A Houston lawyer and an Austin chiropractor recently won a round in their battle to have sections of Texas’ barratry statute declared unconstitutional. On March 25, U.S. District Judge Lee Yeakel of the Western District of Texas signed a final judgment in Donald McKinley, et al. v. Greg Abbott declaring §§38.12(d)(2)(A) and 38.12(d)(2)(C) of the Texas Penal Code unconstitutional. Yeakel also entered a permanent injunction prohibiting the Texas Office of the Attorney General from enforcing those sections. The sections of the Texas Penal Code at issue require lawyers, doctors and others to wait 31 days before soliciting business from individuals involved in accidents. Houston solo Christopher Villasana and Dr. Donald McKinley of Austin filed their suit in August 2009. In the complaint, Villasana alleged §38.12(d)(2)(C) puts him at risk for a Class A misdemeanor for “sending directed, State Bar approved advertisements to persons on a ticket-arrest warrant list less than 31 days after the arrest/ticket.” McKinley alleged he also risked a misdemeanor if satisfied patients shared his business cards or brochures with injured people. With regard to Villasana’s allegations, Yeakel found it is unconstitutional to prevent attorneys for 31 days from contacting “individuals arrested or served with a summons” under §38.12(d)(2)(C) with a written solicitation, because the section does not “directly or materially advance a substantial state interest.” As to McKinley’s allegations, Yeakel found that §38.12(d)(2)(A) infringes upon McKinley’s right to speak. Martyn Hill , a shareholder in Pagel, Davis & Hill in Houston who represents McKinley and Villasana, says he is pleased with Yeakel’s opinion and order. He notes that his clients did not challenge provisions of the barratry statute that require marketing to be “truthful and not in any way misleading.” Villasana, who says about 60 percent of his business is traffic ticket defense, says he’s pleased with Yeakel’s decision. Thomas Kelley, a spokesman for the AG’s office, declines comment.
A Doctor-Shopping Bill?
Harris County District Attorney Pat Lykos wants the Texas Legislature to consider enacting a statute to make it a crime for a person to use fraud and deceit to obtain a controlled substance or a prescription for a controlled substance that is not medically necessary for the person. Lykos mentioned her proposed “doctor-shopping” bill during a March 29 panel discussion sponsored by the Austin-based Center for Effective Justice, Texas Public Policy Foundation. The panelists — State Sen. Kel Seliger, R-Amarillo; Judge John Creuzot, Dallas County Criminal District Court No. 4; Kevin Knight, associate director for criminal justice studies, Institute of Behavioral Research, Texas Christian University; and Lykos — discussed “Writing a New Prescription for Texas: Cost-Effective Solutions to Reduce Substance Abuse and Crime.” Lykos’ legislative proposal, which she has had drafted as a bill, would create a new offense, ranging from a Class A misdemeanor up to a second-degree felony, to obtain prescription medications by “misrepresentation, fraud, forgery, deception, subterfuge, or concealment of a material fact.” Lykos says in an interview, “Houston is a hub for the diversion of pharmaceuticals.” She says individuals go from doctor to doctor, obtaining prescription drugs, which they often turn around and sell. Several states — including Louisiana — have passed doctor-shopping laws. The Louisiana Legislature passed a bill in 2007. Lykos says she plans to get her proposed legislation introduced in the next session, which will begin in January 2011.
