*1 Lyndа Aus- the facts of Gail agree I Winters, Texas, pro- not discharge, do The STATE of like
tin’s us to situation for appropriate vide employ- exceptions to at-will broaden MAYS, Appellee. firing, Legislature Austin’s ment. Since has enacted a whistleblower No. 0367-97. remedy any hospital employee who vides Texas, Appeals Court Criminal illegal ac- discharged reporting has been En Banc. employer. Tex. Health & tivity his or her (Vernon Supp. Safety § April 1998. though unable to Even Austin was enactment, she benefit from this was fact, remedy. In as the Court
without a out, into points under a statute that went nurse, 1987, Austin, registered effect in as a regis- required by report law to another suspected exposed tered nurse that she had “likely expose patient or was оr other harm,” unnecessarily to a risk of likely impaired who “is or is to be chemi- dependency_” cal Tex.Rev.Civ. Stat. 1(a) (Vernon 4525a, § Supp.1998). While the record does not reflect whether Austin re-
ported suspicions her to the Board of Nurse required,
Examiners as there is no doubt she if would have then had a civil cause of action terminated, suspended, she was or otherwise disciplined against. or discriminated 11(a).1 Accordingly,
§ cоmpel- this is not a ling injustice scenario of us to
modify long-standing employment-at-will
doctrine. compelling such a situation does, future, present itself and when it it will be incumbent on this Court to once Pilot,
again, carry did in as we Sabine its duty amending “burden and the doc- [the to reflect social and economic trine] Pilot, changes.” at 735 Sabine J., (Kilgarlin, concurring). argument, point 2268. The amendment of kind to 1. At oral of contеntion was anti-retaliatory provision the Pro change whether the § "1A” was 11 was a 1993 Reporting Nurse statute was in effect 11(c). fessional § referenced in added to list of sections was, It 11 was when Austin filed her suit. as rd 19, 1993, R.S., Leg., ch. Act of June th 18, 1987, 70 enacted in 1987. Act of June 2,§ 1993 Tex. Gen. Laws 3305. R.S., Leg., ch. 1987 Tex. Gen. Laws *2 FOR STATE’S PETITION OPINION ON REVIEW DISCRETIONARY KELLER, Judge, opinion delivered MEYERS, the Court which MANSFIELD, PRICE, HOLLAND and WOMACK, Judges, joined. Mays, charged
Appellee, John barratry. by offense of indictment with the trial, quash motion Prior he filed a indictment, claiming it failed charged specificity. with sufficient agreed in- quashed and The trial court appeal, dictment. On a State’s the Court Appeals court’s affirmed the trial action. discretionary granted petition for the State’s review determine whether barratry by soliciting employment alleging when it tracks thе defini- sufficient laid .out tion reverse. barratry statute. We will
I. jury County grand returned Victoria appellee, charg-
two-count indictment ing him with See Tex. Penal Code (Vernon 1994). The first count charged Mays of the indictment there, with intent to obtain did then and benefit, knowingly, economic for by telephone, and solicit by Klimist himself communi- Bernard providing legal cating, for Ordonez, Lupe represеntation, with client, spective concerning represen- arising out accident at a Mav- tation of an Esparza, involving Blanche erick Mart anyone Lupe when neither Ordoneznor re- Lupe Ordonez had acting on behalf of quested and the con- Mays was not autho- duct of John Allen Disciplinary Rules of by the Texas rized any court. rule of Professional Conduct similarly сharged count The second Mays Austin, Augustine, appellant. for
John C.
there,
with intent to obtain
did then and
benefit,
Tem,
knowingly,
person and
Klassen,
Atty.
Dist.
Pro
Aus-
economic
S.
Austin,
Ber-
Paul,
employment for
tin,
telephone, solicit
Atty.,
State’s
for
Matthew
Jones,
Klimist,
Dietze
Norman
Knute
nard
State.
by communicating,
pur-
given upon
prosecution
it in bar of
for
and himself
pose
providing legal represеntation,
the same offense.” Id. art. 21.04.
Rosse,
and Marian
with Gloria Wearden
Subject
exceptions,
to rare
an indict
Rob-
members of
client
tracking
language of
ment
the statute
*3
Wearden, concerning legal representa-
ert
satisfy
statutory
will
constitutional and
re
arising
an
car accident
[sic]
tion
out of an
allege
quirements;
the State need not
facts
involving
hаppened
that
Robert Wearden
merely evidentiary in
that are
nature. Mor
3, 1994,
July
on or about
when neither
State,
(Tex.Crim.App.
eno v.
II. guarantees constitution an ac Our person employment, either solicits right cused the to demand the nature and by telephone, for himself or for him, cause of the action and have another ... Const, I, § copy thereof. Tex. art. 10. The 38.12(a) (Vernon Penal Ann. Tex. convey sufficient charging instrument must 1994). elsewhere a defini- The code contains prepare notice to allow the accused to his employment,” which tion of the term “solicit State, defense. Adams v. provides: (citing (Tex.Crim.App.1986) Voelkel to communi- (Tex.Crim.App.1973)). means “Solicit person by telephone or written provided guid cate in legislature has also some The prоspective client or requisite specificity of indict communication with ance for the 21.02(7) prospective client’s a member of the Article of the Texas Code of ments. arising concerning legal representation out “[t]he that of Criminal Procedure event, or particular occurrence or plain intelligible of a fense ... be set forth events, or сoncern- of occurrences series words.” Tex.Code PROC. CRiM. 21.02(7) (Vernon 21.03, ing existing legal problem an Article client, provid- spective “[ejverything stated in should be vides prospective legal representation to the necessary ing be is indictment which client, receiving Finally, when neither proved.” art. 21.03. article Id. anyone acting on nor certainty required the communicаtion that “[t]he requested the person’s has behalf in an indictment is such as will enable may communication. plead be accused 1996)(“where 38.01(11). possesses a criminal statute apparent It the in- is statutorily-defined, alternative methods of carefully tracked the dictment this case offense, timely committing re- Fur- then definition. thermore, allegation in- provided appеllant quest, it additional entitled to a defendant is alleged includ- formation about method the State intends ing with charged prove”); whose behalf he was on Olurebi v. (since prospective
acting, the clients with whom he (Tex.Crim.App.1994) credit card charged contacting, specif- and the ways, “fictitious” in two be ics of the or events out of which notify way charged). occurrenсes must defendant problems arose. clients’ problems of these here. We face neither us, then, such question The is whether before ques- portion *4 sufficient notice a indictment or means of tion contains one manner defendant. commission, defines that and the statute or means. manner III. Edmond, In the issue we addressed Appeals in of this case The Court definition of following of a statute’s whether sufficiently held indictment failed to that this suffi the manner or means of offense will expression employment.” “solicit define charges ciently notify a defendant of many The ac court relied cases which Edmond, against generally. him. See knowledged merely statutory quoting There, appeals of found an official court language notify may adequately not a defen oppression lack indictment insufficient for charges dant of the raised him. All specificity. alleged That indictment Edmond of these cases found indictments insufficient by sexually oppression ha committed official legal principle on the sound victim, rassing and defined “sexual his [although an indictment which tracks the advances” harassment” as “unwelcomе sexual language ordi and terms the statute is “request We reversed or for sexual favors.” sufficient, narily statutory language appeals, noting corut of of the par completely descriptive, is not so that language that the of the indictment tracked ticularity required to defen afford the statutory exactly language defini merely required, tracking dant notice as hаrassment,” tion of “sexual and concluded the statute be insuffi defines the manner or “when a statute cient. committing an an indict means of (Tex. State, Daniels v. 754 S.W.2d 218 upon that statute need not ment based However, Crim.App.1988). none of these Edmond, anything beyond that definition.” cases involved an indictment which tracked a ap The rule at 129. Edmond S.W.2d See, provided definition in a statute. plies directly to facts of this case. The (Tex. v. Castillo in manner or means of commission this case (“the Crim.App.1984) term ‘start a fire’ as employment, and the statute soliciting used in the second count the indictment is provided lengthy manner definition defined”); Sandoval, statutorily not State v. Therefore, in the indictment this means. (Tex.App. Corpus — definition, case, statutory suffi tracking that ref'd) 1992, pet. (“procure” not Christi de alleged ciently statute). A statute fined former appeals in court this case refused to The uses undefined term of indetermi Edmond, however, distinguishing it on apply meaning spe nate or variable more (1) not grounds: two Edmond did establish notify cific the defendant pleading order rule,” statutory some “bright-line because against him. charges of the nature of the adеquately definitions inform Likewise, would manner when statute defines the him; charges against defendant of the several alternative means commission (2) provided “is definition in this statute ways, speci fail for lack of will definition; like it is a charac- hardly a more ficity identify neglects if it Mays, generalization.” it v. terization or addresses. State Ed means disagree. mond, at We established (Tex.Crim.Aрp. S.W.2d 88. We legislature sufficiency appeals indictment in concluded that “the could for the of an rule Edmond, to construct a statute that applies rule to the instant not have intended and that prohibitions.” broad in its was so case. plain we need look no further than the lan- agree the conten Neither do we guage of this statute to ascertain the breadth tion that the definition of prohibitions. See of its Hines merely generalizes about the (“When (Tex.Crim.App.1995) barratry’s manner or means of commission. statutes, criminal focus interpreting courts “Defini first note that 38.01 is labeled text, plain language of the for that is on the clearly legislature The intended tions.” intent”). legislative the foremost indication of 38.01(11) “solicit em to “define” the term plain lаnguage of statute demon- Furthermore, ployment.” the statute legislature intended to crimi- strates that the definition, detailed which leaves little vides a nalize various forms of solicitation of activity A per to the criminalized. doubt as spective legal by attorneys or their clients employment” when he: son “solicits Appeals sug- representatives. The Court (1) tele- communicates likely anticipat- gested legislature “the most phone or written attorney appears ed the situation where an or a with a client member accident, hospital, fu- scene of an at the *5 family; prospective Ghent’s client”; however, sign up neral home to the (3) concerning legal representation; sug- plain language of the statute does not (4) arising particular gest prohibition. out of a occurrence such a narrow event, or or series of occurrences or expressed appeals The court of also con- events, existing legal concerning barratry criminalizes cern that the client; problem prospective activities, unduly “otherwise innocent” (5) providing legal rep- оf for the jeopardizes attorneys.1 the of livelihood client; prospective the resentation to find that concern to be unwarranted. While person receiving the when neither the employment of take on the solicitation acting anyone nor on communication forms, place many it takes innocent when requested person’s that behalf has the 38.01, under the terms of sections 38.12 and communication. of it constitutes the criminal offense barra- 38.01(11) (Vernon Tex. Penal try. appellee should or the courts below Nor ifAnd does so with the sweeping surprised by legislature’s be benefit, specific intent to obtain an economic against many types of solicitation prohibition the offense of he commits by legal Barratry solicitation for services. 38.12(a)(2). Texas been criminalized the State of has 1901, penal code was amend- Clearly scope of the since when the troubled as to the by fomenting litigation “the of barratry prohibitions, the court of ed to outlaw statute’s practice handling appeals. voicing places to civil that entire 1. In its concern this your danger prosеcution Why you do some of legal professionals for don’t hire me to activities, Ap- appellate otherwise innocent the Court of work. I'd sure like to work on examples: peals proffered spill two case.” attorney example, communicat In the first neighbor Attorney’s a. next-door tells attor- legal representation an offer of without ed soup ney bowl of that his child had hot gain neighbor’s request and with the intent to lap poured and is in his at a restaurant benefit, illegally solicited em economic she has grafts hospital having skin on now in example ployment under our laws. The second Attorney says, “Neigh- the burned skin. barratry, attorney com not constitute as the does bor, you you should take action. If attorney emplоy with another municated you help need let me know or I can refer to ment, "prospective client." Such and not with a type specializes who in that someone implicate the historical communication does not law.” addresses, type this concerns that Appellate attorney tells friend who is a trial b. overreaching and specifically likelihоod of attorney, your "the firm had "I understand laypersons.” influence on taking the exertion of undue to trial. As a been a lot cases 447, Ass'n, fact, you big State Bar 436 U.S. won that Ohralik v. Ohio matter of I saw 1921, (1978). 1912, my spill just S.Ct. 56 L.Ed.2d toxic case. I have devoted ample appellee by soliciting employment.” ed notice to and met attorneys at law consti- Co., statutory requirements. tutional and MсCloskey v. Antonio Traction San (Tex.Civ.App. Antonio S.W. —San We reverse the of the Court of see, refd); v. Trevi Turcotte writ Appeals and remand this case to the trial no, (Tex.Civ.App. —Cor proceedings for further court consistent (Article 1976) pus penal 430 of former Christi opinion. this illegal person to code “made it for a seek prose through employment solicitatiоn MeCORMICK, P.J., participating. cute, claim, collect defend or OVERSTREET, J., concurs the result. him cure another to solicit for claim”), grounds, other such reversed on BAIRD, Judge, concurring. (Tex.1978). Furthermore, S.W.2d 682 rule, which general As indictment Disciplinary Rules Professional Texas statutory language suffi- tracks the of em also forbid the solicitation Conduct v. notice. Daniels cient strikingly by lawyers ployment —in there (Tex.Cr.App.1988). penal code: similar to general exceptions two rule. are by in-person or lawyer shall not tele- First, an indictment contains a neces- where phone professional employ- contact seek sary allegation of an act the defendant concerning arising a matter out of ment statutorily comprises more than one event, particular or series occurrence performance, means of its but defined events, occurrences or from a specify fails the statu- sought client or nonclient has not who tory upon, act relied definitions lawyer’s regarding employment or advice provide the constitutional- indictment fails to lawyer has no with whom ly required Gibbons notice. *6 relatiоnship past present attorney-client excep- (Tex.Cr.App.1983). This significant lawyer’s when a motive case, present at tion is not issue pecuniary gain. doing lawyer’s is the so question statute in contains because the or means commission. one manners TEXAS, BAR SUPREME COURT OF STATE RULES (Texas X, Disciplinary Rules exception The second is Conduct) (lo- 7.03(a)(1998) Rule Professional descriptive, comрletely mere language is not supplementary pamphlet cated in the for Vol- ly tracking the statute in title ume of the Texas Government Code constitutionally provide the re insufficient following app., G 83.006 of subtitle defendant. Haecker v. quired notice Code). Government (Tex.Cr.App. 921-22 and, 1978); 144 Tex.Crim. Conklin Contrary to conclusion of the (1942). in But in the Appeals, to create a Court of we did intend statutorily language is suffi case the stant bright-line rule Edmond. We reiterate requisite provide ciently descriptive to “when a statute defines that rule here: notice. committing manner or means opin- majority join I cannot need based that statute an indictment the conversation because I do not believe ion allege anything beyond that definition.” a., at is an ante footnote described Edmond, at 129. Nor does to constitute illegal solicitation sufficient employ case define way implicate “inher ment” in such a as clear ently activities. innocent” Therefore, join only judgment I constitute ly the activities which outlines Court. his barratry, parameters fall within and its barratry by solicitation. torical bounds case, carefully in this
The indictment a manner tracking the definition barratry, provid- or means commission