Sections of Texas’ barratry statute declared unconstitutional

A Houston lawyer and an Austin chiropractor recently won a round in their battle to have sections of Texas’ barratry statute declared unconstitutional. On March 25, U.S. District Judge Lee Yeakel of the Western District of Texas signed a final judgment in Donald McKinley, et al. v. Greg Abbott declaring §§38.12(d)(2)(A) and 38.12(d)(2)(C) of the Texas Penal Code unconstitutional. Yeakel also entered a permanent injunction prohibiting the Texas Office of the Attorney General from enforcing those sections. The sections of the Texas Penal Code at issue require lawyers, doctors and others to wait 31 days before soliciting business from individuals involved in accidents. Houston solo Christopher Villasana and Dr. Donald McKinley of Austin filed their suit in August 2009. In the complaint, Villasana alleged §38.12(d)(2)(C) puts him at risk for a Class A misdemeanor for “sending directed, State Bar approved advertisements to persons on a ticket-arrest warrant list less than 31 days after the arrest/ticket.” McKinley alleged he also risked a misdemeanor if satisfied patients shared his business cards or brochures with injured people. With regard to Villasana’s allegations, Yeakel found it is unconstitutional to prevent attorneys for 31 days from contacting “individuals arrested or served with a summons” under §38.12(d)(2)(C) with a written solicitation, because the section does not “directly or materially advance a substantial state interest.” As to McKinley’s allegations, Yeakel found that §38.12(d)(2)(A) infringes upon McKinley’s right to speak. Martyn Hill, a shareholder in Pagel, Davis & Hill in Houston who represents McKinley and Villasana, says he is pleased with Yeakel’s opinion and order. He notes that his clients did not challenge provisions of the barratry statute that require marketing to be “truthful and not in any way misleading.” Villasana says about 60 percent of his business is traffic ticket defense, says he’s pleased with Yeakel’s decision.
-- Brenda Sapino Jeffreys

Comments

[Lynn Blumenfeld, Fulton]

When you live in Florida and receive a traffic ticket, your mailbox is swamped with solicitations from attorneys. When I got my first ticket in 40 years here in Texas, I thought I was just lucky not to have this happen. On the down side, I missed my court date by not being reminded!