OPINION ON MOTION FOR REHEARING
In the opinion, we did not consider the merit of appellees’ cross-points, which complained that the trial court erred, or abused its discretion, by failing to award appellees’ $35,000.00 in attorney’s fees. We held the cross-points were not preserved. By Motion for Rehearing, the ap-pellees’ urge that the cross-points were in fact preserved because they requested the $35,000.00 for attorney fees in the motion for judgment filed with the court. We now hold that this was sufficient to preserve the claimed error. See Tex.R.App.P. 52(a); Larrumbide v. Doctors Health Facilities, 734 S.W.2d 685, 694 (Tex.App.—Dallas 1987, writ denied).
At trial the jury was not given an issue on attorney fees. Instead the matter was presented to the trial court. No findings of facts or conclusions of law were requested or filed with the trial court.
By cross-point the appellees complain that the trial court erred in not awarding attorney fees under Tex.Civ.Prac. & Rem. Code Ann. § 16.034 (Vernon 1986). This section provides in part:
In a suit for the possession of real property between a person claiming under record title to the property and one claiming by adverse possession, if the prevailing party recovers possession of the property from a person unlawfully in actual possession, the court may award costs and reasonable attorney’s fees to the prevailing party. Tex.Civ.Prac. & Rem.Code § 16.034(a). (Emphasis added)
The issue now before us is whether the statute requires the trial court to award attorney fees, or whether such award is left to the trial court’s discretion.
Appellees assert that the creation of the statute allowing attorney fees in adverse possession suits was based on Tex.Rev.Civ.Stat. art. 2226 (now codified at Tex.Civ.Prac. & Rem.Code § 38.001 (Vernon 1986). Appellees argue that since art. 2226 has been construed as being mandatory, section 16.034 should also be construed as being mandatory. Arguelles v. Kaplan, 736 S.W.2d 782 (Tex.App.—Corpus Christi 1987, writ ref’d n.r.e.) (construing Tex.Civ. Prac. & Rem.Code § 38.001 to be mandatory); Gerdes v. Mustang Exploration Co., 666 S.W.2d 640 (Tex.App.—Corpus Christi 1984, no writ) (construing art. 2226 to be mandatory). We disagree. Section 16.034 states “the court may award costs and reasonable attorneys fees to the prevailing party.” In construing the statute, we use Chapter 311 of the Texas Government Code. Civ.Prac. & Rem.Code Ann. § 1.002. The Government Code provides “words and phrases shall be read in context and construed according to the rules of grammar and common usage.” Tex.Gov’t.Code Ann. § 311.011(a) (Vernon 1988). Statutory provisions for the recovery of attorney fees must be strictly construed since they are in derogation of the common law and penal in nature. Harvey v. Alexander, 671 S.W.2d 727, 730 (Tex.App.—Fort Worth 1984, no writ); Ryan v. Mo-Mac Properties, 644 S.W.2d 791, 794 (Tex.App.—Corpus Christi 1982, writ ref’d n.r.e.). Accordingly, we hold that § 16.034 does not require the court to award attorney’s fees, but gives the court discretion in making the award. See Whitley v. King, 581 S.W.2d 541 (Tex.Civ.App.—Fort Worth 1979, no writ).
By the second point of error, the appel-lees complain that the trial court abused its discretion in not awarding attorney fees. *398The statutory authorization for the trial court to award attorney fees does not require that they be awarded. Branaum v. Patrick, 643 S.W.2d 745, 751 (Tex.App.—San Antonio 1982, no writ).
The test for abuse of discretion is whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, 701 S.W.2d 238, 241 (Tex.1985), cert. denied 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The mere fact that a trial judge decides a matter within his discretion in a different manner than another trial judge or even an appellate judge in a similar circumstance does not demonstrate that such ruling would be an abuse.
We overrule appellees’ cross-points.