                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                      _____________________

                           No. 94-20138
                      _____________________

                       MARY MOORE, ET AL.,

                                               Plaintiffs-Appellees,


                             VERSUS

             DAN MORALES, Attorney General, Et Al.,

                                                         Defendants,

                 DAN MORALES, Attorney General,

                                             Defendant-Appellant.
*****************************************************************

                     ADRIANE ANDERSON, ETC.,

                                                 Plaintiff-Appellee,


                             VERSUS

                  JOHN B. HOLMES, JR., ET AL.,

                                                         Defendants,

                 DAN MORALES, Attorney General,

                                             Defendant-Appellant.
*****************************************************************
               DIRECT MAIL MARKETING, INC., ET AL.,

                                               Plaintiffs-Appellees,


                             VERSUS

                      JOHN VANCE, ET AL.,

                                                         Defendants,

                 DAN MORALES, Attorney General,

                                 Intervenor-Defendant-Appellant.
*****************************************************************
               INNOVATIVE DATABASE SYSTEMS, ET AL.,

                                                    Plaintiffs-Appellees,


                                    VERSUS

                            DAN MORALES, ET AL.,

                                                                 Defendants,

                                 DAN MORALES,

                                             Defendant-Appellant.
*****************************************************************
                    DAVID O. CHAMBERS, ET AL.,

                                                    Plaintiffs-Appellees,


                                    VERSUS

                           STEVEN HILBIG, ET AL.,

                                                                 Defendants,

                                 DAN MORALES,

                                         Intervenor-Defendant-Appellant.


      ____________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
     (CA-H-93-2170, c/w 93-2499, 93-2699, 93-2700 & 93-2701)
      _____________________________________________________

                               (August 23, 1995)

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     At   issue    is    the   constitutionality   of   Texas'   prohibiting

several   groups        ("attorney[s],   chiropractor[s],    physician[s],

surgeon[s], or private investigator[s] licensed to practice in this

state or any person licensed, certified, or registered by a health

                                     - 2 -
care    regulatory   agency    of   this    state"),    Tex.    Penal   Code    §

38.12(b)(1) (1994), from direct mail solicitation to accident

victims or their families within 30 days after the accident.                   In

view of the Supreme Court's very recent holding in Florida Bar v.

Went For It, Inc., 115 S. Ct. 2371 (1995), we hold that, as to

attorneys, it is constitutional, and REVERSE; but, as to the other

groups, we REMAND for further proceedings.

                                     I.

       In 1993 the Texas legislature attempted, for the second time,

to limit the solicitation efforts of several groups: "attorney[s],

chiropractor[s],         physician[s],       surgeon[s],        or      private

investigator[s] licensed to practice in this state or any person

licensed, certified, or registered by a health care regulatory

agency of this state".         Tex. Penal Code § 38.12(b)(1) (1994).1

Among other things, the 1993 provisions (1) prevented those groups

from direct mail solicitation to accident victims or their families

until the 31st day after the day of the accident (the 30-day ban);

(2) restricted access to accident reports for 180 days following

the    accident;   and   (3)   prevented    direct     mail   solicitation     of

criminal and civil defendants until the 31st day following the

initiation    of   legal   proceedings.       (The   1993     provisions   also

provided a means whereby an accident report may indicate a victim's


1
     Texas' first attempt to limit solicitation, which consisted of
a complete prohibition on the use of crime or accident reports for
the purpose of soliciting clients, was held by our court to be "too
broad a means of effectuating the intended purpose of the law".
Innovative Database Sys. v. Morales, 990 F.2d 217, 222 (5th Cir.
1993).

                                    - 3 -
desire   to   not   receive   solicitation   letters,   and   prohibited

solicitation of individuals so indicating.       The district court's

order did not address these provisions.)

     Five actions, which were consolidated, challenged the 1993

provisions as unconstitutional under the First and Fourteenth

Amendments. The district court temporarily enjoined enforcement of

the provisions, and, following an expedited bench trial, found them

to be an unconstitutional hindrance of commercial speech.

                                   II.

     At issue is only one of the 1993 provisions: the 30-day ban on

solicitation of accident victims and their families.           See Tex.

Penal Code § 38.12(d)(2)(A) (1994).

                                   A.

     First we reject the suggestion that the Texas Attorney General

lacks standing to maintain this appeal in his name for the State of

Texas.   The Attorney General was a named party in three of the five

consolidated cases.      Moreover, by statute, the State of Texas

requires that, when the constitutionality of one of its laws is

challenged, "the attorney general of the state must also be served

with a copy of the proceeding and is entitled to be heard".        Tex.

Civ. Prac. & Rem. Code § 37.006(b); see also Baker v. Wade, 743

F.2d 236, 242 (5th Cir. 1984) (holding that Texas Attorney General

is presumptively adequate representative of State's interest when




                                  - 4 -
constitutionality of Texas law is challenged), rev'd on other

grounds, 769 F.2d 289 (5th Cir. 1985).2

                                 B.

     The direct mail solicitation that Texas seeks to regulate is

a form of commercial speech protected by the First Amendment.3

Therefore, pursuant to the Supreme Court's very recent holding in

Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995), the 30-

day ban, in order to withstand constitutional scrutiny, must

satisfy the three-prong test of Central Hudson Gas & Elec. Corp. v.

Public Serv. Comm'n, 447 U.S. 557, 564-65 (1980): (1) the State

must assert a substantial interest supporting the regulation; (2)

the regulation must directly and materially advance that interest;

and (3) the regulation must be narrowly drawn to advance that

interest.   Prior to Florida Bar being rendered, the district court


2
     Appellees' contention springs, in large part, from the claim
that the Attorney General has "no enforcement or other official
authority" under the challenged statutes. They rely on League of
United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir.
1993), cert. denied, 114 S. Ct. 878 (1994) where our en banc court
addressed the limitations on the power of the Texas Attorney
General to settle a matter against the will of the state officials
he was charged to represent. Id. at 840-43. Clements does not
support the notion that the Attorney General cannot appeal the
district court's judgment.
3
     Commercial speech that is false or misleading, however, is not
entitled to such protection. Central Hudson Gas & Elec. Corp. v.
Public Serv. Comm'n, 447 U.S. 557, 563-64 (1980).        The State
concedes that, with the exception of Innovative Database Systems
(IDS) and the National Association of Accident and Injury Victims
(NAAIV), Appellees' commercial speech is not false or misleading.
In this connection, the State has urged that, even if the 30-day
ban is unconstitutional as to the other Appellees, IDS and NAAIV
are not entitled to that protection because they engage in false
and misleading speech. As discussed in part II.B.2., we do not
reach this question.

                               - 5 -
held that Texas' 30-day ban failed each prong of this inquiry.                We

first address the 30-day ban as to attorneys, then turn to the

other affected groups.

      Along this line, Appellees insist that we review only for

clear error, pursuant to Fed. R. Civ. P. 52.            But, as the district

court's opinion illustrates, findings of fact in the constitutional

free speech context are frequently informed by the relevant legal

landscape; questions of law and fact are easily intertwined.

      Although a district court's findings of fact are normally

reviewed under the clearly erroneous standard, our court recognizes

the   distinctive    nature   of   fact-finding     with    respect     to   the

constitutionality of commercial speech regulations.              E.g., Lindsay

v. City of San Antonio, 821 F.2d 1103, 1107 (5th Cir. 1987), cert.

denied, 484 U.S. 1010 (1988); Dunagin v. City of Oxford, 718 F.2d

738, 748 n.8 (5th Cir. 1983), cert. denied, 467 U.S. 1259 (1984).

See Lockhart v. McCree, 476 U.S. 162, 168 n.3 (1986).             We review de

novo.

                                     1.

      Needless to say, as to attorneys, Florida Bar controls.                 At

issue   was   a   Florida   Bar   rule   imposing   a   30-day    ban   on   the

solicitation of accident victims and their families -- a regulation

nearly identical to the one in issue.               115 S. Ct. at 2374.

Applying the three-prong Central Hudson test, the Court held that

the rule was constitutional.        Id. at 2376-81.

      For the substantial interest prong, the Florida Bar offered,

inter alia, its interest in "protecting the privacy and tranquility


                                    - 6 -
of personal injury victims and their loved ones against intrusive,

unsolicited contact by lawyers".        Id. at 2375.   The Court had

"little trouble crediting [this] interest as substantial", noting

that its prior precedent has "consistently recognized that `[t]he

State's interest in protecting the well-being, tranquility, and

privacy of the home is certainly of the highest order in a free and

civilized society'". Id. at 2376. (quoting Cary v. Brown, 447 U.S.

455, 471 (1980)).   The Court also noted that "a single substantial

interest is sufficient to satisfy Central Hudson's first prong".

Id. at n.1.

     For the second prong, requiring proof that the regulations

directly and materially advance the State's interest, the Court was

persuaded that "the Florida public views direct-mail solicitations

in the immediate wake of accidents as an intrusion on privacy that

reflects poorly upon the profession". Id. at 2376. Distinguishing

prior precedent, the Court seized on the specific harm the Florida

Bar sought to eliminate: the invasion of privacy and accompanying

"outrage and irritation" associated with direct mail advertising to

recent accident victims and their families.      See id. at 2377-79.

Finding the scope and nature of the interest presented by the

Florida Bar distinct from the claims made in prior cases before it,

the Court concluded that the second prong of Central Hudson was

satisfied.    Id. at 2378-79.

     Turning to the third, and final, prong, the Court noted that

the government need not employ the "least restrictive means" to

further its interest.    Id. at 2379.   Instead, that prong requires


                                - 7 -
only that the regulation's restrictions reasonably fit the desired

objective. Id. That settled, the Court concluded that the Florida

Bar rule was "reasonably well-tailored to its stated objective of

eliminating targeted mailings whose type and timing are a source of

distress to Floridians".   Id.

     Texas, like the Florida Bar, has advanced the interest of

protecting the privacy of accident victims and their families.

Indeed, in almost all respects, Texas' position supporting the 30-

day ban as to attorneys essentially mirrors that of Florida Bar.

Nonetheless, Appellees maintain there are significant distinctions,

permitting us to affirm the district court's holding that Texas'

30-day ban is unconstitutional.4

     Principally, Appellees contend that, unlike the record in

Florida Bar, the record developed by Texas cannot support finding

that its interests are substantial, or that its 30-day ban directly

advances them.   We disagree.      Florida Bar does not require an

overwhelming record in support of the 30-day ban.       Rather, it

echoed prior precedent requiring only that there be more than "mere

speculation and conjecture", and that "a governmental body seeking

to sustain a restriction on commercial speech must demonstrate that

the harms it recites are real and that its restriction will in fact


4
     Appellees assert that Florida Bar has no impact on this case,
maintaining that it did not involve a claim that the 30-day ban
constituted a content-based, discriminatory regulation.         For
example, they claim that Texas' 30-day ban favors the speech of
insurance companies, to the detriment of attorneys and health care
professionals. This contention misses the mark. For content-based
commercial speech restrictions of this type, Florida Bar holds that
the Central Hudson test is the applicable standard.

                                 - 8 -
alleviate them to a material degree".             Florida Bar, 115 S. Ct. at

2376.    Informing our analysis of the sufficiency of the record is

the Court's observance in Florida Bar that, in Edenfield v. Fane,

113 S. Ct. 1792, 1801 (1993), where the Court struck down a

regulation on commercial speech because of an inadequate record,

there was "no evidence" in support of the regulation.                      115 S. Ct.

at   2378.      The   Court   readily    distinguished           Florida    Bar   from

Edenfield; we do the same here.

      Before    us    is   extensive   evidence       of   the    great    number   of

complaints associated with direct mail solicitation in general. As

to such solicitation within 30-days of an accident, experts for the

State testified that it can be detrimental to an accident victim

and his or her family.        They testified further that the 30-day ban

would provide reasonable protection from many of these detrimental

effects.

      There is also testimony from individuals that their receipt of

direct mail solicitation immediately following an accident outraged

them, invaded their privacy, and contributed to their emotional

distress.      Those same individuals testified that they would have

been better able to cope with the intrusiveness of the solicitation

letters had they not received them until at least one month after

the accident.        The State's evidence was further supported by the

co-chairman of the Houston Trial Lawyers' Association and the

author   of    the    1993    provisions;      both    testified      to     numerous

complaints of outrage and invasion of privacy regarding direct mail

solicitation.


                                       - 9 -
      Based on Florida Bar, we find this evidence sufficient to

satisfy the first two Central Hudson prongs: Texas' stated interest

in   protecting   its   citizens   from     the   invasion   of   privacy   is

substantial; solicitation within 30 days of an accident creates,

among other things, an invasion of privacy; and the 30-day ban

substantially alleviates this invasion.

      Appellees next turn to the third prong of Central Hudson,

requiring a "fit" between the ends and means of the 30-day ban.

They note that Texas now has a system whereby accident victims may

indicate, on the accident report, their desire not to be contacted

through direct mail solicitation. Accordingly, Appellees claim the

30-day ban is more than is necessary to prevent unwanted contact

from attorneys.    This argument fails on two counts -- one factual,

one legal.

      As the State's evidence illustrates, often it is the accident

victim's family, not the victim, that the 30-day ban seeks to

protect.     And, needless to say, when the victim dies, or is

otherwise unable to sign or understand an accident report, the

protection against unwanted solicitation is of no avail.              In any

event, as noted in Florida Bar, the State is not required to employ

the least restrictive means in promoting its interest.            115 S. Ct.

at 2380.     Again, based on Florida Bar and its similarity to this

case, we conclude that, as to attorneys, Texas' 30-day ban, like

the Florida bar rule, passes the third, and final, prong of the

commercial speech constitutional inquiry.




                                   - 10 -
                                      2.

     Finally, on behalf of the other licensed groups covered by the

statute,   including,   but   not    limited   to   physicians,   surgeons,

chiropractors,   and    private     investigators,    Appellees    seek   to

challenge the 30-day ban.      But, almost the entire thrust of the

case concerned the ban as to attorneys.         And, most interestingly,

the other groups have not challenged the ban.5              Even assuming

Appellees have third-party standing to assert this claim, see,

e.g., Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S.

947, 954-59 (1984), the validity of the ban as to the other groups,

even if raised sufficiently in the district court, was far from

sufficiently developed, especially in light of the new guidance

from Florida Bar.6     We, therefore, will not consider it now.

5
     For example, it appears that the Texas medical and
chiropractic associations supported the bill.          One of the
Appellees, NAAIV, is made up entirely of chiropractors. However,
it appears from the pretrial order that NAAIV's challenge was based
only on the 1993 provisions that limited access to accident
reports. In any event, the district court's opinion addressed the
NAAIV only with respect to whether it engaged in "misleading or
deceptive communication", and whether the 1993 provisions
reasonably protect against that type of communication.      It is,
therefore, difficult to determine in what capacity, and on who's
behalf, NAAIV appears.
6
     The district court's opinion focused almost exclusively on the
evidence relating to attorney solicitation. It did not discuss the
evidence, or lack thereof, concerning solicitation by the other
groups. Likewise, it is unclear whether Appellees contended that
the 30-day ban, whether constitutional or not as to attorneys, was
unconstitutional as to the other groups.          For example, no
physician, surgeon or investigator testified; only one chiropractor
did, and very little of his testimony concerned the 30-day ban. On
the other hand, and as another example, there was testimony by the
author of the bill that his constituents resented post-accident
letters from attorneys and chiropractors. Now that Florida Bar has
directed the fate of the 30-day ban as to attorneys, and has
delineated the analytical framework, the district court may

                                    - 11 -
                               III.

     For the foregoing reasons, the judgment of the district court

is REVERSED in part, and the case is REMANDED with instructions to

vacate the injunction as to the 30-day ban, and to enter judgment

upholding the ban as to attorneys.    As to the other groups affected

by the 30-day ban, this case is REMANDED for further proceedings

consistent with this opinion and Florida Bar.       Such proceedings

should include the issue of standing in this case by those other

groups.

                      REVERSED AND REMANDED




consider this under-developed, if not undeveloped, issue.

                              - 12 -
