Sec. 408.221. ATTORNEY'S FEES PAID TO CLAIMANT'S COUNSEL. (a) An attorney's fee, including a contingency fee, for representing a claimant before the division or court under this subtitle must be approved by the commissioner or court.
(b) Except as otherwise provided, an attorney's fee under this section is based on the attorney's time and expenses according to written evidence presented to the division or court. Except as provided by Subsection (c) or Section 408.147(c), the attorney's fee shall be paid from the claimant's recovery.
(c) An insurance carrier that seeks judicial review under Subchapter G, Chapter 410, of a final decision of the appeals panel regarding compensability or eligibility for, or the amount of, income or death benefits is liable for reasonable and necessary attorney's fees as provided by Subsection (d) incurred by the claimant as a result of the insurance carrier's appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier in accordance with the limitation of issues contained in Section 410.302. If the carrier appeals multiple issues and the claimant prevails on some, but not all, of the issues appealed, the court shall apportion and award fees to the claimant's attorney only for the issues on which the claimant prevails. In making that apportionment, the court shall consider the factors prescribed by Subsection (d). This subsection does not apply to attorney's fees for which an insurance carrier may be liable under Section 408.147. An award of attorney's fees under this subsection is not subject to commissioner rules adopted under Subsection (f).
(d) In approving an attorney's fee under this section, the commissioner or court shall consider:
(1) the time and labor required;
(2) the novelty and difficulty of the questions involved;
(3) the skill required to perform the legal services properly;
(4) the fee customarily charged in the locality for similar legal services;
(5) the amount involved in the controversy;
(6) the benefits to the claimant that the attorney is responsible for securing; and
(7) the experience and ability of the attorney performing the services.
(e) The commissioner by rule or the court may provide for the commutation of an attorney's fee, except that the attorney's fee shall be paid in periodic payments in a claim involving death benefits if the only dispute is as to the proper beneficiary or beneficiaries.
(f) The commissioner by rule shall provide guidelines for maximum attorney's fees for specific services in accordance with this section.
(g) An attorney's fee may not be allowed in a case involving a fatal injury or lifetime income benefit if the insurance carrier admits liability on all issues and tenders payment of maximum benefits in writing under this subtitle while the claim is pending before the division.
(h) An attorney's fee shall be paid to the attorney by separate draft.
(i) Except as provided by Subsection (c) or Section 408. 147(c), an attorney's fee may not exceed 25 percent of the claimant's recovery.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 2001, 77th Leg., ch. 1456, Sec. 8.01, eff. June 17, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.132, eff. September 1, 2005.
Notes of Decisions
Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211 (Tex. 2010).
· cites it 20× “TEX. LAB.CODE § 408.221. We review the plain language of the statute as written to decide whether Crump's or Transcontinental's interpretationjudge or juryis supported.”
Travelers Indem. Co. of Connecticut v. Mayfield, 923 S.W.2d 590 (Tex. 1996).
· cites it 6× “She further argued that this inability resulted from the fee restrictions imposed by the new Workers' Compensation Act, see TEX. LAB.CODE § 408.221, which became effective in January 1991.”
Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504 (Tex. 1995).
· cites it 2× “Tex.Lab.Code §§ 408.221, 408.222. Both must by approved by the Commission or court, based on several enumerated factors such as time and labor required, difficulty of the questions involved, the fee customarily charged in that locality, and the amount involved in the controversy.”
Fin. Ins. Co. v. Ragsdale, 166 S.W.3d 922 (Tex. App. 2005).
· cites it 3× “The trial court was free to recognize the other factors for compensation contemplated by the act as well as consideration of the benefit *931 the attorney was responsible for securing as allowed by the statute.”
Am. Zurich Ins. Co. v. Sandra Jasso, 598 F. App'x 239 (5th Cir. 2015).
· cites it 5× “Tex. Lab.Code § 408.221(c) is a fee-shifting statute that provides: [a]n insurance carrier that seeks judicial review .”
State Off. of Risk Mgmt. v. Maria E. Olivas, 509 S.W.3d 499 (Tex. App. 2016).
· cites it 8× “Tex.Lab.Code Ann.§ 408.221. The fallacy in SORM’s argument is its initial premise that subsections (b) and (c) are mutually exclusive such that when a claim is appealed by the carrier, attorney’s fees can only be awarded by virtue of subsection (c).”
Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86 (Tex. App. 2008).
· cites it 3× “incurred by the claimant as a result of the insurance carrier’s appeal if the claimant prevails on an issue on which judicial review is sought- If the carrier appeals multiple issues and the claimant prevails on some, but not all, of the issues appealed, the court shall…”
Wagner v. Agw Consultants, 114 P.3d 1050 (N.M. 2005).
· cites it 2× “Compare Tex. Lab.Code Ann. §§ 408.221, 408.222 (Vernon 2005) (requiring agency or judicial approval of attorney fees for both claimants and employers).”
— Tex. Lab. Code § 408.221(a) — 9 cases
Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211 (Tex. 2010).
“TEX. LAB.CODE § 408.221. We review the plain language of the statute as written to decide whether Crump's or Transcontinental's interpretationjudge or juryis supported.”
Travelers Indem. Co. of Connecticut v. Mayfield, 923 S.W.2d 590 (Tex. 1996).
“She further argued that this inability resulted from the fee restrictions imposed by the new Workers' Compensation Act, see TEX. LAB.CODE § 408.221, which became effective in January 1991.”
— Tex. Lab. Code § 408.221(b) — 19 cases
Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211 (Tex. 2010).
“TEX. LAB.CODE § 408.221. We review the plain language of the statute as written to decide whether Crump's or Transcontinental's interpretationjudge or juryis supported.”
Travelers Indem. Co. of Connecticut v. Mayfield, 923 S.W.2d 590 (Tex. 1996).
“She further argued that this inability resulted from the fee restrictions imposed by the new Workers' Compensation Act, see TEX. LAB.CODE § 408.221, which became effective in January 1991.”
Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86 (Tex. App. 2008).
“incurred by the claimant as a result of the insurance carrier’s appeal if the claimant prevails on an issue on which judicial review is sought- If the carrier appeals multiple issues and the claimant prevails on some, but not all, of the issues appealed, the court shall…”
— Tex. Lab. Code § 408.221(c) — 43 cases
Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211 (Tex. 2010).
“TEX. LAB.CODE § 408.221. We review the plain language of the statute as written to decide whether Crump's or Transcontinental's interpretationjudge or juryis supported.”
Fin. Ins. Co. v. Ragsdale, 166 S.W.3d 922 (Tex. App. 2005).
“The trial court was free to recognize the other factors for compensation contemplated by the act as well as consideration of the benefit *931 the attorney was responsible for securing as allowed by the statute.”
— Tex. Lab. Code § 408.221(d) — 9 cases
Am. Zurich Ins. Co. v. Sandra Jasso, 598 F. App'x 239 (5th Cir. 2015).
“Tex. Lab.Code § 408.221(c) is a fee-shifting statute that provides: [a]n insurance carrier that seeks judicial review .”
State Off. of Risk Mgmt. v. Maria E. Olivas, 509 S.W.3d 499 (Tex. App. 2016).
“Tex.Lab.Code Ann.§ 408.221. The fallacy in SORM’s argument is its initial premise that subsections (b) and (c) are mutually exclusive such that when a claim is appealed by the carrier, attorney’s fees can only be awarded by virtue of subsection (c).”
— Tex. Lab. Code § 408.221(d)(6) — 1 case
— Tex. Lab. Code § 408.221(e) — 2 cases
Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86 (Tex. App. 2008).
“incurred by the claimant as a result of the insurance carrier’s appeal if the claimant prevails on an issue on which judicial review is sought- If the carrier appeals multiple issues and the claimant prevails on some, but not all, of the issues appealed, the court shall…”
State Off. of Risk Mgmt. v. Maria E. Olivas, 509 S.W.3d 499 (Tex. App. 2016).
“Tex.Lab.Code Ann.§ 408.221. The fallacy in SORM’s argument is its initial premise that subsections (b) and (c) are mutually exclusive such that when a claim is appealed by the carrier, attorney’s fees can only be awarded by virtue of subsection (c).”
— Tex. Lab. Code § 408.221(i) — 1 case
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