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 RICH REISTER & ASSOCIATES,
                                 Appellees

                       On Appeal from the 14th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-12-06313

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

summary judgment against her on her claims against Rich Reister and the Law Offices of Rich

Reister & Associates (“Reister”), appellees, under the 2012 version of Government Code §

82.0651(c) (“the civil barratry statute”), which allowed plaintiffs to bring civil barratry claims

against attorneys who violated “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 violation 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.
           We construe Shearer’s brief as having raised two issues on appeal. 1 Shearer first argues

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 asserts the trial court erred if it rendered summary judgment

on the ground that the civil barratry statute required a criminal prosecution or conviction under

Penal Code § 38.12(d)(2)(D) as a prerequisite to recovery. For the reasons described below, we

reverse 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 PROCEDURAL BACKGROUND

           On May 14, 2012, Palisades 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 legal 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 Penal

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 addressed a second assertion that was raised by Reister as one of the bases for their motion for summary judgment in the trial court,
asserting the necessity of a criminal prosecution or conviction as a condition to recover under the civil barratry statute. Since this argument was
also raised in the trial court, we construe this to be Shearer’s second issue.
     2
       Although the order does not appear in the Clerk’s Record provided, the parties do not contest Reister’s plea to the jurisdiction was denied
by the trial court. The denial of the plea to the jurisdiction is not an issue before us.



                                                                      –2–
unenforceable.” 3 Reister also argued this Penal Code provision unconstitutionally restrained

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 argued

what she claimed is a “dispositive” U.S. Supreme Court case, State Bar of Florida v. Went for It,

that allegedly demonstrated 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.

           The trial court granted summary judgment for Reister 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 TEX. GOV’T CODE ANN. § 402.010 (West 2012) (effective from June 17, 2011 to
August 31, 2013). The 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 this 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.


                                                                        –3–
evidence favorable to the nonmovant, and we indulge every reasonable inference 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 claim as a matter of law.” Innovate Tech.

Solutions, L.P. v. Youngsoft, Inc., 418 S.W.3d 148, 151 (Tex. App.—Dallas 2013, 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) (citing Rogers v. Ricane, 772 S.W.2d 76,

79 (Tex. 1989)).

                                                     III. APPLICABLE LAW

A. History of the Challenged Penal Code Provision

             The 2012 version of the civil barratry statute, at issue before this court, provided as

follows:

             A person who was solicited by conduct 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 action against any person who committed barratry.

TEX. GOV’T CODE ANN. § 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 barratry” and recover a penalty of $10,000, plus actual damages and


     4
         Effective 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 attorneys 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.

TEX. GOV’T CODE ANN. § 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.


                                                                       –4–
attorney’s fees. TEX. GOV’T CODE ANN. § 82.0651(d) (2012) (effective from September 1, 2011

to August 31, 2013).

           The 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

           solicitation . . . 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.

TEX. PENAL CODE ANN. § 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 laws. 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,

the plaintiffs sued the Texas Attorney General, the Director of the Texas Department of Public

      5
        At the time the federal court injunction was 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, 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 was mailed.

TEX. PENAL CODE ANN. § 38.12(d)(2)(D) (West 1994) (emphasis added to show changes).


                                                                      –5–
Safety, and the district attorneys of Webb and Wilson 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, the trial court granted an injunction preventing enforcement of Penal Code §

38.12(d)(2)(A)-(D) on constitutional grounds, concluding those contested provisions 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 provisions, §

38.12(d)(2)(A) relating to personal injury victims, was at issue in the appeal of the trial court’s

decision. Moore, 63 F.3d at 360. The 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 id.

           In 1999, the AG issued an opinion discussing the constitutionality of Penal Code §

38.12(d)(2)(C), concerning solicitation 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 Moore 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 statute 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.


                                                                     –6–
       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 attorney general.” TEX.

GOV’T CODE ANN. § 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 court 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 enjoin 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 enforcement of an

       unconstitutional statute threatens irreparable 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 allegedly unconstitutional

                                                    –7–
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 TEX. R. CIV. 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.) (concluding “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 injunctive 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.

                                                 –8–
       In the Lone Starr Multi Theatres, Inc. case, the constitutionality of a Penal Code

provision was challenged in a civil suit where declaratory and injunctive relief was sought

against the State of Texas and the AG. Id. at 298. The Austin Court of Appeals held the trial

court lacked equity jurisdiction “on the ground that a party responsible for prosecut[ing]

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 required to be given to the AG when statutes are challenged on

constitutional grounds, the Austin Court 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

general is the proper party to sue in an action for declaratory or injunctive relief from the

enforcement of a criminal statute.” Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b)

(West 1986)).

       Assuming the trial court had jurisdiction, when analyzing 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 (Tex. 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 burden 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)).




                                                –9–
                            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. It 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 we address Shearer’s argument that “the trial court erred in granting summary

judgment on the issue 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 affecting 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 demonstrated 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 authority to enforce” this

criminal statute was absent from these proceedings, thus “leav[ing] the trial court without

jurisdiction.” See Lone Starr Multi Theatres, Inc., 922 S.W.2d at 297. Each proposition will be

addressed in turn.

   7
       TEX. PENAL CODE ANN. § 38.12(d)(2)(D) (West 2012) (effective from September 1, 2009 to August 31, 2013).



                                                                 –10–
1. Jurisdiction of Equity Courts to Consider Constitutional Challenge to Criminal Statutes

       A trial court addressing a civil matter has jurisdiction to declare a criminal statute

unconstitutional if one of these conditions has 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 unconstitutionally 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 in their motion for summary judgment

stating, “The statute upon which [Shearer’s] claim depends is void, rendering [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, to 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 this 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




                                                –11–
sections of the Penal Code, had been reversed on appeal, but argued 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 states could not impose categorical prohibitions that prevented attorneys

from soliciting business by sending truthful, 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 involved 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 which party had the burden to attack or defend the constitutionality of Penal

Code § 38.12(d)(2)(D). Further, 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 this

statute unconstitutional.

          Shearer responded to Reister’s summary judgment motion arguing the statute was

constitutional. No evidence was offered by Shearer.

          In light of the absence of evidence in the record, we cannot agree that the case law

offered by Reister in the trial court or before this court is dispositive. Additionally, the case

upon which Reister relies heavily, Moore I, does not dictate a result because we are not bound by

the judgment 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).


                                                                 –12–
(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 fails 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 refused to “offer

any view on the statute’s constitutionality”). On this record, we 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

question 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 jurisdiction to hear that challenge. See TEX.

R. CIV. 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, based upon the allegations in the pleadings, it appears all acts or

transactions involving the parties occurred in Dallas County. Accordingly, the authority to

enforce this Penal Code provision is not 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 TEX. CONST.

art. V, § 21. While there 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 commercial 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.’”)


                                                                       –13–
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 the trial

court lacked jurisdiction to decide the constitutional issues in this case 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, this issue does not implicate constitutionality of Penal Code § 38.12(d)(2)(D). Rather,

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 their 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. Accordingly, 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 court 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 Court of Criminal
Appeals in Ex Parte Lo, in which 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. ANN. art. 4.04 (“The Court
of Criminal Appeals shall have . . . final appellate and review jurisdiction in criminal cases . . .”).



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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 under 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 this 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-Continent Cas. Co., 410 S.W.3d at 449.

                                       V. CONCLUSION

       In 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, we reverse the trial court’s order granting summary judgment

and remand the case to the trial court for further proceedings consistent with this opinion.




                                                    /Douglas S. Lang/
                                                    DOUGLAS S. LANG
                                                    JUSTICE


121475F.P05




                                               –15–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JANET L. SHEARER, Appellant                         On Appeal from the 14th Judicial District
                                                    Court, Dallas County, Texas
No. 05-12-01475-CV         V.                       Trial Court Cause No. DC-12-06313.
                                                    Opinion delivered by Justice Lang. Justices
RICH REISTER & THE LAW OFFICES                      Moseley and Francis participating.
OF RICH REISTER & ASSOCIATES,
Appellees

        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 28th day of April, 2014.




                                                  /Douglas S. Lang/
                                                  DOUGLAS S. LANG
                                                  JUSTICE




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