JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Aus!,“, TX. 76711. 2546 

512,4752501 

Telex 910/674-1367 

TelecoDier 51214750266 

714 Jackson. Suite 700 

Dallas. TX. 752024606 

2141742.6944 

4624 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

9151533.3464 

1001 Texas, Suite 700 

Houston, TX. 77002-3111 

71 W223.5886 

606 Broadway, Suite 312 

Lubbock, TX. 79401-3479 

606/747.5236 

4309 N. Tenth, Suite 8 

McAllen, TX. 76501-1665 

5121662.4547 

200 Main Plaza, Suite 4M) 

San Antonio, TX. 70205-2797 

51212254191 

An Equal OppOrtUnitYI 

Affirmative Action Employer 

The Attormy General of Texas 

December 30, 1985 

Honorable Frank Tf:jeda 

Chairman 

Comittee on Judic:i,al Affairs 

Texas House of Relmresentatives 

P. 0. Box 2910 

Austin, Texas 78769 

Opinion No. JM-409 

Re: Whether court costs and 

attorney fees may be excluded 

in detemining the "amount in 

controversy" in justice and 

county courts 

Dear Repre8entatiT.e Tejeda: 

The statutes which establish the arnount in controversy for jurisdictional purposer in civil cases in county courts and justice courts, 

articles 1949 and 2385, V.T.C.S., respectively, presently fix a 

minimum and maximums dollar amount in controversy and specify that the 

amount shall be n exclusive of interest." You ask whether the Texas 

Constitution permj.ts the legislature to amend articles 1949 and 2385 

to exclude court costs and attorney fees from the determination of the 

amount in controversy. 

County court:3 which are created by the Texas Constitution and 

justice courts hare a jurisdictional amount in controversy which is 

set by articles 1949 and 2385 in accord with the Texas Constitution. 

ZTex. Const. art. V, 516 (county courts); 819 (justice courts). In 

contrast, the jur,isdictional amount in controversy for statutory 

county courts depa?nds upon the language of the statutes which create 

the particular &urts. See Amigo- Rilicopters, Inc. v. Jones, 488 

S.W.2d 473 (Tex. Civ. Apt- Houston 114th Dist.] 1972, no writ). 

Both section 16 and section 19 of article V specify certain minimum 

and maximum jurisdictional amounts that shall be determined "exclusive 

of interest." As indicated, 

this language. 

articles 1949 and 2385 expressly echo 

Ycu ask whether these articles may be amended to read 

"exclusive of interest, costs, and attorney fees." 

As presently interpreted pursuant to these provisions, the jurisdictional amount i,n controversy in both types of courts does not 

include costs. Ccsts have traditionally been deemed to be no part of 

the amount in con:roversy in litigation and have not been considered 

in determining the jurisdiction of the courts. National Life and 

Accident Insurance Co. v. Ralfin, 99 S.W.2d 997 (Tex. Civ. App. -.San 

Antonio 1936, *o-writ). For these reasons, the legislature may 

clearly codify existing law with regard to court costs by amending 

articles 1949 and 2385 to specify that court costs shall not be 

p. 1871 
Honorable Frank Tejeda - Pzig;e 2,(JM-409) 

considered in computing thf! amOunt in controversy. See V.T.C.S. art. 1 

(legislature may codify or c:hange common law). - 

The term "costs" does not ordinarily include attorney fees; there 

is 'no common-law right to 'recover attorney fees from an opponent in 

z. l:exas Industries, Inc., 414 S.W.2d 914 -- 

2d 870 (Tex. Civ. App. 

Co. v. Aztec Equipment Co., 582 

- San Antonio 1979, no writ); Norman v. 

Safway Products, Inc., 404 S.W.2d 69 (Tex. Civ. App. - Dallas 1966, no 

writ). Attorney fees may be recovered only when a valid basis exists 

litigation as a part of c:osts. See Johnson v. Universal Life and 

Accident Insurance Co?, 94 S.W.2dT145 (Tex. 1936); see also New 

Amsterdam Casualty Cc iTZ 

1967); Bakery Equipment ard.Service 

S.W. 

for claiming attorney feelr either by statute or contract. See New 

Amsterdam Casualty Co. v. Texas Industries, Inc., supra. 

-- 

There is a 

divergence among the stat;, as to whether attorney fees which are 

recoverable as a matter of l.aw are to be used in computing the amount 

in controversy absent a statute which makes such fees expressly 

excluded from the jurisdict,ional amount. See Annot., 167 A.L.R. 1243, 

1247 (1947). It is well settled in Texasthat when attorney fees are 

provided for by statute or contract, a demand for attorney fees in a 

petition constitutes a par<: of the amOunt in controversy in civil 

cases in both county and justice courts, and is considered in determining such amount for jrn:isdictional purposes. Long v. Fox, 625 

S.W.2d 376. 378 (Tex. Civ. Aoo. . . - San Antonio 1981. writ ref'd n.r.e.) 

(county court); seeNationsi Life and Accident Insurance Co. v. Moore, 

104 S.W.2d 897 (Tex. Civ. App. - Austin 1937, no writ) (statutory 

attorney fees in justice cc'urt); Jones v. McKinney, 224 S.W. 720 (Tex. 

Civ. App. - Dallas 1920, no writ) (contractual attorney fees in 

justice court). 

The courts in Texas have traditionally treated attorney fees as 

different in nature from c:asts. Contractual attorney fees have been 

considered a part of the amount in controversy as an element of 

damages. Similarly, statutzas which provide for attorney fees create a 

new cause of action or a ner part of a cause of action. A long line 

of cases has held that attorney fees constitute a part of the amount 

in controversy despite ritatutory provisions which indicate that 

attorney fees shall be taxe.d as costs, but these cases do not state 

that the legislature may 'v,t constitutionally exclude attorney fees 

from the jurisdictional z:.ount. See, e.g., United States Finance 

V. Quinn, 149 S.W.2d !.48 (Tex. Civ. App. - Galveston 1941. writ 

civ F East Texas zitle Co. v. Par&&, 116 S.W.2d 497.(Tex. 

. - Texarkana 1938. writ dism'd w.o.i.1: Washinaton National 

Insurance Co. v. Guadalupa& Funeral Home, 109 ~-~' S:W.2d 1002 (Tex. Civ. 

APP. - Beaumont 1937, no wFt);. Maryland Casualty Co., 105 

S.W.2d 376 (Tex. Civ. App. .- Beaumont 1937, no writ); National Life h 

Accident Insurance Co. v. 'Moore, 104 S.W.2d 897 (Tex. Cf .v . .APP. - 

Austin 1937, no writ); NzItional Life & Accident Insurance Co; v. 

Halfin, 99 S.W.2d 997 (Tz: - Civ. App. 

Callaway v. Gulf States L:.f'e Insurance Agency, 51 S.W.2d 1070 (Tex. 

Civ. App. - El Paso 1932, no writ); see also Provident Insurance Co. 

p. 1872 
, 

Honorable Frank Tejeda - Page 3 (JM-409) 

v. Browning. 157 S.W.2d 971 (Tex. Civ. App. - Eastland 1941, no writ); 

Reid v. Ramsey, 143 S.W.2ii 793 (Tex. Civ. App. - Waco 1940, no writ); 

Eanes v. Haynes, 135 S.W.2d 190 (Tex. Civ. App. - Eastland 1939, no 

writ); M&night v. Washinglou National Insurance Co., 131 S.W.2d 1072 

(Tex. Civ. App. - Dallrts 1939, no writ). This line of cases 

originated from the Commission of Appeals decision in Johnson v. 

Universal Life and Accide;: Insurance Co., w The Johnson case 

suggests that this rule is .the result of statutory constmction: 

the [statute] doe!3 not change the right to recover 

attorney's fees, but only says that they shall be 

taxed as part of ,the costs. 

. . . . 

The amended act does not say that in ascertaining the anount in controversy, for jurisdictional purposes, the attorney’s fees shall not be 

considered. (Emphasis in original). 

94 S.W.2d at 1146; see illso Johnson v. Universal Life h Accident 

Insurance Co., 96 S.Wmfc676 (Tex. Civ. App. - Eastland 1933, no 

writ). The various statutes which uresentlv authorize recoverv of 

attorney fees in specified cases do not expressly require that they be 

computed as part of the amount in controversy. Nevertheless, none of 

these cases required the courts to address directly the constitutional 

issue raised by your requelst. 

The only language in ~;ections 16 and 19 of article V of the Texas 

Constitution which addreszr the manner in which the amount in controversy is to be detemined states that it shall be determined 

"exclusive of interest"; the provision does not expressly require that 

attorney fees be included in the amount in controversy. No other 

provisions of the Texas Constitution address the manner in which the 

amount in controversy is to be computed. As indicated, however, at 

the time the constitutional provision was initially drafted, costs 

were never computed as .?art of the amount in controversy while 

attorney fees were computed as part of the amount. There existed no 

need to expressly address the inclusion or exclusion of these items in 

the amount or value in controversy. Although the express exclusion of 

interest from the computation need not be interpreted as en implied 

prohibition on a legislative exclusion of costs and statutory attorney 

fees from the computation of the amount in controversy, the meaning of 

the "amount in controvemy" which was in effect at the tine the 

provision was adopted sh,>uld control. The amount in controversy 

excluded costs but included attorney fees. 

At least one case in Texas has indicated that the rule is one 

that originates with the t,onstitution itself. See De Busk v. Quest, 

290 S.W.2d 569, 571 (Tex. Civ. App. - Amarill~956, writ dism'd). 

The court in De Busk v. Cu.est L- held that attorney fees constitute a 

p. 1873 
Eonorabla Frank Tejeda - Pqle 4 (Ji+409) 

1 

part of the amount in conl:roversy In civil suits in county courts as 

established by article V, mction 16 of the Texas Constitution. Id. 

The case also suggests that the amount in controversy established for 

civil suits in justice ccurts by article V, section 19 includes 

attorney fees. This is consistent with the treatment of attorney fees 

as different in nature from costs. 

Moreover, the jurisdiction of a court over the person, over the 

res, and over the subject 'matter in controversy are not affected by 

the amount in controversy. The amount In controversy is usually the 

controlling factor in determining jurisdiction among the various 

courts. The proposed amerkments could be viewed as expanding, as a 

practical matter, the jurf,sdictional amount of the county courts and 

justice courts. Accordinfly, constitutional limits on the legislature's power to change ~thf: jurisdiction in county courts and justice 

courts are instructive. 

Article V, section 1 of the Texas Constitution specifies the 

courts that are to exercise the state's judicial power. These courts 

include constitutional county courts and justice courts. The last 

paragraph of section 1 states: 

The Legislature may establish such other courts 

as it may deem necessary and prescribe the jurisdiction and orga1:lratlon thereof, and may conform 

the jurisdiction of the district and other inferior courts the?&. (Emphasis added). 

Section 1 authorizes the legislature to create additional courts and 

to "conform the jurisdiction of the district and other inferior courts 

thereto"; the provision does, not authorisa the legislature to withdraw 

jurisdiction which is granted constitutionally to a court. Lord v. 

Clayton, 352 S.W.Zd 718 Tex. 1961); Reasonover v. Reasonover, 58 

S.W.2d 817 (Tex. 1933). Pha Texas Constitution contains provisions 

which specifically authorize certain changes in the jurisdiction of 

county courts and justice c.c'urts. 

Artfclc V, section 16 fixes the minimum and maximum amount in 

controversy for various types of suits in county court. Article V, 

section 22 provides: 

The Legislatu!:e shall have power, by local or 

ganeral law, to &crease, diminish or change the 

civil and crimin;? jurisdiction of Couaty Courts; 

and in cases of any such change of jurisdiction, 

the Legislature shall also conform the jurisdiction of the other courts to such change. 

(Emphasis added). 

Section 22 has been const:nled liberally by the courts to allow the 

legislature to change the jurisdiction of the county courts. See - 

p. 1874 
E 

Honorable Frank Tejeda - Pa,ge 5 (x-l-409) 

Gulf, W.T. & P. Railway Co.-". Fromma, 84 S.W. 1054, 1056 (Tex. 1905); 

Stavely v. Stavely, 94 S.W.2d 545, 546 (Tex. Civ. App. - Eastland 

1936, writ dism'd w.0.j.); see also King v. State, 255 S.W.2d 879 

(Tax. Grim. App. 1953) (withdrawal of criminal jurisdiction); Rogers 

v. Graves, 221 S.W.2d 399 (Tex. Civ. App. - Waco 1949, writ ref'd) 

(withdrawal of civil jurisdiction); cf. State v. Gillette's Estate, 10 

S.W.2d 984 (Tax. 1928) (sc:ction 22does not authorize withdrawal of 

probate jurisdiction from the county court; for changes in probate 

jurisdiction, see art. V, 58). However, the cases do not hold that 

the legislaturemay change the jurisdictional amount which is fixed by 

the constitution. If the Legislature could change the jurisdictional 

amount in constitutional county courts and justice courts there would 

be little need for such an amount to be set in the constitution. 

In one case, Campsey 'T, Brumley, 55 S.W.2d 810 (Tex. 1932), 'the 

Commission of Appeals statled in dicta that article V. section 22 

authorized the legislature to enact a statute which conferred original 

jurisdiction on a particular county court in civil cases, where the 

amount in controversy was less than the minimum amount fixed in the 

constitution. The court dLd not address the constitutional issue of 

whether this statute amount,ed to the legal equivalent of changing the 

jurisdictional amount which is fixed by the Texas Constitution. 

Nevertheless, regardless of whether the exclusion of attorney fees 

from the computation of the amount In controversy is the equivalent of 

changing the constitutionally fixed amount in controversy, we conclude 

that the term "amount in :ontroversy" encompasses attorney fees but 

not costs. 

Article V, section 19 provides for civil jurisdiction in justice 

courts as follows: 

Justices of the peace shall have . . . exclusive jurisdiction in civil matters of all cases 

where the amount in controversy is two hundred 

dollars or less, exclusive of interest, unless 

exclusive original jurisdiction is given to the 

District or Coun:y Courts, and concurrent jurisdiction with the County Courts when the matter in 

controversy excec:ds two hundred dollars and does 

not exceed five hundred dollars, exclusive of 

interest, unless exclusive jurisdiction is given 

to the County Courts, and, as provided by law, 

when the matter' in controversy exceeds five 

hundred dollars, concurrent jurisdiction with both 

the County Court,3 and the District Courts in an 

amount not to excised one thousand dollars exclusive of interest, unless exclusive jurisdiction is 

given to the County Courts or the District Courts; 

and such other jurisdiction, criminal and civil, 

as may be providtz: by law, under such regulations 

p. 1875 
Honorable Frank Tejeda - Page 6 (JM-409) 

as may be pre+ibed by law. . . . (Emphasis 

added). 

Subject to certain limits, section 19 authorizes the legislature to 

give justice courts addit:lonal jurisdiction. Nevertheless, the constitutional ConstNction cf the term "amount in controversy" applied 

to article V, section 16 should also be applied to this section. See 

De Busk v. Quest, 290 S.W.:!d at 571. Accordingly, the Taxas ConstiG 

tion prohibits the legislt.ture from amending article 2385 to exclude 

attorney fees from the ccmputation of the amount in controversy in 

civil cases In justice cou~:ts. 

SUMMARY 

The legislatcre may amand articles 1949 and 

2385, V.T.C.S., t:o exclude court costs from the 

computation of the amount in controversy in county 

courts and just:lce courts, respectively, without 

violating the Texa,s Constitution. Because attorney 

fees differ in nitt:ure from court costs, the legislature may not ccnstitutionally enact amendments to 

exclude attorney :iees from the computation of the 

amount in controversy without corollary constitutional amendments. 

gzMATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney Gelera 

MARY KELLER 

Executive Assistant Attornqy General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jennifer Riggs 

Assistant Attorney.General 

p. 1876