March 12, 1999 

The Honorable Richard J. Miller 

Bell County Attorney 

P.O. Box 1127 

Belton, Texas 765 13 

Opinion No. JC-0022 

Re: Constitutionality of section 3&12(d)(2)(C) of the 

Penal Code, which prohibits an attorney from making 

adirect-mailsolicitationofacriminaldefendantwithin 

thirty days of his arrest (RQ-1223) 

Dear Mr. Miller: 

You have requested our opinion regarding the constitutionality of that portion of the barratry 

statute, section 38.12 of the Penal Code, that prohibits an attorney from making a direct-mail 

solicitation of a criminal defendant within thirty days of his arrest or the issuance of a summons. 

Subsection (d) of section 38.12 provides, in relevant part: 

(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 ofthis state; 

(2) with the intent to obtain professional employment for himself 

or for another, sends or knowingly permits to be sent to an individual 

who has not sought the person’s employment, legal representation, 

advice. or care a written communication 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 is addressed or a relative of that person and 

that was mailed before the 31st day after the date on which the 

accident or disaster occurred; 

(C) concerns an arrest of or issuance of a summons to the 

person to whom the communication is addressed or a relative of that 
The Honorable Richard J. Miller - Page 2 (JC-0022) 

person and that was mailed before the 31st day after the date on 

which the arrest or issuance of the summons occurred. 

TEX. PEN. CODE ANN. 5 38.12(d) (Vernon 1994 & Supp. 1999). 

The legislature substantially rewrote the Texas barratry statute in 1993. Almost immediately 

thereafter, a number of individuals challenged its validity. InMoore v. Morales, 843 F.Supp. 1124 

(S.D. Tex. 1994), rev’d in part, 63 F.3d 358 (5th Cir. 1995), cert. denied sub nom., Ventura v. 

Morales, 516 U.S. 1115 (1996) a federal district court held that several portions, including 

subsections (d)(2)(A) and (d)(2)(C), were unconstitutional and enjoined their enforcement. The 

court reasoned that, under the Supreme Court’s decision in Central Hudson Gas & Electric Corp. 

v. Public Service Commission ofNew York, 447 U.S. 557 (1980), the state had not met the burden 

ofjustifying its ban on this type of commercial speech. The state chose to appeal only that part of 

the district court’s ruling that barred the state from imposing a thirty-day ban on direct-mail 

solicitation of accident victims and their families. During the pendency of the appeal, the Supreme 

Court rendered its decision in Florida Bar v. Wentfor Zt, Inc., 5 15 U.S. 618 (1995). In that case, the 

Court considered the validity of a rule of the State Bar of Florida that prohibited attorneys “from 

sending targeted direct-mail solicitations to victims and their relatives for 30 days following an 

accident or disaster.” Id. at 620. 

The Supreme Court’s 5-4 decision in Wentfor It represents something of a departure t?om 

the constitutional protection first afforded attorney advertising inBates v. State Bar ofArizona, 433 

U.S. 350 (1977), wherein the Court invalidated a state bar rule imposing a blanket ban on attorney 

advertising in the public media, and affirmed in Shaper0 v. Kentucky Bar Ass ‘n, 486 U.S. 466 

(1988), where the Court struck down a state’s broad ban on direct mail solicitations by attorneys. 

In Went for It, the Court employed the test first announced in Central Hudson to determine the 

validity of prohibitions on commercial speech that is neither misleading nor concerns unlawful 

activity: 1) the government must assert a substantial interest in support of its regulation; 2) it must 

demonstrate that the regulation directly and materially advances that interest; and 3) the regulation 

must be “narrowly drawn.” Wentfor It, 515 U.S. at 624. 

In Wentfor It, the State Bar of Florida asserted that its imposition of a thirty-day moratorium 

on direct mail solicitations of accident victims and their families was designed to protect “the 

privacy and tranquility ofpersonal injury victims and their loved ones against intrusive, unsolicited 

contact by lawyers,” and, in so doing, to enhance the reputation of the legal profession. Id. The 

Court concluded that the regulation satisfied the first requirement ofthe Central Hudson test, noting 

that it “is an effort to protect the flagging reputations of Florida lawyers by preventing them from 

engaging in conduct that ‘is universally regarded as deplorable and beneath common decency 

because of its intrusion upon the special vulnerability and private grief of victims or their families.“’ 

Id. at 625 (quoting In re Anis, 599 A.2d 1265, 1270 (N.J. Sup.Ct. 1992)). 

With regard to the second prong of the Central Hudson test, the Court observed that the 

Florida Bar had submitted a 106-page summary of a two-year study of lawyer advertising and 
The Honorable Richard J. Miller - Page 3 (JC-0022) 

solicitation, both statistical and anecdotal. That evidence demonstrated, to the Court’s satisfaction, 

that the intrusion targeted by the prohibition resulted not from a lawyer’s learning about an accident, 

but from his confronting victims or relatives “while wounds are still open.” Id, at 630. The Bar, said 

the Court, is concerned not merely with a recipient’s “offense” at receiving such information, “but 

with the demonstrable detrimental effects that such ‘offense’ has on the profession it regulates.” Id. 

at 63 1. Furthermore, the harm which the prohibition seeks to alleviate “is as much a function of 

simple receipt of targeted solicitations within days of accidents as it is a function of the letters’ 

contents.” Id. The Court, “[alfter scouring the record,” was “satisfied that the ban targets a 

concrete, nonspeculative harm.” Id. at 628-29. 

As to the third requirement of Central Hudson, the Court noted that, in imposing limits on 

commercial speech, a state need not use the “least restrictive means” available to effect its purpose. 

Rather, what is required is a “tit” between the government’s ends and the means chosen to 

accomplish those ends. Id. at 632. The Court could not easily imagine the contours of a regulation 

that might distinguish between victims on the basis of “the severity of their pain or the intensity of 

their grief.” Id. at 633. In addition, the Court found, the ban exists only for a brief period, and 

during that time there are many other ways for injured persons “to learn about the availability of 

legal representation.” Id. Accordingly, the Court concluded that the “palliative devised by the Bar 

to address these harms is narrow both in scope and in duration.” Id. at 635. 

Only two months after the Supreme Court’s opinion in Went for It, the court of appeals 

rendered its decision inMoore v Morales, 63 F.3d 358 (5th Cir. 1995). As we have noted, only one 

portion of the Texas barratty statute was before the court: “the 30-day ban on solicitation of accident 

victims and their families.” Id. at 360. The court, observing that the Florida Bar rule at issue in 

Went for It was “nearly identical” to the Texas statute, held that case to be controlling, and 

accordingly, reversed the decision of the district court. Thus, the present status of section 

38,12(d)(2)(C) of the Penal Code-banning direct mail solicitations to a criminal defendant and his 

relatives within thirty days of his arrest-is that it has been declared, in an unappealed decision of 

one federal district court in Texas, to contravene the First Amendment’s protection for commercial 

speech. 

We begin with the presumption ofconstitutionality that must be accorded any legislative act. 

TEX. GOV’T CODE ANN. 5 311.021(l) (Vernon 1998); Proctor v. Andrews, 972 S.W.2d 729,735 

(Tex. 1998); Smith v. State, 898 S.W.2d 838,846-47 (Tex. Crim. App. 1995) (en bane). But in this 

instance we are not writing on a clean slate. Aside from the federal district court’s ruling on 

subsection (d)(2)(C), we must also consider the decision ofthe court of appeals for the fourth circuit 

in Ficker Y. Curran, 119 F.3d 1150 (4th Cir. 1997). There, the court was presented with a state 

legislative enactment-virtually identical to the Texas provision-that required attorneys to “wait 

thirty days after. [a] criminal charge or traffic charge before mailing out targeted solicitations to 

victims or arrestees and their relatives.” Id. at 115 1. Cf: UnitedReporting Pub. Corp. Y. California 

Highway Patrol, 146 F.3d 1133 (9th Cir. 1998) (finding invalid a California statute that limited only 

commercial users’ access to arrestee addresses), cert. granted sub nom., Los Angeles Police Dept. 

v. United Reporting Pub. Corp., 119 S.Ct. 901 (1999). 
The Honorable Richard J. Miller - Page 4 UC-0022) 

The court of appeals made clear its view that WentforZt “expressed no intention to abridge 

previously-recognized First Amendment advertising rights outside the accident victim context.” 

Ficker, 119 F.3d at 1153. “Both the First Amendment interests and the government interests” in 

Ficker, said the court, “differ materially from those” in Went for It, “and accordingly dictate a 

different outcome.” Id. at 1155. Recognizing in the abstract the substantiality ofthe state’s interests 

in regulating lawyer advertising, the court nonetheless concluded that the thirty-day ban on directmail solicitation of criminal defendants did not directly or materially advance those interests, Id. at 

1153. In the first place, the court declared, the Supreme Court in Wentfor It 

rested its conclusion largely on the principle that the privacy of accident 

victims and wrongful death clients deserves protection in order to provide 

them with a period to cope with their grief before being asked to redress an 

emotional loss The Court recognized that this invasion of “privacy and 

tranquility” during “personal grief in times of trauma” was an entirely 

“different kind ofintrusion” from an attorney’s sifting throughpublicrecords 

seeking prospective clients. 

Id. The majority in Wentfor It also determined that “crass intrusions on the healing process reflect 

poorly on the legal profession.” Id. By contrast, said the Ficker court, “[wlhile a criminal or traffic 

defendant may be shaken by his arrest, what he needs is representation, not time to grieve.” Id. 

The second factor that distinguishes criminal defendants from accident victims is the need 

to act in a speedy fashion. As the court noted, while accident victims generally have three years to 

file a claim, “[dlefendants can lose rights if unrepresented for thirty days after arrest.” Id. Third, 

a criminal defendant’s privacy concerns are substantially different from those of an accident victim. 

Whereas the latter--or their relatives-“can choose to avoid public scrutiny ofhis private affairs by 

not filing a suit or by settling quietly, the criminal arrestee is in the legal system involuntarily and 

has already had his privacy compromised before a solicitation letter is ever sent.” Id. at 1156. 

Finally, a criminal or traffic defendant has a right to counsel under the Sixth Amendment. The court 

observed that, “when the state itself is prosecuting a defendant, it cannot lightly deprive its opponent 

of critical information which might assist the exercise of even a qualified right.” Id. at 1155. Since 

criminal defendants are in litigation against the state, “the effect of the law, if not its intent,” is to 

make it more difficult for them to obtain legal representation. Id. Based upon these considerations, 

the court of appeals held that a “thirty day ban on attorney advertising to defendants charged with 

crimes and incarcerable traffic offenses cannot stand.” Id. 

In our opinion, the court’s decision in Ficker is highly persuasive. Although the decision 

is not binding on Texas courts, this office has in the past ventured to predict constitutional 

outcomes on the basis of a single federal case from another circuit. See, e.g., Tex. Att’y Gen. Op. 

No. MW-326 (1981). After considering both the unappealed federal district court decision inlcioore, 

and particularly the appellate court’s opinion in Ficker, we believe section 38.12(d)(2)(C) of the 

Penal Code prohibiting an attorney from sending a direct mail solicitation to a targeted criminal 

defendant or his relatives within thirty days of his arrest, neither directly or materially advances a 
The Honorable Richard J. Miller - Page 5 (X-0022) 

substantial state interest nor is narrowly drawn as provided under Central Hudson, and thus 

contravenes the First Amendment to the United States Constitution. 

SUMMARY 

A court would probably hold that section 38.12(d)(2)(C) of the 

Penal Code, which prohibits an attorney from sending a direct mail 

solicitation to a targeted criminal defendant or his relatives within 

thirty days of his arrest, fails to promote a substantial state interest 

under the test of Central Hudson Gas & Electric Corp. v. Public 

Service Commission of New York, 447 U.S. 557 (1980), and thus 

contravenes the First Amendment to the United States Constitution. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK RENT ERVIN 

Deputy Attorney General - General Counsel 

ELIZABETH ROBINSON 

Chair, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General