S.B. No. 1227
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 legal matter arising out of a particular occurrence or event, or
3-25 series of occurrences or events, or concerning an existing legal
4-1 problem of the prospective client, for the purpose of providing
4-2 legal representation to the prospective client, when neither the
4-3 person receiving the communication nor anyone acting on that
4-4 person's behalf has requested the communication. The term does not
4-5 include a communication initiated <communicating> by a family
4-6 member of the person receiving a communication, a communication
4-7 <communicating> by an attorney who has a prior or existing
4-8 attorney-client relationship with the person receiving the
4-9 communication, or communication by an attorney for <communicating
4-10 with> a qualified nonprofit organization with the organization's
4-11 members for the purpose of educating the organization's members to
4-12 understand the law, <laymen> to recognize legal problems, to make
4-13 intelligent selection of legal counsel, or to use available legal
4-14 services. The term does not include an advertisement by an
4-15 attorney through public media.
4-16 SECTION 2. Section 38.12, Penal Code, is amended to read as
4-17 follows:
4-18 Sec. 38.12. Barratry. (a) A person commits an offense if,
4-19 with intent to obtain an economic benefit the person <for himself,
4-20 he>:
4-21 (1) knowingly institutes a suit or claim that the
4-22 person has not been authorized to pursue;
4-23 (2) solicits employment, either in person or by
4-24 telephone, for himself or herself or for another;
4-25 (3) pays, gives, or advances or offers to pay, give,
5-1 or advance to a prospective client money or anything of value to
5-2 obtain legal representation from the prospective client;
5-3 (4) pays or gives or offers to pay or give a person
5-4 money or anything of value to solicit employment;
5-5 (5) pays or gives or offers to pay or give a family
5-6 member of a prospective client money or anything of value to
5-7 solicit employment; or
5-8 (6) accepts or agrees to accept money or anything of
5-9 value to solicit employment.
5-10 (b) A person commits an offense if the person:
5-11 (1) is an attorney, chiropractor, physician, surgeon,
5-12 or private investigator licensed to practice in this state or any
5-13 person licensed, certified, or registered by a health care
5-14 regulatory agency of this state; and
5-15 (2) knowingly:
5-16 (A) finances or invests funds the person knows
5-17 or believes are intended to further the commission of an offense
5-18 under Subsection (a) of this section; or
5-19 (B) accepts employment within the scope of the
5-20 person's license, registration, or certification that results from
5-21 the solicitation of employment in violation of Subsection (a) of
5-22 this section.
5-23 (c) It is an exception to prosecution under Subsection (a)
5-24 or (b) of this section that the person's conduct is authorized by
5-25 the Texas Disciplinary Rules of Professional Conduct or any rule of
6-1 court.
6-2 (d) A person commits an offense if the person:
6-3 (1) is an attorney, chiropractor, physician, surgeon,
6-4 or private investigator licensed to practice in this state or any
6-5 person licensed, certified, or registered by a health care
6-6 regulatory agency of this state; and
6-7 (2) with the intent to obtain professional employment
6-8 for himself or herself or for another, sends or knowingly permits
6-9 to be sent to an individual who has not sought the person's
6-10 employment, legal representation, advice, or care a written
6-11 communication that:
6-12 (A) concerns an action for personal injury or
6-13 wrongful death or otherwise relates to an accident or disaster
6-14 involving the person to whom the communication is addressed or a
6-15 relative of that person and that was mailed before the 31st day
6-16 after the date on which the accident or disaster occurred unless
6-17 the person involved in a vehicular accident designates a desire to
6-18 be contacted on the form promulgated under Section 45(a), Uniform
6-19 Act Regulating Traffic on Highways (Article 6701d, Vernon's Texas
6-20 Civil Statutes);
6-21 (B) concerns a specific matter and relates to
6-22 legal representation and the person knows or reasonably should know
6-23 that the person to whom the communication is directed is
6-24 represented by a lawyer in the matter;
6-25 (C) concerns an arrest of or issuance of a
7-1 summons to the person to whom the communication is addressed or a
7-2 relative of that person and that was mailed before the 31st day
7-3 after the date on which the arrest or issuance of the summons
7-4 occurred;
7-5 (D) concerns a lawsuit of any kind, including an
7-6 action for divorce, in which the person to whom the communication
7-7 is addressed is a defendant or a relative of that person, unless
7-8 the lawsuit in which the person is named as a defendant has been on
7-9 file for more than 31 days before the date on which the
7-10 communication was mailed;
7-11 (E) is sent or permitted to be sent by a person
7-12 who knows or reasonably should know that the injured person or
7-13 relative of the injured person has indicated a desire not to be
7-14 contacted by or receive communications concerning employment;
7-15 (F) involves coercion, duress, fraud,
7-16 overreaching, harassment, intimidation, or undue influence; or
7-17 (G) contains a false, fraudulent, misleading,
7-18 deceptive, or unfair statement or claim.
7-19 (e) For purposes of Subsection (d)(2)(E) of this section, a
7-20 desire not to be contacted is presumed if an accident report
7-21 reflects that such an indication has been made by an injured person
7-22 or that person's relative.
7-23 (f) An offense under Subsection (a) or (b) of this section
7-24 is a felony of the third degree.
7-25 (g) Except as provided by Subsection (h) of this section, an
8-1 offense under Subsection (d) of this section is a Class A
8-2 misdemeanor.
8-3 (h) An offense under Subsection (d) of this section is a
8-4 felony of the third degree if it is shown on the trial of the
8-5 offense that the defendant has previously been convicted under
8-6 Subsection (d) of this section.
8-7 (i) <(1) institutes any suit or claim in which he knows he
8-8 has no interest;>
8-9 <(2) institutes any suit or claim that he knows is
8-10 false;>
8-11 <(3) solicits employment for himself or another to
8-12 prosecute or defend a suit or to collect a claim; or>
8-13 <(4) procures another to solicit for him or another
8-14 employment to prosecute or defend a suit or to collect a claim.>
8-15 <(b) Intent to obtain an economic benefit is presumed if the
8-16 person accepts employment for a fee, accepts a fee, or accepts or
8-17 agrees to accept money or any economic benefit.>
8-18 <(c) Except as provided by Subsection (d) of this section,
8-19 an offense under Subsection (a) of this section is a Class A
8-20 misdemeanor.>
8-21 <(d) An offense under Subsection (a)(3) or (a)(4) of this
8-22 section is a felony of the third degree if it is shown on the trial
8-23 of the offense that:>
8-24 <(1) the defendant has previously been convicted under
8-25 Subsection (a)(3) or (a)(4) of this section; and>
9-1 <(2) the solicitation is performed in whole or in
9-2 part:>
9-3 <(A) in a hospital, funeral establishment, or
9-4 public or private cemetery or at the scene of an accident;>
9-5 <(B) by using a person who is an employee of:>
9-6 <(i) this state;>
9-7 <(ii) a political subdivision of this
9-8 state, including a county, municipality, or special purpose
9-9 district or authority; or>
9-10 <(iii) a hospital or funeral
9-11 establishment; or>
9-12 <(C) by impersonating a clergyman, public
9-13 employee, or emergency assistance worker or volunteer.>
9-14 <(e)> Final conviction of felony barratry is a serious crime
9-15 for all purposes and acts, specifically including the State Bar
9-16 Rules and the Texas Rules of Disciplinary Procedure.
9-17 SECTION 3. Subsection (a), Section 45, Uniform Act
9-18 Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil
9-19 Statutes), is amended to read as follows:
9-20 (a) The department shall prepare and upon request supply to
9-21 police departments, coroners, sheriffs, garages, and other suitable
9-22 agencies or individuals, forms for accident reports required
9-23 hereunder, appropriate with respect to the persons required to make
9-24 such reports and the purposes to be served. The written reports to
9-25 be made by person involved in accidents and by investigating
10-1 officers shall call for sufficiently detailed information to
10-2 disclose with reference to a traffic accident the cause, conditions
10-3 then existing, and the persons and vehicle involved. Also, the
10-4 forms for the written reports shall include a means for designating
10-5 and identifying peace officers, fire fighters, and emergency
10-6 medical services employees who during an emergency are involved in
10-7 accidents while driving law enforcement vehicles, fire department
10-8 vehicles, or emergency medical services vehicles in pursuit of
10-9 their duties. The forms shall also contain a statement by the
10-10 peace officers, fire fighters, and emergency medical services
10-11 employees describing the nature of the emergency. The forms must
10-12 include a means of designating whether an individual involved in an
10-13 accident does or does not desire to be contacted by persons seeking
10-14 to obtain professional employment as a professional described by
10-15 Section 38.12(b)(1), Penal Code. An individual's response as to
10-16 whether the individual desires to be contacted is not admissible
10-17 evidence in a civil trial.
10-18 SECTION 4. Subchapter C, Chapter 415, Government Code, is
10-19 amended by adding Section 415.0581 to read as follows:
10-20 Sec. 415.0581. CONVICTION OF BARRATRY. (a) A person who
10-21 has been convicted of barratry pursuant to Section 38.12, Penal
10-22 Code, is disqualified to be an officer or county jailer. The
10-23 commission may not license such a person and shall on conviction
10-24 immediately revoke the license of a person previously licensed.
10-25 (b) For the purposes of this section, a person is convicted
11-1 of barratry if a court of competent jurisdiction enters an
11-2 adjudication of guilt against the person regardless of whether:
11-3 (1) the sentence is subsequently probated and the
11-4 person is discharged from probation;
11-5 (2) the accusation, complaint, information, or
11-6 indictment is dismissed following probation; or
11-7 (3) the person is pardoned for the offense, unless the
11-8 pardon is granted expressly for subsequent proof of innocence.
11-9 SECTION 5. Chapter 38, Penal Code, is amended by adding
11-10 Sections 38.122 and 38.123 to read as follows:
11-11 Sec. 38.122. FALSELY HOLDING ONESELF OUT AS A LAWYER.
11-12 (a) A person commits an offense if, with intent to obtain an
11-13 economic benefit for himself or herself, the person holds himself
11-14 or herself out as a lawyer, unless he or she is currently licensed
11-15 to practice law in this state, another state, or a foreign country
11-16 and is in good standing with the State Bar of Texas and the state
11-17 bar or licensing authority of any and all other states and foreign
11-18 countries where licensed.
11-19 (b) An offense under Subsection (a) of this section is a
11-20 felony of the third degree.
11-21 (c) Final conviction of falsely holding oneself out to be a
11-22 lawyer is a serious crime for all purposes and acts, specifically
11-23 including the State Bar Rules.
11-24 Sec. 38.123. UNAUTHORIZED PRACTICE OF LAW. (a) A person
11-25 commits an offense if, with intent to obtain an economic benefit
12-1 for himself or herself, the person:
12-2 (1) contracts with any person to represent that person
12-3 with regard to personal causes of action for property damages or
12-4 personal injury;
12-5 (2) advises any person as to the person's rights and
12-6 the advisability of making claims for personal injuries or property
12-7 damages;
12-8 (3) advises any person as to whether or not to accept
12-9 an offered sum of money in settlement of claims for personal
12-10 injuries or property damages;
12-11 (4) enters into any contract with another person to
12-12 represent that person in personal injury or property damage matters
12-13 on a contingent fee basis with an attempted assignment of a portion
12-14 of the person's cause of action; or
12-15 (5) enters into any contract with a third person which
12-16 purports to grant the exclusive right to select and retain legal
12-17 counsel to represent the individual in any legal proceeding.
12-18 (b) This section does not apply to a person currently
12-19 licensed to practice law in this state, another state, or a foreign
12-20 country and in good standing with the State Bar of Texas and the
12-21 state bar or licensing authority of any and all other states and
12-22 foreign countries where licensed.
12-23 (c) Except as provided by Subsection (d) of this section, an
12-24 offense under Subsection (a) of this section is a Class A
12-25 misdemeanor.
13-1 (d) An offense under Subsection (a) of this section is a
13-2 felony of the third degree if it is shown on the trial of the
13-3 offense that the defendant has previously been convicted under
13-4 Subsection (a) of this section.
13-5 SECTION 6. Section 215.034, Local Government Code, is
13-6 amended to read as follows:
13-7 Sec. 215.034. SUSPENSION OR REVOCATION OF OCCUPATION
13-8 LICENSE. (a) A judge of the municipal court, in addition to
13-9 imposing a fine, may institute proceedings to suspend or revoke the
13-10 license of a person if:
13-11 (1) the person is required, by law or by a municipal
13-12 ordinance adopted under a law, to obtain the license from the
13-13 municipality for an occupation, business, or avocation; and
13-14 (2) the judge finds the person guilty of violating a
13-15 municipal ordinance relating to the occupation, business, or
13-16 avocation or finds that the person has been convicted of barratry
13-17 under Section 38.12, Penal Code.
13-18 (b) For the purpose of this section, a person is convicted
13-19 of barratry if a court of competent jurisdiction enters an
13-20 adjudication of guilt against the person regardless of whether:
13-21 (1) the sentence is subsequently probated and the
13-22 person is discharged from probation;
13-23 (2) the accusation, complaint, information, or
13-24 indictment is dismissed following probation; or
13-25 (3) the person is pardoned for the offense, unless the
14-1 pardon is granted expressly for subsequent proof of innocence.
14-2 SECTION 7. (a) Not later than June 1, 1994, the State Bar
14-3 of Texas shall adopt rules governing lawyer advertising and written
14-4 solicitations to prospective clients.
14-5 (b) A rule adopted under this section shall not conflict
14-6 with any other law.
14-7 SECTION 8. If enacted, S.B. No. 1067, Acts of the 73rd
14-8 Legislature, Regular Session, 1993, does not affect Sections 38.122
14-9 and 38.123, Penal Code, as added by Section 5 of this Act, and
14-10 those sections continue in effect on and after the enactment and
14-11 effective date of S.B. No. 1067, Acts of the 73rd Legislature,
14-12 Regular Session, 1993, as a part, and subject to the general
14-13 provisions, of the Penal Code, as amended.
14-14 SECTION 9. (a) The change in law made by this Act applies
14-15 only to an offense committed on or after the effective date of this
14-16 Act. For purposes of this section, an offense is committed before
14-17 the effective date of this Act if any element of the offense occurs
14-18 before the effective date.
14-19 (b) An offense committed before the effective date of this
14-20 Act is covered by the law in effect when the offense was committed,
14-21 and the former law is continued in effect for this purpose.
14-22 SECTION 10. This Act takes effect September 1, 1993.
14-23 SECTION 11. The importance of this legislation and the
14-24 crowded condition of the calendars in both houses create an
14-25 emergency and an imperative public necessity that the
15-1 constitutional rule requiring bills to be read on three several
15-2 days in each house be suspended, and this rule is hereby suspended.