                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-14-00216-CV
                                 ________________________

                                BERT WALLACE, APPELLANT

                                                 V.

                             KENT COUNTY, TEXAS, APPELLEE



                              On Appeal from the 39th District Court
                                       Kent County, Texas
                    Trial Court No. 1681; Honorable Shane Hadaway, Presiding


                                           April 13, 2016

                                MEMORANDUM OPINION
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      This appeal arises from an order denying Appellant, Bert Wallace, recovery of his

attorney’s fees in an action brought against Appellee, Kent County, pursuant to the

Uniform Declaratory Judgments Act (UDJA),1 for the declaration of the rights of the

parties concerning the public nature of a road in Kent County. Originally, the trial court

entered a declaratory judgment in favor of Kent County, declaring the road in question


      1
          TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001 – 37.011 (West 2015).
to be a public road. On appeal, this court reversed that order, rendered judgment that

the road in question was a private road, and remanded the proceeding to the trial court

in order for it to address Wallace’s prayer for the recovery of attorney’s fees. Wallace v.

Kent County, No. 07-11-00427-CV, 2013 Tex. App. LEXIS 10573, at *24 (Tex. App.—

Amarillo Aug. 21, 2013, no pet.) (mem. op.). On remand, the trial court entered an

order denying Wallace the recovery of any fees. By this appeal, Wallace contends the

trial court abused its discretion when it denied the recovery of attorney’s fees. Finding

the trial court did not abuse its discretion, we affirm.


       APPLICABLE LAW

       For more than a century, Texas law has not allowed the recovery of attorney’s

fees unless an award is authorized by statute or contract. Tony Gullo Motors, L.P. v.

Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006); Akin, Gump, Strauss, Hauer & Feld,

L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 119 (Tex. 2009). The UDJA

authorizes a trial court to award “reasonable and necessary attorney’s fees as are

equitable and just.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (West 2015). The

UDJA does not, however, require an award of attorney’s fees to the prevailing party.

Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). Rather, the statute provides that

the trial court “may” award attorney’s fees, thus affording the trial court a measure of

discretion in deciding whether to award the recovery of attorney’s fees. Bocquet, 972

S.W.2d at 20 (citing Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)).

Where matters of judicial discretion are involved, a trial court abuses its discretion when

it acts without reference to any guiding rules or principles.     Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).


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       In sum, the UDJA entrusts an award of attorney’s fees to the sound discretion of

the trial court, subject to the requirements that any fees awarded be reasonable and

necessary, which are matters of fact, and the additional requirement that fees awarded

be just and equitable, which are matters of law.          Bocquet, 972 S.W.2d at 21.

Furthermore, absent exceptions not applicable here, the party requesting attorney’s

fees must affirmatively plead for them in order to be granted a judgment containing a

fee award. See TEX. R. CIV. P. 301.


       ANALYSIS

       In the present case, Wallace’s live pleadings at the time of the trial court’s

original judgment, Plaintiff’s 2nd Amended Original Petition, sought the recovery of

reasonable and necessary attorney’s fees pursuant to the UDJA. In addition, Wallace

filed a supplemental motion specifically addressing his request for the recovery of

attorney’s fees. When the trial court entered judgment in favor of Kent County on

September 13, 2011, it expressly denied the award of attorney’s fees to either party. As

noted above, this court reversed that order but remanded the proceeding to the trial

court in order for it to reconsider Wallace’s prayer for the recovery of attorney’s fees in

light of the new judgment rendered by this court in Wallace’s favor. Wallace v. Kent

County, No. 07-11-00427-CV, 2013 Tex. App. LEXIS 10573, at *24 (Tex. App.—

Amarillo Aug. 21, 2013, no pet.) (mem. op.). Following the issuance of our mandate,

Wallace filed his Amended Motion for Attorney’s Fees, setting forth various arguments

as to why the trial court should grant him relief pursuant to the provisions of the UDJA.

On March 10, 2014, the trial court considered his amended motion and, “after

consideration of the merits, and the evidence,” denied the recovery of attorney’s fees.


                                             3
       By a single issue, Wallace contends the trial court abused its discretion in

denying his motion for recovery of attorney's fees incurred in the prosecution of his

claim for declaratory relief. In evaluating matters of discretion, this court must defer to

the decision of the trial court, whether we agree or not, unless it can be said that the trial

court’s decision was an abuse of discretion. That is to say, unless we find the trial

court’s decision was made without reference to any guiding rules or principles, we

should not reverse the trial court’s decision. Here, we do not know the basis of the trial

court’s denial of attorney’s fees to Wallace and we must presume that the trial court

acted within its discretion unless the record discloses the contrary. In that regard, the

record before us contains neither findings of fact nor a request for findings of fact.

Without findings of fact establishing the basis for the trial court’s exercise of discretion,

an appellate court should not conclude as a matter of law that the trial court abused its

discretion in declining to award attorney’s fees. Marion v. Davis, 106 S.W.3d 860, 868

(Tex. App.—Dallas 2003, pet. denied). Accordingly, under this record, Wallace has not

demonstrated an abuse of discretion by the trial court in denying him recovery of his

attorney’s fees. Because the UDJA does not mandate an award of attorney’s fees,

even to the prevailing party, and because Wallace has not established an abuse of

discretion in denying them, his issue is overruled.


       CONCLUSION

       The order of the trial court denying the recovery of attorney’s fees is affirmed.




                                                         Patrick A. Pirtle
                                                              Justice


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