
PITTS V. DALLAS CO BAIL BOND BOARD






NO. 07-99-0222-CV



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL A



MAY 8, 2000



______________________________





TERRANCE J. PITTS, APPELLANT



V.



DALLAS COUNTY BAIL BOND BOARD, APPELLEE





_________________________________



FROM THE 116TH DISTRICT COURT OF DALLAS COUNTY;



NO. 96-12507-F; HONORABLE MARTIN E. RICHTER, JUDGE



_______________________________



Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

ON MOTION FOR REHEARING

Appellant Terrence Pitts moves for rehearing challenging our original disposition in five points of error.  These points assign error to 1) our failure to award him costs, 2) affirming the denial of attorney’s fees in his section 1988 suit, 3) holding that the trial court need not state a specific number of hours and hourly rate on which an award of attorney’s fees is based, 4) refusing to find error in the trial court’s judgment, and 5) failing to address his arguments on “reasonableness.”  We sustain Pitts’s first two points and overrule the remaining points.

Pitts’s first point assigns error to our failure to award him costs in the section 1988 action. He now cites Rule 131 of the Rules of Civil Procedure arguing that an award of costs is mandatory to him as the “successful party” in the Section 1988 suit.  We agree that Rule 131 is applicable, but disagree with Pitts’s position on the scope of costs.

In support of his claim for costs, Pitts’s original brief cited an affidavit of his attorney,  which included a list of “costs” for which he sought recovery.  This list, which totals $2,163.80, includes items such as postage, parking, and photocopy expenses.  Costs, within the meaning of Rules 125 through 149 of the Rules of Civil Procedure, are those items in the clerk’s bill of costs.  In response to a request for an award of costs, the court’s role is to determine which party or parties is to bear the costs of court, not to adjudicate the correctness of specific items.
 Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas, Inc
., 937 S.W.2d 60, 87 (Tex.App.--Houston [14th Dist.] 1996), 
modified in
 
Operation Rescue
, 975 S.W.2d 546 (Tex. 1998); 
Reaugh v. McCollum Exploration Co.
, 140 Tex. 322, 167 S.W.2d 727, 728 (1943).  The inclusion of specific items taxed as costs is a ministerial duty performed by the clerk.  
Reaugh
, 167 S.W.2d at 728.  Correction of errors in specific items of costs is sought by a motion to retax costs.  
Id.
  

Although the allocation of costs is a matter for the trial court's discretion, and cannot be overturned on appeal unless the trial court abused its discretion, an abuse of discretion is shown when costs are not allocated according to the provisions of Rule 131, unless it makes a finding of good cause.   
University of Houston-Clear Lake v. Marsh
, 981 S.W.2d 912, 914 (Tex.App.--Houston [1st Dist.] 1998, no pet.).  Because Pitts was successful in his claim for attorney’s fees incurred in bringing the Section 1983 suit, and the trial court did not make any finding relating to good cause, he was entitled to recover court costs under Rule 131.  We sustain his first point on rehearing and modify the judgment of the trial court to award costs to him, as determined by the trial court’s bill of costs.

In his second point, Pitts argues we erred in failing to reverse the trial court’s denial of attorney’s fees in the Section 1988 suit.  He contends we did so without requiring evidence from the Board, without citing any authority and without addressing 
Cruz v. Hauck
, 762 F.2d 1230 (5th Cir. 1985).  An examination of our original opinion will reveal that we accepted Pitts’s uncontested evidence of attorney’s fees in the 1988 action as true, but found he had failed to show the law required the trial court to award those fees.  We specifically found each of the cases cited by Pitts, listed in footnote 1 of that opinion, distinguishable.  

In each case cited by Pitts, the plaintiffs sought to recover attorney’s fees expended to establish their right to attorney’s fees in prosecuting a civil rights claim enumerated by Section 1988.  That is the same recovery Pitts seeks here.  The distinction was that each of those cases, and authority they relied upon, like 
Newman v. Piggy Park Enterprizes, Inc.
, 390 U.S. 400,  88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), and 
Kirchberg v. Feenstra
, 708 F.2d 991 (5th Cir. 1983), was that the request for attorney’s fees to establish attorney’s fees was presented in the underlying civil rights claim, not as a separate cause of action.  In our original opinion, we examined the plain language of Section 1988 and found that it did not authorize an award of attorney’s fees in a suit brought independently under that section.   

Although Pitts’s claim for attorney’s fees was tried separately, the record shows that the claim was originally asserted in the Section 1983 suit and severed by the trial court.  It is not apparent from the record whether one of the parties or the trial court sought the severance.  Because the claim for attorney’s fees was asserted in the original Section 1983 suit, and subsequently severed, the case is more similar to 
Cruz
, 
Newman
, and other cases cited relied on by Pitts than an action filed solely to vindicate the rights granted by Section 1988.  

 On rehearing, Pitts cites additional cases for the proposition that the failure to award attorney’s fees for time spent in obtaining or defending a fee award is error.  They are 
Johnson v. State of Mississippi
, 606 F.2d 635 (5th Cir. 1979); 
Ustrak v. Fairman
, 851 F.2d 983 (7th Cir. 1988); and 
Clark v. City of Los Angeles
, 803 F.2d 987 (9th Cir. 1986).  Pitts suggests that our application of Section 1988 is inconsistent with “every other court” that has considered the issue.  Citing 
Clark
, 803 F.2d at 992.  Clark relied on the bankruptcy case of 
In re Nucorp Energy, Inc.
, 764 F2d 655 (9th Cir. 1985), which relied, in turn, on several federal district and circuit court opinions applying Section 1988.  These cases do not discuss the distinction relied on in our original disposition.  They do show federal courts’ construction of Section 1988 has placed greater emphasis on giving effect to its underlying purpose than to strict adherence to the language chosen by congress.  This is clear from the failure of these cases to explain why the word “may” in Section 1988 is not given its permissive, rather than mandatory, construction. 

Although we are construing a federal statute, we are not bound by the decisions of lower federal courts.  
Southwestern Greyhound Lines, Inc. v. Railroad Commission of Texas
, 128 Tex. 560, 99 S.W.2d 263, 268 (1936); 
Woodard v. Texas Dept. of Human Resources
, 573 S.W.2d 596, 598 (Tex.Civ.App.--Amarillo 1978, writ ref’d n.r.e.); 
Barstow v. State
, 742 S.W.2d 495, 510 (Tex.App.--Austin 1987, writ denied).  We are obligated to follow decisions of the United States Supreme Court on questions of federal law.  
Southwest Greyhound
, 99 S.W.2d at 268. 

When construing a statute, Texas courts have long adhered to the distinction between permissive terms such as “may” and mandatory terms such as “shall.”  
See, e.g., Inwood Homeowners Ass'n, Inc. v. Meier
, 625 S.W.2d 742, 743 (Tex.App.--Houston 1981, no writ).  
See also
 Tex. Govt. Code Ann. § 311.016 (Vernon 1998).   We are not free to rewrite the statutes created by the legislative branch of government.  
Public Utility Com'n of Texas v. Cofer
, 754 S.W.2d 121, 124 (Tex. 1988). 

Pitts has not cited, and we have not found, an opinion of the United States Supreme Court  directly addressing the right to attorney’s fees for seeking fees under section 1988.  That court’s opinion in 
Newman
, concerning a plaintiff’s right to attorney’s fees under 42 U.S.C. 2000a-3(b) is helpful.  That statute was very similar to the language of section 1988 in that it provided a court “may” award attorney’s fees and committed such award to the discretion of the trial court.  
Id. 
 The court held that a party should ordinarily recover such fees unless there are special circumstances to deny the award.  
Id.
 at 402.  Several of the cases from lower federal courts have cited 
Newman 
in construing section 1988.  Because of the similarity in language between that construed in 
Newman
 and section 1988, we agree that the cases cited by Pitts are applicable.  We also agree that the record does not show any special circumstances supporting the denial.  We sustain Pitts’s second point. 

In his third point, Pitts challenges our holding that the trial court did not reversibly err in failing to state a specific number of hours and hourly rate on which the award of attorney’s fees was based.  He cites 
Cherne Industries, Inc. v. Magallanes
, 763 S.W.2d 768 (Tex. 1989), for the proposition that the trial court “was required to make these findings.”  
Cherne
 actually held that a trial court’s refusal to make 
any
 findings of fact or conclusions of law after proper request is error.  
Id.
 at 772.  Here, the trial court filed findings of fact and conclusions of law, just not the ones Pitts wanted.  We reject Pitts’s claim that we improperly found by implication the “elements” of the reasonable hours and hourly rate.  The hours reasonably expended and the attorney’s hourly rate are not elements of a claim or defense, they are simply factors the trial court must consider in determining a “reasonable attorney’s fee.”  42 U.S.C. § 1988.  We overrule Pitts’s third point.

Pitts’s fourth point merely urges we failed to properly consider his challenges to the trial court’s findings of fact and conclusions of law.  We disagree and overrule his fourth point.

Pitts’s final point contends we erred by failing to address his “arguments on reasonableness.”   He argues that this court failed to address the reasonableness of the fees awarded in light of the result obtained.  According to Pitts, we misrepresented the extent of his success in the section 1983 suit by stating the trial court’s judgment in that action also awarded the Board $570,123.81 and offset that award with an award in favor of Pitts.  He now represents that the Board’s judgment against him predated the judgment in the section 1983 suit.  While we believe any confusion arose from Pitts’s failure to even acknowledge the existence of the Board’s judgment or the offset in his original brief, it is of no consequence whether the Board’s judgment was obtained in the section 1983 suit or was preexisting.  The record shows the Board’s judgment was worth significantly less than its face value because Pitts did not have sufficient assets to satisfy it.  It is clear the trial court chose that specific amount for the purpose of offsetting the Board’s judgment and not to compensate Pitts for actual damages.  While this judgment was of significant value to Pitts, his contention that it had the same value as a money judgment for $570,000, free of any offset, is disingenuous.  We overrule Pitts’s fifth point on rehearing.

In conformity with our disposition of his first two points, we reverse that portion of the trial court’s judgment denying Pitts recovery of costs and denying recovery for attorney’s fees in establishing his right to attorney’s fees under section 1988.  We remand to the trial court for a determination of those attorney’s fees.



John T. Boyd

 Chief Justice



Publish.

