
A claimant should identify the statutory or contractual basis for fees at the outset, document the debt or breach, send a clear demand to the appropriate party, preserve proof of delivery, and track the 30-day period. Throughout litigation, counsel should maintain detailed time records and distinguish recoverable work from unrelated claims where necessary. As Rohrmoos Venture (2019) demonstrates, a successful outcome cannot substitute for adequate proof of the fees requested.
Conclusion: The Practical Takeaway
Chapter 38 offers a statutory route to attorney’s-fee recovery in qualifying Texas disputes, but the right is conditional—not automatic. Proper presentment, compliance with the statutory timeline, and evidence supporting reasonable and necessary fees can materially affect the outcome. Addressing these requirements early helps preserve the claim before litigation costs accumulate.
While you can’t always persuade to compromise, you can document your efforts to do so and potentially recover fees for it.
Disclaimer: This blog is for informational purposes only and does not constitute legal advice. Reading or interacting with this content does not create an attorney–client relationship. Consult a qualified attorney regarding your specific circumstances. Mehaffy, PLLC disclaims liability for actions taken or not taken based on this blog.