By: Fletcher (Senate Sponsor - Duncan) H.B. No. 1711
(In the Senate - Received from the House April 15, 2013;
April 17, 2013, read first time and referred to Committee on State
Affairs; May 8, 2013, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 8, Nays 0; May 8, 2013,
sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 1711 By: Duncan
A BILL TO BE ENTITLED
AN ACT
relating to barratry.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 82.065(b), Government Code, is amended
to read as follows:
(b) Any contract for legal services is voidable by the
client if it is procured as a result of conduct violating Section
38.12(a) or (b), Penal Code, [the laws of this state] or Rule 7.03
of the Texas Disciplinary Rules of Professional Conduct of the
State Bar of Texas, regarding barratry by attorneys or other
persons.
SECTION 2. Section 82.0651, Government Code, is amended by
amending Subsections (a), (b), and (c) and adding Subsection (g) to
read as follows:
(a) A client may bring an action to void a contract for legal
services that was procured as a result of conduct violating Section
38.12(a) or (b), Penal Code, [the laws of this state] or Rule 7.03
of the Texas Disciplinary Rules of Professional Conduct of the
State Bar of Texas, regarding barratry by attorneys or other
persons, and to recover any amount that may be awarded under
Subsection (b). A client who enters into a contract described by
this subsection may bring an action to recover any amount that may
be awarded under Subsection (b) even if the contract is voided
voluntarily.
(b) A client who prevails in an action under Subsection (a)
shall recover from any person who committed barratry:
(1) all fees and expenses paid to that person under the
contract;
(2) the balance of any fees and expenses paid to any
other person under the contract, after deducting fees and expenses
awarded based on a quantum meruit theory as provided by Section
82.065(c);
(3) actual damages caused by the prohibited conduct;
[and]
(4) a penalty in the amount of $10,000; and
(5) reasonable and necessary attorney's fees.
(c) A person who was solicited by conduct violating Section
38.12(a) or (b), Penal Code, [the laws of this state] or Rule 7.03
of the Texas Disciplinary Rules of Professional Conduct of the
State Bar of Texas, regarding barratry by attorneys or other
persons, but who did not enter into a contract as a result of that
conduct, may file a civil action against any person who committed
barratry.
(g) The expedited actions process created by Rule 169, Texas
Rules of Civil Procedure, does not apply to an action under this
section.
SECTION 3. Sections 38.12(d) and (e), Penal Code, are
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 or for another, provides or knowingly permits to be
provided 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 or a relative of that person and that was provided 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 or a relative of that person and that was provided 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 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;
(D) [(E)] is provided or permitted to be provided
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;
(E) [(F)] involves coercion, duress, fraud,
overreaching, harassment, intimidation, or undue influence; or
(F) [(G)] contains a false, fraudulent,
misleading, deceptive, or unfair statement or claim.
(e) For purposes of Subsection (d)(2)(D) [(d)(2)(E)], a
desire not to be contacted is presumed if an accident report
reflects that such an indication has been made by an injured person
or that person's relative.
SECTION 4. (a) Section 82.065(b), Government Code, as
amended by this Act, applies only to a contract procured as a result
of conduct described by that subsection, as amended by this Act,
occurring on or after the effective date of this Act. A contract
procured as a result of conduct occurring before the effective date
of this Act is governed by the law applicable to the contract
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
(b) Except as provided by this section, Section 82.0651,
Government Code, as amended by this Act, applies only to an action
concerning a contract procured as a result of conduct described by
Section 82.0651(a), Government Code, as amended by this Act, that
occurs on or after the effective date of this Act. An action
concerning a contract procured as a result of conduct that occurred
before the effective date of this Act is governed by the law
applicable to the contract immediately before the effective date of
this Act, and that law is continued in effect for that purpose.
(c) Section 82.0651(g), Government Code, as added by this
Act, applies to an action:
(1) commenced on or after the effective date of this
Act; or
(2) pending on the effective date of this Act and in
which the trial, or any new trial or retrial following motion,
appeal, or otherwise, begins on or after the effective date of this
Act.
SECTION 5. This Act takes effect September 1, 2013.
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