Federal judge dismisses challenges to parts of Texas barratry law

A federal judge has dismissed challenges to parts of a Texas barratry law and to the speed at which municipal courts release information on misdemeanor defendants. A Dallas lawyer and his firm have until early August to replead the two claims.

But plaintiffs’ lawyer Bill Aleshire, a shareholder in Riggs Aleshire & Ray in Austin, writes in an email that his clients will replead only the municipal court-records claim.

“I don’t think there is any room left, after reading the judge’s opinion, to fix the issues that the judge raised,” he says referring to the barratry law challenge. But Aleshire notes his clients will appeal that matter to the 5th U.S. Circuit Court of Appeals.

Nearly a year ago, Barry Bobbitt and Sullo & Bobbitt sued Texas Attorney General Greg Abbott and four other defendants. In their first claim against Abbott, the plaintiffs sought a declaratory judgment and alleged the civil barratry statute codified in Texas Government Code §82.0651 is an unconstitutional restraint on their First and 14th Amendment rights.

In their second claim, the plaintiffs alleged Arlington Chief Municipal Judge Stewart Milner, Dallas Municipal Court Director Gloria Lopez-Carter, Dallas County Precinct 1-1 Justice of the Peace Thomas Jones and Fort Worth Chief Municipal Judge Ninfa Mares did not give them timely access to citations, charges and court filings in violation of their First and 14th Amendment rights.

But in a July 10 Memorandum Opinion and Order in Sullo & Bobbitt PLLC, et al. v. Abbott, et al., Chief U.S. District Judge Sidney A. Fitzwater of the Northern District of Texas in Dallas dismissed the barratry law claim noting the plaintiffs lacked standing because their injury isn’t traceable to the AG and a declaratory judgment against him likely would not redress the injury.

“[T]he Civil Barratry Statute grants a remedy to a private civil litigant who was solicited by an attorney or others, in violation in state laws such as the Criminal Barratry Statute. The Attorney General is powerless to enforce the Civil Barratry Statute against the plaintiffs and cannot cause them injury through the statute. . . . [H]e can neither prevent private litigants from filing and prosecuting claims under the Civil Barratry Statute nor prevent courts from adjudicating these private civil cases,” Fitzwater wrote.

Among other things, Fitzwater also ruled that Milner’s, Lopez-Carter’s, Jones’ and Mares’ alleged actions didn’t implicate commercial free-speech rights. Fitzwater wrote that the public and press have a “qualified First Amendment right” to access court documents “if access has historically been available” and it serves a “significant positive role.” He said access to the municipal-court records did play a significant positive role, but citations are “not yet a court document” and the plaintiffs failed to plead facts showing a history of access to charges and court filings.

Tom Kelley, a spokesman for the Texas Office of the Attorney General, declines comment.

Fort Worth senior assistant attorney Laetitia Coleman Brown, who represents Mares, says she’s pleased the court found the plaintiffs didn’t adequately plead their claim. She says there may be an argument that the plaintiffs do not have a constitutional right to access the municipal court records in question, but, regardless, it’s the city of Fort Worth’s position that “we were giving them access. We always believed we were giving them timely access, as well.”

Dallas Assistant City Attorney Chris Bowers, who represents Lopez-Carter; Arlington Assistant City Attorney Molly Shortall, who represents Milner; and Dallas County Assistant District Attorney Tammy Ardolf, who represents Jones, each did not return a telephone call seeking comment.

-- Angela Morris

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