In the Interest of M.A.M, a Child

Dallas Court of Appeals, No. 05-14-00040-CV (October 8, 2015)

Justices Lang, Stoddart (Opinion), and Schenck

Texas Rule of Civil Procedure 143 provides that a party seeking affirmative relief may be required to give security for “costs” before final judgment on motion of any party, officer of the court, or the court upon its own motion. In connection with a Mother’s counter-petition to modify the parent-child relationship, filed after Father sought to recoup excess child support payments, the trial court ordered the Father to pay Mother’s attorney’s fees as costs under Texas Rule of Civil Procedure 143. When Father did not pay the attorney’s fees as ordered, the trial court dismissed Father’s claims for affirmative relief and granted Mother’s counter-petition to modify.

On appeal, the Dallas Court once again adhered to established Texas precedent that “costs” do not include attorney’s fees. Drawing upon the Supreme Court’s recent decision in Nalle Plastics, the Court explained that the term “costs” ordinarily refers to fees or compensation fixed by law and collectible by officers of the court in the discharge of their official duties; it does not include attorney’s fees, which are recoverable only when provided for by contract or statute. In this instance, Mother had not pleaded a statutory basis for the fees under Texas Family Code § 156.005, which authorizes attorney’s fees in modification suits only if the court finds that the suit was frivolous or filed for the purpose of harassment. Also, the general attorney’s fees provisions for SAPCR cases, Family Code § 106.002, did not support the award of fees, because that statute was amended in 2003 to specifically delete language that had included fees “as costs.”

The appeals court therefore ruled that the trial court abused its discretion in striking Father’s pleadings under Rule 143 and granting Mother’s requested modification, and remanded the case for further proceedings.