By Victoria Whitehead, HPWD General Counsel
Under current statute, a judge is required to award attorney’s fees to a groundwater conservation district (GCD) when a GCD prevails in litigation. This stands for both general litigation involving a GCD, as well as GCD enforcement actions. There are no other provisions under Chapter 36, Texas Water Code, for any other party to recover their attorney’s fees.
This week, HPWD offered support for two bills that address this inequity:
House Bill 2125 by Representative Burns removes the court’s requirement to grant attorney’s fees to a GCD, and instead makes the award of attorney’s fees discretionary. While the original legislation had a cap set at $100,000, the Committee Substitute introduced April 2nd, removes the cap. HB 2125 does not alter the award of attorney’s fees for enforcement actions.
Senate Bill 851 by Senator Perry would change the current process and allow the prevailing side to seek attorney’s fees from the court. It further states that the court may grant reasonable and necessary attorney’s fees in an amount that the court considers is equitable and just, but not to exceed $250,000. For enforcement actions involving a GCD, SB 851 allows the prevailing side to recover attorney’s fees, but does not include a $250,000 cap.
While many GCDs in the state do not support these efforts, the HPWD Board of Directors firmly believe this legislation is a good balance for all parties, as it removes some barriers that landowners may encounter when they believe a GCD is not adequately protecting their groundwater.
HPWD provided testimony on SB 851. The testimony given by General Counsel Victoria Whitehead can be found at 02:10:50: http://tlcsenate.granicus.com/MediaPlayer.php?view_id=45&clip_id=14092