Shearer v. Reister
Dallas Court of Appeals, No. 05-12-01475-CV (April 28, 2014)
Justices Moseley, Francis, and Lang (Opinion)
The Court of Appeals reversed summary judgment for an attorney on a claim for barratry, holding the trial court lacked jurisdiction to strike down the predicate criminal statute as unconstitutional, and rejecting the attorney’s contention that a conviction under the criminal statute is a prerequisite for a civil suit.

Shearer sued Reister for civil barratry, alleging he violated Penal Code Section 38.12(d)(2)(D), which at that time prohibited an attorney from soliciting professional employment from a defendant in a civil suit unless the lawsuit had been on file for more than 31 days (the statute has since been changed). Reister argued in a motion for summary judgment that the Penal Code provision was unconstitutional and that, in any event, no civil suit could be commenced unless and until the defendant had been criminally prosecuted. The trial court granted the motion.

The Court of Appeals noted that, under Texas’s bifurcated system of civil and criminal jurisdiction, a civil court has jurisdiction to declare a criminal statute unconstitutional only when it poses a threat of irreparable harm to rights that are enforced in civil courts, such as property or personal rights. The Court also observed that the party responsible for enforcing a statute—here, the Dallas County District Attorney—is an indispensable party in an action to declare the statute unconstitutional. Concluding Reister failed to offer evidence of irreparable harm to property or personal rights, and noting that the District Attorney was not joined as a party to the suit, the Court held that the trial court lacked jurisdiction to strike down the criminal statute. The Court also commented that a 1994 federal-court injunction that barred enforcement of the statutory provision at issue on constitutional grounds is not binding on state courts.

Finally, the Court rejected Reister’s theory that the ability to file a civil suit for barratry is conditioned on a previous criminal prosecution, finding that theory unsupported by any authority. The Court reversed the summary judgment and remanded the case.