                                   NO. 07-08-0072-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                  SEPTEMBER 25, 2009

                          ______________________________


           TERESA BATES, AS THE PERSONAL REPRESENTATIVE OF
        THE ESTATE OF KEVIN BATES, AND JOE REYNERO, APPELLANTS

                                             V.

                            RANDALL COUNTY, APPELLEE

                        _________________________________

            FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

                   NO. 56,384-B; HONORABLE RON ENNS, JUDGE

                         _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                      CONCURRING AND DISSENTING OPINION


       By this appeal, Appellants contend the trial court erred by not awarding them more

attorney’s fees. Appellee, by its cross appeal, contends the trial court erred (1) in denying

the its motion for JNOV, and (2) in not awarding attorney’s fees to it pursuant to Texas
Local Government Code section 89.004(b).1 I respectfully dissent from the majority’s

disposition of Appellants’ issue; agree with the disposition of Appellee’s first issue; and,

while concurring in the disposition of the third issue, write separately to express my view

regarding whether attorney’s fees should be considered part of the recovery for purposes

of section 89.004(b). I will address my concerns in reverse order.


                          Texas Local Government Code § 89.004(b)


        Appellee contends the trial court erred by not awarding it attorney’s fees, pursuant

to section 89.004(b), because Appellants did not recover more as a result of their suit than

Appellee offered them in settlement of their claims. As the majority notes, this appears to

be an issue of first impression.


        As a part of its reasoning, the majority rejects Appellants’ contention that they did,

in fact, recover more under the judgment than Appellee offered them in settlement of their

claims. Appellants’ contention is premised on a construction of section 89.004(b) that

would include attorney’s fees as part of the “recovery” to be compared to the settlement

offer made by Appellee on presentation of the claim. Because I agree with our sister

courts that section 89.004(a) does not apply to actions brought under the Texas

Whistleblower Act, see Upton County v. Brown, 960 S.W.2d 808, 819 (Tex.App.–El Paso

1997, no pet.), Gregg County v. Farrar, 933 S.W.2d 769, 772 (Tex.App.–Austin 1996, writ


       1
       See Tex. Loc. Gov’t Code Ann. § 89.004(b) (Vernon 2008). For convenience, provisions of the Local
Governm ent Code will be cited throughout this opinion sim ply as “section ____” or “§ ____.”

                                                   2
denied), I would not offer an opinion as to whether entitlement to attorney’s fees is a part

of either the original presentation of the claim or the recovery for purposes of the

comparison contemplated by section 89.004(b). See Tex. R. App. P. 47.1 (appellate

opinions should address issues necessary to final disposition of the appeal).


                          Award of Appellants’ Attorney’s Fees


       The majority concludes that the trial court abused its discretion in its award of

attorney’s fees to Appellants because the trial court awarded only a fraction of the fees

requested without any evidentiary basis for the reduction appearing in the record. I

respectfully disagree.


       A public employee whose employment is suspended or terminated or is subject to

an adverse personnel action in violation of section 554.002 of the Texas Government Code

is entitled to recover reasonable attorney’s fees. Tex. Gov’t Code Ann. § 554.003(a)(4)

(Vernon 2004). A party seeking recovery of attorney’s fees must prove the fees were both

reasonable and necessarily incurred in the prosecution of the case and ask the fact finder

for a specific dollar amount.     Lubbock County v. Strube,        953 S.W.2d 847, 857

(Tex.App.–Austin 1997, pet. denied). In reaching the dollar amount, the factfinder must

consider the following factors:


       (1) the time and labor required, the novelty and difficulty of the questions
       involved, and the skill required to perform the legal service properly;



                                             3
       (2) the likelihood . . . that acceptance of the particular employment will
       preclude other employment by the lawyer;

       (3) the fee customarily charged in the locality for similar legal services;

       (4) the amount involved and the results obtained;

       (5) the time limitations imposed by the client or by the circumstances;

       (6) the nature and length of the professional relationship with the client;

       (7) the experience, reputation, and ability of the lawyer or lawyers
       performing the services; and

       (8) whether the fee is fixed or contingent on results obtained or uncertainty
       of collection before legal services have been rendered.


Id. at 858 (quoting Tex. Disciplinary R. Prof. Conduct 1.04, reprinted in Tex. Gov’t Code

Ann., tit. 2, subtit. G app. (State Bar Rules, art. X, § 9)).


       An appellate court reviews a trial court’s decision to either grant or deny attorney’s

fees under an abuse of discretion standard, and we review the amount of the attorney’s

fees awarded under a legal sufficiency standard. Hertzberg v. Austin Diagnostic Clinic

Ass’n, P.A., ___S.W.3d___, No. 03-07-0072-CV, 2009 WL 2913620, at *6

(Tex.App.–Austin, Sept. 11, 2009, no pet. h.). In determining whether there is legally

sufficient evidence to support the finding under review, a reviewing court must view the

evidence in a light most favorable to the judgment, indulging every reasonable inference

that supports it, but the court may not disregard evidence that allows only one inference.

City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The trier of fact is the sole

judge of the credibility of the witnesses and of the weight to be given to their testimony.

                                               4
Id. at 819. The reviewing court may not substitute its judgment for that of the fact finder,

so long as the evidence falls within the zone of reasonable disagreement. Id. at 822. The

final test for legal sufficiency must always be whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review. Id. at 827.


       In this case, all parties agreed to submit the issue of attorney’s fees to the court.

Appellants’ attorneys each submitted itemized billings together with supporting affidavits.

Clearly, Appellants offered legally sufficient evidence to support the trial court’s attorney’s

fee awards of $15,000 to Bates and $10,000 to Reynero. Accordingly, I would overrule

Appellants’ sole issue and affirm the judgment of the trial court.




                                                   Patrick A. Pirtle
                                                       Justice




                                              5
