By Wolens, Brimer, et al.                             H.B. No. 2506
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the offense of and punishment for barratry and to
    1-3  certain solicitations regarding professional employment.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 38.01, Penal Code, is amended to read as
    1-6  follows:
    1-7        Sec. 38.01.  Definitions.  In this chapter:
    1-8              (1)  "Complaining witness" means the victim of a crime
    1-9  or a person who signs a criminal complaint.
   1-10              (2)  "Custody" means detained or under arrest by a
   1-11  peace officer or under restraint by a public servant pursuant to an
   1-12  order of a court.
   1-13              (3)  "Escape" means unauthorized departure from custody
   1-14  or failure to return to custody following temporary leave for a
   1-15  specific purpose or limited period, but does not include a
   1-16  violation of conditions of probation or parole.
   1-17              (4)  "Economic benefit" means anything reasonably
   1-18  regarded as an economic gain or advantage, including accepting or
   1-19  offering to accept employment for a fee, accepting or offering to
   1-20  accept a fee, entering into a fee contract, or accepting or
   1-21  agreeing to accept money or anything of value.
   1-22              (5)  "Finance" means to provide funds or capital or to
   1-23  furnish with necessary funds <"Funeral establishment" means an
   1-24  establishment licensed under Section 4, Chapter 251, Acts of the
    2-1  53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
    2-2  Texas Civil Statutes)>.
    2-3              (6)  "Governmental function" includes any activity that
    2-4  a public servant is lawfully authorized to undertake on behalf of
    2-5  government.
    2-6              (7)  "Invest funds" means to commit money to earn a
    2-7  financial return <"Hospital" means a general hospital or special
    2-8  hospital as defined by Chapter 241, Health and Safety Code>.
    2-9              (8)  "Member of the family" means anyone related within
   2-10  the third degree of consanguinity or affinity, as determined under
   2-11  Article 5996h, Revised Statutes.
   2-12              (9)  "Official proceeding" means:
   2-13                    (A)  a proceeding before a magistrate, court, or
   2-14  grand jury of this state;
   2-15                    (B)  a proceeding before the legislature or an
   2-16  inquiry authorized by either house or any joint committee
   2-17  established by a joint or concurrent resolution of the two houses
   2-18  of the legislature or any committee or subcommittee of either house
   2-19  of the legislature;
   2-20                    (C)  a proceeding in which pursuant to lawful
   2-21  authority a court orders attendance or the production of evidence;
   2-22  or
   2-23                    (D)  a proceeding that otherwise is made
   2-24  expressly subject to this chapter.
   2-25              (10)  "Qualified nonprofit organization" means a
   2-26  nonprofit organization that meets the following conditions:
   2-27                    (A)  the primary purposes of the organization do
    3-1  not include the rendition of legal services or education regarding
    3-2  legal services;
    3-3                    (B)  the recommending, furnishing, paying for, or
    3-4  educating persons regarding legal services is incidental and
    3-5  reasonably related to the primary purposes of the organization;
    3-6                    (C)  the organization does not derive a financial
    3-7  benefit from the rendition of legal services by a lawyer; and
    3-8                    (D)  the person for whom the legal services are
    3-9  rendered, and not the organization, is recognized as the client of
   3-10  a lawyer.
   3-11              (11)  "Public media" means a telephone directory or
   3-12  legal directory, newspaper or other periodical, billboard or other
   3-13  sign, radio or television broadcast, recorded message the public
   3-14  may access by dialing a telephone number, or a written
   3-15  communication not prohibited by Section 38.12(d) of this code.
   3-16              (12) <(11)>  "Solicit employment" means to communicate
   3-17  in person or by telephone or written communication with a
   3-18  prospective client <claimant> or <defendant or with> a member of
   3-19  the prospective client's <claimant's or defendant's> family
   3-20  concerning a legal matter arising out of a particular occurrence or
   3-21  event, or series of occurrences or events, or concerning an
   3-22  existing legal problem of the prospective client, for the purpose
   3-23  of providing legal representation to the prospective client, when
   3-24  neither the person receiving the communication nor anyone acting on
   3-25  that person's behalf has requested the communication.  The term
   3-26  does not include a communication initiated <communicating> by a
   3-27  family member of the person receiving a communication, a
    4-1  communication <communicating> by an attorney who has a prior or
    4-2  existing attorney-client relationship with the person receiving the
    4-3  communication, or communication by an attorney for <communicating
    4-4  with> a qualified nonprofit organization with the organization's
    4-5  members for the purpose of educating the organization's members to
    4-6  understand the law, <laymen> to recognize legal problems, to make
    4-7  intelligent selection of legal counsel, or to use available legal
    4-8  services.  The term does not include an advertisement by an
    4-9  attorney through public media.
   4-10        SECTION 2.  Section 38.12, Penal Code, is amended to read as
   4-11  follows:
   4-12        Sec. 38.12.  Barratry.  (a)  A person commits an offense if,
   4-13  with intent to obtain an economic benefit, the person <for himself,
   4-14  he>:
   4-15              (1)  knowingly institutes a suit or claim that the
   4-16  person has not been authorized to pursue;
   4-17              (2)  solicits employment, either in person or by
   4-18  telephone, for himself or for another;
   4-19              (3)  pays, gives, or advances or offers to pay, give,
   4-20  or advance to a prospective client money or anything of value to
   4-21  obtain legal representation from the prospective client;
   4-22              (4)  pays or gives or offers to pay or give a person
   4-23  money or anything of value to solicit employment;
   4-24              (5)  pays or gives or offers to pay or give a family
   4-25  member of a prospective client money or anything of value to
   4-26  solicit employment; or
   4-27              (6)  accepts or agrees to accept money or anything of
    5-1  value to solicit employment.
    5-2        (b)  A person commits an offense if the person:
    5-3              (1)  is an attorney, chiropractor, physician, surgeon,
    5-4  or private investigator licensed to practice in this state or any
    5-5  person licensed, certified, or registered by a health care
    5-6  regulatory agency of this state; and
    5-7              (2)  knowingly:
    5-8                    (A)  finances or invests funds the person knows
    5-9  or believes are intended to further the commission of an offense
   5-10  under Subsection (a) of this section; or
   5-11                    (B)  accepts employment within the scope of the
   5-12  person's license, registration, or certification that results from
   5-13  the solicitation of employment in violation of Subsection (a) of
   5-14  this section.
   5-15        (c)  It is an exception to prosecution under Subsection (a)
   5-16  or (b) of this section that the person's conduct is authorized by
   5-17  the Texas Disciplinary Rules of Professional Conduct or any rule of
   5-18  court.
   5-19        (d)  A person commits an offense if the person:
   5-20              (1)  is an attorney, chiropractor, physician, surgeon,
   5-21  or private investigator licensed to practice in this state or any
   5-22  person licensed, certified, or registered by a health care
   5-23  regulatory agency of this state; and
   5-24              (2)  with the intent to obtain professional employment
   5-25  for himself or for another, sends or knowingly permits to be sent
   5-26  to an individual who has not sought the person's employment, legal
   5-27  representation, advice, or care a written communication that:
    6-1                    (A)  concerns an action for personal injury or
    6-2  wrongful death or otherwise relates to an accident or disaster
    6-3  involving the person to whom the communication is addressed or a
    6-4  relative of that person and that was mailed before the 31st day
    6-5  after the date on which the accident or disaster occurred;
    6-6                    (B)  concerns a specific matter and relates to
    6-7  legal representation and the person knows or reasonably should know
    6-8  that the person to whom the communication is directed is
    6-9  represented by a lawyer in the matter;
   6-10                    (C)  concerns an arrest of or issuance of a
   6-11  summons to the person to whom the communication is addressed or a
   6-12  relative of that person and that was mailed before the 31st day
   6-13  after the date on which the arrest or issuance of the summons
   6-14  occurred;
   6-15                    (D)  concerns a lawsuit of any kind, including an
   6-16  action for divorce, in which the person to whom the communication
   6-17  is addressed is a defendant or a relative of that person, unless
   6-18  the lawsuit in which the person is named as a defendant has been on
   6-19  file for more than 31 days before the date on which the
   6-20  communication was mailed;
   6-21                    (E)  is sent or permitted to be sent by a person
   6-22  who knows or reasonably should know that the injured person or
   6-23  relative of the injured person has indicated a desire not to be
   6-24  contacted by or receive communications concerning employment;
   6-25                    (F)  involves coercion, duress, fraud,
   6-26  overreaching, harassment, intimidation, or undue influence; or
   6-27                    (G)  contains a false, fraudulent, misleading,
    7-1  deceptive, or unfair statement or claim.
    7-2        (e)  For purposes of Subsection (d)(2)(E) of this section, a
    7-3  desire not to be contacted is presumed if an accident report
    7-4  reflects that such an indication has been made by an injured person
    7-5  or that person's relative.
    7-6        (f)  An offense under Subsection (a) or (b) of this section
    7-7  is a felony of the third degree.
    7-8        (g)  Except as provided by Subsection (h) of this section, an
    7-9  offense under Subsection (d) of this section is a Class A
   7-10  misdemeanor.
   7-11        (h)  An offense under Subsections (a), (b), or (d) of this
   7-12  section is a felony of the third degree if it is shown on the trial
   7-13  of the offense that the defendant has previously been convicted
   7-14  under Subsections (a), (b), or (d) of this section.
   7-15              <(1)  institutes any suit or claim in which he knows he
   7-16  has no interest;>
   7-17              <(2)  institutes any suit or claim that he knows is
   7-18  false;>
   7-19              <(3)  solicits employment for himself or another to
   7-20  prosecute or defend a suit or to collect a claim; or>
   7-21              <(4)  procures another to solicit for him or another
   7-22  employment to prosecute or defend a suit or to collect a claim.>
   7-23        <(b)  Intent to obtain an economic benefit is presumed if the
   7-24  person accepts employment for a fee, accepts a fee, or accepts or
   7-25  agrees to accept money or any economic benefit.>
   7-26        <(c)  Except as provided by Subsection (d) of this section,
   7-27  an offense under Subsection (a) of this section is a Class A
    8-1  misdemeanor.>
    8-2        <(d)  An offense under Subsection (a)(3) or (a)(4) of this
    8-3  section is a felony of the third degree if it is shown on the trial
    8-4  of the offense that:>
    8-5              <(1)  the defendant has previously been convicted under
    8-6  Subsection (a)(3) or (a)(4) of this section; and>
    8-7              <(2)  the solicitation is performed in whole or in
    8-8  part:>
    8-9                    <(A)  in a hospital, funeral establishment, or
   8-10  public or private cemetery or at the scene of an accident;>
   8-11                    <(B)  by using a person who is an employee of:>
   8-12                          <(i)  this state;>
   8-13                          <(ii)  a political subdivision of this
   8-14  state, including a county, municipality, or special purpose
   8-15  district or authority; or>
   8-16                          <(iii)  a hospital or funeral
   8-17  establishment; or>
   8-18                    <(C)  by impersonating a clergyman, public
   8-19  employee, or emergency assistance worker or volunteer.>
   8-20        (i) <(e)>  Final conviction of felony barratry is a serious
   8-21  crime for all purposes and acts, specifically including the State
   8-22  Bar Rules and the Texas Rules of Disciplinary Procedure.
   8-23        SECTION 3.  Section 45(a), Uniform Act Regulating Traffic on
   8-24  Highways (Article 6701d, Vernon's Texas Civil Statutes), is amended
   8-25  to read as follows:
   8-26        (a)  The department shall prepare and upon request supply to
   8-27  police departments, coroners, sheriffs, garages, and other suitable
    9-1  agencies or individuals, forms for accident reports required
    9-2  hereunder, appropriate with respect to the persons required to make
    9-3  such reports and the purposes to be served.  The written reports to
    9-4  be made by person involved in accidents and by investigating
    9-5  officers shall call for sufficiently detailed information to
    9-6  disclose with reference to a traffic accident the cause, conditions
    9-7  then existing, and the persons and vehicle involved.  Also, the
    9-8  forms for the written reports shall include a means for designating
    9-9  and identifying peace officers, fire fighters, and emergency
   9-10  medical services employees who during an emergency are involved in
   9-11  accidents while driving law enforcement vehicles, fire department
   9-12  vehicles, or emergency medical services vehicles in pursuit of
   9-13  their duties.  The forms shall also contain a statement by the
   9-14  peace officers, fire fighters, and emergency medical services
   9-15  employees describing the nature of the emergency.  The forms must
   9-16  include a means of designating whether an individual involved in an
   9-17  accident desires to be contacted by persons seeking to obtain
   9-18  professional employment as a professional described by Section
   9-19  38.12(b)(1), Penal Code.  An individual's response as to whether
   9-20  the individual desires to be contacted is not admissible evidence
   9-21  in a civil trial.
   9-22        SECTION 4.  Chapter 81, Government Code, is amended by adding
   9-23  Subchapter I to read as follows:
   9-24         SUBCHAPTER I.  INFORMATION CONCERNING LAWYER SERVICES
   9-25        Sec. 81.201.  DEFINITIONS.  In this subchapter:
   9-26              (1)  "Committee" means the standing committee on
   9-27  advertising of the state bar created under Section 81.205.
   10-1              (2)  "Dramatization" means to portray, recreate through
   10-2  characterization with dialogue, or depict or attempt to depict a
   10-3  vehicular collision, an accident, a victim's injury, or a lawyer's
   10-4  legal success.
   10-5              (3)  "Lawyer referral service" means an individual, a
   10-6  firm, a corporation, or other entity that meets the requirements of
   10-7  Article 320d, Revised Statutes.
   10-8              (4)  "Public media" means a telephone directory or
   10-9  legal directory, newspaper or other periodical, billboard or other
  10-10  sign, radio or television broadcast, recorded message the public
  10-11  may access by dialing a telephone number, or a written
  10-12  communication not prohibited by Section 81.204(b).
  10-13              (5)  "Qualified nonprofit organization" means a
  10-14  nonprofit organization that meets the following conditions:
  10-15                    (A)  the primary purposes of the organization do
  10-16  not include the rendition of legal services or education regarding
  10-17  legal services;
  10-18                    (B)  the recommending, furnishing, paying for, or
  10-19  educating persons regarding legal services is incidental and
  10-20  reasonably related to the primary purposes of the organization;
  10-21                    (C)  the organization does not derive a financial
  10-22  benefit from the rendition of legal services by a lawyer; and
  10-23                    (D)  the person for whom the legal services are
  10-24  rendered, and not the organization, is recognized as the client of
  10-25  a lawyer.
  10-26              (6)  "Solicit employment" means to communicate in
  10-27  person or by telephone or by written communication with a
   11-1  prospective client or a member of the prospective client's family
   11-2  concerning a legal matter arising out of a particular occurrence or
   11-3  event, or series of occurrences or events, or concerning an
   11-4  existing legal problem of the prospective client, for the purpose
   11-5  of providing legal representation to the prospective client, when
   11-6  neither the person receiving the communication nor anyone acting on
   11-7  that person's behalf has requested the communication.  The term
   11-8  does not include a communication initiated by a family member of
   11-9  the person receiving a communication, a communication by an
  11-10  attorney who has a prior or existing attorney-client relationship
  11-11  with the person receiving the communication, or a communication by
  11-12  an attorney for a qualified nonprofit organization with the
  11-13  organization's members for the purpose of educating the
  11-14  organization's members to understand the law, to recognize legal
  11-15  problems, to make intelligent selection of legal counsel, or to use
  11-16  available legal services.  The term does not include an
  11-17  advertisement by an attorney through public media.
  11-18        Sec. 81.202.  COMMUNICATIONS CONCERNING LAWYER SERVICES.  (a)
  11-19  A lawyer may not make or permit to be made a false, misleading,
  11-20  deceptive, or unfair communication about the lawyer or the lawyer's
  11-21  services.  A communication violates this section if it:
  11-22              (1)  contains a material misrepresentation of fact or
  11-23  law or omits a fact necessary to make the statement considered as a
  11-24  whole not materially misleading;
  11-25              (2)  is likely to create an unjustified expectation
  11-26  about results the lawyer can achieve or states or implies that the
  11-27  lawyer can achieve results by means that violate this subchapter,
   12-1  the Texas Disciplinary Rules of Professional Conduct, or other law;
   12-2              (3)  compares the lawyer's services with other lawyers'
   12-3  services, unless the comparison can be factually substantiated; or
   12-4              (4)  states or implies that the lawyer is able to
   12-5  influence improperly or upon irrelevant grounds any tribunal,
   12-6  legislative body, or public official.
   12-7        (b)  Any statement about fees must include the amount of the
   12-8  fee, whether contingent or otherwise, and must state whether the
   12-9  client may be obligated for all or some portion of the cost
  12-10  involved.
  12-11        Sec. 81.203.  ADVERTISING.  (a)  A lawyer may, not
  12-12  inconsistent with this subchapter, advertise legal services through
  12-13  public media or through written communication not involving
  12-14  solicitation as prohibited by Section 81.204.
  12-15        (b)  This subchapter does not apply to any advertisement
  12-16  broadcast or disseminated in another jurisdiction in which the
  12-17  advertising lawyer is admitted if the advertisement complies with
  12-18  the rules governing lawyer advertising in that jurisdiction and is
  12-19  not intended for broadcast or dissemination in this state.
  12-20        (c)  Advertisements broadcast on electronic media such as
  12-21  television and radio may contain the same factual information and
  12-22  illustrations as permitted in advertisements in print media.  The
  12-23  information must be articulated by  spoken voices, with no sounds
  12-24  of sirens, crashing vehicles, accidents, glass breaking, screeching
  12-25  tires, horns honking, persons screaming or crying, or explosions.
  12-26  If music is used as background for an advertisement, it must be
  12-27  instrumental music.  The voice may be that of the lawyer or a
   13-1  regular employee of the firm whose services are advertised; it may
   13-2  not be that of a celebrity whose voice is recognizable to the
   13-3  public.
   13-4        (d)  All advertisements and written communications authorized
   13-5  by this subchapter must include the name of at least one lawyer or
   13-6  the lawyer referral service responsible for the content of the
   13-7  advertisement.
   13-8        (e)  A dramatization may not be included in any advertisement
   13-9  in any media.
  13-10        (f)  A statement or representation used in advertisements
  13-11  must present information that may be factually substantiated and
  13-12  may not state, suggest, or imply the professional superiority of a
  13-13  lawyer or the performance of professional services by a lawyer in a
  13-14  superior manner that is not readily subject to verification.
  13-15        (g)  An advertisement or written communication that indicates
  13-16  one or more areas of law in which the lawyer or law firm practices
  13-17  must conform to Section 81.207.
  13-18        (h)  The fact that a lawyer's services are provided on a
  13-19  contingent fee basis may be disclosed if all expenses are also
  13-20  contingent on a recovery, but any statement about fees must include
  13-21  the amount of the fee, whether contingent or otherwise, and must
  13-22  state whether the client may be obligated for all or some portion
  13-23  of the costs involved.  If the lawyer intends to hold the client
  13-24  liable for expenses regardless of outcome, the lawyer must disclose
  13-25  that fact.  If specific percentages on a contingent fee contract
  13-26  are referenced, the lawyer must disclose whether the percentage is
  13-27  computed before or after expenses are deducted from the recovery.
   14-1        (i)  Except as provided by Subsection (j), a lawyer who
   14-2  advertises a specific fee or range of fees for a particular service
   14-3  shall honor the advertised fee or range of fees for at least 90
   14-4  days unless the advertisement specifies a shorter period.
   14-5        (j)  For advertisements in the yellow pages of telephone
   14-6  directories or other media not published more frequently than
   14-7  annually, a lawyer shall honor the advertised fee or range of fees
   14-8  for at least one year after publication.
   14-9        (k)  A lawyer may not advertise services under a name that
  14-10  violates Section 81.208.
  14-11        (l)  An advertisement or written communication must disclose
  14-12  the geographic location, by city or town, of the office in which
  14-13  the lawyer who will actually perform the services advertised
  14-14  principally practices law.  If the office location is outside a
  14-15  city or town, the county in which the office is located must be
  14-16  disclosed.  If more than one office location is advertised, each of
  14-17  the locations must be staffed by a lawyer at least three days a
  14-18  week.
  14-19        (m)  A lawyer may not, directly or indirectly, pay all or a
  14-20  part of the cost of an advertisement by a lawyer not in the same
  14-21  firm unless the advertisement discloses the name and address of the
  14-22  nonadvertising lawyer, the relationship between the advertising
  14-23  lawyer and the nonadvertising lawyer, and whether the advertising
  14-24  lawyer may refer any case received through the advertisement to the
  14-25  nonadvertising lawyer.
  14-26        (n)  The following information in an advertisement or written
  14-27  communication may not be construed as a violation of Section
   15-1  81.202:
   15-2              (1)  subject to this section and Section 81.208, the
   15-3  name of the lawyer or law firm, a listing of lawyers associated
   15-4  with the firm, office addresses and telephone numbers, office and
   15-5  telephone service hours, and a designation such as "attorney" or
   15-6  "law firm";
   15-7              (2)  the date of admission to the state bar and any
   15-8  other bars and a listing of federal courts and jurisdictions other
   15-9  than Texas in which the lawyer is licensed to practice;
  15-10              (3)  any technical and professional licenses granted by
  15-11  this state or other recognized licensing authorities;
  15-12              (4)  any foreign language ability;
  15-13              (5)  the fields of law in which the lawyer is certified
  15-14  or designated, subject to the requirements of Section 81.207;
  15-15              (6)  any prepaid or group legal service plans in which
  15-16  the lawyer participates;
  15-17              (7)  the acceptance of credit cards;
  15-18              (8)  subject to Subsections (h), (i), and (j), the fee
  15-19  for initial consultation and fee schedule; and
  15-20              (9)  a listing of the name and geographic location of a
  15-21  lawyer or law firm as a sponsor of a public service announcement or
  15-22  charitable, civic, or community program or event.
  15-23        (o)  This section does not prohibit a lawyer or law firm from
  15-24  permitting the inclusion in law lists and law directories intended
  15-25  primarily for the use of the legal profession of information that
  15-26  traditionally has been included in these publications.
  15-27        (p)  All advertisements for a lawyer or law firm and all
   16-1  written communications to a prospective client soliciting
   16-2  professional employment must be reviewed and approved in writing by
   16-3  the lawyer or a lawyer in the law firm.
   16-4        (q)  A copy or recording of an advertisement or a writing
   16-5  soliciting professional employment shall be submitted to the
   16-6  committee  as provided by Section 81.206 and the lawyer shall
   16-7  retain a copy or recording for four years after its last
   16-8  dissemination along with a record of when and where it was used.
   16-9        (r)  A lawyer may not give or promise to give anything of
  16-10  value to a prospective client or a layperson to obtain professional
  16-11  employment.  However, a lawyer may pay reasonable fees for
  16-12  advertising and public relation services rendered in accordance
  16-13  with this section and may pay usual charges and otherwise cooperate
  16-14  with a lawyer referral service.  This subsection does not preclude
  16-15  a lawyer from negotiating with a prospective client the terms and
  16-16  conditions of representation.
  16-17        (s)  A lawyer may not advertise an association with a lawyer
  16-18  referral service or accept referrals from a lawyer referral service
  16-19  unless the lawyer referral service meets the requirements of
  16-20  Article 320d, Revised Statutes.
  16-21        (t)  A lawyer may not advertise as part of an advertising
  16-22  cooperative or other joint venture comprised of two or more lawyers
  16-23  not in the same law firm unless each advertisement:
  16-24              (1)  clearly states that the advertisement is paid for
  16-25  by the cooperative lawyers;
  16-26              (2)  clearly names each of the cooperative lawyers;
  16-27              (3)  clearly states their principal office addresses;
   17-1              (4)  sets forth conspicuously the special competency
   17-2  requirements of Section 81.207 for each lawyer with the
   17-3  requirements observable by a prospective client for at least four
   17-4  seconds per lawyer;
   17-5              (5)  does not state, suggest, or imply that the lawyers
   17-6  participating in the advertising cooperative possess professional
   17-7  superiority, are able to perform services in a superior manner, or
   17-8  possess special competence in any area advertised unless with
   17-9  regard to all areas advertised all lawyers participating have been
  17-10  awarded a certificate of special competence by the Texas Board of
  17-11  Legal Specialization or have been designated as possessing special
  17-12  competence in an area advertised by an organization accredited by
  17-13  the American Bar Association Accreditation of Speciality
  17-14  Certification Program for Lawyers;
  17-15              (6)  the statements in the advertisement are readily
  17-16  subject to verification; and
  17-17              (7)  the advertisement does not otherwise violate this
  17-18  subchapter.
  17-19        (u)  Each lawyer who advertises as part of an advertising
  17-20  cooperative or other joint venture is individually responsible for
  17-21  complying with the filing requirements of Section 81.206 and shall
  17-22  ensure that each cooperative advertisement does not violate this
  17-23  subchapter.
  17-24        Sec. 81.204.  DIRECT CONTACT WITH PROSPECTIVE CLIENTS.
  17-25  (a)  A lawyer may not solicit professional employment in person, by
  17-26  telephone, or by written communication in violation of this section
  17-27  from a prospective client.  A lawyer may not permit another person
   18-1  to solicit employment in the lawyer's behalf.  A lawyer may not
   18-2  enter into an agreement for, charge for, or collect a fee for
   18-3  professional employment obtained in violation of this section.
   18-4        (b)  A lawyer may not solicit professional employment by
   18-5  sending or knowingly permitting to be sent on behalf of the lawyer,
   18-6  the lawyer's firm, partner, or associate, or any other lawyer
   18-7  affiliated with the lawyer or the lawyer's firm, a written
   18-8  communication to a prospective client if:
   18-9              (1)  the communication concerns an action for personal
  18-10  injury or wrongful death or otherwise relates to an accident or
  18-11  disaster involving the person to whom the communication is
  18-12  addressed or a relative of that person, unless the accident or
  18-13  disaster occurred more than 31 days before the mailing of the
  18-14  communication;
  18-15              (2)  the communication concerns a specific matter and
  18-16  the lawyer knows or reasonably should have known that the person to
  18-17  whom the communication is directed is represented by a lawyer in
  18-18  the matter;
  18-19              (3)  the communication concerns an arrest of or
  18-20  issuance of a summons to the person to whom the communication is
  18-21  addressed or a relative of that person, unless the arrest of  or
  18-22  issuance of the summons to that person occurred more than 31 days
  18-23  before the mailing of the communication;
  18-24              (4)  the communication concerns a lawsuit of any kind,
  18-25  including an action for divorce, in which the person to whom the
  18-26  communication is addressed is a defendant or a relative of that
  18-27  person, unless the lawsuit in which the person is named as a
   19-1  defendant has been on file for more than 31 days before the mailing
   19-2  of the communication;
   19-3              (5)  the lawyer knows or reasonably should have known
   19-4  that the injured person or relative of the injured person has
   19-5  indicated a desire not to be contacted by or receive communications
   19-6  concerning professional employment;
   19-7              (6)  the communication involves coercion, duress,
   19-8  fraud, overreaching, harassment, intimidation, or undue influence;
   19-9              (7)  the communication contains a false, fraudulent,
  19-10  misleading, deceptive, or unfair statement or claim; or
  19-11              (8)  the lawyer knows or reasonably should know that
  19-12  the physical, emotional, or mental state of the person makes it
  19-13  unlikely that the person would exercise reasonable judgment in
  19-14  employing a lawyer.
  19-15        (c)  Written communications to prospective clients for the
  19-16  purpose of obtaining professional employment are subject to
  19-17  Subsections (d)-(m).
  19-18        (d)  Each page of a written communication shall be plainly
  19-19  marked "ADVERTISEMENT" in red ink, and the lower left corner of the
  19-20  face of the envelope containing a written communication must be
  19-21  marked with a prominent red advertisement mark.  If the written
  19-22  communication is in the form of a self-mailing brochure or
  19-23  pamphlet, the advertisement mark in red ink must appear on the
  19-24  address panel of the brochure or pamphlet.
  19-25        (e)  A copy of each written communication and a sample of the
  19-26  envelopes in which the communications are enclosed shall be filed
  19-27  with the committee either before or concurrently with the mailing
   20-1  of the communication to a prospective client, as provided by
   20-2  Section 81.206.  The lawyer shall retain a copy of each written
   20-3  communication for four years.
   20-4        (f)  If written communications identical in content are sent
   20-5  to two or more prospective clients, the lawyer may comply with
   20-6  Subsection (e) by filing a single copy with a list of the names and
   20-7  addresses of persons to whom the written communication was sent,
   20-8  and by retaining the information in the manner required by
   20-9  Subsection (e).  If the lawyer periodically sends the identical
  20-10  communication to additional prospective clients, lists of the
  20-11  additional names and addresses shall be filed with the committee at
  20-12  least monthly.
  20-13        (g)  A written communication mailed to a prospective client
  20-14  shall be sent only by regular United States mail, not by registered
  20-15  mail or any other form of restricted delivery.
  20-16        (h)  A reference may not be made in the communication as to
  20-17  the communication having received any kind of approval from the
  20-18  state bar.
  20-19        (i)  The first sentence of any written communication
  20-20  concerning a specific matter shall be:  "If you have already
  20-21  retained a lawyer for this matter, please disregard this letter."
  20-22        (j)  A written communication shall be on letter-sized paper
  20-23  rather than legal-sized paper and may not be made to resemble legal
  20-24  pleadings or other legal documents.  This subsection does not
  20-25  prohibit the mailing of brochures and pamphlets.
  20-26        (k)  If a lawyer other than the lawyer whose name or
  20-27  signature appears on the communication will actually handle the
   21-1  case or matter, or if the case or matter will be referred to
   21-2  another lawyer or law firm, any written communication concerning a
   21-3  specific matter must include a statement advising the prospective
   21-4  client of that fact.
   21-5        (l)  Any written communication prompted by a specific
   21-6  occurrence involving or affecting the intended recipient of the
   21-7  communication or a family member must disclose how the lawyer
   21-8  obtained the information prompting the communication.
   21-9        (m)  A written communication to a prospective client may not
  21-10  reveal on the envelope, or on the outside of a self-mailing
  21-11  brochure or pamphlet, the nature of the prospective client's legal
  21-12  problem.
  21-13        Sec. 81.205.  COMMITTEE ON ADVERTISING.  (a)  The standing
  21-14  committee on advertising is created as a permanent committee of the
  21-15  state bar.  The committee is not subject to dissolution by the
  21-16  board of directors under the state bar rules.
  21-17        (b)  The committee is composed of nine members.  Six members
  21-18  must be lawyers and at least two of those lawyer members must be
  21-19  lawyers who advertise in electronic media.  Three members may not
  21-20  be lawyers.
  21-21        (c)  The president of the state bar, subject to the
  21-22  concurrence of the board of directors, appoints the committee
  21-23  members.
  21-24        (d)  Members serve staggered three-year terms with one-third
  21-25  of the members' terms expiring each year.
  21-26        (e)  The president of the state bar shall designate a member
  21-27  as chairperson of the committee who serves for one year.
   22-1        (f)  The committee shall:
   22-2              (1)  administer this subchapter;
   22-3              (2)  recommend to the executive director the hiring of
   22-4  staff and other support personnel to evaluate lawyer advertising in
   22-5  accordance with this subchapter;
   22-6              (3)  recommend to the board of directors the adoption
   22-7  of additional rules or regulations concerning lawyer advertising;
   22-8              (4)  recommend to the board of directors educational
   22-9  programs on advertising and legal ethics as the committee considers
  22-10  advisable;
  22-11              (5)  recommend to the board of directors an annual
  22-12  budget for the operation of the committee;
  22-13              (6)  recommend to the board of directors the amount of
  22-14  any fees to be charged for filings under this subchapter;
  22-15              (7)  file inquiries alleging professional misconduct by
  22-16  a lawyer or violation of this subchapter with the chief
  22-17  disciplinary counsel;
  22-18              (8)  provide statistics and reports on advertising by
  22-19  lawyers on an annual basis to the supreme court, the board of
  22-20  directors, the governor, the lieutenant governor, and the speaker
  22-21  of the house of representatives; and
  22-22              (9)  maintain records concerning all filings made under
  22-23  this subchapter, the committee's findings, and any recommendations
  22-24  made to the chief disciplinary counsel concerning alleged
  22-25  professional misconduct or violation of this subchapter.
  22-26        Sec. 81.206.  EVALUATION OF ADVERTISEMENT.  (a)  A lawyer may
  22-27  obtain an advisory opinion concerning the compliance of a
   23-1  contemplated advertisement or written communication with this
   23-2  subchapter in advance of disseminating the advertisement or
   23-3  communication by submitting the material and the fee required by
   23-4  Subsection (d) to the committee  not later than the 21st day before
   23-5  the date of dissemination.  If the committee finds that the
   23-6  advertisement complies with this subchapter, the lawyer's voluntary
   23-7  submission satisfies the filing requirement in Subsection (b).
   23-8        (b)  Except as provided by Subsection (c), any lawyer who
   23-9  advertises services through any public media or through written
  23-10  communication not involving solicitation as prohibited by Section
  23-11  81.204 shall file a copy of each advertisement with the committee
  23-12  for evaluation of compliance with this subchapter.  The copy shall
  23-13  be filed either before or concurrently with the lawyer's first
  23-14  dissemination of the advertisement or written communication and
  23-15  shall be accompanied by the information and fee required by
  23-16  Subsection (d).
  23-17        (c)  The following are exempt from the filing requirements of
  23-18  Subsection (b):
  23-19              (1)  any advertisement in any public media that does
  23-20  not contain illustrations or information other than that authorized
  23-21  by Sections 81.203(n)(1)-(9);
  23-22              (2)  a brief announcement in any public media that
  23-23  identifies a lawyer or law firm as a contributor to a specified
  23-24  charity or as a sponsor of a specified charitable, community, or
  23-25  public interest program, activity, or event if the announcement
  23-26  does not contain information about the lawyer or law firm other
  23-27  than name, the city where the law offices are located, and the fact
   24-1  of the sponsorship or contribution;
   24-2              (3)  a listing or entry in a law list;
   24-3              (4)  a newsletter mailed only to:
   24-4                    (A)  existing or former clients;
   24-5                    (B)  other lawyers or professionals;
   24-6                    (C)  members of a qualified non-profit
   24-7  organization by an attorney for the organization; or
   24-8                    (D)  persons who have previously sought the
   24-9  lawyer's advice; and
  24-10              (5)  professional announcement cards stating new or
  24-11  changed associations, new offices, and similar changes relating to
  24-12  a lawyer or law firm.
  24-13        (d)  A filing with the committee as required by Subsection
  24-14  (b) or as permitted by Subsection (a) must consist of:
  24-15              (1)  either:
  24-16                    (A)  a copy of the advertisement or communication
  24-17  in the form or forms in which it is to be disseminated, for
  24-18  example, videotapes, audiotapes, print copy, or photographs of
  24-19  outdoor advertising; or
  24-20                    (B)  a production script of the advertisement
  24-21  setting forth all words stated and printed in the advertisement
  24-22  with a detailed description of all scenes, including actor
  24-23  appearances and movements, and identifying the background music;
  24-24              (2)  a statement of when and where the advertisement or
  24-25  communication will be used; and
  24-26              (3)  a check or money order payable to the state bar in
  24-27  the amount of the fee set by the board of directors.
   25-1        (e)  The board of directors shall set a reasonable filing fee
   25-2  each year for evaluating advertisements and written communications
   25-3  as required by this subchapter.  The board of directors shall
   25-4  submit the fee to the supreme court for approval with the board's
   25-5  proposed budget.  The board shall set the fee in the amount
   25-6  necessary to cover only:
   25-7              (1)  costs incurred by the committee and its staff in
   25-8  evaluating and reviewing advertisements and written communications;
   25-9  and
  25-10              (2)  costs for related purposes of enforcing this
  25-11  subchapter.
  25-12        (f)  The committee shall evaluate all advertisements and
  25-13  written communications filed with it under this subchapter for
  25-14  compliance with this subchapter.  Except as otherwise provided by
  25-15  this subsection, the committee shall complete its evaluation not
  25-16  later than the 21st day after the date of receipt of a filing
  25-17  unless the committee determines that there is reasonable doubt that
  25-18  the advertisement or written communication complies with this
  25-19  subchapter and that further examination is warranted and cannot be
  25-20  completed within the 21-day period, and advises the lawyer within
  25-21  the 21-day period.  If the committee requires the further
  25-22  examination, the committee shall complete its review as promptly as
  25-23  the circumstances reasonably allow.  If the committee does not send
  25-24  any communication to the lawyer within the 21-day period, the
  25-25  advertisement is considered approved.
  25-26        (g)  If requested by the committee, the filing lawyer shall
  25-27  submit information to substantiate statements or representations
   26-1  made or implied in the lawyer's advertisement or written
   26-2  communication.
   26-3        (h)  If the committee determines that an advertisement or
   26-4  written communication does not comply with this subchapter, the
   26-5  committee shall identify the manner in which the advertisement or
   26-6  written communication does not comply with this subchapter and
   26-7  shall advise the lawyer that dissemination or continued
   26-8  dissemination of the advertisement or written communication may
   26-9  result in professional discipline.
  26-10        (i)  A finding by the committee of either compliance or
  26-11  noncompliance is not binding in a grievance proceeding but may be
  26-12  offered as evidence.
  26-13        (j)  If a change of circumstances occurring subsequent to the
  26-14  committee's evaluation of an advertisement or written communication
  26-15  raises a substantial possibility that the advertisement or written
  26-16  communication has become false or misleading as a result of the
  26-17  change in circumstances, the lawyer shall promptly refile the
  26-18  advertisement or a modified advertisement or written communication
  26-19  with the committee with an explanation of the change in
  26-20  circumstances and a reasonable fee set by the board of directors.
  26-21        Sec. 81.207.  COMMUNICATION OF FIELD OF PRACTICE.  (a)
  26-22  Except as provided by this section, a lawyer may not communicate
  26-23  the fact that the lawyer is a specialist.
  26-24        (b)  A lawyer admitted to engage in patent practice before
  26-25  the United States patent and trademark office may use the
  26-26  designation "patents," "patent attorney," "patent lawyer," or any
  26-27  combination of those terms.  A lawyer engaged in trademark practice
   27-1  may use the designation "trademark," "trademark attorney,"
   27-2  "trademark lawyer," or any combination of those terms.  A lawyer
   27-3  engaged in patent and trademark practice may hold himself out as
   27-4  specializing in "intellectual property law," "patents, trademarks,
   27-5  and related matters," or "patent, trademark, copyright law, and
   27-6  unfair competition," or a combination of those terms.
   27-7        (c)  A lawyer who has been awarded a certificate of special
   27-8  competence by the Texas Board of Legal Specialization in an area
   27-9  advertised shall state with respect to each area, "board certified
  27-10  (area of specialization)--Texas Board of Legal Specialization."
  27-11        (d)  A lawyer who has been designated as possessing special
  27-12  competence in an area advertised by an organization accredited by
  27-13  the American Bar Association Accreditation of Speciality
  27-14  Certification Program for Lawyers may state with respect to each
  27-15  area, "board-certified (area of specialization)--(name of
  27-16  organization)."
  27-17        (e)  A lawyer who has not been awarded a certificate of
  27-18  special competence by the Texas Board of Legal Specialization in an
  27-19  area advertised shall state with respect to each area, "not
  27-20  certified by the Texas Board of Legal Specialization."  If the area
  27-21  of law advertised has not been designated as an area in which a
  27-22  lawyer may be awarded a certificate of special competency by the
  27-23  Texas Board of Legal Specialization, the lawyer may also state with
  27-24  regard to that area, "no designation has been made by the Texas
  27-25  Board of Legal Specialization for a certificate of special
  27-26  competence in this area."
  27-27        (f)  The statements referred to in Subsections (c), (d), and
   28-1  (e) shall be displayed conspicuously with no abbreviations or
   28-2  changes in the language set forth in those subsections, and those
   28-3  statements must be separate and apart from any other statements so
   28-4  as to be easily seen or understood by the ordinary consumer.
   28-5        Sec. 81.208.  FIRM NAMES AND LETTERHEADS.  (a)  A lawyer may
   28-6  not use a firm name, letterhead, or other professional designation
   28-7  that violates Section 81.202.
   28-8        (b)  A lawyer in private practice may not practice under a
   28-9  trade name, a name that is misleading as to the identity of the
  28-10  lawyer or lawyers practicing under the name, or a firm name
  28-11  containing names other than those of one or more of the lawyers in
  28-12  the firm, except that the names of a professional corporation or
  28-13  professional association may contain "P.C.," "P.A.," "L.L.P.,"
  28-14  "L.L.C.," or similar symbols indicating the nature of the
  28-15  organization.  If otherwise lawful a firm may use as or continue to
  28-16  include in its name the name or names of one or more deceased or
  28-17  retired members of the firm or of a predecessor firm in a
  28-18  continuing line of succession.  This subsection does not prohibit a
  28-19  married woman from practicing under her maiden name.
  28-20        (c)  A lawyer may not advertise under a trade or fictitious
  28-21  name, except that a lawyer who actually practices under a trade
  28-22  name as authorized by Subsection (b) may use that name in an
  28-23  advertisement.  A lawyer who advertises under a trade or fictitious
  28-24  name violates this subsection unless the same name is the law firm
  28-25  name that appears on the lawyer's letterhead, business cards,
  28-26  office sign, fee contracts, and with the lawyer's signature on
  28-27  pleadings and other legal documents.
   29-1        (d)  A law firm with offices in more than one jurisdiction
   29-2  may use the same name in each jurisdiction, but identification of
   29-3  the lawyers in an office of the firm must indicate the
   29-4  jurisdictional limitations on those not licensed to practice in the
   29-5  jurisdiction in which the office is located.
   29-6        (e)  The name of a lawyer occupying a judicial, legislative,
   29-7  or public executive or administrative position may not be used in
   29-8  the name of a law firm, or in communication on its behalf, during
   29-9  any substantial period in which the lawyer is not actively and
  29-10  regularly practicing with the firm.
  29-11        (f)  A lawyer may not state or imply that the lawyer
  29-12  practices in a partnership or other organization unless the lawyer
  29-13  does practice in a partnership or other organization.
  29-14        Sec. 81.209.  CONTRACTS.  A contract of employment entered
  29-15  into by a lawyer in violation of Section 38.12, Penal Code, is
  29-16  void.
  29-17        SECTION 5.  (a)  The change in law made by Sections 1 and 2
  29-18  of this Act applies only to an offense committed on or after the
  29-19  effective date of this Act.  For purposes of this section, an
  29-20  offense is committed before the effective date of this Act if any
  29-21  element of the offense occurs before that date.
  29-22        (b)  An offense committed before the effective date of this
  29-23  Act is covered by the law in effect when the offense was committed,
  29-24  and the former law is continued in effect for this purpose.
  29-25        SECTION 6.  Subchapter I, Chapter 81, Government Code, as
  29-26  added by this Act, applies only to communications made or contracts
  29-27  entered into on or after the effective date of this Act.
   30-1        SECTION 7.  This Act takes effect January 1, 1994.
   30-2        SECTION 8.  The importance of this legislation and the
   30-3  crowded condition of the calendars in both houses create an
   30-4  emergency   and   an   imperative   public   necessity   that   the
   30-5  constitutional rule requiring bills to be read on three several
   30-6  days in each house be suspended, and this rule is hereby suspended.