Estrada v. City of Houston, TX

In 2004, lawyers at Mayer Brown asked the City of Houston for records on behalf of Larry Estrada, a Texas death row prisoner, seeking information relevant to his habeas corpus petition. Houston refused. The firm sued under the Texas Public Information Act — the state’s version of FOIA — and represented Estrada at no cost to him. A decade of motions practice later, they won, and the trial court awarded roughly $1.2 million in attorneys’ fees.

The Fourteenth Court of Appeals took the fees away. The Act requires a losing government body to pay the fees a prevailing party "incurred," and the court held Mayer Brown had incurred nothing, because the firm was never separately liable to pay its lawyers. Read that way, almost no one who does this work can recover. Not law school clinics. Not nonprofits with staff attorneys. Not in-house counsel. Not pro bono firms. Nearly 500 Texas statutes use the same phrasing.

FIRE joined the Freedom of Information Foundation of Texas, the Texas Press Association, the Texas Association of Broadcasters, and SMU First Amendment Clinic director Thomas Leatherbury in urging the Supreme Court of Texas to reverse. Fee-shifting is what makes an open records law more than a suggestion. Strip it from the institutions that bring most of these cases, and cities learn a simple lesson: stonewall, and see whether anyone can afford to make you stop.