Mr. William M. Hale Opinion No. JM-1145
Executive Director
Texas Commission on Human Rights Re: Construction of the
P. 0. BOX 13493, Capitol Station term "prevailing party" un-
Austin, Texas 78711 der V.T.C.S. article 5221k
(RQ-1819)
Dear Mr. Hale:
You ask about the proper interpretation of a provision
that provides for the award of attorney's fees to the
"prevailing party" in an action brought under the Texas
Commission on Human Rights Act, article 5221k, V.T.C.S.
Specifically, you ask whether the term "prevailing party"
should be interpreted in the same way it has been inter-
- preted for purposes of Title VII of the federal Civil Rights
Act of 1964.
The Commission on Human Rights Act prohibits certain
types of employment discrimination. V.T.C.S. art. 5221k,
§§ 5.01-5.05. One of the purposes of the act is "to provide
for the execution of the policies embodied in Title VII of
the federal Civil Rights Act of 1964, as amended (42 U.S.C.
Section 2000e et sea.)." Id. § 1.02(l).
Under the Texas statute , ~complaints alleging unlawful
employment practices may be filed with the Commission on
Human Rights. Id. 5 6.01(a). The act sets out
administrative steps to be taken in response to a complaint.
& art. 6. Depending on the results of the administrative
action, either the commission or the complainant may bring a
civil action. Id. 5 7.01(a). Section 7.01(e) of the act
provides, in part:
In any action or proceeding under this
Act, the court in its discretion may allow
the prevailing party, other than the commis-
sion, a reasonable attorney#s fee as part of
the costs. The state or an agency or a
political subdivision of the state is liable
for costs, including attorney's fees, to the
same extent as a private person.
Mr. William M. Hale - Page 2 (JM-1145)
The federal Civil Rights Act of 1964 contains similar
language:
In any action or proceeding under this
subchapter the court, in its discretion, may
allow the prevailing party, other than the
Commission or the United States, a reasonable
attorney's fee as part of the costs, and the
Commission and the United States shall be
liable for costs the same as a private
person.
42 U.S.C. 5 ZOOOe-5(k). ,:" wistianbura Garm nt Co. vr
zn
F , 434 U.S. 212 (1978)
the Supreme Czurt defined "prevzilinh party" for purposes 0;
that section. First, the court noted that it was already
established that under section 706(k) of Title VII a
prevailing plaintiff was to be awarded attorney's fees in
all but special circumstances. 434 U.S. at 417-18. The
court then determined that a defendant should be awarded
attorney#s fees if the plaintiff's claim was frivolous,
unreasonable, or groundless, or if the plaintiff continued
to.litigate after it clearly became so. 434 U.S. at 422.
You ask whether "prevailing party" in the Texas statute
should be construed in the same way.
The Texas Supreme Court has held that when a statute is
adopted from another jurisdiction, the construction made 'by
the courts of that jurisdiction prior to the adoption may be
looked to and given great weight. Blackm n v. Hansen 169
S.W.2d 962, 964-65 (Tex. 1943). In this' case the 'Texas
legislature did more than merely model its s&tute on a
federal statute. The legislature stated expressly that one
of the purposes of the Commission on Human Rights Act was to
provide for the execution of the policies embodied in Title
VII of the federal Civil Rights Act of 1964. The Supreme
Court issued Christianburq in 1978, five years before the
~Texas legislature enacted the Commission on Human Rights
Act. Therefore, we conclude that the policies the
legislature intended to incorporate in the state act include
Supreme Court constructions of the term "prevailing party"
for purposes of the federal act that were announced before
the enactment of the Texas act. Therefore, "prevailing
party" in section 7.01(e) of article 5221k is to be con-
strued in the same way that the United States Supreme Court
construed "prevailing party" in Christianburq.
P. 6049
Mr. William M. Hale - Page 3 (JM-1145)
SUMMARY
"Prevailing party" in section 7.01(e) of
article 5221k is to be construed in the same
way that the United States Supreme Court con-
strued "prevailing party" in Christianburg
ly
,omm'n: 43; v".S. 412 $978;.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RENEA HICKS
P Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
P. 6050