When someone wins or loses an employment discrimination case brought under the Texas Commission on Human Rights Act, is the standard for who counts as the 'prevailing party' entitled to attorney's fees the same standard used under the federal Title VII law it was modeled on?

Texas AG Opinion JM-1145: "Prevailing Party" Attorney's Fees Under the Human Rights Act

Plain-English summary

The executive director of the Texas Commission on Human Rights asked the Attorney General how to interpret the term "prevailing party" in the fee-shifting provision of the Texas Commission on Human Rights Act, the state law barring employment discrimination. Section 7.01(e) of that act lets a court award a "reasonable attorney's fee" to the prevailing party in an employment discrimination lawsuit. The question was whether Texas courts should apply the same definition of "prevailing party" that federal courts use under Title VII of the federal Civil Rights Act of 1964, the model the Texas act was built on.

The Attorney General concluded yes. The opinion noted that the Texas legislature did not just borrow similar language from Title VII, it expressly said one purpose of the state act was to carry out the policies of Title VII, and it enacted the state fee provision five years after the U.S. Supreme Court's 1978 decision in Christiansburg Garment Co. v. EEOC defined "prevailing party" for Title VII purposes. Under longstanding Texas rules of construction, when the legislature adopts a statute modeled on another jurisdiction's law, that jurisdiction's judicial interpretations existing at the time are presumed to travel with it. Because Christiansburg predates the Texas act, the opinion held that its standard, prevailing plaintiffs recover fees routinely, while prevailing defendants recover fees only if the plaintiff's claim was frivolous, unreasonable, groundless, or continued in litigation after it clearly became so, governs fee awards under the Texas act as well.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

If I win an employment discrimination case under the Texas Commission on Human Rights Act, is my employer automatically ordered to pay my attorney's fees?
The opinion held that the "prevailing party" standard under the Texas act tracks the federal Christiansburg standard, under which prevailing plaintiffs are awarded fees in all but special circumstances, so a winning employee is very likely to recover fees.

If an employer wins an employment discrimination case under the Texas act, can it recover its attorney's fees from the employee who sued?
Only in narrower circumstances. Under the Christiansburg standard adopted by this opinion, a prevailing defendant recovers fees only if the plaintiff's claim was frivolous, unreasonable, or groundless, or if the plaintiff kept litigating after it clearly became so.

Why did the Attorney General look to a federal Title VII case to interpret a Texas statute?
Because the Texas Commission on Human Rights Act expressly states that one of its purposes is to execute the policies of federal Title VII, and the Texas legislature enacted its fee provision after the U.S. Supreme Court had already defined "prevailing party" for Title VII in Christiansburg, so the opinion applied the rule that adopting similar language from another jurisdiction carries that jurisdiction's existing case law with it.

Background and statutory framework

The Texas Commission on Human Rights Act, V.T.C.S. article 5221k, prohibits certain types of employment discrimination and states that one of its purposes is to execute the policies embodied in Title VII of the federal Civil Rights Act of 1964. Complaints go first to the Commission on Human Rights, which follows administrative steps set out in article 6 of the act; depending on the outcome, either the commission or the complainant may then bring a civil action. Section 7.01(e) allows the court, in its discretion, to award the prevailing party (other than the commission) a reasonable attorney's fee as part of costs, and makes the state, its agencies, and political subdivisions liable for such fees the same as a private party.

The federal Title VII fee provision, 42 U.S.C. § 2000e-5(k), uses nearly identical language. In Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the U.S. Supreme Court held that a prevailing Title VII plaintiff should ordinarily recover fees absent special circumstances, while a prevailing defendant should recover fees only if the plaintiff's claim was frivolous, unreasonable, or groundless, or the plaintiff continued to litigate after it clearly became so. Applying the Texas rule that adopting a statute from another jurisdiction carries forward that jurisdiction's pre-existing judicial construction, from Blackmon v. Hansen, 169 S.W.2d 962 (Tex. 1943), the opinion concluded the Texas legislature intended to import the Christiansburg standard when it enacted the Human Rights Act's fee provision after that decision was announced.

Citations

Statutory provisions:

• V.T.C.S. art. 5221k, §§ 1.02(1), 6.01(a), art. 6, 7.01(a), 7.01(e)
• 42 U.S.C. § 2000e-5(k)

Cases:

• Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)
• Blackmon v. Hansen, 169 S.W.2d 962 (Tex. 1943)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1145
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1145.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

March 7, 1990

Mr. William M. Hale
Executive Director
Texas Commission on Human Rights
P. O. Box 13493, Capitol Station
Austin, Texas 78711

Opinion No. JM-1145

Re: Construction of the term "prevailing party" under V.T.C.S. article 5221k (RQ-1819)

Dear Mr. Hale:

You ask about the proper interpretation of a provision that provides for the award of attorney's fees to the "prevailing party" in an action brought under the Texas Commission on Human Rights Act, article 5221k, V.T.C.S. Specifically, you ask whether the term "prevailing party" should be interpreted in the same way it has been interpreted for purposes of Title VII of the federal Civil Rights Act of 1964.

The Commission on Human Rights Act prohibits certain types of employment discrimination. V.T.C.S. art. 5221k, §§ 5.01-5.05. One of the purposes of the act is "to provide for the execution of the policies embodied in Title VII of the federal Civil Rights Act of 1964, as amended (42 U.S.C. Section 2000e et seq.)." Id. § 1.02(1).

Under the Texas statute, complaints alleging unlawful employment practices may be filed with the Commission on Human Rights. Id. § 6.01(a). The act sets out administrative steps to be taken in response to a complaint. Id. art. 6. Depending on the results of the administrative action, either the commission or the complainant may bring a civil action. Id. § 7.01(a). Section 7.01(e) of the act provides, in part:

In any action or proceeding under this Act, the court in its discretion may allow the prevailing party, other than the commission, a reasonable attorney's fee as part of the costs. The state or an agency or a political subdivision of the state is liable for costs, including attorney's fees, to the same extent as a private person.

The federal Civil Rights Act of 1964 contains similar language:

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

42 U.S.C. § 2000e-5(k). In Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the Supreme Court defined "prevailing party" for purposes of that section. First, the court noted that it was already established that under section 706(k) of Title VII a prevailing plaintiff was to be awarded attorney's fees in all but special circumstances. 434 U.S. at 417-18. The court then determined that a defendant should be awarded attorney's fees if the plaintiff's claim was frivolous, unreasonable, or groundless, or if the plaintiff continued to litigate after it clearly became so. 434 U.S. at 422. You ask whether "prevailing party" in the Texas statute should be construed in the same way.

The Texas Supreme Court has held that when a statute is adopted from another jurisdiction, the construction made by the courts of that jurisdiction prior to the adoption may be looked to and given great weight. Blackmon v. Hansen, 169 S.W.2d 962, 964-65 (Tex. 1943). In this case the Texas legislature did more than merely model its statute on a federal statute. The legislature stated expressly that one of the purposes of the Commission on Human Rights Act was to provide for the execution of the policies embodied in Title VII of the federal Civil Rights Act of 1964. The Supreme Court issued Christiansburg in 1978, five years before the Texas legislature enacted the Commission on Human Rights Act. Therefore, we conclude that the policies the legislature intended to incorporate in the state act include Supreme Court constructions of the term "prevailing party" for purposes of the federal act that were announced before the enactment of the Texas act. Therefore, "prevailing party" in section 7.01(e) of article 5221k is to be construed in the same way that the United States Supreme Court construed "prevailing party" in Christiansburg.

SUMMARY

"Prevailing party" in section 7.01(e) of article 5221k is to be construed in the same way that the United States Supreme Court construed "prevailing party" in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General