Later courts went against this
Overruled in part, on other grounds by Brainard v. State, 12 S.W.3d 6 (2000)
968 S.W.2d 403, 410 (Tex. App.—Amarillo 1998), overruled in part on other grounds, 12 S.W.3d 6
The opinion
ON MOTION FOR REHEARING
E.H. Brainard, II, and the other appellees (Brainard) have moved for an en banc consideration of their motion for rehearing, by which they vigorously contest our resolutions of the issues in this appeal. Remaining convinced that the issues were correctly resolved, the motion will be overruled with these additional comments regarding the issue of attorney’s and surveyor’s fees.
Without an in-depth address of the contradictory positions of the parties regarding the trial court’s award of attorney’s and survey- or’s fees, we reversed that part of the judgment and rendered a take-nothing judgment on the theory that once Brainard brought the action authorized by the Legislature’s resolution, he became bound by the limitation that the judgment “shall be limited to settling the title dispute and may not authorize an award of monetary damages or attorney’s fees.” State Dept. of Highways v. Dopyera, 834 S.W.2d 50, 54 (Tex.1992). Still, Brainard submits that we “failed to appreciate the difference between a legislative resolution waiving sovereign immunity for a suit against *414 the state, and a statute.” Stating that a resolution has neither the dignity nor the effect of a statute, he cites “well-established law that the Legislate [sic] cannot override or suspend a statute by passing a resolu tion” — e.g., “Caples v. Cole, 129 Tex. 370 , 102 S.W.2d 173, 176-77 (Tex.1937) (‘statutes cannot be amended by resolutions’); State v. Allstate Ins. Co., 654 S.W.2d 45, 47 (Tex.App.—Austin 1983, writ refd n.r.e.) (in a resolution waiving sovereign immunity, Legislature may not suspend the state authorizing awards of prejudgment interest); Buford v. State, 322 S.W.2d 366, 370, 374-75 (Tex.Civ.App.—Austin, no writ), cert. denied, 361 U.S. 837 , 80 S.Ct. 89 , 4 L.Ed.2d 77 (1959) (legislative resolution waiving sovereign immunity cannot override statutes of limitations)” — to reurge the application of sections 37.009 and 105.002, Texas Civil Practice and Remedies Code Annotated (Vernon 1997), to expressly authorize the judgment for attorney’s and surveyor’s fees.
What we originally did, and still do, appreciate, however, is that Brainard’s cited authority is inapposite to this cause. The Legislature, by the very wording of its resolution sanctioning a “final judgment adjudicating the title dispute in a suit brought concerning title to boundaries of the Canadian River under this resolution,” authorized Brainard to bring a trespass to try title action, “the method of determining title to lands, tenements, or other real property.” Tex. Prop. Code Ann. § 22.001 (a) (Vernon 1984). Not only does the statute not make provision for attorney’s fees or surveyor’s fees, but the resolution itself strictly prohibits their recovery.
The fact that Brainard pleaded for a declaratory judgment settling the river boundary, by virtue of which he claims recovery of the fees under section 37.009, supra, is immaterial. His action was to determine title to the contested lands and, therefore, was not a declaratory judgment action, but was a trespass to try title action, for which attorney’s fees are not authorized. Barfield v. Holland, 844 S.W.2d 759, 771 (Tex.App.—Tyler 1992, writ denied). See also Ely v. Briley, 959 S.W.2d 723, 727 (Tex.App.—Austin 1998, no writ) (holding that attorney’s fees under the declaratory judgments act are not appropriate in a suit that is in the nature of a trespass to try title); Griffin v. Collins, 310 S.W.2d 137, 139 (Tex.Civ.App.1958, no writ) (holding that a suit for recovery of land based upon an equitable title, under the doctrine of equitable partition, is an action for trespass to try title and not for declaratory judgment).
By Brainard’s suit, the State was called upon to defend its asserted title to the riverbed. Whether its defense or, as characterized by the trial court, its “actions ... have been unreasonable within the meaning of section 105.002(1),” supra, so as to merit an award of attorney’s fees, as held by the trial court, was a question of law, which may be determined by the appellate court. Black v. Dallas Cty. Child Welfare Unit, 835 S.W.2d 626, 634 (Tex.1992) (Hecht, J., dissenting). We hold, as a matter of law, that the State’s defense of its claimed ownership of the riverbed, even if ultimately found to not encompass the full area claimed to be owned, was not an unreasonable defense.
Brainard’s motion for rehearing is overruled.