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A BILL TO BE ENTITLED
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AN ACT
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relating to barratry. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 82.065(b), Government Code, is amended |
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to read as follows: |
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(b) Any contract for legal services is voidable by the |
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client if it is procured as a result of conduct violating Section |
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38.12(a) or (b), Penal Code, [the laws of this state] or Rule 7.03 |
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of the Texas Disciplinary Rules of Professional Conduct of the |
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State Bar of Texas, regarding barratry by attorneys or other |
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persons. |
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SECTION 2. Section 82.0651, Government Code, is amended by |
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amending Subsections (a), (b), and (c) and adding Subsection (g) to |
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read as follows: |
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(a) A client may bring an action to void a contract for legal |
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services that was procured as a result of conduct violating Section |
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38.12(a) or (b), Penal Code, [the laws of this state] or Rule 7.03 |
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of the Texas Disciplinary Rules of Professional Conduct of the |
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State Bar of Texas, regarding barratry by attorneys or other |
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persons, and to recover any amount that may be awarded under |
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Subsection (b). A client who enters into a contract described by |
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this subsection may bring an action to recover any amount that may |
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be awarded under Subsection (b) even if the contract is voided |
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voluntarily. |
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(b) A client who prevails in an action under Subsection (a) |
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shall recover from any person who committed barratry: |
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(1) all fees and expenses paid to that person under the |
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contract; |
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(2) the balance of any fees and expenses paid to any |
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other person under the contract, after deducting fees and expenses |
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awarded based on a quantum meruit theory as provided by Section |
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82.065(c); |
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(3) actual damages caused by the prohibited conduct; |
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[and] |
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(4) a penalty in the amount of $10,000; and |
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(5) reasonable and necessary attorney's fees. |
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(c) A person who was solicited by conduct violating Section |
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38.12(a) or (b), Penal Code, [the laws of this state] or Rule 7.03 |
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of the Texas Disciplinary Rules of Professional Conduct of the |
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State Bar of Texas, regarding barratry by attorneys or other |
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persons, but who did not enter into a contract as a result of that |
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conduct, may file a civil action against any person who committed |
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barratry. |
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(g) The expedited actions process created by Rule 169, Texas |
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Rules of Civil Procedure, does not apply to an action under this |
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section. |
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SECTION 3. Sections 38.12(d) and (e), Penal Code, are |
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amended to read as follows: |
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(d) A person commits an offense if the person: |
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(1) is an attorney, chiropractor, physician, surgeon, |
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or private investigator licensed to practice in this state or any |
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person licensed, certified, or registered by a health care |
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regulatory agency of this state; and |
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(2) with the intent to obtain professional employment |
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for the person or for another, provides or knowingly permits to be |
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provided to an individual who has not sought the person's |
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employment, legal representation, advice, or care a written |
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communication or a solicitation, including a solicitation in person |
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or by telephone, that: |
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(A) concerns an action for personal injury or |
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wrongful death or otherwise relates to an accident or disaster |
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involving the person to whom the communication or solicitation is |
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provided or a relative of that person and that was provided before |
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the 31st day after the date on which the accident or disaster |
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occurred; |
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(B) concerns a specific matter and relates to |
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legal representation and the person knows or reasonably should know |
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that the person to whom the communication or solicitation is |
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directed is represented by a lawyer in the matter; |
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(C) [concerns an arrest of or issuance of a
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summons to the person to whom the communication or solicitation is
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provided or a relative of that person and that was provided before
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the 31st day after the date on which the arrest or issuance of the
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summons occurred;
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[(D)] concerns a lawsuit of any kind, including |
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an action for divorce, in which the person to whom the communication |
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or solicitation is provided is a defendant or a relative of that |
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person, unless the lawsuit in which the person is named as a |
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defendant has been on file for more than 31 days before the date on |
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which the communication or solicitation was provided; |
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(D) [(E)] is provided or permitted to be provided |
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by a person who knows or reasonably should know that the injured |
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person or relative of the injured person has indicated a desire not |
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to be contacted by or receive communications or solicitations |
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concerning employment; |
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(E) [(F)] involves coercion, duress, fraud, |
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overreaching, harassment, intimidation, or undue influence; or |
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(F) [(G)] contains a false, fraudulent, |
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misleading, deceptive, or unfair statement or claim. |
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(e) For purposes of Subsection (d)(2)(D) [(d)(2)(E)], a |
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desire not to be contacted is presumed if an accident report |
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reflects that such an indication has been made by an injured person |
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or that person's relative. |
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SECTION 4. (a) Section 82.065(b), Government Code, as |
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amended by this Act, applies only to a contract procured as a result |
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of conduct described by that subsection, as amended by this Act, |
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occurring on or after the effective date of this Act. A contract |
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procured as a result of conduct occurring before the effective date |
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of this Act is governed by the law applicable to the contract |
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immediately before the effective date of this Act, and that law is |
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continued in effect for that purpose. |
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(b) Except as provided by this section, Section 82.0651, |
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Government Code, as amended by this Act, applies only to an action |
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concerning a contract procured as a result of conduct described by |
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Section 82.0651(a), Government Code, as amended by this Act, that |
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occurs on or after the effective date of this Act. An action |
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concerning a contract procured as a result of conduct that occurred |
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before the effective date of this Act is governed by the law |
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applicable to the contract immediately before the effective date of |
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this Act, and that law is continued in effect for that purpose. |
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(c) Section 82.0651(g), Government Code, as added by this |
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Act, applies to an action: |
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(1) commenced on or after the effective date of this |
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Act; or |
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(2) pending on the effective date of this Act and in |
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which the trial, or any new trial or retrial following motion, |
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appeal, or otherwise, begins on or after the effective date of this |
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Act. |
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SECTION 5. This Act takes effect September 1, 2013. |
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* * * * * |