By: Henderson, Lucio S.B. No. 1227
Harris of Tarrant
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the offenses of barratry, falsely holding oneself out
1-2 as a lawyer, and the unauthorized practice of law; relating to
1-3 solicitations regarding certain investigative, legal, and health
1-4 care professional employment; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 38.01, Penal Code, is amended to read as
1-7 follows:
1-8 Sec. 38.01. Definitions. In this chapter:
1-9 (1) "Complaining witness" means the victim of a crime
1-10 or a person who signs a criminal complaint.
1-11 (2) "Custody" means detained or under arrest by a
1-12 peace officer or under restraint by a public servant pursuant to an
1-13 order of a court.
1-14 (3) "Escape" means unauthorized departure from custody
1-15 or failure to return to custody following temporary leave for a
1-16 specific purpose or limited period, but does not include a
1-17 violation of conditions of probation or parole.
1-18 (4) "Economic benefit" means anything reasonably
1-19 regarded as an economic gain or advantage, including accepting or
1-20 offering to accept employment for a fee, accepting or offering to
1-21 accept a fee, entering into a fee contract, or accepting or
1-22 agreeing to accept money or anything of value.
1-23 (5) "Finance" means to provide funds or capital or to
2-1 furnish with necessary funds <"Funeral establishment" means an
2-2 establishment licensed under Section 4, Chapter 251, Acts of the
2-3 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
2-4 Texas Civil Statutes)>.
2-5 (6) "Governmental function" includes any activity that
2-6 a public servant is lawfully authorized to undertake on behalf of
2-7 government.
2-8 (7) "Invest funds" means to commit money to earn a
2-9 financial return <"Hospital" means a general hospital or special
2-10 hospital as defined by Chapter 241, Health and Safety Code>.
2-11 (8) "Member of the family" means anyone related within
2-12 the third degree of consanguinity or affinity, as determined under
2-13 Article 5996h, Revised Statutes.
2-14 (9) "Official proceeding" means:
2-15 (A) a proceeding before a magistrate, court, or
2-16 grand jury of this state;
2-17 (B) a proceeding before the legislature or an
2-18 inquiry authorized by either house or any joint committee
2-19 established by a joint or concurrent resolution of the two houses
2-20 of the legislature or any committee or subcommittee of either house
2-21 of the legislature;
2-22 (C) a proceeding in which pursuant to lawful
2-23 authority a court orders attendance or the production of evidence;
2-24 or
2-25 (D) a proceeding that otherwise is made
3-1 expressly subject to this chapter.
3-2 (10) "Qualified nonprofit organization" means a
3-3 nonprofit organization that meets the following conditions:
3-4 (A) the primary purposes of the organization do
3-5 not include the rendition of legal services or education regarding
3-6 legal services;
3-7 (B) the recommending, furnishing, paying for, or
3-8 educating persons regarding legal services is incidental and
3-9 reasonably related to the primary purposes of the organization;
3-10 (C) the organization does not derive a financial
3-11 benefit from the rendition of legal services by a lawyer; and
3-12 (D) the person for whom the legal services are
3-13 rendered, and not the organization, is recognized as the client of
3-14 a lawyer.
3-15 (11) "Public media" means a telephone directory or
3-16 legal directory, newspaper or other periodical, billboard or other
3-17 sign, radio or television broadcast, recorded message the public
3-18 may access by dialing a telephone number, or a written
3-19 communication not prohibited by Section 38.12(d) of this code.
3-20 (12) "Solicit employment" means to communicate in
3-21 person or by telephone or written communication with a prospective
3-22 client <claimant> or <defendant or with> a member of the
3-23 prospective client's <claimant's or defendant's> family concerning
3-24 a matter arising out of a particular occurrence or event, or series
3-25 of occurrences or events, or concerning an existing legal problem
4-1 of the prospective client, for the purpose of obtaining employment
4-2 from or providing legal representation to the prospective client or
4-3 the purpose of providing advice or care to the prospective client,
4-4 when neither the person receiving the communication nor anyone
4-5 acting on that person's behalf has requested the communication.
4-6 The term does not include a communication initiated <communicating>
4-7 by a family member of the person receiving a communication, a
4-8 communication <communicating> by an attorney who has a prior or
4-9 existing attorney-client relationship with the person receiving the
4-10 communication, or communication by an attorney for <communicating
4-11 with> a qualified nonprofit organization with the organization's
4-12 members for the purpose of educating the organization's members to
4-13 understand the law, <laymen> to recognize legal problems, to make
4-14 intelligent selection of legal counsel, or to use available legal
4-15 services. The term does not include an advertisement by an
4-16 attorney through public media.
4-17 SECTION 2. Section 38.12, Penal Code, is amended to read as
4-18 follows:
4-19 Sec. 38.12. Barratry. (a) A person commits an offense if,
4-20 with intent to obtain an economic benefit the person <for himself,
4-21 he>:
4-22 (1) knowingly institutes a suit or claim that the
4-23 person has not been authorized to pursue;
4-24 (2) solicits employment, either in person or by
4-25 telephone, for himself or herself or for another;
5-1 (3) pays, gives, or advances or offers to pay, give,
5-2 or advance to a prospective client money or anything of value to
5-3 obtain legal representation from the prospective client;
5-4 (4) pays or gives or offers to pay or give a person
5-5 money or anything of value to solicit employment;
5-6 (5) pays or gives or offers to pay or give a family
5-7 member of a prospective client money or anything of value to
5-8 solicit employment; or
5-9 (6) accepts or agrees to accept money or anything of
5-10 value to solicit employment.
5-11 (b) A person commits an offense if the person:
5-12 (1) is an attorney, chiropractor, physician, surgeon,
5-13 or private investigator licensed to practice in this state or any
5-14 person licensed, certified, or registered by a health care
5-15 regulatory agency of this state; and
5-16 (2) knowingly:
5-17 (A) finances or invests funds the person knows
5-18 or believes are intended to further the commission of an offense
5-19 under Subsection (a) of this section; or
5-20 (B) accepts employment within the scope of the
5-21 person's license, registration, or certification that results from
5-22 the solicitation of employment in violation of Subsection (a) of
5-23 this section.
5-24 (c) It is an exception to prosecution under Subsection (a)
5-25 or (b) of this section that the person's conduct is authorized by
6-1 the Texas Disciplinary Rules of Professional Conduct or any rule of
6-2 court.
6-3 (d) A person commits an offense if the person:
6-4 (1) is an attorney, chiropractor, physician, surgeon,
6-5 or private investigator licensed to practice in this state or any
6-6 person licensed, certified, or registered by a health care
6-7 regulatory agency of this state; and
6-8 (2) with the intent to obtain professional employment
6-9 for himself or herself or for another, sends or knowingly permits
6-10 to be sent to an individual who has not sought the person's
6-11 employment, legal representation, advice, or care a written
6-12 communication that:
6-13 (A) concerns an action for personal injury or
6-14 wrongful death or otherwise relates to an accident or disaster
6-15 involving the person to whom the communication is addressed or a
6-16 relative of that person and that was mailed before the 31st day
6-17 after the date on which the accident or disaster occurred;
6-18 (B) concerns a specific matter and relates to
6-19 legal representation and the person knows or reasonably should know
6-20 that the person to whom the communication is directed is
6-21 represented by a lawyer in the matter;
6-22 (C) concerns an arrest of or issuance of a
6-23 summons to the person to whom the communication is addressed or a
6-24 relative of that person and that was mailed before the 31st day
6-25 after the date on which the arrest or issuance of the summons
7-1 occurred;
7-2 (D) concerns a lawsuit of any kind, including an
7-3 action for divorce, in which the person to whom the communication
7-4 is addressed is a defendant or a relative of that person, unless
7-5 the lawsuit in which the person is named as a defendant has been on
7-6 file for more than 31 days before the date on which the
7-7 communication was mailed;
7-8 (E) is sent or permitted to be sent by a person
7-9 who knows or reasonably should know that the injured person or
7-10 relative of the injured person has indicated a desire not to be
7-11 contacted by or receive communications concerning employment;
7-12 (F) involves coercion, duress, fraud,
7-13 overreaching, harassment, intimidation, or undue influence; or
7-14 (G) contains a false, fraudulent, misleading,
7-15 deceptive, or unfair statement or claim.
7-16 (e) For purposes of Subsection (d)(2)(E) of this section, a
7-17 desire not to be contacted is presumed if an accident report
7-18 reflects that such an indication has been made by an injured person
7-19 or that person's relative.
7-20 (f) An offense under Subsection (a) or (b) of this section
7-21 is a felony of the third degree.
7-22 (g) Except as provided by Subsection (h) of this section, an
7-23 offense under Subsection (d) of this section is a Class A
7-24 misdemeanor.
7-25 (h) An offense under Subsection (d) of this section is a
8-1 felony of the third degree if it is shown on the trial of the
8-2 offense that the defendant has previously been convicted under
8-3 Subsection (d) of this section.
8-4 (i) <(1) institutes any suit or claim in which he knows he
8-5 has no interest;>
8-6 <(2) institutes any suit or claim that he knows is
8-7 false;>
8-8 <(3) solicits employment for himself or another to
8-9 prosecute or defend a suit or to collect a claim; or>
8-10 <(4) procures another to solicit for him or another
8-11 employment to prosecute or defend a suit or to collect a claim.>
8-12 <(b) Intent to obtain an economic benefit is presumed if the
8-13 person accepts employment for a fee, accepts a fee, or accepts or
8-14 agrees to accept money or any economic benefit.>
8-15 <(c) Except as provided by Subsection (d) of this section,
8-16 an offense under Subsection (a) of this section is a Class A
8-17 misdemeanor.>
8-18 <(d) An offense under Subsection (a)(3) or (a)(4) of this
8-19 section is a felony of the third degree if it is shown on the trial
8-20 of the offense that:>
8-21 <(1) the defendant has previously been convicted under
8-22 Subsection (a)(3) or (a)(4) of this section; and>
8-23 <(2) the solicitation is performed in whole or in
8-24 part:>
8-25 <(A) in a hospital, funeral establishment, or
9-1 public or private cemetery or at the scene of an accident;>
9-2 <(B) by using a person who is an employee of:>
9-3 <(i) this state;>
9-4 <(ii) a political subdivision of this
9-5 state, including a county, municipality, or special purpose
9-6 district or authority; or>
9-7 <(iii) a hospital or funeral
9-8 establishment; or>
9-9 <(C) by impersonating a clergyman, public
9-10 employee, or emergency assistance worker or volunteer.>
9-11 <(e)> Final conviction of felony barratry is a serious crime
9-12 for all purposes and acts, specifically including the State Bar
9-13 Rules and the Texas Rules of Disciplinary Procedure.
9-14 SECTION 3. Subsection (a), Section 45, Uniform Act
9-15 Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil
9-16 Statutes), is amended to read as follows:
9-17 (a) The department shall prepare and upon request supply to
9-18 police departments, coroners, sheriffs, garages, and other suitable
9-19 agencies or individuals, forms for accident reports required
9-20 hereunder, appropriate with respect to the persons required to make
9-21 such reports and the purposes to be served. The written reports to
9-22 be made by person involved in accidents and by investigating
9-23 officers shall call for sufficiently detailed information to
9-24 disclose with reference to a traffic accident the cause, conditions
9-25 then existing, and the persons and vehicle involved. Also, the
10-1 forms for the written reports shall include a means for designating
10-2 and identifying peace officers, fire fighters, and emergency
10-3 medical services employees who during an emergency are involved in
10-4 accidents while driving law enforcement vehicles, fire department
10-5 vehicles, or emergency medical services vehicles in pursuit of
10-6 their duties. The forms shall also contain a statement by the
10-7 peace officers, fire fighters, and emergency medical services
10-8 employees describing the nature of the emergency. The forms must
10-9 include a means of designating whether an individual involved in an
10-10 accident desires to be contacted by persons seeking to obtain
10-11 professional employment as a professional described by Section
10-12 38.12(b)(1), Penal Code. An individual's response as to whether
10-13 the individual desires to be contacted is not admissible evidence
10-14 in a civil trial.
10-15 SECTION 4. Subchapter C, Chapter 415, Government Code, is
10-16 amended by adding Section 415.0581 to read as follows:
10-17 Sec. 415.0581. CONVICTION OF BARRATRY. (a) A person who
10-18 has been convicted of barratry pursuant to Section 38.12, Penal
10-19 Code, is disqualified to be an officer or county jailer. The
10-20 commission may not license such a person and shall on conviction
10-21 immediately revoke the license of a person previously licensed.
10-22 (b) For the purposes of this section, a person is convicted
10-23 of barratry if a court of competent jurisdiction enters an
10-24 adjudication of guilt against the person regardless of whether:
10-25 (1) the sentence is subsequently probated and the
11-1 person is discharged from probation;
11-2 (2) the accusation, complaint, information, or
11-3 indictment is dismissed following probation; or
11-4 (3) the person is pardoned for the offense, unless the
11-5 pardon is granted expressly for subsequent proof of innocence.
11-6 SECTION 5. Chapter 38, Penal Code, is amended by adding
11-7 Sections 38.122 and 38.123 to read as follows:
11-8 Sec. 38.122. FALSELY HOLDING ONESELF OUT AS A LAWYER.
11-9 (a) A person commits an offense if, with intent to obtain an
11-10 economic benefit for himself or herself, the person holds himself
11-11 or herself out as a lawyer, unless he or she is currently licensed
11-12 to practice law in this state, another state, or a foreign country
11-13 and is in good standing with the State Bar of Texas and the state
11-14 bar or licensing authority of any and all other states and foreign
11-15 countries where licensed.
11-16 (b) An offense under Subsection (a) of this section is a
11-17 felony of the third degree.
11-18 (c) Final conviction of falsely holding oneself out to be a
11-19 lawyer is a serious crime for all purposes and acts, specifically
11-20 including the State Bar Rules.
11-21 Sec. 38.123. UNAUTHORIZED PRACTICE OF LAW. (a) A person
11-22 commits an offense if, with intent to obtain an economic benefit
11-23 for himself or herself, the person:
11-24 (1) contracts with any person to represent that person
11-25 with regard to personal causes of action for property damages or
12-1 personal injury;
12-2 (2) advises any person as to the person's rights and
12-3 the advisability of making claims for personal injuries or property
12-4 damages;
12-5 (3) advises any person as to whether or not to accept
12-6 an offered sum of money in settlement of claims for personal
12-7 injuries or property damages;
12-8 (4) enters into any contract with another person to
12-9 represent that person in personal injury or property damage matters
12-10 on a contingent fee basis with an attempted assignment of a portion
12-11 of the person's cause of action; or
12-12 (5) enters into any contract with a third person which
12-13 purports to grant the exclusive right to select and retain legal
12-14 counsel to represent the individual in any legal proceeding.
12-15 (b) This section does not apply to a person currently
12-16 licensed to practice law in this state, another state, or a foreign
12-17 country and in good standing with the State Bar of Texas and the
12-18 state bar or licensing authority of any and all other states and
12-19 foreign countries where licensed.
12-20 (c) Except as provided by Subsection (d) of this section, an
12-21 offense under Subsection (a) of this section is a Class A
12-22 misdemeanor.
12-23 (d) An offense under Subsection (a) of this section is a
12-24 felony of the third degree if it is shown on the trial of the
12-25 offense that the defendant has previously been convicted under
13-1 Subsection (a) of this section.
13-2 SECTION 6. Section 215.034, Local Government Code, is
13-3 amended to read as follows:
13-4 Sec. 215.034. SUSPENSION OR REVOCATION OF OCCUPATION
13-5 LICENSE. (a) A judge of the municipal court, in addition to
13-6 imposing a fine, may institute proceedings to suspend or revoke the
13-7 license of a person if:
13-8 (1) the person is required, by law or by a municipal
13-9 ordinance adopted under a law, to obtain the license from the
13-10 municipality for an occupation, business, or avocation; and
13-11 (2) the judge finds the person guilty of violating a
13-12 municipal ordinance relating to the occupation, business, or
13-13 avocation or finds that the person has been convicted of barratry
13-14 under Section 38.12, Penal Code.
13-15 (b) For the purpose of this section, a person is convicted
13-16 of barratry if a court of competent jurisdiction enters an
13-17 adjudication of guilt against the person regardless of whether:
13-18 (1) the sentence is subsequently probated and the
13-19 person is discharged from probation;
13-20 (2) the accusation, complaint, information, or
13-21 indictment is dismissed following probation; or
13-22 (3) the person is pardoned for the offense, unless the
13-23 pardon is granted expressly for subsequent proof of innocence.
13-24 SECTION 7. (a) The change in law made by this Act applies
13-25 only to an offense committed on or after the effective date of this
14-1 Act. For purposes of this section, an offense is committed before
14-2 the effective date of this Act if any element of the offense occurs
14-3 before the effective date.
14-4 (b) An offense committed before the effective date of this
14-5 Act is covered by the law in effect when the offense was committed,
14-6 and the former law is continued in effect for this purpose.
14-7 SECTION 8. This Act takes effect September 1, 1993.
14-8 SECTION 9. The importance of this legislation and the
14-9 crowded condition of the calendars in both houses create an
14-10 emergency and an imperative public necessity that the
14-11 constitutional rule requiring bills to be read on three several
14-12 days in each house be suspended, and this rule is hereby suspended.