Texas Penal Code 38.12 – Barratry and Solicitation of Professional Employment

WHAT IS BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT IN TEXAS?

The Texas law against barratry and solicitation of professional employment punishes attorneys and healthcare professionals who directly contact people in person or by phone to offer their professional services. The law also prohibits filing suit on another’s behalf without permission, paying a potential client to become a client, and soliciting another person who is already represented by counsel.

WHAT IS THE BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT LAW IN TEXAS?

Tex. Penal Code § 38.12. BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT.

(a) A person commits an offense if, with intent to obtain an economic benefit the person:

(1) knowingly institutes a suit or claim that the person has not been authorized to pursue;

(2) solicits employment, either in person or by telephone, for himself or for another;

(3) pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client;

(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;

(5) pays or gives or offers to pay or give a family member of a prospective client money or anything of value to solicit employment; or

(6) accepts or agrees to accept money or anything of value to solicit employment.

(b) A person commits an offense if the person:

(1) knowingly finances the commission of an offense under Subsection (a);

(2) invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or

(3) is a professional who knowingly accepts employment within the scope of the person’s license, registration, or certification that results from the solicitation of employment in violation of Subsection (a).

(c) It is an exception to prosecution under Subsection (a) or (b) that the person’s conduct is authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.

(d) A person commits an offense if the person:

(1) is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, or registered by a health care regulatory agency of this state; and

(2) with the intent to obtain professional employment for the person or for another, provides or knowingly permits to be provided to an individual who has not sought the person’s employment, legal representation, advice, or care a written communication or a solicitation, including a solicitation in person or by telephone, that:

(A) concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication or solicitation is provided or a relative of that person and that was provided before the 31st day after the date on which the accident or disaster occurred;

(B) concerns a specific matter and relates to legal representation and the person knows or reasonably should know that the person to whom the communication or solicitation is directed is represented by a lawyer in the matter;

(C) concerns a lawsuit of any kind, including an action for divorce, in which the person to whom the communication or solicitation is provided is a defendant or a relative of that person, unless the lawsuit in which the person is named as a defendant has been on file for more than 31 days before the date on which the communication or solicitation was provided;

(D) is provided or permitted to be provided by a person who knows or reasonably should know that the injured person or relative of the injured person has indicated a desire not to be contacted by or receive communications or solicitations concerning employment;

(E) involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or

(F) contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.

(e) For purposes of Subsection (d)(2)(D), a desire not to be contacted is presumed if an accident report reflects that such an indication has been made by an injured person or that person’s relative.

(f) An offense under Subsection (a) or (b) is a felony of the third degree.

(g) Except as provided by Subsection (h), an offense under Subsection (d) is a Class A misdemeanor.

(h) An offense under Subsection (d) is a felony of the third degree if it is shown on the trial of the offense that the defendant has previously been convicted under Subsection (d).

WHAT IS THE PENALTY CLASS FOR BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT IN TEXAS?

Barratry and solicitation of professional employment may be charged as a Class A misdemeanor, punishable by up to one year in county jail, or as a third degree felony, punishable by two to ten years in prison.

It is a Class A misdemeanor, punishable by up to one year in jail, for an attorney, private investigator, physician, surgeon, chiropractor, or other licensed healthcare worker with intent to game professional employment to send written communication:

• to a person involved in an accident or disaster within 30 days of the accident;
• to a person the professional knows or should know is already represented by a lawyer in the matter about which the professional is communicating;
• concerning an arrest or issuance of a summons within 30 days after the arrest or issuance of summons;
• concerning a lawsuit in which the addressee or relative is involved, within 30 days of the suit being filed;
• to a person who has indicated a desire not to receive such communications;
• that involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or
• contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.

If a person has a previous barratry conviction, a subsequent barratry charge is enhanced to a third degree felony, punishable by two to ten years in prison. Barratry and solicitation of professional employment may also be charged as a third degree felony if a person, with intent to obtain a benefit:

• files a suit or claim without authorization;
• solicits employment for himself or another
• pays or offers to pay a prospective client or relative thereof to hire the person;
• accepts anything of value to directly contact people for the purpose of soliciting employment;
• finances any listed prohibited method of soliciting employment.

WHAT IS THE PUNISHMENT RANGE FOR BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT IN TEXAS?

The punishment range for barratry and solicitation of professional employment charged as a Class A misdemeanor is up to one year in jail, and a maximum $4,000 fine. Barratry charged as a third degree felony carries between two and ten years in prison, and a maximum fine of $10,000.

WHAT ARE THE PENALTIES FOR BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT IN TEXAS?

A person charged with barratry and solicitation of professional employment may be eligible for probation after a conviction, or deferred adjudication without a conviction. The period of community supervision for a Class A misdemeanor may not exceed two years. The community supervision term for a third degree felony may not exceed ten years.

A charge of barratry and solicitation of professional employment may also affect one’s professional license. The Texas Occupations Code prohibits a person convicted of barratry may not become an officer, law enforcement telecommunicator, or county jailer, and any license already possessed therefor will be revoked. A barratry conviction could also result in the suspension or revocation of any other required license for a business, occupation, or hobby,  including a chiropractor’s license.

WHAT ARE THE DEFENSES TO BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT IN TEXAS?

The barratry statute creates an exception for conduct authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court. Pursuant to the Rules of Professional Conduct, lawyers and other professionals may advertise to the general public in any manner, and may send targeted mail or e-mail advertisements. Courts have also held that the First Amendment protects truthful, non-deceptive speech merely proposing a commercial transaction.

• Can a lawyer be charged with barratry for offering free, or pro bono legal representation? The barratry statute prohibits interference with the attorney-client relationship, so if a person is already represented, a lawyer or someone acting on the lawyer’s behalf may not contact the represented individual by phone or in-person to offer legal services.In Willey v. Harris County District Attorney, a Houston attorney visited inmates at the Harris County jail to offer free legal services when they were already represented by appointed counsel. Such conduct is prohibited as barratry, and the Fifth Circuit upheld the constitutionality of the statute.

WHAT IS THE STATUTE OF LIMITATIONS FOR BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT IN TEXAS?

The limitation period for barratry and solicitation of professional employment charged as a third degree felony is three years. If it is a Class A misdemeanor, the limitation period is two years.

BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT IN TEXAS

In most circumstances, attorneys and other professionals may not make targeted, direct contact with individuals to offer their services. The purpose of the barratry statute is to protect vulnerable and unknowing individuals from overreaching or improper behavior by lawyers and other professionals.

Aggressive, personal solicitation is often an offensive tactic, especially following disasters such as an airplane crash, car collision, or sunken ship. Lavishly entertaining potential business and industrial clients to openly solicit their legal business is likewise prohibited. The anti-barratry statute aims to maintain ethical professional standards.

TEXAS BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT COURT CASES

The case law regarding barratry and solicitation of professional employment in Texas is most commonly a dispute over the constitutionality of the statute. The current version has consistently been upheld as constitutional.

• In Bailey v. Morales, the Fifth Circuit held a prior version of the anit-barratry statute unconstitutional. The law added chiropractors to the statute without the 30-day time limit on contacting recent accident victims. Such restrictions on truthful, non-deceptive commercial speech must be narrowly tailored to advance the State’s interest in protecting accident victims from undue influence. Chiropractors visiting nursing homes, and asking businesses to send injured employees to their practice cannot be flatly prohibited.
• In State v. Mercier, an attorney was prosecuted for hiring a “telemarketer,” his co-defendant, to solicit business from people who had recently been in car accidents. The co-defendant would contact people by phone, meet them at body shops where they would get damage estimates for vehicles, and he would give them the attorney’s phone number. The co-defendant then referred them to a specific chiropractor, who was also charged in the conspiracy. They were convicted of barratry and conspiracy to commit barratry, and the appellate court upheld the convictions.