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78R6053 YDB-D
By: Keffer of Eastland H.B. No. 2689
A BILL TO BE ENTITLED
AN ACT
relating to the practice of law.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Section 81.101, Government Code,
is amended to read as follows:
Sec. 81.101. DEFINITIONS [DEFINITION].
SECTION 2. Sections 81.101(a) and (b), Government Code, are
amended to read as follows:
(a) In this chapter:
(1) "Acting in a professional capacity" means:
(A) providing advice with the expectation that
compensation for the advice will be provided by or on behalf of a
person receiving the advice or that the compensation ordinarily
expected will be waived for charitable or civic reasons;
(B) acting with the express or implied
representation that the individual is an attorney; or
(C) holding oneself out as an advisor having
special competence in the interpretation and application of laws,
regulations, and other legal standards.
(2) "Legal advice" means acting in a professional
capacity as a personal advisor to a person concerning the specific
rights or obligations of a person by interpreting and applying
laws, regulations, or other legal standards.
(3) "Legal representation" means acting as an advocate
in a governmental adjudicative proceeding in a court or
administrative agency, including service rendered related to the
proceeding, to determine the specific legal rights or obligations
of a person.
(4) "Practice [the "practice] of law" means:
(A) providing legal representation;
(B) providing legal advice;
(C) preparing or negotiating, in whole or in
part, a will, trust, contract, conveyance, pleading, or other
instrument to the extent the preparation or negotiation is offered
explicitly or implicitly to provide legal advice or legal
representation; or
(D) engaging in activities described in Section
81.102(c) [the preparation of a pleading or other document incident
to an action or special proceeding or the management of the action
or proceeding on behalf of a client before a judge in court as well
as a service rendered out of court, including the giving of advice
or the rendering of any service requiring the use of legal skill or
knowledge, such as preparing a will, contract, or other instrument,
the legal effect of which under the facts and conclusions involved
must be carefully determined].
(b) The definition of "practice of law" in this section is
not exclusive and does not deprive the judicial branch of the power
and authority under both this chapter and the adjudicated cases to
determine whether other services and acts not enumerated may
constitute the practice of law.
SECTION 3. Section 81.102, Government Code, is amended by
amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) Except as provided by Subsections [Subsection] (b) and
(c), a person may not practice law in this state unless the person
is a member of the state bar.
(c) A person who does not hold the person out as an attorney
or as a person rendering legal advice may engage in the practice of
law to the limited extent specified in this subsection by:
(1) acting as a real estate broker as provided by
Chapter 1101, Occupations Code, to the extent of completing forms
prepared and adopted as provided by that chapter that bind the sale,
exchange, option, lease, or rental of an interest in real property;
or
(2) performing acts related to the lease, sale, or
transfer of any mineral or mining interest in real property, which
includes oil, gas, coal, sulphur, uranium, and precious metals, to
the extent of preparing a legal instrument that affects title to
real property in a transaction involving the mineral or mine
interest, including:
(A) researching public and private records to
determine ownership and preparing related ownership or
environmental site assessment reports;
(B) negotiating and closing the transfer of
interests;
(C) negotiating business arrangements and
agreements for exploration, drilling, production, or the operation
of properties;
(D) securing access directly related to mineral
or mining operations;
(E) negotiating arrangements for the locations
of production facilities, transfer stations, compressor stations,
or similar facilities or stations; and
(F) preparing instruments to accomplish any of
the activities listed in Paragraphs (A)-(E).
SECTION 4. Subchapter G, Chapter 81, Government Code, is
amended by adding Section 81.107 to read as follows:
Sec. 81.107. RECOVERY. (a) A person who pays compensation
to a person engaging in the unauthorized practice of law in
violation of Section 81.102 may bring suit for and is entitled to:
(1) recovery of the compensation paid; and
(2) court costs and reasonable and necessary
attorney's fees.
(b) If the trier of fact finds a person has knowingly
engaged in the unauthorized practice of law in violation of Section
81.102, the court shall order the person to pay damages equal to
three times the amount of compensation paid.
(c) An employer may not recover under this section against a
person who has acted as an employee of the employer.
(d) This section does not limit or restrict any other remedy
available by law.
SECTION 5. Section 83.001(b), Government Code, is amended
to read as follows:
(b) This section does not apply to:
(1) an attorney licensed in this state; or
(2) a person described by Section 81.102(c) [licensed
real estate broker or salesman performing the acts of a real estate
broker pursuant to The Real Estate License Act (Article 6573a,
Vernon's Texas Civil Statutes); or
[(3) a person performing acts relating to a
transaction for the lease, sale, or transfer of any mineral or
mining interest in real property].
SECTION 6. This Act takes effect September 1, 2003.