By Miriam Rozen, From Texas Lawyer

The same-sex couples who had sought to overturn Texas’s same-sex marriage ban prior to the U.S. Supreme Court’s historic ruling allowing for recognition of same-sex marriages nationwide, now want $740,000 in attorney fees and costs from the state.

The plaintiffs’ fee request, filed Sept. 4, follows the high court’s historic June 26 ruling in Obergefell v. Hodges, which determined same-sex marriage bans violated couples’ constitutional rights.

On July 7, in the wake of Obergefell, a San Antonio federal judge issued an order in the Texas’ same-sex couples’ case, DeLeon v. Perry, which permanently bars Texas from enforcing its same-sex marriage ban.

The DeLeon litigation began in 2013, when the couples filed their complaint challenging Texas’ same-sex marriage ban as unconstitutional and a violation of their Fourteenth Amendment rights to due process and equal protection under the law. At the time, only a California federal district court had found a state law prohibiting same-sex marriages as violating those constitutional rights.

In February 2014, the San Antonio federal court granted the DeLeon plaintiffs’ motion for preliminary injunction, ruling their due process and fundamental right to marry had been violated. Texas appealed that ruling, prompting, prior to the Obergefell ruling, the filing of 26 friends of the court briefs in support of Texas’ position.

In their fee request, the same-sex marriage plaintiffs argue they are entitled to the payments as prevailing parties.

“Civil rights plaintiffs are prevailing parties ‘if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit,'” their fee request states, using language from a 1989 ruling in Texas State Teachers Assoc. v. Garland Independent School District.

Neel Lane and Barry Chasnoff, partners in the San Antonio office of Akin Gump Strauss Hauer & Feld in San Antonio, led the team that represents the De Leon plaintiffs. In the plaintiffs’ fee request, Chasnoff’s rate is listed as $980 per hour, Lane’s, as $825 per hour.

Cynthia Meyer, a spokeswoman for the Texas Office of the Attorney General, which represents the state in DeLeon, said her agency would be filing a response to the fee request.

According to public records supplied by the OAG to Texas Lawyer, the office had spent as of July 28 a total of $69,622 in salaries and expenses defending Texas’ same-sex marriage ban in DeLeon.

In their fee request, plaintiffs state that they expect Texas to argue that the plaintiffs do not qualify as the prevailing parties because the law changed due to the ruling in Obergefell. But they counter: “No law or fact supports that contention.” They note that the San Antonio federal court, although it stayed the order, had issued one in February, months before the high court’s Obergefell ruling, against Texas’ same-sex marriage ban. The plaintiffs also argue that Texas officials’ recent efforts refute “any argument that they voluntarily ceased their unconstitutional conduct.”

The fee request specifically notes that Texas Governor Greg Abbott and Attorney General Ken Paxton initially refused to issue an amended death certificate recognizing a legal same-sex marriage. It was only after the San Antonio federal court issued an order requiring state officials to issue the certificate did they do so, the fee request states.

IMAGE: Daniel McNeel ‘Neel’ Lane Jr., a partner in the San Antonio office of Akin Gump Strauss Hauer & Feld

For more on this story go to: http://www.texaslawyer.com/id=1202736636675/Texas-SameSex-Marriage-Plaintiffs-Seek-740K-in-Attorney-Fees#ixzz3lGExdG2d