Texas barratry & improper solicitation — Penal Code § 38.12

Barratry is soliciting legal or professional employment, or paying for or accepting money to solicit clients, in violation of Texas Penal Code § 38.12. Core barratry is a third-degree felony — two to ten years in prison. A licensed professional’s unsolicited accident-solicitation letter or message inside the 31-day window is a Class A misdemeanor, and becomes a felony on a repeat conviction. Below: the statute, the full punishment ladder, how Texas courts read § 38.12, and the defenses that apply in Collin, Dallas, Denton, and Tarrant County.

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The controlling statute

Barratry sits in Chapter 38 of the Texas Penal Code, which covers offenses that obstruct governmental operation. Section 38.12 punishes two overlapping wrongs: soliciting or paying to solicit clients for an economic benefit under subsections (a) and (b), and a licensed professional’s prohibited written or electronic solicitation of accident victims and other targets under subsection (d). Which branch applies decides the grade.

The core offense in Section 38.12(a) reads:

“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, in person, by telephone, through a direct message on a social media platform, or by another electronic communication, including through a false, misleading, or deceptive electronic communication, for the person 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.” — Tex. Penal Code § 38.12(a)

Subsection (b) reaches those who finance a barratry scheme, invest funds they know are intended to further one, or — as a professional — knowingly accept employment that resulted from illegal solicitation. Subsection (c) is an exception: conduct authorized by the Texas Disciplinary Rules of Professional Conduct or a rule of court is not barratry, which is why bona fide lawyer-referral services and court-sanctioned programs are lawful.

Subsection (d) is the “ambulance-chasing” branch. It makes it an offense for an attorney, chiropractor, physician, surgeon, private investigator, or health-care licensee to provide — or knowingly permit a third party to provide — an unsolicited communication to someone who has not sought their services when the communication, among other things, concerns an accident and is sent before the 31st day after it occurred, targets a person the sender knows is already represented, reaches someone who has asked not to be contacted, or contains coercive, misleading, or deceptive content. Finally, subsection (i) declares that a final conviction of felony barratry is a serious crime for all purposes, including the State Bar Rules and the Texas Rules of Disciplinary Procedure.

What conduct § 38.12 criminalizes

Section 38.12 covers far more than a lawyer handing out cards at a crash scene. It reaches the whole economy of buying and selling legal and professional business — the person who solicits, the person who pays a solicitor, the person who takes the money, the investor who bankrolls the operation, and the professional who knowingly cashes in on it.

Core barratry (subsections (a)–(b)). A person violates the statute when, intending an economic benefit, they file a suit they were not authorized to bring; solicit employment in person, by phone, by social-media direct message, or by other electronic communication; pay or offer to pay someone — or a prospective client’s family member — to obtain or solicit employment; or accept money to solicit. A common fact pattern is the “runner” (sometimes called a case manager or capper): a third party paid to sign up accident victims for a lawyer or clinic. Both the runner and the professional who funds or knowingly benefits from the runner can be charged.

Professional written or electronic solicitation (subsection (d)). This branch applies only to the listed licensees and turns on who is contacted, when, and how. A truthful advertisement to the general public is protected. A targeted, unsolicited message to a specific accident victim inside 31 days, to a person the sender knows is represented, or to someone who has opted out is not. The statute expressly includes in-person, telephone, social-media, and other electronic solicitations, so a same-day Instagram or text message to a crash victim falls squarely within subsection (d).

Classification & punishment range

Section 38.12 does not use a single grade. Core barratry is a felony; the professional written-solicitation offense starts as a misdemeanor and escalates only on a repeat. The table below maps each branch of the statute to its offense level and the standard Chapter 12 punishment range. (Note: § 38.12 contains no state-jail-felony tier.)

Beyond the sentence, a felony barratry conviction is defined by subsection (i) as a “serious crime” for disciplinary purposes, and any barratry conviction can be devastating to a professional license. The collateral consequences are covered in the discipline section below.

Elements the State must prove

To convict, the State must prove every element beyond a reasonable doubt. The elements differ between the two branches, and the gaps between them are where most defenses live. The definitions in Penal Code § 38.01 control the key terms.

Intent to obtain an economic benefit

The culpable mental state for core barratry. “Economic benefit” is anything reasonably regarded as economic gain or advantage — including a fee, a fee contract, or accepting employment. Intent may be inferred from conduct, but it must be proved.

A prohibited act

One of the specific acts listed in § 38.12(a)(1)–(6) or (b)(1)–(3) — for example, soliciting employment or paying a runner. The statute defines the manner and means, so the indictment can track that language.

“Solicit employment” — an unrequested communication

A communication with a prospective client or family member about representation arising from an event, for the purpose of being hired, when neither the recipient nor anyone acting for them requested the contact. A requested communication is not solicitation.

A “prospective client”

The recipient must be a prospective client, not another professional. Communication between one lawyer and another for employment is outside the statute.

For subsection (d): a covered professional, knowledge, and a prohibited target

The defendant must be a listed licensee who, with intent to obtain employment, knowingly provided or permitted a solicitation to an unsought recipient falling in a prohibited category — e.g., an accident within 31 days, a represented person, an opt-out recipient, or a coercive or misleading message.

How Texas courts have interpreted § 38.12

Barratry has been on the Texas books since the 1800s, and appellate courts have repeatedly defined its reach. Four decisions frame how § 38.12 is charged and defended today — from the breadth of “solicit employment,” to the constitutionality of the 31-day mail ban, to what the State must prove in a modern runner prosecution.

The statute is broad, but it is limited to a “prospective client.” In State v. Mays, the Court of Criminal Appeals rejected a narrow reading of the statute. The court held that “the plain language of this statute demonstrates that the legislature intended to criminalize various forms of solicitation of prospective legal clients by attorneys or their representatives,” not just an attorney appearing at an accident scene or funeral home.² An indictment that tracks the statutory definition of “solicit employment” gives adequate notice. The same opinion recognized a real limit that defenses use: a lawyer who communicates with another lawyer for employment does not commit barratry, because the recipient is not a “prospective client.”²

The 31-day solicitation ban is constitutional as to attorneys. In Moore v. Morales, the Fifth Circuit addressed a First Amendment challenge to subsection (d). Applying the Supreme Court’s commercial-speech test from Central Hudson and Florida Bar v. Went For It, the court held the 30-day ban on direct-mail solicitation of accident victims “as to attorneys, … is constitutional,” while remanding as to other licensed groups.³ The decision means an attorney generally cannot beat a subsection (d) charge with a free-speech argument, but the analysis leaves room for as-applied challenges by non-attorney professionals.

The State must prove the contact was not requested. In Lopez v. State, the court affirmed a barratry conviction and explained what “solicit” requires: a communication made “when neither the person receiving the communication nor anyone acting on that person’s behalf has requested the communication.”⁴ The court also held that intent to obtain an economic benefit “may be inferred from the acts, words, and conduct of the accused.”⁴ For the defense, the “requested” element and the prior-relationship exclusion are frequent proving grounds — if the client reached out first, there is no solicitation.

Runner cases: “knowingly permitting” is itself the offense. In Reynolds v. State, a Texas court of appeals affirmed an attorney’s barratry convictions for knowingly permitting a runner to solicit accident victims within 31 days. The court held that “knowingly permitting a third person to engage in proscribed conduct is itself an element of the crime, and consequently no parties charge is required.”⁵ Knowledge was proved circumstantially — cash payments for referrals, coded texts arranging pickups, and client sign-up dates that preceded the victims’ first medical treatment — and whiting out the runner’s name on intake forms was treated as consciousness of guilt.⁵ Reynolds shows how the State builds the knowledge element when there is no direct proof.

Defense strategies

Barratry cases are won on the intent, solicitation, and knowledge elements, and on the specificity the State must plead. Every case is different, and the strategies below are general information rather than legal advice — but they map the terrain an attorney evaluates. See our forthcoming criminal defense strategies hub and our felony defense practice page for related material.

• The communication was requested. If the client or a family member reached out first, the “unrequested” element of solicitation is not met — the core holding of Lopez.⁴
• No intent to obtain an economic benefit. A genuine referral, a public-service communication, or contact by a qualified nonprofit is not barratry. Because intent is usually inferred, undercutting the inference is central.
• The recipient was not a “prospective client.” Professional-to-professional communications and true referrals fall outside the statute under Mays.²
• No knowledge (subsection (d) runner cases). The State must prove the professional knew a third party was improperly soliciting. Where the paperwork, payments, and timeline are consistent with legitimate marketing, the knowledge element can fail — the flip side of Reynolds.⁵
• The Rule 7.03 / court-rule exception. Subsection (c) exempts conduct authorized by the Texas Disciplinary Rules of Professional Conduct or a rule of court — lawful advertising and bona fide referral arrangements included.
• Charging-instrument specificity. On a motion to quash, the State must plead more than the statute’s bare words for terms like “procure.” In State v. Sandoval, the court affirmed dismissal of barratry charges that failed to allege “in terms more specific than the statute, how the defendant allegedly ‘procured.’”⁶
• As-applied constitutional challenge. The statute is not subject to a facial overbreadth attack, but Sandoval confirms a defendant may still argue it is unconstitutional as applied — a route more open to non-attorney professionals after Moore.⁶

Professional discipline & civil barratry

For licensed professionals, the criminal case is only half the exposure. A barratry conviction reaches the license and opens a separate civil door, and both can run at the same time as the prosecution.

Discipline. Section 38.12(i) makes a final conviction of felony barratry a “serious crime” for all purposes, including the State Bar Rules and the Texas Rules of Disciplinary Procedure. For a lawyer that can trigger compulsory discipline up to disbarment; for a physician, chiropractor, or private investigator it can mean board action against the license. Because barratry is a crime of dishonesty in the professional-conduct sense, it carries weight far beyond the sentence.

Civil barratry. Separately, Texas Government Code § 82.0651 lets a client void a legal-services contract procured through barratry and sue the person who committed it for fees paid, a $10,000 penalty, and attorney’s fees; a non-client injured by a barratry scheme may also sue. A civil barratry suit is decided under a different, lower burden of proof than the criminal case, so a professional can face both fronts from the same conduct.

Barratry vs. related fraud & tampering offenses

Barratry rarely travels alone. Solicitation schemes are often charged alongside fraud and record-tampering offenses — staged-accident rings, inflated treatment, and falsified paperwork — and prosecutors frequently stack counts. These related charges share proof but carry their own grades:

• Insurance fraud — the common companion to a runner-and-clinic scheme built on solicited accident claims.
• Deceptive business practices — misleading solicitation content can support a separate deception count.
• Tampering with a governmental record — falsified intake forms, accident reports, or filings.
• Bribery — the Chapter 36 sibling for paying something of value to influence conduct.

For obstruction- and testimony-related conduct, compare obstruction or retaliation, tampering with a witness, and perjury. Browse the full Texas charges encyclopedia for the complete list.

After a barratry arrest in North Texas

Barratry is prosecuted in the district courts of the county where the solicitation or payment occurred — and, as Reynolds confirms, venue can lie wherever a runner’s solicitations originated. L and L Law Group defends barratry and solicitation cases across Collin, Dallas, Denton, and Tarrant County. If you are a professional under investigation, the earliest, most important step is to preserve records exactly as they are and route all questions through counsel — altering files is itself evidence of guilt.

Key legal terms

Barratry

Soliciting professional employment, or paying for or accepting money to solicit clients, with intent to obtain an economic benefit, in violation of § 38.12.

Runner

A third party who solicits or signs up clients on a professional’s behalf, often approaching accident victims; using or knowingly permitting a runner is barratry.

Solicit employment

To communicate with a prospective client or family member about representation arising from an event, for the purpose of being hired, when the recipient did not request the contact.

Economic benefit

Anything reasonably regarded as economic gain or advantage — including a fee, a fee contract, or accepting employment; the culpable object of core barratry.

Professional (Chapter 38)

An attorney, chiropractor, physician, surgeon, private investigator, or person licensed or certified by a Texas health-care regulatory agency — the actors covered by § 38.12(d).