Reverse and Remand; Opinion Filed April 28, 2014. 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05
- 12
- 01475
- CV JANET L. SHEARER , Appellant V. RICH REISTER & THE LAW OFFICES OF R ICH REISTER & ASSOCI ATES , Appellee s On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC
- 12
- 06313 

### MEMORANDUM OPINION Before Just ices Moseley, Francis, and Lang Opinion by Justice Lang Appellant Janet L. Shearer (“Shearer”) contends the trial court erred in rendering

summ ary judgment against her on her claims against Rich Reister and the Law Offices of Rich Reister & Associates (“ Reister”) , appellees, u nder the 2012 version of Government Code §
82 .0651( c ) (“the civil barratry statute”) , which allowed plaintiffs to bring civil barratry claims against attorneys who violate d “the laws of this state

. ” Shearer claims she was entitled to recover against Reister because under the civil barratry statute, she can maintain a cause of action based upon their alleged violat ion of the 2012 version of Penal Code § 38.12(d)(2)(D) , which prohibited an attorney from soliciting professional employment from a defendant in a civil suit unless the lawsuit in which the defendant was named had been on file for more than 31 days before the solicitation and which was incorporated by reference in the civil barratry statute

.– 2

– We construe Shearer’s brief as having raised two issues on appeal. 1 Shearer first argue s the trial court erred when it granted summary judgment against her if the trial court determined Penal Code § 38.12(d)(2)(D) , which was incorporated by reference into her civil barratry claim , is unconstitutional

. Second, Shearer asse rts the trial court erred if it rendered summary judgment on the ground that the civil barratry statute require d a criminal prosecution or conviction under Penal Code § 38.12(d)(2)(D) as a prerequisite to recovery. For the reasons described below, we

reve rse the trial court’s order granting summary judgment and remand the case to the trial court for further proceedings consistent with this opinion. I. FACTUAL AND PROCE DURAL BACKGROUND On May 14, 2012, P alisades Collection LLC sued Shearer for an alleged debt. On May 21, 2012, Shearer received a letter from Reister, dated May 17, 2012, concerning the Palisades

case , in which they offered Shearer a free consultation to discuss her legal options

. Shearer had

never sought Reister’s l egal representation. On June 7, 2012, Shearer filed a petition alleging Reister violated Penal Code § 38.12(d)(2)(D) by soliciting her within thirty

- one days of when the Palisades suit was filed and claimed she was entitled to a $10,000 statutory “penalty ” and “reasonable and necessary attorney fees” from Reister as provided by the civil barratry statute

. Reister filed an answer and a plea to the jurisdiction

. 2 Reister’s answer included several “Affirmative Defenses, ” including that Shearer’s claim had no merit because it relied upon Pena l Code § 38.12(d)(2)(D), which Reister claimed had been ruled “ unconstitutional and

1 Shearer’s brief to this court explicitly identified only one issue, arguing the constitutionality of Penal Code § 38.12(d)(2)(D). However, Shearer also addresse d a second assertion that was raised by Reister as one of the bases for their motion for summar y judgment in the trial court, asserting the necessity of a criminal prosecution or conviction as a condition to recover u nder the civil barratry statute. S ince this argument was also raised in the trial court , we construe this to be Shearer’s second issu e.

2 Although the order does not appear in the Clerk’s Record provided, the parties do not contest Reister’s plea to the jurisdict ion was denied by the trial court. The denial of the plea to the jurisdiction is not a n issue before us.– 3

– unenforceable.” 3 Reister also argued this Penal Code provision unconstitutionally restrain ed their “rights to commercial free speech” under the constitutions of both the United States and
Texas. Further, Reister contended Shearer’s claim “fails” because there was “no finding by the Attorney General, or any judicial or administrative body ” that Reister had violated this law or engaged in barratry. The substance of these arguments , contending the unconstitutionality of Penal Code § 38.12(d)(2)(D) and the necessity of a criminal prosecution or conviction as a condition to civil recovery, was re - urged to the trial court in Reister’s motion for summary judgment. In her response to Reister’s amended motion for summary judgment, Shearer argu ed what she claimed is a “dispositive” U.S. Supreme Court case , State Bar of Florida v. Went for It , that allegedly demo nstrated Penal Code § 38.12(d)(2)(D) “passe[d] constitutional muster

. ” Further, Shearer contended she had standing to pursue her claims because , contrary to Reister’s assertion, the civil barratry statute did not require a criminal prosecution or conviction as a prerequisite to recovery. Reister replied , contending that Shearer offered no evidence to show the criminal barratry statute was constitutional or that the AG would ever seek to enforce it

. T he trial court grant ed summary judgment for Re ister that Shearer take nothing

. This appeal followed. II. STANDARD OF REVIEW “We review the summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law.” Mid

- Continent Cas. Co. v. Castagna , 410 S.W.3d 445, 449 (Tex. App.

— Dallas 2013, pet. denied) (citing Howard v. INA Cnty. Mut. Ins. Co. , 933 S.W.2d 212, 216 (Tex. App.

— Dallas 1996, writ denied ) ). In our review, “we take as true all

3 We note that, although the constitutionality of a state statute was at issue before the trial court, the statutorily required notice was not provided to the Attorney General (“AG”) by the trial court

. See T EX
. G OV ’ T C ODE A NN
. § 402.010 ( West 2012) (effec tive from June 17, 2011 to August 31, 2013)

. T he record does reflect that some of Shearer’s pleadings in the trial court contained certificates of service stating that copies of some filings had been sent to the AG, and the clerk of t his court has also notified the AG of the constitutional challenge raised by the parties

. Nevertheless, the record does not reflect that the AG made an appearance in either the trial court or this court

.– 4

– evidence favorable to the nonmovant, and we indulge every reasonable infere nce and resolve any doubts in the nonmovant’s favor.” Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a traditional motion for summary judgment, “a defendant must

. . . disprove at least one element of the plaintiff’s cla im as a matter of law.” Innovate Tech

. Solutions, L.P. v. Youngsoft, Inc. , 418 S.W.3d 148, 1 51 (Tex. App.

— Dallas 20 13, no pet.). Where the trial court’s order does not articulate the basis for summary judgment, the reviewing court “must affirm the trial court’s judgment if any of the theories advanced are meritorious.” W

. Invs

. , Inc. v. Urena , 162 S.W.3d 547, 550 (Tex. 2005) (citin g Rogers v. Ricane , 772 S.W.2d 76, 79 (Tex. 1989)). III. APPLICABLE LAW A. History of the Challenged Penal Code Provision
T he 2012 version of the civil barratry statute , at issue before this court, provided as follows: A person who was solicited by cond uct violating the laws of this state or 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 act ion against any person who committed barratry.
T EX
. G OV ’ T C ODE A NN
. § 82.0651(c) ( West 2012) (effective from September 1, 2011 to August 31, 2013)

. 4 A person who was solicited by this conduct “may file a civil action against any person who committed barr atry” and recover a penalty of $10,000, plus actual damages and

4 E ffective September 1, 2013, Government Code § 82.0651( c ) , not implicated by this case, was revised to read: A person who was solicited by conduct violating Section 38.12(a) or (b), Penal Code, or Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas , regarding barratry by attorn eys 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.
T EX
. G OV ’ T C ODE A NN
. § 82.0651(c) ( West 2013) (emphasis added). Penal Code § 38.12(d)(2)(D) is no longer cited as being incorporated by reference in this amended version of the civil barratry statute. Neither party disputes the constitutionality of either the 2012 or the 2013 version of this civil statute.– 5

– attorney’s fees. T EX
. G OV ’ T C ODE A NN
. § 82.0651 (d) (2012) (effective from September 1, 2011 to August 31, 2013)

. T he 2012 version of § 38.12(d)(2)(D) of the Penal Code is one of “the laws of this state” Shearer claims is incorporated by reference in the civil barratry statute and gives rise to her claim. Pursuant to that section of the Penal Code, a person commits the criminal offense of barratry if the person 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 solicitati on . . . that

. . . concerns a lawsuit of any kind

. . . 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.
T EX
. P ENAL C ODE A NN
. § 38.12(d)(2)(D) ( West 2012) (effective from September 1, 2009 to August 31, 2013)

. In 1994, “various commercial entities” sought an injunction in the United States District Court in the Southern District of Texas to prevent enforcement of then

- recent amendments to Penal Code § 38.12(d)(2)(A)

- (D) 5 and other law s . Moore v. Morales (“ Moore I ”), 843 F. Supp. 1124, 1125 (S.D. Tex. 1994), rev’d on other grounds , 63 F.3d 358 (5th Cir. 1995). In that case,
t he plaintiffs sued the Texas Attorney General, the Director of the Texas Department of Public

5 At the time the federal court injunction wa s sought in Moore I, Penal Code § 38.12(d)(2)(D) provided that a person commits the offense of barratry if the person 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

. . . concerns a lawsuit of any kind

. . . in which the person to whom the communication is addressed is a defendant or a relative of that person, un less 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 was mailed.
T EX
. P ENAL C ODE A NN
. § 38.12(d)(2)(D) ( West 1994) (emphasis added to show changes)

.– 6

– Safety, and the district attorneys of Webb and W ilson counties , among others

. Id. According to the opinion of the trial court , “[a]ll the defendants agreed to be bound” by that court’s decision. Id. On the merits, t he trial court granted an injunction prevent ing enforcement of Penal Code § 38.12(d)( 2)(A)

- (D) on constitutional grounds , concluding th os e contested provision s did not meet the “ requirements set forth by the Supreme Court, ” which “defined the limits within which states may regulate” commercial speech. Id. at 1133. Only one of these provi sions, § 38.12(d)(2)(A) relating to personal injury victims, was at issue in the appea l of the trial court’s decision. Moore , 63 F.3d at 360. Th e judgment and injunction of the trial court as to that section alone was reversed by the Fifth Circuit

. Id. Accordingly, the trial court’s judgment respecting § 38.12(d)(2)(B)

- (D) was final and unchallenged. See i d. In 1999, the AG issued an opinion discussing the constitutionality of Penal Code § 38.12(d)(2)(C), concerning solic itation of criminal defendants

. Tex. Att’y Gen. Op. No. JC

- 0022 (1999). Citing Moore I and other authorities, the AG concluded a “court would probably hold that § 38.12(d)(2)(C) of the Penal Code

. . . contravenes the First Amendment to the United States Constitution.” Id. Since Moo re I and the 1999 AG opinion , Penal Code § 38.12 has been amended several times , including most recently in 2009 and 2013. 6 In 2011 , the Fifth Circuit expressed its uncertainty regarding Moore I ’s binding effect as to the 2009 version of Penal Code § 38.12(d)(2)(C), concerning criminal defendants : [A]ttorney Villasana challenges § 38.12(d) as it relates to written solicitations of
arrestees. In 1994, the state successfully appealed the district court’s judgment [in Moore
I

] holding the entire statut e unconstitutional but only the part that related to written

6 The 2009 version of this statute was in effect in 2012 when the events underlying this suit took place. Therefore, our discussion focuses only on this version of the law. We do not express an opinion on any alleged violations occurring after September 1 , 2013, the effective date of the latest amendments

.– 7

– solicitations of accident victims, leaving in place

- at least in theory

- the holding of the district court as it relates to arrestees. McKinley v. Abbott , 643 F.3d 403, 407 n.14 (5th Cir. 2011) (emphasis added). B. Jurisdictional Issues Regardless of whether the parties raise an objection to jurisdiction, “we are obligated to review sua sponte issues affecting jurisdiction

. ” M.O. Dental Lab. v. Rape , 139 S.W.3d 671, 673 (Tex. 2004) (per curiam ) (citing N.Y. Underwriters Ins. Co. v. Sanchez , 799 S.W.2d 677, 678 (Tex. 1990))

. When a party to litigation challenges the constitutionality of a Texas statute, the trial court “shall

. . . serve notice of the constitutional question

. . . on the attorne y general.” T EX
. G OV ’ T C ODE A NN
. § 402.010 ( West 2012) (effective from June 17, 2011 to August 31, 2013)

. However, failure to do so “does not deprive the court of jurisdiction or forfeit an otherwise timely filed claim or defense ” based on the constitutional challenge. Id. ; see also In re J.D. , No. 02

- 11

- 00328

- CV, 2012 WL 3115804, at *1 n.3 (Tex. App.

— Fort Worth Aug. 2, 2012, no pet.) (indicating notice had been given to the AG in accordance with the statute, the AG filed no response, and the c ourt of appeals proceeded to decide the merits of case before it). Because Texas has a bifurcated system of civil and criminal jurisdiction, a civil court has jurisdiction to declare a criminal statute unconstitutional and en join its enforcement only when (1) there is evidence that the statute at issue is unconstitutionally applied by a rule, policy, or other noncriminal means subject to a civil court's equity powers and irreparable injury to property or personal rights is threatened, or (2) the enforcemen t of an unconstitutional statute threatens irrepar able injury to property rights. State v. Morales , 869 S.W.2d 941, 942 (Tex. 1994) (emphasis in original) (in a civil case where plaintiffs sought an injunction solely against the prosecution of an alleged ly unconstitutional– 8

– Penal Code provision, but did not allege that, absent an injunction, this provision would be enforced, the Texas Supreme Court concluded neither it nor either of the lower civil courts had jurisdiction to enjoin or declare this criminal provision unconstitutional)

. “A naked declaration as to the constitutionality of a criminal statute alone, without a valid request for injunctive relief, is clearly not within the jurisdiction of a Texas court sitting in equity.” Id. Another jurisdictional issue may be apparent from this record where there an “indispensable” party is absent from the suit

. See T EX
. R. C IV
. P. 39. According to Rule of Civil Procedure 39, entitled “Joinder of Persons Needed for Just Adjudication,” “a person who is subject to service of process shall be joined as a party in the action if . . . in his absence complete relief cannot be accorded among those already parties.” Id. Although the Texas Supreme Court admonished that “it would be rare indeed if there were a person whose presence was so indispensable . . . that his absence deprives the court of jurisdiction to adjudicate between the parties already joined,” Pirtle v. Gregory , 629 S.W.2d 919, 920 (Tex. 1982), there are in fact “rare cases in which failure to name an indispensable party will deprive a court of jurisdiction,” including “where a party responsible for enforcing a statute is not named in an action to declare that statute unconstitutional.” Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Ass’n, Inc. , 37 S.W.3d 538, 540

- 41 (Tex. App.

— El Paso 2001, pet. denied); see also Lone Starr Multi Theatres,
Inc. v. State , 922 S.W.2d 295, 297 (Tex. App.

— Austin 1996, no writ.) (concl uding “ the party responsible for enforcement of the allegedly unconstitutional statute, either by prosecution or promulgation of a rule adopted for the purpose of implementing such statute, must be the defendant against whom suit for declaratory or injunct ive relief is brought” (emphasis in original) ). This requirement “is essential to effectuate the well

- settled principle that courts are without jurisdiction to render advisory opinions.” Lone Starr Multi Theatres, Inc. v. State , 922 S.W.2d at 297.– 9

– In the Lone Starr Multi Theatres, Inc. case , the constitutionality of a Penal Code provision was challenged in a civil suit whe re declaratory and injunctive relief was sought against the State of Texas and the AG

. Id. at 298. T he Austin C ourt of A ppeals held th e trial court lacked equity jurisdiction “on the ground that a party responsible for prosecut[ i ng] violations of [these] statutes, a district or county attorney , was not named in the action to declare these statutes unconstitutional and enjoin their enforcement.” Id. (emphasis added)

. Referring to a provision in the Uniform Declaratory Judgments Act that is similar to Government Code § 402.010 as to notice requ ired to be given to the AG when statutes are challenged on constitutional grounds , the Austin C ourt of Appeals noted, “That the attorney general must be given notice of a suit to declare a statute unconstitutional does not suggest

. . . that the attorney
g eneral is the proper party to sue in an action for declaratory or injunctive relief from the enforcement of a criminal statute.” Id. (citing T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 37.006(b) (West 1986)). Assuming the trial court had jurisdiction, when analyzi ng a constitutional challenge to a criminal statute , the reviewing court “must begin with the presumption that the statute is valid and that the Legislature did not act arbitrarily or unreasonably in enacting it.” State v. Rosseau , 396 S.W.3d 550, 557 (Te x. Crim. App. 2013). The burden typically rests upon the individual challenging the statute to establish its unconstitutionality

. Id. However, it is “well established that ‘the party seeking to uphold a restriction on commercial speech carries the burde n of justifying it.’” Edenfield v. Fane , 507 U.S. 761, 770 (1993) (quoting Bolger v. Youngs Drug Prods. Corp. , 463 U.S. 60, 61 n.20 (1983)). “Lawyer advertising is in the category of constitutionally protected commercial speech.” Shapero v. Kentucky Bar Ass’n , 486 U.S. 466 , 472 (1988) (citing Bates v. State Bar of Arizona , 433 U.S. 350 (1977))

.– 10

– IV. APPLICATION OF THE LAW TO THE FACTS In the case before us , as to the issue of constitutionality , we address only the version of Penal Code § 38.12(d)(2)(D) in effect when this claim arose

. 7 This version was in effect from September 1, 2009 to August 31, 2013

. I t was superseded by a version of the Penal Code that became law on September 1, 2013. Neither party asserts that the 2013 version of Penal Code §
38 .12(d)(2)(D) is implicated in this action. Further, we note that the civil barratry statute has also been amended, effective September 1, 2013 , and that statute no longer contains language providing for the general incorporation by reference of the “laws of this state,” nor is Penal Code § 38.12(d)(2)(D) expressly identified as being applicable. A. Constitutional Challenge to Penal Code § 38.12(d)(2)(D) Before w e address Shearer’s argument that “the trial court erred in granting summary judgment on the is sue of the constitutionality of [Penal Code] § 38.12(d)(2)(D) , ” we must focus on issues apparent in the record respecting whether the trial court had jurisdiction of the subject matter. In such instances , “[w]e are required to review sua sponte issues af fecting jurisdiction.” Bank of New York Mellon v. Guzman , 390 S.W.3d 593, 596 (Tex. App.

— Dallas 2013, no pet.) (citing M.O. Dental Lab. , 139 S.W.3d at 673).
In our jurisdictional analysis, we must first determine whether Reister demonstrate d that the trial court, as a court sitting in equity, had jurisdiction to declare this criminal statute unconstitutional . Morales , 869 S.W.2d at 942; see also Lone Starr Multi Theatres, Inc. , 922
S. W.2d at 297. Second, we must determine whether the “party with auth ority to enforce” this criminal statute was absent from the se proceedings, thus “leav[ing] the trial court without jurisdiction.” See Lone Starr Multi Theatres, Inc. , 922 S.W.2d at 297

. E ach proposition will be addressed in turn.

7 T EX
. P ENAL C ODE A NN
. § 38.12(d)(2)(D) ( West 2012) (effective from September 1, 2009 to August 31, 2013).– 11

– 1. Jurisdiction of Equit y Courts to Consider Constitutional Challenge to Criminal Statutes
A trial court addressing a civil matter ha s jurisdiction to declare a criminal statute unconstitutional if one of these conditions ha s been met: (1) there is evidence that the statute at issue is unconstitutionally applied by a rule, policy or other noncriminal means subject to a court's equity powers and irreparable injury to property or personal rights is threatened; or (2) the enforcement of an unconstitutional statute threatens irreparable injury to property rights. Morales , 869 S.W.2d at 942 (emphasis in original) ; see also Lone Starr Multi Theatres, Inc. , 922 S.W.2d at 297. In this case, the record shows Reister neither offered evidence that Penal Code § 38.12(d)(2)(D) was unc onstitutionally applied by the civil barratry statute and that irreparable injury to their property or personal rights was threatened , nor did they show that enforcement of Penal Code § 38.12(d)(2)(d) threatened irreparable injury to their property rights. Id. Reister raised unconstitutionality in their answer as an affirmative defense . Further, Reister elaborated on the issue of unconstitutionality i n their motion for summary judgment stating, “The statute upon which [Shearer’s] claim depends is void, r endering [Shearer’s] claim invalid.” The only evidence offered by Reister is a short affidavit from defendant Richard J. Reister attesting inter alia he had not met Shearer prior to the solicitation letter at issue. No evidence was offered respecting the issues identified in Morales

. Rather, t o support their position that Penal Code § 38.12(d)(2)(D) was unconstitutional, Reister offered only discussion of case law. Reister relied on Moore I , asserting that th is opinion of the U.S. District Court declared Penal Code § 38.12(d)(2)(D) unconstitutional and enjoined the AG from enforcing it. Reister acknowledged a part of the judgment and injunction rendered in Moore I , relating to other– 12

– sections of the Penal Code, had been reversed on appeal , but arg ued the “remaining ruling was left intact,” including the part declaring § 38.12(d)(2)(D) unconstitutional.
In their motion for summary judgment, Reister also described a U.S. Supreme Court decision, Shapero v. Kentucky Bar Association , as “ dispositive of the issues in this case. ” In Shapero , the Court concluded lawyer advertising was constitutionally protected commercial speech and determined s tate s could not impose c ategorical prohibition s that prevented attorneys from soliciting business by sending trut hful, non

- deceptive letters to potential clients known to face particular legal problems. Shapero , 486 U.S. at 472, 479

- 80 . Reister argued that , in reaching its decision, the Shapero court had to address “a nearly identical factual scenario as the one in volved in this case , ” and that “there is fundamentally no substantive difference between the ban on direct

- mail solicitations at issue in Shapero and the ban proposed by [Penal Code §] 38.12(d)(2)(D).” 8 However, in the briefing, Reister did not advise the trial court nor have they advised this court w hich party ha d the burden to attack or defend the constitutionality of Penal Code § 38.12(d)(2)(D)

. Furth er, no evidence was offered for the record to demonstrate whether the holding in Shapero or in any of the other cited cases directed the trial court to hold th is statute unconstitutional. Shearer respond ed to Reister’s summary judgment motion arguing the statute was constitutional. No evidence was offered by Shearer. In light of the absence of eviden ce in the record, we cannot agree that the case law offered by Reister in the trial court or before this court is dispositive

. Additionally, t he case upon which Reister relies heavily, Moore I , does not dictate a result because we are not bound by the jud gment and injunction of that federal court

. See Villareal v. State , 267 S.W.3d 204, 208

8 Reister also listed other federal cases to show the “evolution of the case law in this arena”. See Peel v. Attorney Registration and Disciplinary Comm’n of Illinois , 496 U.S. 91 (1990); Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio , 471 U.S. 626, 648 (1985); In re R.M.J. , 455 U.S. 191 (1982); Bates , 433 U.S. at 350; Ficker v. Curran , 119 F.3d 1150, 1156 (4th Cir. 1997).– 13

– (Tex. App.

— Corpus Christi 2008, no pet.) (“Just as state courts are not bound by declaratory judgments, a lower federal court’s issuance of an injunction

. . . also fa ils to directly bind state courts.”) ; see also Sullo & Bobbitt P.L.L.C v. Abbott , No. 12

- 10843, 2013 WL 3783751, at *3 (5th Cir. July 22, 2013) (in constitutional challenge to the civil barratry statute, Fifth Circuit noted neither Moore I nor the 1999 AG opinion was binding on that court and refus ed to “offer any view on the statute’s constitutionality”)

. On this record, w e conclude the trial court lacked jurisdiction to determine the constitutionality of this criminal statute. See Morales , 869 S.W.2d at 942

. 9
2. Absence of the Party Responsible for Enforcement In addition , the case law directs the conclusion that a trial court lacks jurisdiction to hear

a constitutional challenge when the “party with authority to enforce” a criminal statute in questio n is absent from the proceedings. See Lone Starr Multi Theatres, Inc. , 922 S.W.2d at 298. Since such a party is “ indispensable ” to the constitutional challenge, the absence of this person or
persons from the suit leaves the trial court without jurisdicti on to hear th at challenge. See T EX
. R. C IV
. P. 39 (“A person who is subject to service of process shall be joined as a party in the action if . . . in his absence complete relief cannot be accorded among those already parties . . .”); see also Motor Vehicle Bd. , 37 S.W.3d at 540

- 41

. In the present case, b ased upon the allegations in the pleadings, it appears all acts or transactions involving the pa rties occurred in Dallas County. Accordingly, the authority to enforce this Penal Code provision is n ot vested in the AG , but rather in the Dallas County District Attorney. See Lone Starr Multi Theatres, Inc. , 922 S.W.2d at 298; see also T EX
. C ONST
. art

. V, § 21. While t here is a statutory requirement the AG be notified of this proceeding given

9 We also note that Reister did not expressly contend that Shearer had the burden to show Reister’s alleged right of commerc ial speech was not infringed by this statute. See Edenfield , 507 U.S. at 770 (“[I]t is well established that ‘the party seeking to uphold a restriction on commercial speech carries the burden of justifying it.’”)– 14

– Reister’ s assertion of unconstitutionality, that does not vest the AG with the responsibility for enforcement

. See Lone Star Multi Theatres, Inc. , 922 S.W.2d at 297. 10 We conclude t he trial court lacked jurisdiction to decide the constitutional issues in this cas e because of the absence of the “party with authority to enforce” Penal Code § 38.12(d)(2)(D).
B. Criminal Conviction or Prosecution as Prerequisite to Recovery As its second contention that the trial court erred by rendering summary judgment, Shearer asserts that, contrary to Reister’s position , a criminal case need not be “prosecuted against Reister” and “conviction by a criminal court [was not] a condition” for her to recover under the civil barratry statute. Reister first raised this argument in the trial court. On this record, t his issue does not implicate constitutionality of Penal Code § 38.12(d)(2)(D)

. R ather , we construe Reister ’s contention to be that because there has been no criminal prosecution under the barratry statute nor was there a likelihood of such a prosecution , as a matter of law, Shearer’s claim under the civil barratry statute “cannot accrue and cannot be ripe for review

. ” In support of t heir position, Reister cites us to the 1999 AG Opinion , in which the AG opined, “a court would probably hold that [Penal Code] § 38.12(d)(2)(C)

. . . contravene[d] the First Amendment.” Tex. Op. Att’y Gen. No. JC

- 0022 (1999) (emphasis added). Shearer does not contest the fact that no prosecution has occurred or been threatened . Shearer only responds that Reister’s argument lacks merit. There was no contention by any party that this issue implicated the constitutionality of a
Texas statute . Accordingl y, we cannot conclude the trial court was without jurisdiction to address this ground. However, Reister has offered us no authority to support the merits of their

10 Out of an abundance of caution, this cou rt provided notice to the AG as described in Note 3, supra . See TEX. GOV’T CODE ANN. § 402.010 (West 2012) (effective from June 17, 2011 to August 31, 2013). However, we recognize the recent decision of the Cou rt of Criminal Appeals in Ex Parte Lo , in w hich that court held this notice requirement was an “unconstitutional violation of separation of powers.” Ex Parte Lo , No. PD

- 1560

- 12, 2014 WL 1032234, at * 1

- 3 (Tex. Crim. App. Mar. 19, 2014) (concluding this legislative “interference” preventing a court from “enter[ing]” a final judgment for failure to comply with the AG notice requirements was a “constitutionally intolerable imposition on a court’s power ” ). We recognize this holding and its application in “criminal cases.” See TEX. CODE CRIM. PROC. AN N. art. 4.04 (“The Court of Criminal Appeals shall have . . . final appellate and review jurisdiction in criminal cases . . .”).– 15

– argument. On the contrary , there is authority that reaches the opposite result

. See Sullo & Bobbitt, PLLC v. Abbott , No. 3:11

- CV

- 1926

- D, 2012 WL 2796794, at *4 n.9 (N.D. Tex. July 10, 2012), aff’d , No. 12

- 10843, 2013 WL 3783751 (5th Cir. July 22, 2013) (“[A]n action under the Civil Barratry Statute does not on its face require a conviction unde r the Criminal Barratry Statute but merely a showing that the defendant ‘violat[ed] the laws of this state.’”). Furthermore , the AG opinion cited by Reister is inapplicable to th is case respecting solicitation of parties sued in civil litigation. See Tex. Op. Att’y Gen. No. JC

- 0022. The opinion addresses only Penal Code § 38.12 (d)(2)(C) , relating to solicitation of criminal defendants

. See id. Reister’s right to prevail was not established as a matter of law on this remaining argument

. See Mid

- Conti nent Cas. Co. , 410 S.W.3d at 449. V. CONCLUSION
I n light of the absence of jurisdiction in the trial court to determine the constitutionality of Penal Code § 38.12(d)(2)(D) and our conclusion that Reister’s sole remaining argument does not support summary judgment , w e reverse the trial court’s order granting summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.

121475F.P05 /Douglas S. Lang/ DOUGLAS S. LANG JUSTICE– 16

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# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JANET L. SHEARER, Appellant
No. 05

- 12

- 01475

- CV V. RICH REISTER & THE LAW OFFICES OF RICH REISTER & ASSOCIATES, Appellees On Appeal from the 14th Judicial District Court, Dallas County, Texas Trial Court Ca use No. DC

- 12

- 06313. Opinion delivered by Justice Lang. Justices Moseley and Francis participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. It is ORDERED that appellant JANET L. SHEARER recover her costs of this appeal from appellees RICH REISTER & THE LAW OFFICES OF RICH REISTER & ASSOCIATES.
Judgment entered this 28t h day of April, 2014.

/Douglas S. Lang/ DOUGLAS S. LANG JUSTICE