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) ofthe 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 ofthat portion ofthe barratry statute, section 38.12 of the Penal Code, that prohibits an attorney from making a direct-mail solicitation of acriminal 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 ifthe person: (1) is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, orregistered by ahealth care regulatory agency ofthis state; (2) with the intent to obtain professional employment forhimself
or for another, sends orknowingly permits tobe sent to an individual who has not sought the person’s employment, legal representation, advice. or care awritten communication that: (A) concerns an action forpersonal injury or wrongful death
or otherwise relates to an accident or disaster involving the person to whom the communication isaddressed or arelative ofthat 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 arelative ofthatThe 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 ofthe summons occurred.
TEX.PEN.CODE

ANN.538.12(d)(Vernon 1994 & Supp. 1999).
The legislature substantially rewrote the Texas barratry statute in 1993. Almost immediately thereafter, anumber ofindividuals challenged its validity. InMoore v.Morales, 843 F.Supp. 1124 (S.D. Tex. 1994), 

### rev’d inpart, 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 ofthe appeal, the Supreme Court rendered its decision in

### Florida Barv. 

### Wentfor Zt,Inc., 515U.S. 618 (1995). In that case, the Court considered the validity of arule 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 Itrepresents something of adeparture t?om the constitutional protection first afforded attorney advertising inBates 

### v.StateBarofArizona, 433 U.S. 350 (1977), wherein the Court invalidated astate bar rule imposing ablanket 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 

### Wentfor 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)itmust 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 ofFlorida asserted that its imposition ofathirty-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 

### CentralHudson 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 ofits intrusion upon the special vulnerability and private grief ofvictims ortheir families.“’ 

### Id. at 625 (quoting In 

### reAnis, 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 andThe 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 alawyer’s learning about an accident, but from his confronting victims orrelatives “while wounds are still open.” 

### Id,at630. The Bar, said the Court, is concerned not merely with arecipient’s “offense” atreceiving such information, “but with the demonstrable detrimental effects that such ‘offense’ has on the profession itregulates.” 

### 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 

### CentralHudson, the Court noted that, in imposing limits on commercial speech, astate 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. at632. The Court could not easily imagine the contours of aregulation that might distinguish between victims on the basis of “the severity oftheir pain orthe 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 

### Wentfor 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 ofthe Texas barratty statute was before the court: “the 30-day ban on solicitation ofaccident victims and their families.” 

### Id. at 360. The court, observing that the Florida Bar rule at issue in 

### Wentfor 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) ofthe Penal Code-banning direct mail solicitations to acriminal defendant and his relatives within thirty days of his arrest-is that ithas been declared, in an unappealed decision of
one federal district court in Texas, to contravene the First Amendment’s protection for commercial speech.

Webegin with the presumption ofconstitutionality that must be accorded any legislative act. TEX.GOV’T CODEANN. 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 ofappeals forthe 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 1151. 

### Cf:UnitedReporting Pub. Corp.Y.California Highway Patrol, 146F.3d 1133 (9th Cir. 1998) (finding invalid aCalifornia statute that limited only commercial users’ access to arrestee addresses), 

### cert.granted sub nom.,LosAngeles Police Dept. v. UnitedReporting 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 

### Wentfor It, “and accordingly dictate a different outcome.” 

### Id. at 1155. Recognizing inthe abstract the substantiality ofthe state’s interests in regulating lawyer advertising, the court nonetheless concluded that the thirty-day ban on directmail solicitation ofcriminal defendants did not directly or materially advance those interests, 

### Id. at 1153. In the first place, the court declared, the Supreme 

### Courtin 

### 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 aperiod 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 anattorney’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 acriminal 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 aspeedy fashion. As the court noted, while accident victims generally have three years to file aclaim, “[dlefendants can lose rights ifunrepresented for thirty days after arrest.” 

### Id. Third,
acriminal defendant’s privacy concerns are substantially different from those ofan 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, acriminal ortraffic defendant has aright to counsel under the Sixth Amendment. The court observed that, “when the state itself isprosecuting adefendant, itcannot lightly deprive its opponent ofcritical information which might assist the exercise ofeven aqualified right.” 

### Id. at 1155. Since criminal defendants are in litigation against the state, “the effect of the law, ifnot its intent,” is to make itmore difficult forthem 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 aThe 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 ofNew 

### 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