By: Henderson S.B. No. 1228
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the offense and punishment for barratry and to certain
1-2 solicitations regarding professional employment.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 81.002, Government Code, is amended by
1-5 adding Subdivisions (8), (9), (10), and (11) to read as follows:
1-6 (8) "Solicit" means to communicate with a claimant or
1-7 defendant or with a member of the claimant's or defendant's family
1-8 when neither the person receiving the communication nor anyone
1-9 acting on that person's behalf has requested the communication.
1-10 The term does not include communicating by a family member of the
1-11 person receiving a communication, communicating by an attorney who
1-12 has a prior attorney-client relationship with the person receiving
1-13 the communication, or communications by an attorney of a nonprofit
1-14 organization with the organization's members for the purpose of
1-15 educating the members to recognize legal problems, to make
1-16 intelligent selection of legal counsel, or to use available legal
1-17 services.
1-18 (9) "Dramatization" means portrayal of an event
1-19 including but not limited to vehicular crashes, accidents, victims'
1-20 injuries, or legal success or scenes depicting or attempting to
1-21 depict consumer problems through characterization and dialogue.
1-22 (10) "Testimonial" means a statement concerning a
1-23 lawyer's qualifications, abilities, skills, successes, or ethics.
2-1 (11) "Committee" means the Standing Committee on
2-2 Advertising.
2-3 (12) "Lawyer referral service" means an individual,
2-4 firm, corporation, organization, or any other entity meeting the
2-5 requirements of Article 320d, Revised Statutes.
2-6 SECTION 2. Chapter 81, Government Code, is amended by adding
2-7 Subchapter I to read as follows:
2-8 SUBCHAPTER I. ADVERTISING OF LEGAL SERVICES
2-9 Sec. 81.121. COMMUNICATIONS CONCERNING A LAWYER'S SERVICES.
2-10 (a) A lawyer shall not make or permit to be made a false,
2-11 misleading, deceptive, or unfair communication about the lawyer or
2-12 the lawyer's services. A communication violates this section if
2-13 it:
2-14 (1) contains a material misrepresentation of fact or
2-15 law or omits a fact necessary to make the statement considered as a
2-16 whole not materially misleading;
2-17 (2) is likely to create an unjustified expectation
2-18 about results the lawyer can achieve or states or implies that the
2-19 lawyer can achieve results by means that violate this subchapter,
2-20 the Rules of Professional Conduct, or other law;
2-21 (3) compares the lawyer's services with other lawyers'
2-22 services, unless the comparison can be factually substantiated; or
2-23 (4) states or implies that the lawyer is able to
2-24 influence improperly or upon irrelevant grounds any tribunal,
2-25 legislative body, or public official.
3-1 (b) Any statement about fees must include the amount of the
3-2 fee, whether contingent or otherwise, and must state whether the
3-3 client may be obligated for all or some portion of the cost
3-4 involved.
3-5 Sec. 81.122. ADVERTISING. (a) Subject to all the
3-6 requirements set forth in this subchapter, including the filing
3-7 requirements of Section 81.124, a lawyer may advertise services
3-8 through public media, such as a telephone directory, legal
3-9 directory, newspaper or other periodical, billboard or other sign,
3-10 radio, television, and recorded messages the public may access by
3-11 dialing a telephone number, or through written communication not
3-12 involving solicitation as described in Section 81.123. This
3-13 section does not apply to any advertisement broadcast or
3-14 disseminated in another jurisdiction in which the advertising
3-15 lawyer is licensed to practice law if such advertisement complies
3-16 with the laws and rules governing lawyer advertising in that
3-17 jurisdiction and is not intended for broadcast or dissemination
3-18 within the State of Texas.
3-19 (b) Advertisements on the electronic media such as
3-20 television or radio may contain the same factual information and
3-21 illustrations as permitted in advertisements in the print media.
3-22 Information presented by audio shall be articulated by spoken
3-23 voice, with no background sounds of sirens, crashing vehicles, or
3-24 explosions. If music is used as background for an advertisement,
3-25 it shall be instrumental music. The lawyer and regular employees
4-1 of the lawyer or firm advertising and actors who are not
4-2 celebrities recognizable to the public may appear by voice or on
4-3 screen in electronic media advertisements.
4-4 (c) All advertisements and written communications pursuant
4-5 to this subchapter shall include the name of at least one lawyer or
4-6 the lawyer referral service responsible for their content.
4-7 (d) Except as provided in this subsection, all
4-8 advertisements shall contain the following disclosure: "The hiring
4-9 of a lawyer is an important decision that should not be based
4-10 solely upon advertisements." This disclosure need not appear in
4-11 electronic advertisements or advertisements in the public print
4-12 media that contain no information other than that listed in
4-13 Subsection (m).
4-14 (e) There shall be no dramatizations or testimonials in any
4-15 advertisement in any medium.
4-16 (f) Statements or representations used in advertisements
4-17 shall present information which can be factually substantiated and
4-18 is not merely self-laudatory.
4-19 (g) Every advertisement and written communication that
4-20 indicates one or more areas of law in which the lawyer or law firm
4-21 practices shall conform to the requirements of Section 81.125.
4-22 (h) The fact that a lawyer's services are provided on a
4-23 contingent fee basis may be disclosed if all expenses are also
4-24 contingent on a recovery, but any other statement about fees must
4-25 include the amount of the fee, whether contingent or otherwise, and
5-1 must state whether the client may be obligated for all or some
5-2 portion of the costs involved. If the lawyer intends to hold the
5-3 client liable for expenses regardless of outcome, the lawyer must
5-4 so disclose. If a contingent fee contract refers to a specific
5-5 percentage, the lawyer must disclose whether the percentage is
5-6 computed before or after expenses are deducted from the recovery.
5-7 (i) A lawyer who advertises a specific fee or range of fees
5-8 for a particular service shall not charge more than the advertised
5-9 fee or range of fees for at least 90 days unless the advertisement
5-10 specifies a shorter period; provided that, for advertisements in
5-11 the yellow pages of telephone directories or other media not
5-12 published more frequently than annually, the advertised fee or
5-13 range of fees shall not be exceeded for one year following
5-14 publication.
5-15 (j) A lawyer shall not advertise services under a name that
5-16 violates the provisions of Section 81.126.
5-17 (k) All advertisements and written communications provided
5-18 for under this subchapter shall disclose the geographic location by
5-19 city or town of the office in which the lawyer or lawyers who will
5-20 actually perform the services advertised principally practice law.
5-21 If the office location is outside a city or town, the county in
5-22 which the office is located must be disclosed.
5-23 (l) No lawyer shall directly or indirectly pay all or a part
5-24 of the cost of an advertisement by a lawyer not in the same firm
5-25 unless the advertisement discloses the name and address of the
6-1 nonadvertising lawyer, the relationship between the advertising
6-2 lawyer and the nonadvertising lawyer, and whether the advertising
6-3 lawyer may refer any case received through the advertisement to the
6-4 nonadvertising lawyer.
6-5 (m) The following information in advertisements and written
6-6 communications is presumed not to violate the provisions of Section
6-7 81.121:
6-8 (1) subject to the requirements of this section and
6-9 Section 81.126, the name of the lawyer or law firm, a listing of
6-10 lawyers associated with the firm, office addresses and telephone
6-11 numbers, office and telephone service hours, and a designation such
6-12 as "attorney" or "law firm";
6-13 (2) date of admission to the State Bar of Texas and
6-14 any other bars and a listing of federal courts and jurisdictions
6-15 other than Texas where the lawyer is licensed to practice;
6-16 (3) technical and professional licenses granted by the
6-17 state or other recognized licensing authorities;
6-18 (4) foreign language ability;
6-19 (5) fields of law in which the lawyer is certified or
6-20 designated, subject to the requirements of Section 81.125;
6-21 (6) prepaid or group legal service plans in which the
6-22 lawyer participates;
6-23 (7) acceptance of credit cards;
6-24 (8) fee for initial consultation and fee schedule,
6-25 subject to the requirements of Subsections (h) and (i);
7-1 (9) a listing of the name and geographic location of a
7-2 lawyer or law firm as a sponsor of a public service announcement or
7-3 charitable, civic, or community program or event.
7-4 (n) Nothing in this section prohibits a lawyer or law firm
7-5 from permitting the inclusion in law lists and law directories
7-6 intended primarily for the use of the legal profession of such
7-7 information as has traditionally been included in those
7-8 publications.
7-9 (o) All advertisements for a lawyer or law firm and all
7-10 written communications to a prospective client for the purpose of
7-11 soliciting professional employment must be reviewed and approved in
7-12 writing by the lawyer or a lawyer in the law firm.
7-13 (p) A copy or recording of an advertisement or a writing
7-14 soliciting professional employment shall be submitted to the
7-15 committee in accordance with the requirements of Section 81.124,
7-16 and the lawyer shall retain a copy or recording for four years
7-17 after its last dissemination, along with information concerning
7-18 when and where it was used.
7-19 (q) A lawyer shall not give or promise to give money or
7-20 anything of value to a potential client or lay person for the
7-21 purpose of obtaining professional employment; however, a lawyer may
7-22 pay the reasonable fees for advertising and public relations
7-23 services rendered in accordance with this subchapter and may pay
7-24 the usual charges and otherwise cooperate with organizations that
7-25 refer clients if the organization does not profit from the
8-1 rendition of legal services by the lawyers. This subsection shall
8-2 not preclude a lawyer from negotiating with a potential client the
8-3 terms and conditions of representation.
8-4 (r) A lawyer shall not advertise his association with a
8-5 lawyer referral service or accept referrals from a lawyer referral
8-6 service which does not meet the requirements of Article 320d,
8-7 Revised Statutes.
8-8 Sec. 81.123. DIRECT CONTACT WITH PROSPECTIVE CLIENTS.
8-9 (a) A lawyer shall not solicit professional employment from a
8-10 prospective client in person or by telephone, telegraph, or
8-11 facsimile. A lawyer shall not permit employees or agents of the
8-12 lawyer to solicit in the lawyer's behalf. A lawyer shall not enter
8-13 into an agreement for, charge, or collect a fee for professional
8-14 employment obtained in violation of this section.
8-15 (b)(1) A lawyer shall not solicit professional employment by
8-16 sending or knowingly permitting to be sent, on behalf of himself,
8-17 his firm, his partner, an associate, or any other lawyer affiliated
8-18 with him or his firm, a written communication to a prospective
8-19 client if:
8-20 (A) the communication concerns an action for
8-21 personal injury or wrongful death or otherwise relates to an
8-22 accident or disaster involving the person to whom the communication
8-23 is addressed or a relative of that person, unless the accident or
8-24 disaster occurred more than 45 days prior to the mailing of the
8-25 communication;
9-1 (B) the written communication concerns a
9-2 specific matter and the lawyer knows or reasonably should know that
9-3 the person to whom the communication is directed is represented by
9-4 a lawyer in the matter;
9-5 (C) the communication concerns an arrest of the
9-6 person to whom the communication is addressed or a relative of that
9-7 person, unless the arrest of that person occurred more than 45 days
9-8 prior to the mailing of the communication;
9-9 (D) the communication concerns a lawsuit of any
9-10 kind, including an action for divorce, in which the person to whom
9-11 the communication is addressed is a defendant or a relative of that
9-12 person, unless the lawsuit in which the person is named as a
9-13 defendant has been on file for more than 45 days prior to the
9-14 mailing of the communication;
9-15 (E) the lawyer knows or reasonably should know
9-16 that the injured person or relative of such injured person has
9-17 indicated a desire not to be contacted or receive communications
9-18 concerning professional employment;
9-19 (F) the communication involves coercion, duress,
9-20 fraud, overreaching, harassment, intimidation, or undue influence;
9-21 (G) the communication contains a false,
9-22 fraudulent, misleading, deceptive, or unfair statement or claim; or
9-23 (H) the lawyer knows or reasonably should know
9-24 that the physical, emotional, or mental state of the person makes
9-25 it unlikely that the person would exercise reasonable judgment in
10-1 employing a lawyer.
10-2 (2)(A) In this subdivision, "written communication"
10-3 means a written communication to prospective clients for the
10-4 purpose of soliciting professional employment.
10-5 (B) A written communication shall be plainly
10-6 marked "ADVERTISEMENT" in red ink, and the lower left corner of the
10-7 face of the envelope containing a written communication likewise
10-8 shall carry a prominent, red "ADVERTISEMENT" mark. If the written
10-9 communication is in the form of a self-mailing brochure or
10-10 pamphlet, the "ADVERTISEMENT" mark in red ink shall appear on the
10-11 address panel of the brochure or pamphlet.
10-12 (C) A copy of each written communication and a
10-13 sample of the envelopes in which the communications are enclosed
10-14 shall be filed with the committee either prior to or concurrently
10-15 with the mailing of the communication to a prospective client, as
10-16 provided in Section 81.124. The lawyer also shall retain a copy of
10-17 each written communication for four years. If written
10-18 communications identical in content are sent to two or more
10-19 prospective clients, the lawyer may comply with this requirement by
10-20 filing a single copy together with a list of the names and
10-21 addresses of persons to whom the written communication was sent,
10-22 retaining the same information. If the lawyer periodically sends
10-23 the identical communication to additional prospective clients,
10-24 lists of the additional names and addresses shall be filed with the
10-25 committee no less frequently than monthly.
11-1 (D) A written communication mailed to a
11-2 prospective client shall be sent only by regular United States
11-3 mail, not by registered mail or other forms of restricted delivery.
11-4 (E) No reference shall be made in the written
11-5 communication to the communication having received any kind of
11-6 approval from the state bar.
11-7 (F) The first sentence of any written
11-8 communication concerning a specific matter shall be: "If you have
11-9 already retained a lawyer for this matter, please disregard this
11-10 letter."
11-11 (G) A written communication shall be on
11-12 letter-sized paper rather than legal-sized paper and shall not be
11-13 made to resemble legal pleadings or other legal documents. This
11-14 provision does not preclude the mailing of brochures and pamphlets.
11-15 (H) If a lawyer other than the lawyer whose name
11-16 or signature appears on the written communication will actually
11-17 handle the case or matter, or if the case or matter will be
11-18 referred to another lawyer or law firm, any written communication
11-19 concerning a specific matter shall include a statement so advising
11-20 the client.
11-21 (I) Any written communication prompted by a
11-22 specific occurrence involving or affecting the intended recipient
11-23 of the communication or a family member shall disclose how the
11-24 lawyer obtained the information prompting the communication.
11-25 (J) A written communication seeking employment
12-1 by a specific prospective client in a specific matter shall not
12-2 reveal on the envelope or on the outside of a self-mailing brochure
12-3 or pamphlet the nature of the client's legal problem.
12-4 Sec. 81.124. COMMITTEE ON ADVERTISING. (a) The Standing
12-5 Committee on Advertising is hereby created as a permanent committee
12-6 of the state bar and is not subject to dissolution by the board of
12-7 directors under Article VIII of the State Bar Rules. The committee
12-8 is composed of nine members of the board of directors. Six members
12-9 shall be lawyers and at least two of those members shall be
12-10 minorities. The remaining three members shall be nonlawyers.
12-11 (b) The president of the state bar, subject to the board of
12-12 directors' concurrence, shall appoint the committee members.
12-13 Members serve for staggered three-year terms with one-third of the
12-14 members' terms expiring each year. Each year the president shall
12-15 designate a member as chairperson of the committee who shall serve
12-16 for one year.
12-17 (c) The committee has the following duties and
12-18 responsibilities:
12-19 (1) to administer the provisions of this subchapter;
12-20 (2) to recommend to the executive director the hiring
12-21 of staff and other support personnel to evaluate lawyer advertising
12-22 in accordance with this subchapter;
12-23 (3) to recommend to the board of directors the
12-24 adoption of additional laws, rules, or regulations concerning
12-25 lawyer advertising;
13-1 (4) to recommend to the board of directors such
13-2 educational programs on advertising and legal ethics as it
13-3 considers advisable;
13-4 (5) to recommend to the board of directors an annual
13-5 budget for the operation of the committee;
13-6 (6) to recommend to the board of directors the amount
13-7 of any fees to be charged for filings pursuant to this subchapter;
13-8 (7) to file inquiries alleging professional misconduct
13-9 by a lawyer or violation of this subchapter with the office of the
13-10 chief disciplinary counsel;
13-11 (8) to provide statistics and reports on advertising
13-12 by lawyers on an annual basis to the Supreme Court of Texas, the
13-13 board of directors, the governor, the lieutenant governor, and the
13-14 speaker of the house of representatives; and
13-15 (9) to maintain records concerning all filings made
13-16 pursuant to this subchapter, the committee's findings, and any
13-17 recommendations made to the office of the chief disciplinary
13-18 counsel concerning alleged professional misconduct or violation of
13-19 this subchapter.
13-20 (d) A lawyer may obtain an advisory opinion concerning the
13-21 compliance of a contemplated advertisement or written communication
13-22 with this subchapter in advance of disseminating the advertisement
13-23 or communication by submitting the material and fee specified in
13-24 Subsection (g) to the committee at least 30 days prior to such
13-25 dissemination. If the committee finds that the advertisement
14-1 complies with this subchapter, the lawyer's voluntary submission
14-2 shall be deemed to satisfy the filing requirement set forth in
14-3 Subsection (e).
14-4 (e) Subject to the exemptions stated in Subsection (f), any
14-5 lawyer who advertises services through any public media or through
14-6 written communication not involving solicitation as described in
14-7 Section 81.123 shall file a copy of each such advertisement with
14-8 the committee for evaluation of compliance with this subchapter.
14-9 The copy shall be filed either prior to or concurrently with the
14-10 lawyer's first dissemination of the advertisement or written
14-11 communication and shall be accompanied by the information and fee
14-12 specified in Subsection (g).
14-13 (f) Exempt from the filing requirements of Subsection (e)
14-14 are:
14-15 (1) any advertisement in any of the public media,
14-16 including the yellow pages of telephone directories, that contains
14-17 no illustrations and no information other than that set forth in
14-18 Section 81.122(m);
14-19 (2) a brief announcement in any of the public media
14-20 that identifies a lawyer or law firm as a contributor to a
14-21 specified charity or as a sponsor of a specified charitable,
14-22 community, or public interest program, activity, or event, provided
14-23 that the announcement contains no information about the lawyer or
14-24 law firm other than the name, the city where the law offices are
14-25 located, and the fact of the sponsorship or contribution;
15-1 (3) a listing or entry in a law list;
15-2 (4) a newsletter mailed only to:
15-3 (A) existing or former clients;
15-4 (B) other lawyers or professionals; and
15-5 (C) members of a nonprofit organization by an
15-6 attorney for such organization;
15-7 (5) professional announcement cards stating new or
15-8 changed associations, new offices, and similar changes relating to
15-9 a lawyer or law firm.
15-10 (g) A filing with the committee as required by Subsection
15-11 (e) or as permitted by Subsection (d) shall consist of:
15-12 (1) a copy of the advertisement or communication in
15-13 the form or forms in which it is to be disseminated including but
15-14 not limited to videotapes, audiotapes, print media, and photographs
15-15 of outdoor advertising;
15-16 (2) a statement of when and where the communication
15-17 will be used; and
15-18 (3) a check or money order in the amount of the fee
15-19 established by the board of directors made payable to the State Bar
15-20 of Texas. The board of directors shall establish a reasonable
15-21 filing fee each year for evaluating advertisements and written
15-22 communications as required by this subchapter and shall submit the
15-23 fee in its proposed budget to the supreme court for approval. The
15-24 fees generated shall be sufficient to cover only those costs
15-25 incurred by the committee and its staff in evaluating and reviewing
16-1 advertisements and written communications and for related purposes
16-2 of enforcing this subchapter.
16-3 (h) The committee shall evaluate all advertisements and
16-4 written communications filed with it pursuant to this section for
16-5 compliance with the applicable sections set forth in this
16-6 subchapter. The committee shall complete its evaluation within 30
16-7 days of receipt of a filing unless the committee determines that
16-8 there is reasonable doubt that the advertisement or written
16-9 communication is in compliance with this subchapter and that
16-10 further examination is warranted but cannot be completed within the
16-11 30-day period and so advises the lawyer within the 30-day period.
16-12 In the latter event, the committee shall complete its review as
16-13 promptly as the circumstances reasonably allow. If the committee
16-14 does not send any communication to the lawyer within 30 days, the
16-15 advertisement will be deemed approved.
16-16 (i) If requested by the committee, the filing lawyer shall
16-17 submit information to substantiate representations made or implied
16-18 in that lawyer's advertisement or written communication.
16-19 (j) When the committee determines that an advertisement or
16-20 written communication is not in compliance with this subchapter,
16-21 the committee shall advise the lawyer that dissemination or
16-22 continued dissemination of the advertisement or written
16-23 communication may result in professional discipline.
16-24 (k) A finding by the committee of either compliance or
16-25 noncompliance shall not be binding in a grievance proceeding, but
17-1 may be offered as evidence.
17-2 (l) If a change of circumstances occurs subsequent to the
17-3 committee's evaluation of an advertisement or written communication
17-4 that raises a substantial possibility that the advertisement or
17-5 communication has become false or misleading as a result of the
17-6 change in circumstances, the lawyer shall promptly refile the
17-7 advertisement or a modified advertisement with the committee along
17-8 with an explanation of the change in circumstances and a reasonable
17-9 fee to be determined by the board of directors.
17-10 Sec. 81.125. COMMUNICATION OF FIELD OF PRACTICE. (a) A
17-11 lawyer may not communicate the fact that the lawyer is a
17-12 specialist, except as provided in this section.
17-13 (b) A lawyer admitted to engage in patent practice before
17-14 the U.S. Patent and Trademark Office may use the designation
17-15 "patents," "patent attorney," "patent lawyer," or any combination
17-16 of those terms. A lawyer engaged in the trademark practice may use
17-17 the designation "trademark," "trademark attorney," "trademark
17-18 lawyer," or any combination of those terms. A lawyer engaged in
17-19 patent and trademark practice may hold himself out as specializing
17-20 in "intellectual property law," "patents, or trademarks, and
17-21 related matters" or "patent, trademark, copyright law and unfair
17-22 competition," or any of those terms.
17-23 (c) A lawyer who has been awarded a certificate of special
17-24 competence by the Texas Board of Legal Specialization in the area
17-25 so advertised shall state with respect to each area "board
18-1 certified (area of specialization) -- Texas Board of Legal
18-2 Specialization."
18-3 (d) If the lawyer has not been awarded a certificate of
18-4 special competence by the Texas Board of Legal Specialization in
18-5 the area so advertised, the advertisement shall state with respect
18-6 to each area, "Not certified by the Texas Board of Legal
18-7 Specialization." If the area of law so advertised has not been
18-8 designated as an area in which a lawyer may be awarded a
18-9 certificate of special competence by the Texas Board of Legal
18-10 Specialization, the lawyer may also state, "No designation has been
18-11 made by the Texas Board of Legal Specialization for a Certificate
18-12 of Special Competence in this area."
18-13 (e) The statements referred to in Subsections (c) and (d)
18-14 shall be displayed conspicuously with no abbreviations or changes
18-15 in the language set forth above, and such statement shall be
18-16 separate and apart from any other statements so as to be easily
18-17 seen and understood by any consumer.
18-18 Sec. 81.126. FIRM NAMES AND LETTERHEADS. (a) A lawyer
18-19 shall not use a firm name, letterhead, or other professional
18-20 designation that violates Section 81.121.
18-21 (b) A lawyer in private practice shall not practice under a
18-22 trade name, a name that is misleading as to the identity of the
18-23 lawyer or lawyers practicing under such name, or a firm name
18-24 containing names other than those of one or more of the lawyers in
18-25 the firm, except that the names of a professional corporation or
19-1 professional association may contain "P.C." or "P.A." or similar
19-2 symbols indicating the nature of the organization, and if otherwise
19-3 lawful a firm may use as or continue to include in its name the
19-4 name or names of one or more deceased or retired members of the
19-5 firm or of a predecessor firm in a continuing line of succession.
19-6 Nothing within this subsection shall prohibit a married woman from
19-7 practicing under her maiden name.
19-8 (c) A lawyer shall not advertise under a trade or fictitious
19-9 name, except that a lawyer who actually practices under a trade
19-10 name as authorized by Subsection (b) may use that name in
19-11 advertisements. A lawyer who advertises under a trade or
19-12 fictitious name is in violation of this subsection unless the same
19-13 name is the law firm name that appears on the lawyer's letterhead,
19-14 business cards, office sign, and fee contracts and that appears
19-15 with the lawyer's signature on pleadings and other legal documents.
19-16 (d) A law firm with offices in more than one jurisdiction
19-17 may use the same name in each jurisdiction, but identification of
19-18 the lawyers in an office of the firm shall indicate the
19-19 jurisdictional limitations on those not licensed to practice in the
19-20 jurisdiction in which the office is located.
19-21 (e) The name of a lawyer occupying a judicial, legislative,
19-22 or public executive or administrative position shall not be used in
19-23 the name of a law firm or in a communication on its behalf during
19-24 any substantial period in which the lawyer is not actively and
19-25 regularly practicing with the firm.
20-1 (f) Lawyers may state or imply that they practice in a
20-2 partnership or other organization only when that is the fact.
20-3 SECTION 3. Section 38.12, Penal Code, is amended to read as
20-4 follows:
20-5 Sec. 38.12. BARRATRY. (a) A person commits an offense if,
20-6 with intent to obtain an economic benefit for himself, he:
20-7 (1) institutes any suit or claim in which he knows he
20-8 has no interest;
20-9 (2) institutes any suit or claim that he knows is
20-10 false;
20-11 (3) either in person or by telephone solicits
20-12 employment for himself or another to prosecute or defend a suit or
20-13 to collect a claim; <or>
20-14 (4) procures another to solicit for him or another
20-15 employment to prosecute or defend a suit or to collect a claim; or
20-16 (5) pays or gives another money or anything of value
20-17 as an inducement for providing him or another person with
20-18 employment to prosecute or defend a suit or to collect a claim.
20-19 (b) A person commits an offense if he:
20-20 (1) knowingly:
20-21 (A) expends funds the person knows or believes
20-22 are derived from the commission of an offense under Subsection (a)
20-23 of this section; or
20-24 (B) finances or invests funds the person knows
20-25 or believes are intended to further the commission of an offense
21-1 under Subsection (a) of this section; or
21-2 (2) negligently:
21-3 (A) expends funds the person in the exercise of
21-4 reasonable care should know or should believe are derived from the
21-5 commission of an offense under Subsection (a) of this section; or
21-6 (B) finances or invests funds the person in the
21-7 exercise of reasonable care should know or should believe are
21-8 intended to further the commission of an offense under Subsection
21-9 (a) of this section.
21-10 (c) Intent to obtain an economic benefit is presumed if the
21-11 person accepts or offers to accept employment for a fee, accepts or
21-12 offers to accept a fee, enters into a fee contract, or accepts or
21-13 agrees to accept money or any economic benefit.
21-14 (d) <(c)> Except as provided by Subsection (f) <(d)> of this
21-15 section, an offense under Subsection (b)(2) <(a)> of this section
21-16 is a Class A misdemeanor.
21-17 (e) An offense under Subsection (a) or (b)(1) of this
21-18 section is a felony of the third degree.
21-19 (f) <(d)> An offense under Subsection (b)(2) <(a)(3) or
21-20 (a)(4)> of this section is a felony of the third degree if it is
21-21 shown on the trial of the offense that<:>
21-22 <(1)> the defendant has previously been convicted
21-23 under Subsection (b)(2) <(a)(3) or (a)(4)> of this section<; and>
21-24 <(2) the solicitation is performed in whole or in
21-25 part:>
22-1 <(A) in a hospital, funeral establishment, or
22-2 public or private cemetery or at the scene of an accident;>
22-3 <(B) by using a person who is an employee of:>
22-4 <(i) this state;>
22-5 <(ii) a political subdivision of this
22-6 state, including a county, municipality, or special purpose
22-7 district or authority; or>
22-8 <(iii) a hospital or funeral
22-9 establishment; or>
22-10 <(C) by impersonating a clergyman, public
22-11 employee, or emergency assistance worker or volunteer>.
22-12 (g) <(e)> Final conviction of felony barratry is a serious
22-13 crime for all purposes and acts, specifically including the State
22-14 Bar Rules and the Texas Rules of Disciplinary Procedure.
22-15 SECTION 4. Chapter 38, Penal Code, is amended by adding
22-16 Section 38.121 to read as follows:
22-17 Sec. 38.121. WRITTEN SOLICITATION FOR PURPOSE OF OBTAINING
22-18 PROFESSIONAL EMPLOYMENT. (a) A person commits an offense if the
22-19 person, with the intent to obtain professional employment for
22-20 himself or another, sends or knowingly permits to be sent a written
22-21 communication to an individual who has not sought his/her advice
22-22 regarding employment if:
22-23 (1) the communication concerns an action for personal
22-24 injury or wrongful death or otherwise relates to an accident or
22-25 disaster involving the person to whom the communication is
23-1 addressed or a relative of that person, unless the accident or
23-2 disaster occurred more than 45 days prior to the mailing of the
23-3 communication;
23-4 (2) the communication concerns a specific matter and
23-5 the lawyer or others acting as, for, or on behalf of a lawyer knows
23-6 or reasonably should have known that the person to whom the
23-7 communication is directed is represented by a lawyer in the matter;
23-8 (3) the communication concerns an arrest of the person
23-9 to whom the communication is addressed or a relative of that
23-10 person, unless the arrest of that person occurred more than 45 days
23-11 prior to the mailing of the communication;
23-12 (4) the communication concerns a lawsuit of any kind,
23-13 including an action for divorce, in which the person to whom the
23-14 communication is addressed is a defendant or a relative of that
23-15 person, unless the lawsuit in which the person is named as a
23-16 defendant has been on file for more than 45 days prior to the
23-17 mailing of the communication;
23-18 (5) the person knows or reasonably should know that
23-19 the injured person or relative of such injured person has indicated
23-20 a desire not to be contacted or receive communications concerning
23-21 professional employment;
23-22 (6) the communication concerns the death of any person
23-23 and the communication is addressed to a relative of the deceased,
23-24 unless the death of the deceased occurred more than 45 days prior
23-25 to the mailing of the communication;
24-1 (7) the communication concerns a potential claim of
24-2 bankruptcy involving the person to whom the communication is
24-3 addressed or a relative of that person, unless the notice of
24-4 foreclosure or any other operative document which indicates a
24-5 potential claim of bankruptcy by the person to whom the
24-6 communication is directed has been officially posted more than 45
24-7 days prior to the mailing of the communication;
24-8 (8) the communication involves coercion, duress,
24-9 fraud, overreaching, harassment, intimidation, or undue influence;
24-10 or
24-11 (9) the communication contains a false, fraudulent,
24-12 misleading, deceptive, or unfair statement or claim.
24-13 (b) For the purposes of Subsection (a) of this section, a
24-14 desire not to be contacted is presumed if an accident report
24-15 reflects that such an indication has been made by the injured
24-16 person or relative.
24-17 (c) Except as provided by Subsection (d) of this section, an
24-18 offense under Subsection (a) of this section is a Class A
24-19 misdemeanor.
24-20 (d) An offense under Subsection (a) of this section is a
24-21 felony of the third degree if it is shown on the trial of the
24-22 offense that the defendant had previously been convicted under
24-23 Subsection (a) of this section.
24-24 SECTION 5. Subsection (a), Section 45, Uniform Act
24-25 Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil
25-1 Statutes), is amended to read as follows:
25-2 (a) The department shall prepare and upon request supply to
25-3 police departments, coroners, sheriffs, garages, and other suitable
25-4 agencies or individuals, forms for accident reports required
25-5 hereunder, appropriate with respect to the persons required to make
25-6 such reports and the purposes to be served. The written reports to
25-7 be made by person involved in accidents and by investigating
25-8 officers shall call for sufficiently detailed information to
25-9 disclose with reference to a traffic accident the cause, conditions
25-10 then existing, and the persons and vehicle involved. Also, the
25-11 forms for the written reports shall include a means for designating
25-12 and identifying peace officers, fire fighters, and emergency
25-13 medical services employees who during an emergency are involved in
25-14 accidents while driving law enforcement vehicles, fire department
25-15 vehicles, or emergency medical services vehicles in pursuit of
25-16 their duties. The forms shall also contain a statement by the
25-17 peace officers, fire fighters, and emergency medical services
25-18 employees describing the nature of the emergency. The forms must
25-19 include a means of designating whether an individual involved in an
25-20 accident desires to be contacted by persons seeking to obtain
25-21 professional employment. An individual's response as to whether
25-22 the individual desires to be contacted is not admissible evidence
25-23 in a civil trial.
25-24 SECTION 6. Article 42.12, Code of Criminal Procedure, is
25-25 amended by adding Section 13A to read as follows:
26-1 Sec. 13A. BARRATRY PROBATION. A court granting probation to
26-2 a defendant convicted of an offense under Section 38.12, Penal
26-3 Code, shall require as a condition of probation that the defendant
26-4 submit to detention in a county jail for a period of:
26-5 (1) not less than 24 hours nor more than 30 days if
26-6 the defendant is convicted of a misdemeanor; or
26-7 (2) not less than 10 days nor more than 180 days if
26-8 the defendant is convicted of a felony.
26-9 SECTION 7. (a) The change in law made by this Act applies
26-10 only to an offense committed on or after the effective date of this
26-11 Act. For purposes of this section, an offense is committed before
26-12 the effective date of this Act if any element of the offense occurs
26-13 before the effective date.
26-14 (b) An offense committed before the effective date of this
26-15 Act is covered by the law in effect when the offense was committed,
26-16 and the former law is continued in effect for this purpose.
26-17 SECTION 8. This Act takes effect September 1, 1993.
26-18 SECTION 9. The importance of this legislation and the
26-19 crowded condition of the calendars in both houses create an
26-20 emergency and an imperative public necessity that the
26-21 constitutional rule requiring bills to be read on three several
26-22 days in each house be suspended, and this rule is hereby suspended.