1-1 By: Henderson S.B. No. 1227
1-2 (In the Senate - Filed March 12, 1993; March 16, 1993, read
1-3 first time and referred to Committee on Jurisprudence;
1-4 April 27, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 5, Nays 0; April 27, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Henderson x
1-10 Harris of Tarrant x
1-11 Brown x
1-12 Harris of Dallas x
1-13 Luna x
1-14 Parker x
1-15 West x
1-16 COMMITTEE SUBSTITUTE FOR S.B. No. 1227 By: Henderson
1-17 A BILL TO BE ENTITLED
1-18 AN ACT
1-19 relating to the offenses of barratry, falsely holding oneself out
1-20 as a lawyer, and the unauthorized practice of law; relating to
1-21 solicitations regarding certain investigative, legal, and health
1-22 care professional employment; providing penalties.
1-23 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-24 SECTION 1. Section 38.01, Penal Code, is amended to read as
1-25 follows:
1-26 Sec. 38.01. Definitions. In this chapter:
1-27 (1) "Complaining witness" means the victim of a crime
1-28 or a person who signs a criminal complaint.
1-29 (2) "Custody" means detained or under arrest by a
1-30 peace officer or under restraint by a public servant pursuant to an
1-31 order of a court.
1-32 (3) "Escape" means unauthorized departure from custody
1-33 or failure to return to custody following temporary leave for a
1-34 specific purpose or limited period, but does not include a
1-35 violation of conditions of probation or parole.
1-36 (4) "Economic benefit" means anything reasonably
1-37 regarded as an economic gain or advantage, including accepting or
1-38 offering to accept employment for a fee, accepting or offering to
1-39 accept a fee, entering into a fee contract, or accepting or
1-40 agreeing to accept money or anything of value.
1-41 (5) "Finance" means to provide funds or capital or to
1-42 furnish with necessary funds <"Funeral establishment" means an
1-43 establishment licensed under Section 4, Chapter 251, Acts of the
1-44 53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's
1-45 Texas Civil Statutes)>.
1-46 (6) "Governmental function" includes any activity that
1-47 a public servant is lawfully authorized to undertake on behalf of
1-48 government.
1-49 (7) "Invest funds" means to commit money to earn a
1-50 financial return <"Hospital" means a general hospital or special
1-51 hospital as defined by Chapter 241, Health and Safety Code>.
1-52 (8) "Member of the family" means anyone related within
1-53 the third degree of consanguinity or affinity, as determined under
1-54 Article 5996h, Revised Statutes.
1-55 (9) "Official proceeding" means:
1-56 (A) a proceeding before a magistrate, court, or
1-57 grand jury of this state;
1-58 (B) a proceeding before the legislature or an
1-59 inquiry authorized by either house or any joint committee
1-60 established by a joint or concurrent resolution of the two houses
1-61 of the legislature or any committee or subcommittee of either house
1-62 of the legislature;
1-63 (C) a proceeding in which pursuant to lawful
1-64 authority a court orders attendance or the production of evidence;
1-65 or
1-66 (D) a proceeding that otherwise is made
1-67 expressly subject to this chapter.
1-68 (10) "Qualified nonprofit organization" means a
2-1 nonprofit organization that meets the following conditions:
2-2 (A) the primary purposes of the organization do
2-3 not include the rendition of legal services or education regarding
2-4 legal services;
2-5 (B) the recommending, furnishing, paying for, or
2-6 educating persons regarding legal services is incidental and
2-7 reasonably related to the primary purposes of the organization;
2-8 (C) the organization does not derive a financial
2-9 benefit from the rendition of legal services by a lawyer; and
2-10 (D) the person for whom the legal services are
2-11 rendered, and not the organization, is recognized as the client of
2-12 a lawyer.
2-13 (11) "Public media" means a telephone directory or
2-14 legal directory, newspaper or other periodical, billboard or other
2-15 sign, radio or television broadcast, recorded message the public
2-16 may access by dialing a telephone number, or a written
2-17 communication not prohibited by Section 38.12(d) of this code.
2-18 (12) "Solicit employment" means to communicate in
2-19 person or by telephone or written communication with a prospective
2-20 client <claimant> or <defendant or with> a member of the
2-21 prospective client's <claimant's or defendant's> family concerning
2-22 a matter arising out of a particular occurrence or event, or series
2-23 of occurrences or events, or concerning an existing legal problem
2-24 of the prospective client, for the purpose of obtaining employment
2-25 from or providing legal representation to the prospective client or
2-26 the purpose of providing advice or care to the prospective client,
2-27 when neither the person receiving the communication nor anyone
2-28 acting on that person's behalf has requested the communication.
2-29 The term does not include a communication initiated <communicating>
2-30 by a family member of the person receiving a communication, a
2-31 communication <communicating> by an attorney who has a prior or
2-32 existing attorney-client relationship with the person receiving the
2-33 communication, or communication by an attorney for <communicating
2-34 with> a qualified nonprofit organization with the organization's
2-35 members for the purpose of educating the organization's members to
2-36 understand the law, <laymen> to recognize legal problems, to make
2-37 intelligent selection of legal counsel, or to use available legal
2-38 services. The term does not include an advertisement by an
2-39 attorney through public media.
2-40 SECTION 2. Section 38.12, Penal Code, is amended to read as
2-41 follows:
2-42 Sec. 38.12. Barratry. (a) A person commits an offense if,
2-43 with intent to obtain an economic benefit the person <for himself,
2-44 he>:
2-45 (1) knowingly institutes a suit or claim that the
2-46 person has not been authorized to pursue;
2-47 (2) solicits employment, either in person or by
2-48 telephone, for himself or herself or for another;
2-49 (3) pays, gives, or advances or offers to pay, give,
2-50 or advance to a prospective client money or anything of value to
2-51 obtain legal representation from the prospective client;
2-52 (4) pays or gives or offers to pay or give a person
2-53 money or anything of value to solicit employment;
2-54 (5) pays or gives or offers to pay or give a family
2-55 member of a prospective client money or anything of value to
2-56 solicit employment; or
2-57 (6) accepts or agrees to accept money or anything of
2-58 value to solicit employment.
2-59 (b) A person commits an offense if the person:
2-60 (1) is an attorney, chiropractor, physician, surgeon,
2-61 or private investigator licensed to practice in this state or any
2-62 person licensed, certified, or registered by a health care
2-63 regulatory agency of this state; and
2-64 (2) knowingly:
2-65 (A) finances or invests funds the person knows
2-66 or believes are intended to further the commission of an offense
2-67 under Subsection (a) of this section; or
2-68 (B) accepts employment within the scope of the
2-69 person's license, registration, or certification that results from
2-70 the solicitation of employment in violation of Subsection (a) of
3-1 this section.
3-2 (c) It is an exception to prosecution under Subsection (a)
3-3 or (b) of this section that the person's conduct is authorized by
3-4 the Texas Disciplinary Rules of Professional Conduct or any rule of
3-5 court.
3-6 (d) A person commits an offense if the person:
3-7 (1) is an attorney, chiropractor, physician, surgeon,
3-8 or private investigator licensed to practice in this state or any
3-9 person licensed, certified, or registered by a health care
3-10 regulatory agency of this state; and
3-11 (2) with the intent to obtain professional employment
3-12 for himself or herself or for another, sends or knowingly permits
3-13 to be sent to an individual who has not sought the person's
3-14 employment, legal representation, advice, or care a written
3-15 communication that:
3-16 (A) concerns an action for personal injury or
3-17 wrongful death or otherwise relates to an accident or disaster
3-18 involving the person to whom the communication is addressed or a
3-19 relative of that person and that was mailed before the 31st day
3-20 after the date on which the accident or disaster occurred;
3-21 (B) concerns a specific matter and relates to
3-22 legal representation and the person knows or reasonably should know
3-23 that the person to whom the communication is directed is
3-24 represented by a lawyer in the matter;
3-25 (C) concerns an arrest of or issuance of a
3-26 summons to the person to whom the communication is addressed or a
3-27 relative of that person and that was mailed before the 31st day
3-28 after the date on which the arrest or issuance of the summons
3-29 occurred;
3-30 (D) concerns a lawsuit of any kind, including an
3-31 action for divorce, in which the person to whom the communication
3-32 is addressed is a defendant or a relative of that person, unless
3-33 the lawsuit in which the person is named as a defendant has been on
3-34 file for more than 31 days before the date on which the
3-35 communication was mailed;
3-36 (E) is sent or permitted to be sent by a person
3-37 who knows or reasonably should know that the injured person or
3-38 relative of the injured person has indicated a desire not to be
3-39 contacted by or receive communications concerning employment;
3-40 (F) involves coercion, duress, fraud,
3-41 overreaching, harassment, intimidation, or undue influence; or
3-42 (G) contains a false, fraudulent, misleading,
3-43 deceptive, or unfair statement or claim.
3-44 (e) For purposes of Subsection (d)(2)(E) of this section, a
3-45 desire not to be contacted is presumed if an accident report
3-46 reflects that such an indication has been made by an injured person
3-47 or that person's relative.
3-48 (f) An offense under Subsection (a) or (b) of this section
3-49 is a felony of the third degree.
3-50 (g) Except as provided by Subsection (h) of this section, an
3-51 offense under Subsection (d) of this section is a Class A
3-52 misdemeanor.
3-53 (h) An offense under Subsection (d) of this section is a
3-54 felony of the third degree if it is shown on the trial of the
3-55 offense that the defendant has previously been convicted under
3-56 Subsection (d) of this section.
3-57 (i) <(1) institutes any suit or claim in which he
3-58 knows he has no interest;>
3-59 <(2) institutes any suit or claim that he knows is
3-60 false;>
3-61 <(3) solicits employment for himself or another to
3-62 prosecute or defend a suit or to collect a claim; or>
3-63 <(4) procures another to solicit for him or another
3-64 employment to prosecute or defend a suit or to collect a claim.>
3-65 <(b) Intent to obtain an economic benefit is presumed if the
3-66 person accepts employment for a fee, accepts a fee, or accepts or
3-67 agrees to accept money or any economic benefit.>
3-68 <(c) Except as provided by Subsection (d) of this section,
3-69 an offense under Subsection (a) of this section is a Class A
3-70 misdemeanor.>
4-1 <(d) An offense under Subsection (a)(3) or (a)(4) of this
4-2 section is a felony of the third degree if it is shown on the trial
4-3 of the offense that:>
4-4 <(1) the defendant has previously been convicted under
4-5 Subsection (a)(3) or (a)(4) of this section; and>
4-6 <(2) the solicitation is performed in whole or in
4-7 part:>
4-8 <(A) in a hospital, funeral establishment, or
4-9 public or private cemetery or at the scene of an accident;>
4-10 <(B) by using a person who is an employee of:>
4-11 <(i) this state;>
4-12 <(ii) a political subdivision of this
4-13 state, including a county, municipality, or special purpose
4-14 district or authority; or>
4-15 <(iii) a hospital or funeral
4-16 establishment; or>
4-17 <(C) by impersonating a clergyman, public
4-18 employee, or emergency assistance worker or volunteer.>
4-19 <(e)> Final conviction of felony barratry is a serious crime
4-20 for all purposes and acts, specifically including the State Bar
4-21 Rules and the Texas Rules of Disciplinary Procedure.
4-22 SECTION 3. Subsection (a), Section 45, Uniform Act
4-23 Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil
4-24 Statutes), is amended to read as follows:
4-25 (a) The department shall prepare and upon request supply to
4-26 police departments, coroners, sheriffs, garages, and other suitable
4-27 agencies or individuals, forms for accident reports required
4-28 hereunder, appropriate with respect to the persons required to make
4-29 such reports and the purposes to be served. The written reports to
4-30 be made by person involved in accidents and by investigating
4-31 officers shall call for sufficiently detailed information to
4-32 disclose with reference to a traffic accident the cause, conditions
4-33 then existing, and the persons and vehicle involved. Also, the
4-34 forms for the written reports shall include a means for designating
4-35 and identifying peace officers, fire fighters, and emergency
4-36 medical services employees who during an emergency are involved in
4-37 accidents while driving law enforcement vehicles, fire department
4-38 vehicles, or emergency medical services vehicles in pursuit of
4-39 their duties. The forms shall also contain a statement by the
4-40 peace officers, fire fighters, and emergency medical services
4-41 employees describing the nature of the emergency. The forms must
4-42 include a means of designating whether an individual involved in an
4-43 accident desires to be contacted by persons seeking to obtain
4-44 professional employment as a professional described by Section
4-45 38.12(b)(1), Penal Code. An individual's response as to whether
4-46 the individual desires to be contacted is not admissible evidence
4-47 in a civil trial.
4-48 SECTION 4. Subchapter C, Chapter 415, Government Code, is
4-49 amended by adding Section 415.0581 to read as follows:
4-50 Sec. 415.0581. CONVICTION OF BARRATRY. (a) A person who
4-51 has been convicted of barratry pursuant to Section 38.12, Penal
4-52 Code, is disqualified to be an officer or county jailer. The
4-53 commission may not license such a person and shall on conviction
4-54 immediately revoke the license of a person previously licensed.
4-55 (b) For the purposes of this section, a person is convicted
4-56 of barratry if a court of competent jurisdiction enters an
4-57 adjudication of guilt against the person regardless of whether:
4-58 (1) the sentence is subsequently probated and the
4-59 person is discharged from probation;
4-60 (2) the accusation, complaint, information, or
4-61 indictment is dismissed following probation; or
4-62 (3) the person is pardoned for the offense, unless the
4-63 pardon is granted expressly for subsequent proof of innocence.
4-64 SECTION 5. Chapter 38, Penal Code, is amended by adding
4-65 Sections 38.122 and 38.123 to read as follows:
4-66 Sec. 38.122. FALSELY HOLDING ONESELF OUT AS A LAWYER.
4-67 (a) A person commits an offense if, with intent to obtain an
4-68 economic benefit for himself or herself, the person holds himself
4-69 or herself out as a lawyer, unless he or she is currently licensed
4-70 to practice law in this state, another state, or a foreign country
5-1 and is in good standing with the State Bar of Texas and the state
5-2 bar or licensing authority of any and all other states and foreign
5-3 countries where licensed.
5-4 (b) An offense under Subsection (a) of this section is a
5-5 felony of the third degree.
5-6 (c) Final conviction of falsely holding oneself out to be a
5-7 lawyer is a serious crime for all purposes and acts, specifically
5-8 including the State Bar Rules.
5-9 Sec. 38.123. UNAUTHORIZED PRACTICE OF LAW. (a) A person
5-10 commits an offense if, with intent to obtain an economic benefit
5-11 for himself or herself, the person:
5-12 (1) contracts with any person to represent that person
5-13 with regard to personal causes of action for property damages or
5-14 personal injury;
5-15 (2) advises any person as to the person's rights and
5-16 the advisability of making claims for personal injuries or property
5-17 damages;
5-18 (3) advises any person as to whether or not to accept
5-19 an offered sum of money in settlement of claims for personal
5-20 injuries or property damages;
5-21 (4) enters into any contract with another person to
5-22 represent that person in personal injury or property damage matters
5-23 on a contingent fee basis with an attempted assignment of a portion
5-24 of the person's cause of action; or
5-25 (5) enters into any contract with a third person which
5-26 purports to grant the exclusive right to select and retain legal
5-27 counsel to represent the individual in any legal proceeding.
5-28 (b) This section does not apply to a person currently
5-29 licensed to practice law in this state, another state, or a foreign
5-30 country and in good standing with the State Bar of Texas and the
5-31 state bar or licensing authority of any and all other states and
5-32 foreign countries where licensed.
5-33 (c) Except as provided by Subsection (d) of this section, an
5-34 offense under Subsection (a) of this section is a Class A
5-35 misdemeanor.
5-36 (d) An offense under Subsection (a) of this section is a
5-37 felony of the third degree if it is shown on the trial of the
5-38 offense that the defendant has previously been convicted under
5-39 Subsection (a) of this section.
5-40 SECTION 6. Section 215.034, Local Government Code, is
5-41 amended to read as follows:
5-42 Sec. 215.034. SUSPENSION OR REVOCATION OF OCCUPATION
5-43 LICENSE. (a) A judge of the municipal court, in addition to
5-44 imposing a fine, may institute proceedings to suspend or revoke the
5-45 license of a person if:
5-46 (1) the person is required, by law or by a municipal
5-47 ordinance adopted under a law, to obtain the license from the
5-48 municipality for an occupation, business, or avocation; and
5-49 (2) the judge finds the person guilty of violating a
5-50 municipal ordinance relating to the occupation, business, or
5-51 avocation or finds that the person has been convicted of barratry
5-52 under Section 38.12, Penal Code.
5-53 (b) For the purpose of this section, a person is convicted
5-54 of barratry if a court of competent jurisdiction enters an
5-55 adjudication of guilt against the person regardless of whether:
5-56 (1) the sentence is subsequently probated and the
5-57 person is discharged from probation;
5-58 (2) the accusation, complaint, information, or
5-59 indictment is dismissed following probation; or
5-60 (3) the person is pardoned for the offense, unless the
5-61 pardon is granted expressly for subsequent proof of innocence.
5-62 SECTION 7. (a) The change in law made by this Act applies
5-63 only to an offense committed on or after the effective date of this
5-64 Act. For purposes of this section, an offense is committed before
5-65 the effective date of this Act if any element of the offense occurs
5-66 before the effective date.
5-67 (b) An offense committed before the effective date of this
5-68 Act is covered by the law in effect when the offense was committed,
5-69 and the former law is continued in effect for this purpose.
5-70 SECTION 8. This Act takes effect September 1, 1993.
6-1 SECTION 9. The importance of this legislation and the
6-2 crowded condition of the calendars in both houses create an
6-3 emergency and an imperative public necessity that the
6-4 constitutional rule requiring bills to be read on three several
6-5 days in each house be suspended, and this rule is hereby suspended.
6-6 * * * * *
6-7 Austin,
6-8 Texas
6-9 April 27, 1993
6-10 Hon. Bob Bullock
6-11 President of the Senate
6-12 Sir:
6-13 We, your Committee on Jurisprudence to which was referred S.B. No.
6-14 1227, have had the same under consideration, and I am instructed to
6-15 report it back to the Senate with the recommendation that it do not
6-16 pass, but that the Committee Substitute adopted in lieu thereof do
6-17 pass and be printed.
6-18 Henderson,
6-19 Chairman
6-20 * * * * *
6-21 WITNESSES
6-22 FOR AGAINST ON
6-23 ___________________________________________________________________
6-24 Name: Carroll Cal Darrow x
6-25 Representing: R.W. Lynch Co.
6-26 City: San Ramon, CA
6-27 -------------------------------------------------------------------
6-28 Name: Richard Sackett x
6-29 Representing: Sackett Consultants
6-30 City: New Orleans
6-31 -------------------------------------------------------------------
6-32 Name: Jim Adler x
6-33 Representing: Self/Texans Against Censorshp
6-34 City: Houston
6-35 -------------------------------------------------------------------
6-36 Name: Philip Bobbitt x
6-37 Representing: Texans Against Censorship
6-38 City: Austin
6-39 -------------------------------------------------------------------
6-40 Name: Harriet Miers x
6-41 Representing: State Bar of Texas
6-42 City: Austin
6-43 -------------------------------------------------------------------
6-44 Name: Richard Hile x
6-45 Representing: TX Trial Lawyers Assoc.
6-46 City: Austin
6-47 -------------------------------------------------------------------
6-48 Name: Brian Loncar x
6-49 Representing: Brian Loncar & Associates
6-50 City: Dallas
6-51 -------------------------------------------------------------------
6-52 Name: Keith M. Fletcher x
6-53 Representing: Texans Against Censorship
6-54 City: Houston
6-55 -------------------------------------------------------------------
6-56 Name: Robert Schuwerk x
6-57 Representing: Self
6-58 City: Houston
6-59 -------------------------------------------------------------------
6-60 Name: John G. Heather x
6-61 Representing:
6-62 City: Dallas
6-63 -------------------------------------------------------------------
6-64 Name: Carl Belcher x
6-65 Representing:
6-66 City: Houston
6-67 -------------------------------------------------------------------
6-68 Name: Rosalinda Gluzman x
6-69 Representing:
6-70 City: Humble
7-1 -------------------------------------------------------------------
7-2 FOR AGAINST ON
7-3 ___________________________________________________________________
7-4 Name: James V. Pianelli x
7-5 Representing: Self, Texans Against Cnsrshp
7-6 City: Houston
7-7 -------------------------------------------------------------------
7-8 Name: Stuart Miller x
7-9 Representing: Texas Fathers for Equal Right
7-10 City: Austin
7-11 -------------------------------------------------------------------
7-12 Name: James M. Mccormack x
7-13 Representing: State Bar of Texas
7-14 City: Austin
7-15 -------------------------------------------------------------------
7-16 Name: Karen R. Johnson x
7-17 Representing: State Bar of Texas
7-18 City: Austin
7-19 -------------------------------------------------------------------
7-20 Name: Lonny D. Morrison x
7-21 Representing: State Bar of Texas
7-22 City: Wichita Falls
7-23 -------------------------------------------------------------------
7-24 Name: Farrell Bolz x
7-25 Representing: Self
7-26 City: Houston
7-27 -------------------------------------------------------------------
7-28 Name: John M. Richards x
7-29 Representing: State Bar of Texas
7-30 City: Houston
7-31 -------------------------------------------------------------------