Donald McKinley, et al v. Greg Abbott
PUBLISHED OPINION FILED. [10-50568 Reversed and Remanded ] Judge: TMR , Judge: EMG , Judge: LHS Mandate pull date is 06/29/2011 [10-50568]
Case: 10-50568 Document: 00511502516 Page: 1 Date Filed: 06/08/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
June 8, 2011
Lyle W. Cayce
DONALD MCKINLEY, D.C.; CHRISTOPHER VILLASANA,
GREG ABBOTT, as Attorney General of the State of Texas,
Appeal from the United States District Court
for the Western District of Texas
Before REAVLEY, GARZA, and SOUTHWICK, Circuit Judges.
REAVLEY, Circuit Judge:
Section 38.12 of the Texas Penal Code (the “Barratry Statute”) regulates
barratry and solicitation of professional employment. Appellees brought suit
seeking a declaratory judgment that Texas Penal Code §§38.12(d)(2)(A) and
38.12(d)(2)(C) violate the Texas and United States Constitutions. After a bench
trial, the district court entered judgment for the Appellees, holding
unconstitutional §38.12(d)(2)(A) as applied to written solicitations, in-person,
and telephonic solicitation, and § 38.12(d)(2)(C) as applied to written
solicitations, as violations of the United States Constitution’s First Amendment
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guarantee of free speech. Appellant Greg Abbott, Attorney General of Texas,
appeals the District Court’s judgment. We reverse.
Section (d) of the Texas Barratry Statute regulates solicitation of
professional employment by “an attorney, chiropractor, physician, surgeon, or
private investigator licensed to practice in [the] state or any person licensed,
certified, or registered by a health care regulatory agency of [the] state.” 1 In
2009, the Texas Legislature amended the statute to include solicitations by
telephone or in person, closing the gap left by the former statute, which reached
only written communications. Pursuant to the statute as amended, a lawyer or
chiropractor commits an offense if he or she
with the intent to obtain professional employment for the person or
for another, provides or knowingly permits to be provided to an
individual who has not sought the person’s employment, legal
representation, advice, or care a written communication or a
solicitation, including a solicitation in person or by telephone, that:
(A) concerns an action for personal injury or wrongful death
or otherwise relates to an accident or disaster involving the
person to whom the communication or solicitation is provided
or a relative of that person and that was provided before the
31st day after the date on which the accident or disaster
occurred; . . . [or]
(C) concerns an arrest of or issuance of a summons to the
person to whom the communication or solicitation is provided
or a relative of that person and that was provided before the
31st day after the date on which the arrest or issuance of the
The previous version of the statute came under constitutional scrutiny in
1994, when a district court ruled that the portion of the statute banning written
TEX . PENAL CODE § 38.12(d)(1).
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solicitation of both accident victims and arrestees within 30 days of the accident
or arrest was unconstitutional.3 The state appealed only that part of the ruling
that applied to accident victims, which we held to be constitutional, reversing
the district court.4
After the 2009 amendments were passed, Appellees Christopher Villasana
and Donald McKinley brought pre-enforcement actions challenging parts of the
Villasana challenged the portion of § 38.12(d)(2)(C) that prohibits
written solicitation of persons who have been arrested or received a summons
within 30 days of the person’s arrest or receipt of the summons. McKinley
challenged all forms of solicitation by chiropractors of accident victims within
the first 30 days of their accident as criminalized by § 38.12(d)(2)(A). Both
claimed that the respective sections were unconstitutional under the free speech
and equal protection guarantees secured by both the United States and Texas
Constitutions. The district court held a bench trial and entered judgment for
Villasana and McKinley, enjoining the enforcement of the challenged sections
of the Barratry Statute as violations of the United States Constitution’s
guarantee of free speech. Abbott timely appealed, and we have jurisdiction
under 28 U.S.C. § 1291.
Appellant first argues that the district court erred when it failed to dismiss
Appellees’ state law claims on Eleventh Amendment grounds. We review a
district court’s order denying a motion to dismiss on Eleventh Amendment
grounds de novo.5 The Eleventh Amendment bars private citizens from bringing
suit against a state in federal court, unless the suit falls within the narrow
Moore v. Morales, 843 F. Supp. 1124, 1126 (S.D. Tex. 1994).
Moore v. Morales, 63 F.3d 358, 363–64 (5th Cir. 1995).
K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010).
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exception articulated by the Supreme Court in Ex Parte Young.6 The Young
exception “has been accepted as necessary to permit the federal courts to
vindicate federal rights and hold state officials responsible to ‘the supreme
authority of the United States.’”7 This exception strips the individual state actor
of immunity and allows a private citizen to sue that individual in federal court
for prospective injunctive relief based on allegations that the actor violated
federal law.8 However, since state law claims do not implicate federal rights or
federal supremacy concerns, the Young exception does not apply to state law
claims brought against the state.9 Eleventh Amendment immunity extends to
state officials who are sued in their official capacities because such a suit is
actually one against the state itself.10 Appellees brought suit against Abbott in
his official capacity.11 Therefore, the Eleventh Amendment bars suit here, where
Abbott is sued in his official capacity as Attorney General of the State of Texas
for violations of the Texas Constitution.
Appellees’ state law claims are
Id. (citing Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908)).
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105, 104 S. Ct. 900, 910
(1984) (quoting Young, 209 U.S. at 160, 28 S. Ct. at 454).
Id. at 102–03, 104 S. Ct. at 909.
Id. at 106, 104 S. Ct. at 911.
Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361 (1991). However, “the Eleventh
Amendment do[es] not deprive federal courts of jurisdiction over state law claims against state
officials strictly in their individual capacities.” Wilson v. UT Health Ctr., 973 F.2d 1263, 1271
(5th Cir. 1992).
Even had Appellees named Abbott as a defendant in his individual capacity, we
would hold that this suit was against the sovereign because “the effect of the judgment would
be to restrain the [state] from acting, or to compel it to act.” Dugan v. Rank, 372 U.S. 609,
620, 83 S. Ct. 999, 1006 (1963) (internal quotation omitted).
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Appellant next argues that the district court should have dismissed both
McKinley’s and Villasana’s federal claims for lack of standing. “This court
reviews questions of standing de novo.”12
Abbott contends that Villasana’s
claims should have been dismissed for lack of standing because Villasana
challenged a portion of the statute already held unconstitutional by a federal
district court and thus presents no live case or controversy. Villasana argues
that because the Texas Legislature amended the Barratry Statute in 2009, the
amended version is, in essence, a new statute and his challenge to the amended
statute is not mooted by the district court’s earlier ruling. Abbott also argues
that McKinley lacks standing because he cannot demonstrate a credible threat
of being prosecuted under the Barratry Statute. Both McKinley and Villasana
urge that they intend to take actions in the near future that would fall within
the acts prohibited by the Barratry Statute.
Villasana (The Attorney)
Assuming arguendo that Villasana had initial standing to bring the
challenge, his claim must now be dismissed as moot. “[T]he standard . . . for
determining whether a case has been mooted by the defendant’s voluntary
conduct is stringent: ‘A case might become moot if subsequent events made it
absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.’”13 Abbott has declared that neither he nor any county or
district attorney in Harris and its bordering counties will attempt to enforce §
38.12(d)(2)(C) as it applies to written communications since it was declared
Nat’l Athletic Trainers’ Ass’n, Inc. v. U.S. Dep’t of Health & Human Servs., 455 F.3d
500, 502 (5th Cir. 2006).
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120
S. Ct. 693, 709 (2000) (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S.
199, 203, 89 S. Ct. 361, 364 (1968)).
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unconstitutional by a district court in 1994.14 We have no reason to doubt his
statement. Because Villasana is a resident of Harris County and has not alleged
that he practices outside of the counties affected by the injunction, his claims are
dismissed as moot.
McKinley (The Chiropractor)
McKinley brings his claims under a separate subsection, and Abbott has
made no statement that § 38.12(d)(2)(A) will not be enforced. Challenges to
statutes regulating commercial speech do not enjoy the expanded standing
inquiry employed in normal First Amendment overbreadth cases “because the
overbreadth doctrine does not apply to commercial speech.”15
McKinley bears the burden to show (1) a concrete and particularized injury in
fact that is actual or imminent, not conjectural or hypothetical; (2) a causal
connection between the injury and the conduct alleged; and (3) that the injury
will be redressed by a favorable decision.16
Abbott contends that McKinley has alleged no actions that McKinley
intends to take that would be punishable by § 38.12(d)(2)(A).
McKinley argues that he could violate the plain language of the statute by giving
business cards and brochures to his satisfied patients and encouraging them to
share the information with others. We agree.
On its face, the Barratry Statute reaches a person who knowingly permits
written communications to be provided to an accident victim within 30 days of
As explained above, attorney Villasana challenges § 38.12(d) as it relates to written
solicitations of arrestees. In 1994, the state successfully appealed the district court’s judgment
holding the entire statute unconstitutional but only the part that related to written
solicitations of accident victims, leaving in place—at least in theory—the holding of the district
court as it relates to arrestees. Moore, 63 F.3d at 363–64.
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496–97, 102
S. Ct. 1186, 1193 (1982).
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136 (1992).
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the accident.17 The statute does not require that the third party providing the
written information be paid for the referral. McKinley stated in his complaint
that he “encourage[s] people who are satisfied with [his] work to share such
information with others, especially at the earliest possible point after an injury
when medical treatment is needed the most.”18 Therefore, on its face, McKinley’s
complaint alleged that he has acted and intends to act in a manner that could
violate § 38.12(d)(2)(A). McKinley has, therefore, established a concrete injury
that is actual and imminent.
Abbott does not argue that McKinley cannot meet the other prongs of the
standing inquiry. If, as we have stated, McKinley’s actions might violate the
Barratry Statute, then on the facts of this case he has also established the
necessary causal link and redressability. McKinley has standing to bring his
Last, we consider whether the Barratry Statute violates the United States
Constitution’s First Amendment guarantee to free speech. This is a mixed
question of fact and law, which we review de novo.19 Since, as we have noted
above, the overbreadth doctrine does not apply to commercial speech, “[t]o
succeed in a typical facial attack, [McKinley] would have to establish ‘that no set
of circumstances exists under which [§ 38.12(d)(2)(A)] would be valid,’ or that the
statute lacks any ‘plainly legitimate sweep.’”20
R. USCA5 19 (emphasis added).
Int’l Soc’y for Krishna Consciousness of New Orleans, Inc. v. Baton Rouge, 876 F.2d
494, 496 (1989) (citing Dunagin v. City of Oxford, 718 F.2d 738, 748 n.8 (5th Cir.1983)).
United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (quoting United States v.
Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987); Washington v. Glucksberg, 521 U.S.
702, 740 n.7, 117 S. Ct. 2258, 2305 (1997) (Stevens, J., concurring)).
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Personal solicitation like that covered by the Barratry Statute is
commercial expression protected by the First Amendment.21 A restriction on
commercial expression must survive the intermediate scrutiny articulated by the
Supreme Court in Central Hudson.22 Under Central Hudson, the threshold
question is whether the restriction governs speech that concerns unlawful
activity or is misleading.23 Such speech receives no First Amendment protection
and the state may regulate it.24 Because the section of the Barratry Statute that
McKinley challenges regulates speech that is lawful and not misleading, we
move past the threshold and analyze the regulation using the three-prong
inquiry set forth in Central Hudson.
For the first prong, we must determine “whether the asserted
governmental interest is substantial.” 25 That protecting the privacy of accident
victims within the first 30 days after their accident is a substantial
governmental interest has already been definitively decided by both this court 26
and the Supreme Court.27 And a long line of Supreme Court precedent holds
that a state has a compelling interest in the licensing and regulation of
professions within its boundaries.28 The state’s interest is substantial.
Edenfield v. Fane, 507 U.S. 761, 765, 113 S. Ct. 1792, 1797 (1993).
Thompson v. W. States Med. Ctr., 535 U.S. 357, 367, 122 S. Ct. 1497, 1504 (2002)
(citing Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 100
S. Ct. 2343 (1980)).
Id. (internal quotation omitted).
Moore, 63 F.3d at 361–63.
Florida Bar v. Went For It, Inc., 515 U.S. 618, 625, 115 S. Ct. 2371, 2376 (1995).
See id. (listing cases).
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For the second prong we consider whether “the harms [the government]
recites are real and that [the] restriction will in fact alleviate them to a material
The record contains ample evidence that the harm caused by
solicitation of accident victims by chiropractors within the first 30 days after an
accident is real. The state produced testimony from the Director of Enforcement
at the Texas Board of Chiropractic Examiners that the Board had received a
large number of complaints from accident victims concerning solicitation
activities of chiropractors directly following the victims’ automobile accidents.
Additionally, the state introduced anecdotal testimony from accident victims
about solicitation directly after an automobile accident and the stress caused by
those solicitations. There was also expert testimony about the stress disorder
many people suffer for up to a month after a traumatic event, which can lead to
cognitive dysfunctions in information processing and decision-making. This is
sufficient evidence to demonstrate that the harm is real.30 And, we conclude that
a rule prohibiting solicitation for a 30 day period materially alleviates that harm
by preventing the harm identified by the state for the amount of time needed.
Finally, section 38.12(d)(1)(A) also passes the third prong of Central
Hudson because “it is not more extensive than is necessary to serve [the stated]
interest.”31 The state has shown that the harm to accident victims is caused by
personal solicitation within the first 30 days after an accident. The Barratry
Statute regulates exactly that harm for exactly that time period. In response,
McKinley makes two main arguments. First, he contends that the interest
would be more effectively served by using a Do Not Call Registry, allowing
accident victims to opt out of personal solicitation.
Id. at 626, 115 S. Ct. at 2377 (internal quotations omitted).
See id. at 628–29.
Thompson, 535 U.S. at 367, 122 S. Ct. at 1504 (internal quotation omitted).
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misunderstands the narrow tailoring inquiry for commercial speech, which is not
a least restrictive means test.32 The state’s means need not represent “the single
best disposition,” but instead must be reasonable and “in proportion to the
interest served.”33 This regulation is reasonable and proportionate.
McKinley’s second and primary argument, however, is that the Barratry
Statute as written would punish McKinley if his patients passed his brochure or
business card to an accident victim within the first 30 days. However, even
assuming for the sake of argument that under McKinley’s hypothetical fact
pattern the statute would be unconstitutional as applied, that condition fails to
invalidate the statute on its face because McKinley has not demonstrated that
the statute is unconstitutional in all its applications.34 As we noted above, since
McKinley may not bring a First Amendment overbreadth claim, he must
demonstrate in this facial attack “that no set of circumstances exists under
which [§ 38.12(d)(2)(A)] would be valid.”35 He has not met that burden. Section
38.12(d)(1)(A) meets the narrow tailoring requirement sufficiently to survive
McKinley’s facial attack.
McKinley also brought claims for violations of his Fourteenth Amendment
rights to Due Process and Equal Protection, which the district court never
We will not address them in the first instance on appeal.
Accordingly, we dismiss the state law claims of both Appellees and the federal
claims of attorney Villasana, and we reverse and remand McKinley’s federal
claims for proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
Florida Bar, 515 U.S. at 632, 115 S. Ct. at 2380.
Id. (internal quotations omitted).
Stevens, 130 S. Ct. at 1587 (internal quotation omitted).
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