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Click here for the full text of this decision FACTS:A grand jury returned a three-paragraph indictment against a chiropractor, alleging that he had committed barratry. The indictment alleged that the chiropractor, from Feb. 1, 1998, through Sept. 17, 1999,: ” did then and there, with intent to obtain an economic benefit, pay or offer to pay Irma Escandon money to solicit employment, and the Defendant’s conduct was not authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court, . . . did then and there, knowingly finance the solicitation of employment, in violation of section 38.12(a) of the Texas Penal Code, by Irma Escandon for . . . an attorney licensed to practice law in the State of Texas, and the Defendant’s conduct was not authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court, . . . did then and there, knowingly invest in funds that the Defendant knew or believed were intended to further the payment of money to Irma Escandon of money to solicit employment, in violation of section 38.12(a) of the Texas Penal Code, and the Defendant’s conduct was not authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.” The chiropractor filed a separate motion to dismiss each paragraph of the indictment for failure to allege an offense. Citing Bailey v. Morales, 190 F.3d 320 (5th Cir. 1999), he argued in each motion that chiropractors are permitted to solicit employment from individuals who have sustained accidental injuries and they are permitted to hire individuals to conduct this solicitation. At the hearing on the chiropractor’s motions to dismiss, the parties stipulated that the state’s theory of prosecution is as follows: “That on or about Feb. 1, 1998, through on or about Sept. 17, 1999, Irma Escandon was paid money by Alexander Jimenez, defendant in the above enumerated cause, to solicit employment for an attorney . . . with the intent to obtain an economic benefit (that economic benefit being the referral of the solicited clients from [the attorney] to Alexander Jimenez).” Relying on Bailey, the trial court expressly determined that a chiropractor cannot be prosecuted for barratry under Texas Penal Code 38.12. Accordingly, the court granted the chiropractor’s motions and dismissed each paragraph of the indictment. HOLDING:Reversed. The state contends that the chiropractor’s stipulated conduct falls squarely within the conduct prohibited by Texas’ barratry statutes, and therefore, the trial court erred by ruling that the state is prohibited from prosecuting the chiropractor because he is a chiropractor. “Prior to 1997, Section 38.12 pertained only to the solicitation of legal employment. In an attempt to regulate the”cottage industry’ of alleged ambulance-chasing chiropractors and others, the Legislature amended 38.01 and 38.12 in 1997 so that the statute’s proscriptions covered the solicitation of business by chiropractors and other professionals as defined by 38.01(12).” Following the passage of the statutory amendments, in Bailey, a group of Texas chiropractors filed suit in federal court alleging that the statutes violated their First and 14th Amendment rights, seeking injunctive and declaratory judgment relief. In order to regulate truthful and non-deceptive speech that merely proposes a commercial transaction, the state must prove that 1. it has a substantial interest; 2. the regulation directly and materially advances the state’s interests; and 3. the regulation is narrowly drawn. The chiropractors offered evidence that they visited senior citizen centers to speak to the elderly about the benefits of chiropractic care for the alleviation of arthritis pain, they contacted employers to ask them to refer injured workers to for chiropractic care, they employed telemarketers to call victims of accidents to inform them of the benefits of chiropractic care, and they informed accident victims at the scene of an accident personally witnessed by a chiropractor about the benefits of chiropractic care. Noting that activities such as speaking at senior citizen centers and contacting employers are not activities inherently conducive to overreaching, the 5th U.S. Circuit Court of Appeals held that the broad ban imposed by the statute did not directly and materially advance the state’s interests, because it swept too many extraneous activities within its purview. Thus, the court determined that the amended statute is unconstitutional as applied to chiropractors. Here, the trial court extended Bailey’s holding to prohibit the prosecution of chiropractors who solicit employment for an attorney, even though the Fifth Circuit expressly held that it was not determining the purview of the statute as it applies to other covered professionals. In so doing, the trial court misread Bailey as providing blanket protection to chiropractors from any prosecution under 38.12. While Bailey may apply to prevent the state from prosecuting the chiropractor for soliciting chiropractic business for himself or other chiropractors, it can prosecute him for soliciting legal employment for an attorney. In other words, the chiropractor’s status as a chiropractor does not protect him from prosecution if he violates 38.12 by soliciting legal employment for an attorney. The chiropractor argues that he employed Escandon to solicit employment for himself from individuals who had sustained injuries and Escandon used accident reports as a source of new patients. These statements of fact are not supported by the record and they are contrary to the stipulation on which the trial court based its ruling. The chiropractor stipulated that the state’s theory of prosecution is that he paid Escandon to solicit employment for an attorney with the expectation of an economic benefit, namely, the referral of clients by the attorney to the chiropractor. Under that theory of prosecution, the state’s indictment does not run afoul of the holding in Bailey. Accordingly, the state’s sole issue is sustained. OPINION:McClure, J.; Larsen, McClure and Chew, JJ.

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