                           NUMBER 13-10-00668-CV

                             COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


JESSICA R. BECERRA,                                                       Appellant,

                                          v.

MIKESKA BAR-B-Q, INC.,                                                    Appellee.


                   On appeal from the 23rd District Court
                        of Wharton County, Texas.


                           MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
               Memorandum Opinion by Chief Justice Valdez
      By one issue, appellant, Jessica R. Becerra, appeals from the trial court’s entry

of a take-nothing judgment on her claims against appellee, Mikeska Bar-B-Q, Inc., for

sexual harassment. We affirm.
                                      I. BACKGROUND

       This case was tried before a jury. At trial, the parties stipulated that “should

[appellant] prevail, [appellant’s] reasonable and necessary attorney’s fees would be

decided by the Court.” After hearing the evidence, a jury found that appellee subjected

appellant to sexual harassment and constructively terminated appellant’s employment;

however, the jury awarded no damages. Subsequently, appellant filed an application

for attorney’s fees. The trial court denied the request, finding that appellant “did not

prevail.” See TEX. LAB. CODE ANN. § 21.259(a) (West 2006). Appellant also filed a

request for injunctive and equitable relief, which was also denied by the trial court.

       The final judgment entered by the trial court recited the parties’ stipulation at trial

concerning attorney’s fees, the court’s finding that appellant was not a prevailing party,

and the court’s ruling that appellant’s requests for relief were denied.

                                        II. ANALYSIS

       In her sole issue, appellant argues that the trial court abused its discretion in

denying her requests for injunctive relief, equitable relief and reasonable and necessary

attorney’s fees.

       A. Standard of Review

       A trial court’s issuance of equitable or injunctive relief is reviewed for abuse of

discretion. See Operation Rescue-Nat’l v. Planned Parenthood, 975 S.W.2d 546, 560

(Tex. 1998). In Texas, statutory authority or an agreement is generally required for the

trial court to award attorney’s fees. See Guerra v. Brown, 800 S.W.2d 343, 345 (Tex.

App.—Corpus Christi 1990, no writ). If such authority exists, we review the trial court’s




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grant or denial of attorney’s fees under the abuse of discretion standard, unless some

other standard is prescribed. Id. (citing San Antonio Housing Auth. v. Underwood, 782

S.W.2d 25, 27 (Tex. App.—San Antonio 1989, no writ)).

       B. Applicable Law

       Section 21.258 of the Texas Labor Code provides, in relevant part, that the trial

court “may” issue injunctive and equitable relief as follows:

       (a)    On finding that a respondent engaged in an unlawful employment
              practice as alleged in a complaint, a court may:

              (1)    prohibit by injunction the respondent from engaging in an
                     unlawful employment practice; and

              (2)    order additional equitable relief as may be appropriate.

       (b)    Additional equitable relief may include:

              (1)    hiring or reinstating with or without back pay;

              (2)    upgrading an employee with or without pay;

              (3)    admitting to or restoring union membership;

              (4)    admitting to or participating in a guidance program,
                     apprenticeship, or on-the-job training or other training or
                     retraining program, using objective job-related criteria in
                     admitting an individual to a program;

              (5)    reporting on the manner of compliance with the terms of a
                     final order issued under this chapter; and

              (6)    paying court costs.

TEX. LAB. CODE ANN. § 21.258 (West 2006).

       Section 21.259 of the Texas Labor Code provides, in relevant part, that the trial

court “may” award reasonable attorney’s fees as follows: “In a proceeding under this




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chapter, a court may allow the prevailing party, other than the commission, a

reasonable attorney’s fee as part of the costs.” TEX. LAB. CODE ANN. § 21.259(a).

       C. Discussion

       According to appellant, the statutory predicates for awarding injunctive relief,

equitable relief, and attorney’s fees were present in this case; namely, the jury found

that appellee engaged in an unlawful employment practice. Thus, appellant argues, the

trial court had discretion to award the requested relief. Appellant has cited a number of

cases in support of her contention that the relief she requested was appropriate under

the circumstances. It is unnecessary to discuss the specifics of the cases cited.

       “[A] plaintiff [must] receive at least some relief on the merits of his claim before

he can be said to prevail.” Farrar v. Hobby, 506 U.S. 103, 110 (1992); Hewitt v. Helms,

482 U.S. 755, 760 (1987); Int’l Group P’ship v. KB Home Lone Star L.P., 295 S.W.3d

650, 654 (Tex. 2009). “A judicial pronouncement that the defendant has violated the

Constitution, unaccompanied by an enforceable judgment on the merits, does not

render the plaintiff a prevailing party. Of itself, the moral satisfaction that results from

any favorable statement of law cannot bestow prevailing party status.”          Id. at 112

(internal citations omitted).   “Respect for ordinary language requires that a plaintiff

receive at least some relief on the merits of his claim before he can be said to prevail.”

Hewitt, 482 U.S. at 760. Furthermore, “It is the judgment, not the verdict, that we must

consider in determining whether attorney’s fees are proper.” Burgmann Seals Am., Inc.

v. Cadenhead, 135 S.W.3d 854, 860 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

Based on the applicable standard, appellant was not a prevailing party. See Int’l Group




                                             4
P’ship, 295 S.W.3d at 655–56 (concluding that “A zero on damages necessarily zeroes

out ‘prevailing party’ status for KB Home” and that the trial court erred in awarding

attorney’s fees to KB Home on that basis); Burgmann Seals Am., Inc., 135 S.W.3d at

860–62.

      Even if appellant were correct in asserting her status as a prevailing party, she

has not established that the trial court abused its discretion in denying her request. See

TEX. GOV’T CODE ANN. § 311.016(1) (West 2005) (“‘May’ creates discretionary authority

or grants permission or power.”); Dallas County Cmty. College Dist. v. Bolton, 185

S.W.3d 868, 874 (Tex. 2005) (noting that the word “may” should be given its permissive

meaning).

      With respect to the request for attorney’s fees, appellant argues that the trial

court had no discretion to deny the request because attorney’s fees are part of “costs”

and must be awarded upon a finding that appellee “engaged in an unlawful employment

practice as alleged in a complaint.” See TEX. LAB. CODE ANN. §§ 21.258, 21.259. We

disagree with appellant’s assertion that the trial court had no discretion to decide

whether to award costs. Subsection (b) of section 21.258 states, “Additional equitable

relief may include . . . paying court costs.” See id. § 21.258(a). The statute’s use of the

permissive term “may” gives the trial court discretionary authority. See Bolton, 185

S.W.3d at 874. Accordingly, appellant is incorrect in her assertion that the trial court

had no discretion to deny her request for attorney’s fees.        For this same reason,

appellant is not entitled to injunctive and equitable relief. See TEX. LAB. CODE ANN. §




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21.258 (providing that a trial court “may” issue injunctive and/or equitable relief).

Appellant’s issue is overruled.

                                     III. CONCLUSION

       The judgment of the trial court is affirmed.

                                                       ____________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Delivered and filed the
22nd day of March, 2012.




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