It can take years for state lawmakers to address controversial decisions from the Texas Supreme Court. But this year, it took four days.
Quick work by an Austin lawyer/lobbyist in the waning days of the 83rd regular legislative session resolved concerns family court judges had about a recent high court ruling they believe alters payment of attorney fees after entry of a divorce decree.
The high court handed down Michael Robert Tedder v. Gardner Aldrich on Friday, May 17. That decision caused immediate alarm among a group of Harris County family court judges, because the decision noted that attorney fees are not "necessaries" under Texas Family Code §2.501. Several trial court judges say they have been using Family Code §2.501 to order one spouse to pay another spouse's attorney fees out of the community estate, a practice the high court rejected in Tedder.
"We have suggested that a spouse's necessaries are things like food, clothing, and habitation — that is, sustenance — and we have squarely rejected the view that a spouse's legal fees in a divorce proceeding fall into this category," Justice Nathan Hecht wrote in the 8-0 opinion.
Over the weekend following the release of Tedder, Steve Bresnen, a lawyer/lobbyist for the Texas Family Law Foundation, drafted an amendment to a family law bill pending in the Texas Senate.
Bresnen argues that Tedder creates an "absurd" situation, in which the Texas Family Code would let trial court judges order one spouse to pay another's attorney fees out of the community estate on an interim basis or in cases involving children, but not in cases in where the only dispute between parties is property and attorney fees are requested as part of a final judgment.
"Obviously, we think the court was just wrong," says Bresnen, an Austin solo. "It created an absurd situation where you could get fees right up to the judgment, you get fees on appeal and fees in a fight over children, but you couldn't get them in final divorce."
On Tuesday, May 21, Bresnen convinced State Sen. Jose Rodriguez, D-El Paso, to amend H.B. 1366 to give trial court judges broad discretion to award attorney fees out of the community estate.
The bill amends Family Code §6.708 to allow a court to award "reasonable attorney's fees and expenses. The court may order the fees and expenses and any post judgment interest to be paid directly to the attorney, who may enforce the order in the attorney's own name by any means available for the enforcement of a judgment for debt."
The full Senate accepted the last-minute amendment and approved the bill on May 21. It went to the governor's desk on May 27.
"We had to do that, because the session was expiring rapidly at that point, and there were lots of things on the major calendar agenda," says Bresnen, who has represented the Family Law Foundation for three sessions. "Obviously there are court decisions that the Legislature responds to, but I've never seen it happen that fast."
"I've never seen them do it in four days. I told someone I'm going to claim the record," Bresnen says.
"I can't say enough for Sen. Rodriguez," Bresnen says, noting Rodriguez's explanation for the amendment on the Senate floor.
Rodriguez, the Senate sponsor of the bill, says he offered the amendment to help spouses who could not afford an attorney and to clarify that trial courts have broad authority to award attorney fees at the conclusion of a divorce.
"In this case, the timing was just right, because the Supreme Court decision came out on a Friday, and the next week was going to be the end of the session, and I had H.B. 1366 coming up for a vote," Rodriguez says. "It was purely an issue of timing. If the decision came out a week later, I would not be talking to you. We would not have been able to get amendment."
After HB 1366 passed, six Harris County family court judges sent Gov. Rick Perry a letter on May 30, urging him to sign the bill.
"There is a real concern in our cases that, if there is a question as to whether a court can award attorney fees to one spouse against the other, lower income litigants will be denied access to justice because they cannot afford to pay an attorney up front, and there is a risk that legal fees at the end of the case will not or cannot be treated as necessaries and therefore taxed against the other party," wrote 312th District Judge David Farr, 245th District Judge Roy Moore, 311th District Judge Denise Pratt, 309th District Judge Sherri Dean, 257th District Judge Judy Warne and retired District Judge Doug Warne, in the letter to Perry.
On June 14, Perry signed H.B. 1366, a law that will go into effect on Sept. 1, 2013.
Warne says the bill alleviates her and her fellow judges' concerns and confusion about the reach of Tedder.
"If there were any wording concerns, I think the Legislature has taken care of it. It seemed to be perfect on everything, " Warne says of the bill. "[I]t's nice to know that the statute authorizes what we are doing."
Farr is also pleased that the governor signed the bill. Farr says he previously altered an attorney fee award in a case because of Tedder. The big concern Farr had about the decision is its application in cases in which one spouse hires an attorney and the other represents himself or herself pro se.
"If I hire an attorney at $300 an hour and the wife goes pro se and runs up the bill, how is it fair or equitable to pay the other side's fees when she ran up the bill? That's really the issue," Farr says. "And we're seeing that more and more — the pro se doesn't pay a dime. Why should the other side pay their attorneyfor a hearing that lasts four hours?"
However, David Sweat, an Arlington solo who represents Michael Tedder, the litigant who prevailed in the high court's decision, does not believe the decision altered a trial court's discretion to tax an opposing party's legal fees against the community estate. Rather, he believes the force of the decision holds that it is improper for a law firm to intervene in a divorce case to recover its attorney fees.
Steven Hayes, a Fort Worth solo who represents the law firm appellee Gardner Aldrich in the case, declines comment.
Even though H.B. 1366 is becoming law, the Family Law Section of the State Bar of Texas still has concerns about Tedder and will file an amicus brief at the high court urging rehearing, says Sherri Evans, who chairs the section. The section would like the high court to address its concerns over the definition of "necessaries" under the Family Code.
"There is a whole long line of case law that [address what] should be included as necessaries," says Evans, a shareholder in Koons Fuller in Houston. "And that's one of the things they want to clear up."