Barratry and Solicitation of Professional Employment: Texas Penal Code §38.12

The Texas Barratry and Solicitation of Professional Employment law makes it illegal to engage in any of the practices listed in the statute that are essentially fraudulent or unethical in nature, such as knowingly instituting a suit or claim that the person has not been authorized to pursue.

While geared to lawyers, the Barratry offense covers a range of actions that non-lawyers can commit.

The Texas legislature codified this criminal offense in Texas Penal Code Section 38.12. The legislature did not update this law in 2023. In fact, this law has not been amended since 2013.

The Penal Code classifies the Texas Barratry law under Title 8 “Offenses Against Public Administration,” Chapter 38 “Obstructing Governmental Operation.” Learn more about the Texas offense of Barratry and Solicitation of Professional Employment below.

What is the current Texas law about Barratry and Solicitation of Professional Employment?

Texas law currently defines the offense of Barratry and Solicitation of Professional Employment in Penal Code Section §38.12 as follows:^[1]

(a) A person commits an offense if, with intent to obtain an economic benefit the person:

(1) knowingly institutes a suit or claim that the person has not been authorized to pursue;

(2) solicits employment, either in person or by telephone, for himself or for another;

(3) pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client;

(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;

(5) pays or gives or offers to pay or give a family member of a prospective client money or anything of value to solicit employment; or

(6) accepts or agrees to accept money or anything of value to solicit employment.

(b) A person commits an offense if the person:

(1) knowingly finances the commission of an offense under Subsection (a);

(2) invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or

(3) is a professional who knowingly accepts employment within the scope of the person’s license, registration, or certification that results from the solicitation of employment in violation of Subsection (a).

(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 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) 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) involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or

(F) contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.

How can I be charged with a Barratry offense in Texas?

You can be charged with Barratry and Solicitation of Professional Employment in Texas if the state’s attorneys believe that each of the elements of 38.12 as described in the section above have been met.

What is the statute of limitation for Barratry in Texas?

Misdemeanor level Barratry charges have a two-year limitations period.^[2] Felony level offenses have a three-year limitations period.^[3]

What is the penalty for a Texas Barratry offense?

A conviction for Barratry and Solicitation of Professional Employment is punished by default as a Class A misdemeanor,^[4] with a maximum possible fine under Texas state law of up to $4000 and jail time of up to one year. However, if the state proves you have a previous conviction for the same offense, the punishment can be enhanced to a third degree felony.^[5]

Can you get probation for Barratry in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Barratry, and judges are also allowed to accept deferred adjudication plea deals.^[6]

Note, however, that judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[7]

What level of crime is Barratry in Texas?

The Penal Code classifies Barratry as either a Class A misdemeanor or third degree felony, depending on the circumstances.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §38.12. This law is current as of 2024.^2. Code of Criminal Procedure 12.02(a)^3. See Code of Criminal Procedure 12.01(9)^4. Texas Penal Code §38.12(g)^5. Texas Penal Code §38.12(h)^6. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^7. Art. 42A.054(b), Texas Code of Criminal Procedure