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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