By: Smith of Tarrant (Senate Sponsor - Wentworth) H.B. No. 148

(In the Senate - Received from the House May 18, 2009; May 19, 2009, read first time and referred to Committee on State Affairs; May 23, 2009, reported favorably, as amended, by the following vote: Yeas 8, Nays 0; May 23, 2009, sent to printer.)

COMMITTEE AMENDMENT NO. 1 By: Duncan

Amend H.B. No. 148 (house engrossment) as follows:

(1) In SECTION 2 of the bill, strike "The change in law made by this Act applies" and substitute "Section 38.12(d), Penal Code, as amended by this Act,".

(2) Add the following appropriately numbered SECTIONS to the bill and renumber existing SECTIONS of the bill accordingly:

SECTION ____. Subchapter C, Chapter 82, Government Code, is amended by adding Section 82.067 to read as follows:

Sec. 82.067. CLIENT CAUSE OF ACTION. (a) A client may bring a civil action against any person who knowingly engages in conduct prohibited by:

(1) the following sections of the Penal Code:

(A) Section 38.12 (Barratry and Solicitation of Professional Employment);

(B) Section 38.122 (Falsely Holding Oneself Out as a Lawyer); or

(C) Section 38.123 (Unauthorized Practice of Law); or

(2) Rule 8.04 (a)(9), Texas Disciplinary Rules of Professional Conduct.

(b) A client who prevails in an action under this section may recover the following as damages:

(1) all amounts paid to or received by the person as a result of the conduct on which the cause of action is based;

(2) at the discretion of the fact-finder and as a penalty based on the severity of the wrongful conduct, up to an additional two times the amounts paid to or received by the person as a result of such conduct;

(3) reasonable and necessary attorney's fees and court costs incurred by the client in the action; and

(4) prejudgment and post-judgment interest as provided by law.

(c) The standard of proof for proving a cause of action under this section shall be by a preponderance of the evidence.

(d) For the purposes of this section, a person acts "knowingly" when the person has actual awareness of the nature of the person's conduct or that the circumstances exist, or has actual awareness that the person's conduct is reasonably certain to cause the result. For the purposes of this section, "actual awareness" may be inferred where objective manifestations indicate that a person acted with actual awareness.

SECTION ____. Section 82.067, Government Code, as added by this Act, applies only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrues before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose.

A BILL TO BE ENTITLED

AN ACT

relating to the prosecution of the offense of barratry and solicitation of professional employment.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 38.12(d), Penal Code, is amended to read as follows:

(d) A person commits an offense if the person:

(1) is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, or registered by a health care regulatory agency of this state; and

(2) with the intent to obtain professional employment for the person [himself] or for another, provides [sends] or knowingly permits to be provided [sent] to an individual who has not sought the person's employment, legal representation, advice, or care a written communication or a solicitation, including a solicitation in person or by telephone, that:

(A) concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication or solicitation is provided [addressed] or a relative of that person and that was provided [mailed] before the 31st day after the date on which the accident or disaster occurred;

(B) concerns a specific matter and relates to legal representation and the person knows or reasonably should know that the person to whom the communication or solicitation is directed is represented by a lawyer in the matter;

(C) concerns an arrest of or issuance of a summons to the person to whom the communication or solicitation is provided [addressed] or a relative of that person and that was provided [mailed] before the 31st day after the date on which the arrest or issuance of the summons occurred;

(D) concerns a lawsuit of any kind, including an action for divorce, in which the person to whom the communication or solicitation is provided [addressed] is a defendant or a relative of that person, unless the lawsuit in which the person is named as a defendant has been on file for more than 31 days before the date on which the communication or solicitation was provided [mailed];

(E) is provided [sent] or permitted to be provided [sent] by a person who knows or reasonably should know that the injured person or relative of the injured person has indicated a desire not to be contacted by or receive communications or solicitations concerning employment;

(F) involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or

(G) contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.

SECTION 2. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect at the time the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 3. This Act takes effect September 1, 2009.

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