McKinley v. Abbott
2011 U.S. App. LEXIS 11548
| 5th Cir. | 2011Background
- Texas Penal Code § 38.12(d) (Barratry Statute) prohibits soliciting professional employment by certain licensed professionals, including written, in-person, or telephonic communications, within 30 days of an accident or arrest.
- In 2009, Texas amended § 38.12 to cover telephone and in-person solicitations, expanding beyond written communications.
- Villasana and McKinley filed pre-enforcement challenges asserting § 38.12(d)(2)(C) and § 38.12(d)(2)(A) violate the First and Fourteenth Amendments and the Texas Constitution.
- The district court entered judgment for Villasana and McKinley, holding § 38.12(d)(2)(A) and (d)(2)(C) unconstitutional as applied, and enjoined enforcement of those provisions.
- Abbott appealed to the Fifth Circuit, challenging standing, mootness, and the merits under the First Amendment and related standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eleventh Amendment immunity | State claims against Abbott in official capacity barred by immunity. | Official-capacity suit seeks prospective relief; Young exception permits it. | Eleventh Amendment bars state-law claims; claims against Abbott in official capacity dismissed. |
| Standing and mootness on Villasana | Villasana maintains live challenge to amended statute. | Post-2009 amendment renders challenge moot for arrestees within 30 days. | Villasana's claims are moot; no live case or controversy. |
| Standing of McKinley | McKinley has concrete, imminent injury from possible § 38.12(d)(2)(A) enforcement. | No actual enforcement actions shown; lack of standing. | McKinley has standing to challenge § 38.12(d)(2)(A). |
| Constitutional validity of § 38.12(d)(2)(A) as applied to commercial solicitation | Statute violates First Amendment by restricting lawful, non-misleading commercial speech. | Regulation serves substantial government interest and is narrowly tailored. | Statute satisfies Central Hudson test; not unconstitutionally broad as applied. |
| Facial vs. as-applied challenge to § 38.12(d)(2)(A) | Even if some applications may be unconstitutional, the statute on its face is invalid. | Overbreadth doctrine inapplicable to commercial speech; need show no valid applications. | No facial violation; statute survives as narrowly tailored. |
Key Cases Cited
- Moore v. Morales, 63 F.3d 358 (5th Cir. 1995) (standing and scope of Barratry challenge in Fifth Circuit context)
- Moore v. Morales, 843 F. Supp. 1124 (S.D. Tex. 1994) (district court's earlier ruling on constitutionality of the statute)
- Florida Bar v. Went For It, Inc., 515 U.S. 618 (U.S. 1995) (commercial speech regulation; Central Hudson framework)
- Edenfield v. Fane, 507 U.S. 761 (U.S. 1993) (commercial speech and professional regulation principles)
- Thompson v. Western States Med. Ctr., 535 U.S. 357 (U.S. 2002) (Central Hudson three-prong test applicability to commercial speech)
- United States v. Stevens, 130 S. Ct. 1577 (U.S. 2010) (facial challenge standards and constitutionality considerations)
- Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557 (U.S. 1980) (framework for regulating commercial speech)
- Ex parte Young, 209 U.S. 123 (U.S. 1908) (state official immunity exception allowing prospective relief)
- Florida Bar v. Went For It, 515 U.S. 618 (U.S. 1995) (intermediate scrutiny for professional-regulation speech)