*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-10887

Summary Calendar

_______________________

BANK ONE TEXAS NA; HARVEY MITCHELL,

Chairman of Bank One Texas, NA;

RONALD STEINHART, President of Bank

One Texas, NA,

Plaintiffs-Appellees,

versus

L.P. PATTERSON, Chairman of the

Committee on Agriculture & Livestock

of the Texas House of Representatives;

CHARLES FINNELL, Vice-Chairman of the

Committee on Agriculture & Livestock of

the Texas House of Representatives;

RENATO CUELLAR, Rep; BOB RABUCK, Rep

DAVID SWINFORD, Rep; JUDY HAWLEY, Rep;

TRACY O. KING, Rep; BARBARA RUSLING, Rep;

GARY WALKER, Rep,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:93-CV-1081-G)

_________________________________________________________________

July 10, 1997

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2

Bank One filed suit under the Federal Declaratory

Judgment Act (DJA), 28 U.S.C. §§ 2201-02, and the Texas DJA, TEX.

CIV. PRAC. & REM. CODE §§ 37.001 et. seq., against members of the

Texas House Committee on Agriculture and Livestock to enjoin the

enforcement of legislative subpoenas. The Texas legislators appeal

the district court’s award of attorney’s fees against them.

Federal courts follow the American Rule in the absence of

fee-shifting congressional legislation. See Alyeska Pipeline Serv.

Co v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S. Ct. 1612, 1616

(1975). Bank One argues it is entitled to attorney’s fees under

both declaratory judgment acts based on the provision under §

37.009 of the Texas DJA for the discretionary award of attorney’s

fees. 

As this court has noted, however, § 2202 of the Federal

DJA “does not by itself provide statutory authority to award

attorney's fees that would not otherwise be available under state

law in a diversity action.” Mercantile Nat'l Bank v. Bradford

Trust Co., 850 F.2d 215, 218 (5th Cir.1988). Moreover, although

the Texas DJA expressly provides for attorney’s fees, the statute

functions solely as a procedural mechanism for resolving

substantive “controversies which are already within the

jurisdiction of the courts.” Housing Authority v. Baldez, 841

S.W.2d 860, 864 (Tex. App.--Corpus Christi 1992, writ denied).
3

Texas procedure does not govern federal question cases in federal

courts.

In Self-Insurance Institute of America v. Korioth, 53

F.3d 694 (5th Cir. 1995), this court noted that “a party may

recover fees in a federal declaratory judgment action where

‘controlling substantive law’ permits such recovery. . . . The

Texas DJA is neither substantive nor controlling.” Id. at 697

(internal citation omitted). As in Korioth, Bank One may not rely

on the Texas DJA because its preemption argument is based on

federal question jurisdiction under 28 U.S.C. § 1331, “not

diversity where state law applies.” Korioth, 53 F.3d at 697. 

Bank One has failed to show it is entitled to attorney’s fees

under an applicable fee-shifting statute. Accordingly, the district

court erred in awarding attorney’s fees to the plaintiffs, and the

judgment is REVERSED.