1 Senior District Judge, of the Northern District of Texas, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 92-1633.

INNOVATIVE DATABASE SYSTEMS, et al., Plaintiffs-Appellees,

v.

Dan MORALES, in his capacity as Attorney General for the State of Texas, et al., DefendantsAppellants.

May 6, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, DUHÉ, Circuit Judge, and BELEW 1 , District Judge.

BELEW, District Judge:

For the reasons assigned and authorities cited by our learned tria l court col l eague, Judge

Robert B. Maloney, in his Order Granting Plaint iffs' Moti on for Summary Judgement dated June 24,

1992, attached as an addendum hereto, we AFFIRM.

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

INNOVATIVE DATABASE SYSTEMS, et al.,

Plaint iffs,

v.

DAN MORALES, et al.,

Defendants.

No. 3:91-CV-1663-T

Filed June 21, 1992.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENTThis matter is before the court on the parties' cross motions for summary judgment. Plaint iffs

filed their motion on January 29, 1992. Defendants filed their response and cross mot io n fo r

summary judgment on April 24, 1992. Plaintiffs filed their response to Defendants' motion and reply

in support of their own motion on May 8, 1992. The court, having considered the applicable law and

the parties' arguments, is of the opinion that summary judgment should be granted in Plaint iffs' favor.

BACKGROUND

Plaint iffs brought this suit pursuant to the provisions of the Fou rt eent h Amendment of the

United States Constitution; the Ku Klux Klan Act of 1871, 42 U.S.C. § 1983; and Article I, section

8, of the Texas constitution. Plaintiffs seek to enjoin the enforcement of certain laws recently enacted

by the Texas legislature. Plaintiffs argue that their rights to commercial free speech have been

abridged by two recent amendments to Texas law. The laws sought to be enjoined are House Bill

922, which amends § 35.54 of the Texas Business and Commerce Code, and Senate Bill 857, which

amends article 4512b of the Texas Civil Statutes.

Section 35.54, as amended by H.B. 922, entitled "Use of Crime Vict im o r Motor Vehicle

Accident Information Purposes Prohibited," provides:

(a) In this section:

(1) "Crime victim information" means information that is collected or prepared by a

law enforcement agency that identifies or serves to identify a person who, according to the

records of the law enforcement agency, may have been the victim of a crime in which physical

injury to the person occurred or was attempted or in which the offender entered or attempted

to enter the dwelling of the person.

(2) "Mot o r vehicle accident information" means information that is collected or

prepared by a law enforcement agency that identifies or serves to identify a person who,

according to the records of the law enforcement agency, may have been involved in a m otor

vehicle accident.

(b) A person

who has po ssession of crime victim or motor vehicle accident

information that the person obtained or knows was obtained from a law enforcement agency

may not use the information to contact directly a person who is a crime victim or who was

involved in a m

otor vehicle accident or a member of the person's family for the purpose of

soliciting business from the person or family member and may not sell the information to

another person for financial gain.

(c) The attorney general may bring an action against a person who violates Subsection

(b) of this section pursuant to Section 14.47 of this code.

(d) A perso n who violates Subsection (b) of this section commits an offense. Anoffense under this section is a Class C misdemeanor unless the defendant has been previously

convicted under this subsection more than two times, in which event the offense is a felony

of the third degree.

Tex.Bus. & Comm.Code Ann. § 35.54 (West Supp.1992).

Article 4512b, as amended by S.B. 857, entitled "Practice of chiro pract ic," provides in

pertinent part:

Sec. 14a. The Texas Board of Chiropractic Examiners may refuse to admit persons

to its examinations and may cancel, revoke or suspend licenses or place licensees upon

probation for such length of time as may be deemed proper by the Board for any one or more of the following causes:

* * * * * *

17. If, when uninvited, a licensee or person designated, contracted or paid by licensee

directly canvasses, drums, secures or solicits by phone, mail or in person patients or potential

patient s who , because of their particular circumstances, are vulnerable to undue influence.

Circumstances in which patients or potential patients may be considered to be vulnerable to

undue influence include but are not limited to:

a. when a person is known by the licensee to have recently been involved in a m otor

vehicle accident;

b. when a p erso n is kno wn by the licensee to have recently been involved in a

work-related accident; or

c. when a person is known to the lic ensee to have recently been injured by another

person or as a result of another person's actions.

Tex.Rev.Civ.Stat.Ann. art. 4512b(14a)(17) (West Supp.1992).

Defendant Mora les is the Attorney General of the state of Texas and is responsible for

enforcing § 35.54. Defendant James Franklin is president of the Texas Board of Chiropractic

Examiners and is responsible for implement ing article 4512b. Plaintiff Innovative Database Systems

(IDS) is in the business of obtaining accident reports from public agencies and making t hat

information available to its clients, including attorneys and chiropractors, for a fee. Also for a fee,

IDS produces and sends client-approved communications to client-selected accident victims. Plaint iff

National Association of Accident Injury Victims (NAAIV) provides similar services to its members.

Plaint iff David Alexander is a chiropractor licensed by the Texas Board of Chiropractic Examiners.

Section 35.54, as amended by H.B. 922, prohibits IDS and NAAIV from providing accident

information obtained from public records to their clients. IDS and NAAIV allege that theamendments prevent them from practicing their business by making the activity in which they engage

illegal.

IDS and NAAIV allege that article 4512b, as amended by S.B. 857, prevents them from

engaging in thei

r business. This allegedly results from the authority of the Texas Board of

Chiropractic Examiners to suspend or revoke the license of any chiropractor who communicates,

without invitation, with any person known to have recently been involved in a m otor vehicle accident.

IDS and NAAIV allege that this prevents chiropractors from using the services of IDS and NAAIV.

Plaintiffs Backpain and Alexander allege that the amendments to § 35.54 and article 4512b

p revent them from sending communications, without invitation, to accident victims, regardles s of

whether the communications are false, deceptive or misleading.

All of the Plaint iffs argue that the amendments violate their rights under the First Amendment

of the United States Constitution, as incorp o rat ed by the Fourteenth Amendment, and Article I,

section 8 of the constitution of the st at e of Texas. Both of these laws are alleged to be

unconstitutional on their face and as applied to Plaintiffs.

SUMMARY JUDGMENT STANDARD

Summary jud gment should only be entered where the record establishes that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of

law. Fed.R.Civ.P. 56(c). The movant bears the burden of est ablishing the propriety of summary

judgment. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986).

Once a properly supported motion for summary judgment is made, the adverse party must set

forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The substantive law will identify

what facts are material. I d. at 248, 106 S.Ct. at 2510. A dispute as to a material fact is "genuine"

only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. I d.

at 248, 106 S.Ct. at 2510.

DISCUSSION

IThe parties are in agreement that both of the laws in question place restrictions on commercial

speech. However, Defendants argue that the restrictions are reasonable and comport with the United

States Constitution.

In 1985, the Supreme Court held that "[c]ommercial free speech that is not false or deceptive

and does not concern unlawful activities

... m ay be restricted only in the service of a substantial

government interest, and only through means that directly advance that interest." Z auderer v. Office

of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85

L.Ed.2d 652 (1985). The regulation of commercial speech may extend only so far as the interest it

serves. C entral Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 565,

100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980). Thus, state rules designed to prevent the "potential

for deception an d co nfusion ... may be no broader than reasonably necessary to prevent the

deception." In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982).

Applying these principles in Z auderer, the Supreme Court struck down an Ohio rule that

categorically prohibited advertisements for solicitation of legal employment regarding a specific legal

problem, even if such advertisements were truthful and not dec e ptive. The Court distinguished

Zauderer from Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 98 S. Ct. 1912, 56 L.Ed.2d 444

(1978), where the Court held that a state may categorically ban in-person solicitation. The distinction

was base d o n t he Co urt's determination that "unique features of in-person solicitation by lawyers

[that] justified a prophylactic rule prohibiting lawyers from engaging in such solicitation for pecuniary

gain" are not present in the context of written advertisements. Z auderer, 471 U.S. at 641-42, 105

S.Ct. at 2277.

In Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 474, 108 S.Ct. 1916, 1922, 100 L.Ed.2d

475 (1988), the Supreme Court stated the relevant inquiry in determining whether lawyer solicitation

may be prohibited "is not whether there exist potential clients whose "condition' ma kes them

susceptible, but whether the mode of communication poses a serious danger that lawyers will exploit

any such susceptibility." I d. at 474, 108 S.Ct. at 1922. The Court discussed the inherent differences

between in-person solicitation and targeted, direct-mail solicitation. Id. at 475, 108 S.Ct. at 1922.The Court further held that "merely because targeted, direct-mail solicitation presents lawyers with

opportunities for isolated abuses or mistakes does not justify a total ban on that mode of protected

commercial speech." Id. at 476, 108 S.Ct. at 1923. Any potential abuses can be regulated through

far less restrictive and more precise means. The Court stated that "the most obvious of [these less

restrictive means] is to require the lawyer to file any solicitation letter with a state agency ... giving

the state ample opportunity to supervise mailings and penalize actual abuses." Id.

Defendants advance several interests which they argue justify the prohibitions imposed by

H.B. 922 and S.B. 85 7. First , Defendants argue that Texas has a "very substantial interest in

promoting the ethical standards that are necessary in its licensed professions, particularly in the legal

profession." The court in no way disputes this contention. The Kentucky Bar Association

undoubtedly had the same interest when it enacted the regulation struck down by the Supreme Court

in Shapero. What is disputed, and what is fatal to the laws in question, is the means by which Texas

is attempting to achieve its goals. A total ban on the use of lawfully obtained, public information to

contact any person who was recently involved in a m otor vehicle accident or who has been the victim

of a crime is too broad a prohibition to prevent the perceived evil.

Texas also argues that it has a substantial interest in preventing fraud and misrepresentation

by professionals. The propriety of this interest is also undisputed by Plaintiffs or the court. However,

as discussed above, the laws in question are not sufficiently tailored to advance this interest and at

the same time protect Plaintiffs' rights to commercial free speech.

Finally, Defendants argue that the state has a substantial interest in "protecting the public from

unnecessary inflated insurance rates." Defendants argue that increased insurance rates are a necessary

result of insurance fraud or even a potential for insurance fraud. Again, this may be true. However,

the court is unpersuaded that a complete prohibition on the use o f the information in question is a

sufficiently tailored means of protecting the stated interest.

Th e court recognizes that commercial speech is afforded only a "limited measure of

protecti on." O hralik, 436 U.S. at 455-56, 98 S.Ct. at 1918. Despi te thi s fact, Suprem e Court

precedent prevents this court from upholding a law, even an apparent l y sound law like the one inquestion, when the law goes too far in attempting to achieve its stated goal.

II

H.B. 922 prohibits the sale "for f inancial gain" of "motor vehicle accident information"

obtained from the public records of a law enforcement agency. Plaintiffs argue that this also

constitutes an unconstitutional restriction of commercial speech. The Supreme Court has repeatedly

held that states may not prohibit the commercial publication of matters of public record. T he Florida

Star v. B.J.F., 491 U.S. 524, 535, 109 S.Ct. 2603, 2610, 105 L.Ed.2d 443 (1989); C ox Broadcasting

Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); S mith v. Daily Mail

Publishing, 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979).

Section 35.54 makes no distinction between the following types of information to be sold for

financial gain: (1) information of public record and information not of public record; (2) information

lawfully obtained and information not lawfully obtained; (3) information which is truthful and

information which is not truthful. Also, § 35.54 makes no distinction concerning the content or the

nature of the information in the communication. Plaintiffs argue that this broad prohibition on the

sale of motor vehicle accident information is "plainly unconstitutional."

The same state interests discussed above have been advanced in support of this aspect of H.B.

922. The court is of the opinion that the outright ban on the sale of public information, with no

regard for the truth of the information, is too broad a means of effectuating the intended purpose of

the law.

CONCLUSION

For the foregoing reasons, the court concl udes that H.B. 922 and S.B. 857 are

unconstitutional. Therefore, Defendants must be enjoined from enforcing these laws.

It is therefore ORDERED that Plaint iffs' January 29, 1992, motion for summary judgment is

granted.

It is FURTHER ORDERED that Defendants' April 24, 1992, motion for summary judgment

is denied.

It is FURTHER ORDERED that Texas House Bill 922 and Texas Senate Bill 857 areunconstitutional on their face, and Defendants and the ir agent s are enjoined from enforcing these

statutes.

Signed this 24th day of June 1992.

/s/ Robert B. Maloney

Robert B. Maloney

U.S. District Judge