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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 02-50542
Summary Calendar

ADIN TORRES GARCIA, ET AL,
Plaintiffs,
ADIN TORRES GARCIA,
Plaintiff-Appellant,
versus
SUNBELT RENTALS, INC., doing business as
Sunbelt Equipment Rentals, Inc.,
doing business as BET Plant Services, Inc.,
doing business as BPS Equipment Rental & Sales,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Texas

November 5, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:
Appellant Adin Torres Garcia appeals the district court's
denial of his request for attorneys' fees after a jury awarded him
damages on his wrongful termination and fraudulent inducement
claims against Appellee Sunbelt Rentals, Inc. (Sunbelt). For the
reasons stated below, we AFFIRM the district court.

Garcia filed this action seeking damages for Sunbelt's
termination of him after it allegedly requested that he perform an
illegal act and he refused to do so.1 He also sought attorneys'
fees, arguing that his at-will employment relationship with Sunbelt
constituted an oral contract, and Texas law provides for the right
to recover attorneys' fees if the claim is for an oral or written
contract.2 In prosecuting his claims, Garcia relied primarily on
Sabine Pilot Service, Inc. v. Hauck, in which the Texas Supreme
Court allowed an employee to assert wrongful discharge for refusal
to perform an illegal act, thereby creating a "very narrow
exception" to the general doctrine that employees-at-will can be
discharged at any time for any reason.3 Appellant urged that he
should be awarded attorneys' fees because the "Sabine Pilot
exception recognizes that an employer effectively breaches an at-
will agreement when an unlawful motive for firing is found by the
trier of fact."
The district court rejected Garcia's claim to attorneys' fees,
finding that Sabine Pilot "did not indicate that the cause of
action [for wrongful discharge for refusal to perform an illegal
act] sounded in contract law, nor did the court address the issue
1 A Sunbelt representative instructed Garcia to identify
credit balances owed to Sunbelt customers and then delete them from
Sunbelt's records.
2 TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (Vernon 2001).
3 687 S.W.2d 733, 735 (Tex. 1985).
2

of attorney's fees under § 38.001(8)." Therefore, Garcia did not
"establish a right to sue for a contractual violation of his at-
will employment."4
Our review of Texas law indicates that the district court
reached the correct result. Most glaringly, Sabine Pilot itself
does not explicitly provide for an award of attorneys' fees to a
plaintiff who prevails in a wrongful discharge cause of action
based on refusal to perform an illegal act. To the contrary, its
only reference to damages suggests that attorneys' fees are
specifically disallowed in such cases. In his concurrence, Justice
Kilgarlin explained,
because of the limited issues presented in this case, the
court does not address the matter of [the plaintiff's]
measure of damages. Logically, Tex. Rev. Stat. Ann. Art.
8307c (prohibition of firing an employee for filing a
worker's compensation claim) should serve as a guide. If
so, damages would include loss of wages, both past and
those reasonably anticipated in the future, and employee
and retirement benefits that would have accrued had
employment continued. It would also include punitive
damages.5
4 Appellant asserted in the district court, and does now on
appeal, that Appellee waived its objection to Appellant's
attorneys' fees by asserting, in its state court answer, a general
denial to the allegations in the petition, instead of making a
specific denial in the form of an affirmative defense asserting
that Garcia had not met all conditions precedent to the recovery of
attorneys' fees. The district court rejected this argument,
explaining that since the plaintiff did not plead that any or all
of the conditions precedent to the recovery of attorneys' fees had
been satisfied, the defendant was not required to specifically deny
any conditions in order to force the plaintiff to meet his burden
of proof. We agree.
5 Id. at 736 (Kilgarlin, J., concurring).
3

By excluding attorneys' fees, the concurrence implies that such an
award is not contemplated in claims for wrongful discharge based on
Sabine Pilot. This conclusion is bolstered by the fact that,
subsequent to Sabine Pilot, the Texas Supreme Court affirmatively
held that attorneys' fees are not recoverable for wrongful
discharge claims brought pursuant to Article 8307c.6
Additionally, in general, no Texas court has held that an at-
will employment relationship constitutes an oral contract
warranting recoupment of fees under § 38.001(8). To the contrary,
we have before noted that "Texas courts have denied attorney's fees
to the prevailing party in wrongful termination suits brought
pursuant to Texas law."7 For example, in Guerra v. Brown, a case
substantially similar to the one at bar, the trial court had
awarded attorneys' fees to an employer pursuant to § 38.001(8)
after it successfully defended an at-will employee's wrongful
termination claim.8 A Texas court of appeals reversed the award,
however, finding that § 38.001(8) "allows recovery of attorneys'
fees if the claim involves breach of contract" and the plaintiff's
6 Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91 (Tex. 1999).
7 Crenshaw v. Gen. Dynamics Corp., 940 F.2d 125, 129 (5th Cir.
1991). In Crenshaw, we denied attorneys' fees to the employer
after it successfully defeated the wrongful termination claims of
the plaintiff, who was an at-will employee. Id. at 129.
8 800 S.W.2d 343, 345 (Tex. App.Corpus Christi 1990, no
writ).
4

claim against her employer "sounded more in tort than contract,"
thus rendering the statute inapplicable.9
Furthermore, a review of statutes providing for wrongful
discharge claims similar to the cause of action created in Sabine
Pilot further reinforces the district court's determination. Texas
Civil Practice and Remedies Code § 122.001(a) provides for a cause
of action for wrongful discharge if an employee is terminated
because he or she serves as a juror.10 Section 122.002 requires
that a court award a prevailing plaintiff reasonable attorneys'
fees for prosecuting such a claim.11 Similarly, Chapter 21 of the
Texas Labor Code provides for recoupment of attorneys' fees for
discriminatory practices such as retaliatory discharge.12 These
types of attorneys' fees provisions would be unnecessary if §
38.001(8) covered at-will employment agreements. That the Texas
Legislature explicitly provided for attorneys' fees awards for
these types of wrongful discharge claims indicates that § 38.001(8)
does not include them within the purview of claims arising from a
contract entitled to attorneys' fees.
AFFIRMED.
9 Id.
10 TEX. CIV. PRAC. & REM. CODE ANN. § 122.001(a) (Vernon 2001).
11 Id. § 122.002.
12 TEX. LABOR CODE ANN. § 21.259 (Vernon 2001).
5