Territorial Limits on Texas Civil Barratry Claims: The Supreme Court’s Focus-Based Approach in Pohl v. Cheatham and Justice Busby’s Dissent

Territorial Limits on Texas Civil Barratry Claims: The Supreme Court’s Focus-Based Approach in Pohl v. Cheatham and Justice Busby’s Dissent

I. Introduction

Michael A. Pohl, et al. v. Mark Kentrell Cheatham, Sr., et al. presents a significant dispute over the territorial reach of Texas’s civil barratry statute, Texas Government Code § 82.0651. At its core, the case tests whether Texas can provide a civil remedy to clients who live in other states but were allegedly solicited through unlawful “case-running” arrangements that were organized and financed from law offices in Texas.

The petitioners are Texas attorneys. They were hired by out-of-state clients to pursue claims in those clients’ home states. The respondents (the clients) later sued the attorneys in Texas state court, seeking to void their fee agreements and obtain statutory relief on the ground that the lawyers obtained those clients through criminal barratry: paying or offering to pay case runners to solicit business.

Under Texas Penal Code § 38.12, barratry by a lawyer is a third-degree felony. In 2011, the Legislature supplemented the criminal prohibition with a civil remedy, enacting Government Code § 82.0651, which creates “an action to void a contract for legal services that was procured as a result of conduct violating Section 38.12(a) or (b)” of the Penal Code.

The Supreme Court of Texas, in a majority opinion (not reproduced here), holds that § 82.0651 cannot be used in these circumstances because the “acts of solicitation” that procured the clients occurred outside Texas. Invoking the presumption against extraterritorial application, the Court concludes that the statute’s “focus” is on the in-person acts of solicitation themselves; therefore, applying § 82.0651 where the solicitations were completed in other states would amount to an impermissible extraterritorial application of Texas law.

Justice Busby, joined by Justices Lehrmann and Boyd, dissents. He argues that the majority misidentifies the statutory “focus,” misreads the pleadings, and effectively rewrites § 82.0651 by narrowing it to a single type of barratry conduct. Because the key conduct that allegedly violated Penal Code § 38.12—the financing and offers to pay case runners—occurred in Texas, he concludes that the case involves a straightforward domestic application of the civil barratry statute, not an extraterritorial one.

The dissent also situates the dispute within the broader doctrine of extraterritoriality, drawing heavily on recent United States Supreme Court cases such as Abitron Austria GmbH v. Hetronic International, Inc. and Morrison v. National Australia Bank Ltd. It criticizes the “focus-of-legislative-concern” test as indeterminate and easily manipulated, and urges a more traditional, text-centered approach.

This commentary explains the legal framework, summarizes the majority’s rule as reflected in the dissent, explores Justice Busby’s reasoning in detail, and assesses the potential impact of the Court’s decision on Texas civil barratry claims and on the broader doctrine of statutory extraterritoriality.

II. Summary of the Decision and the Dissent

A. The Majority’s Holding (as Reflected in the Dissent)

Although only the dissenting opinion is provided, several features of the majority’s holding can be reliably inferred from Justice Busby’s description and quotations:

  • The Court adopts, or at least applies, the modern two-step extraterritoriality framework used by the United States Supreme Court in interpreting federal statutes.
  • At step one, the Court finds no “clear indication” that Texas Government Code § 82.0651 was meant to apply extraterritorially.
  • At step two, the Court identifies the “focus” of § 82.0651 as “the in-person acts of solicitation” that procured the legal-services contract.
  • Because, in this case, the targeted clients were located in other states and the case runners’ in-person solicitations occurred outside Texas, the Court concludes that applying § 82.0651 would regulate foreign (out-of-state) conduct. That would contravene the presumption against extraterritorial application.
  • The Court therefore reverses the lower court’s decision and holds that the civil barratry statute does not provide a remedy for these clients against the Texas attorneys, even though the attorneys’ alleged conduct, if criminally prosecuted, could be subject to Texas jurisdiction and could support professional discipline.

Put simply, the new rule established by the Court’s majority (as described in the dissent) is:

For purposes of Texas Government Code § 82.0651, the “focus” of the Legislature’s concern is the in-person act of solicitation that procures the legal-services contract. When that solicitation occurs outside Texas, application of § 82.0651 is treated as extraterritorial and is presumptively impermissible absent a clear legislative statement to the contrary.

B. Justice Busby’s Dissenting Position

Justice Busby takes a fundamentally different view of both the facts and the statutory scheme:

  • He stresses that the clients allege not just out-of-state in-person solicitation by case runners, but also in-state offers to pay and financing of those solicitations by Texas attorneys working from their offices in Texas.
  • Penal Code § 38.12(a) and (b) criminalize a broad array of conduct related to barratry: instituting unauthorized claims, soliciting employment, paying or offering to pay prospective clients or third parties, accepting payment for soliciting, financing such offenses, investing in them, and accepting employment that results from unlawful solicitation.
  • Section 82.0651(a) expressly creates an action to void a legal-services contract that was procured as a result of “conduct violating Section 38.12(a) or (b).” The “conduct relevant to that focus,” in this case, includes the in-Texas acts of offering to pay case runners and financing the solicitation activity.
  • Because that “violating conduct” occurred in Texas, applying § 82.0651 is a domestic, not an extraterritorial, application of Texas law.
  • The majority, in his view, improperly reduces the statute’s focus to a single type of conduct—acts of solicitation under § 38.12(a)(2)—while ignoring the other forms of barratry specifically targeted by the Legislature (such as paying, offering to pay, and financing).
  • He warns that, by doing so, the Court effectively permits Texas attorneys to profit civilly from conduct that Texas has declared criminal and professionally sanctionable, so long as the in-person solicitations occur outside Texas, thereby undermining the Legislature’s protective purpose.

Concluding that the civil barratry statute should apply, Justice Busby would affirm the court of appeals’ holding that this is a permissible domestic application of § 82.0651(a).

III. Legal Framework

A. Barratry Under Texas Law

1. Criminal barratry – Texas Penal Code § 38.12

Texas Penal Code § 38.12 makes certain forms of lawyer solicitation and related conduct criminal offenses, commonly referred to as “barratry.” As quoted in the dissent, § 38.12(a) and (b) provide that a person commits an offense if, with intent to obtain an economic benefit, the person:

  • (a)(1) knowingly institutes a suit or claim the person is not authorized to pursue;
  • (a)(2) solicits employment, in person or by telephone, for himself or another;
  • (a)(3) pays, gives, advances, or offers to pay/give/advance to a prospective client money or anything of value to obtain employment;
  • (a)(4) pays, gives, or offers to pay/give a person (a case runner) money or anything of value to solicit employment;
  • (a)(5) pays, gives, or offers to pay/give a family member of a prospective client money or anything of value to solicit employment;
  • (a)(6) accepts or agrees to accept money or anything of value to solicit employment.

Subsection (b) then extends liability to those who financially support or benefit from such schemes:

  • (b)(1) knowingly finances the commission of an offense under subsection (a);
  • (b)(2) invests funds known or believed to be intended to further the commission of an offense under subsection (a);
  • (b)(3) is a professional (e.g., an attorney) who knowingly accepts employment that results from solicitation violating subsection (a).

Barratry by an attorney can result not only in criminal prosecution but also in professional discipline, including disbarment. Justice Busby cites Government Code § 82.062, the Texas Disciplinary Rules of Professional Conduct (Rules 7.03, 8.04(a)(9), 8.05(a)), and State Bar of Texas v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994), to illustrate that barratry is regarded as serious professional misconduct.

Importantly, Penal Code § 1.04 permits Texas to exercise criminal jurisdiction where “conduct … that is an element of the offense occurs inside this state.” According to the dissent, the offers to pay and the financing decisions—the elements of barratry relevant here—took place in Texas.

2. Civil barratry – Texas Government Code § 82.0651

In 2011, the Texas Legislature created a civil remedy to complement the criminal barratry provisions. Government Code § 82.0651(a) provides (as quoted):

“[A]n action to void a contract for legal services that was procured as a result of conduct violating [Penal Code] Section 38.12(a) or (b).”

Section 82.0651(e) further announces the statute’s purpose:

“to protect those in need of legal services from unethical, unlawful solicitation and to provide efficient and economical procedures to secure that protection.”

Thus, the civil statute is expressly tied to the criminal barratry provisions. Contracts for legal services obtained through “conduct violating § 38.12(a) or (b)” can be voided, and the statute (beyond the quoted portions) provides additional civil remedies, including damages and attorney’s fees, for victims of unlawful solicitation.

The critical interpretive question in Pohl is:

What counts as the relevant “conduct violating Section 38.12(a) or (b)” for purposes of determining whether the civil statute is being applied domestically or extraterritorially?

B. The Doctrine of Extraterritorial Application and the “Focus” Test

Both federal and state courts generally presume that their statutes apply only within the enacting sovereign’s territory unless the Legislature clearly indicates otherwise. To operationalize this presumption, the U.S. Supreme Court has developed a two-step framework, used in cases such as Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), and Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023).

1. The federal two-step framework

  1. Step one – Clear statement. Does the statute contain a clear, affirmative indication that it applies extraterritorially? If yes, courts follow that directive.
  2. Step two – Statutory “focus.” If not, courts identify the “focus” of the statute—“the objects of the statute’s solicitude,” which can include the conduct regulated and the interests protected. The question then is whether the conduct relevant to that focus occurred within the United States. If so, the case involves a “permissible domestic application” of the statute, even if other related conduct took place abroad.

In Abitron, the Supreme Court explained that the focus includes “the conduct [the statute] seeks to regulate, as well as the parties and interests it seeks to protect or vindicate.” 600 U.S. at 418. Similarly, WesternGeco LLC v. ION Geophysical Corp., 585 U.S. 407 (2018), emphasized that when a provision “works in tandem” with other statutory provisions, the focus must be assessed “in concert” with those other provisions.

2. Texas’s use of extraterritorial principles

Texas courts have long recognized limits on the extraterritorial application of Texas statutes, but they have done so largely through traditional textual analysis, conflict-of-laws principles, and presumptions about legislative intent. The dissent cites earlier Texas decisions such as:

  • Citizens Insurance Co. v. Daccach, 217 S.W.3d 430 (Tex. 2007);
  • Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671 (Tex. 2006);
  • Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex. 1968).

According to Justice Busby, these cases demonstrate that Texas courts can resolve territorial-scope questions using standard tools of statutory construction without resorting to a free-floating “focus” inquiry that risks judicial rewriting of statutes.

In Pohl, however, the majority explicitly borrows the federal two-step framework, including the “focus” test, to determine § 82.0651’s territorial reach.

IV. Detailed Analysis of the Dissent

A. Step Two: Is This a Domestic Application of § 82.0651?

Justice Busby proceeds directly to step two of the extraterritoriality framework, following Abitron’s observation that courts “may take these steps in any order.” He argues that even if § 82.0651 has no extraterritorial effect, this case involves a permissible domestic application because the conduct relevant to the statute’s focus occurred inside Texas.

1. Statutory focus expressed in the text

The dissent emphasizes that the Legislature itself has declared the statute’s focus and purpose in the text:

  • The declared purpose in § 82.0651(e) is “to protect those in need of legal services from unethical, unlawful solicitation and to provide efficient and economical procedures to secure that protection.”
  • The operative provision, § 82.0651(a), creates a cause of action to void a contract “that was procured as a result of conduct violating Section 38.12(a) or (b).”

Combined, these provisions indicate:

The Legislature is concerned with unethical and unlawful solicitation, broadly understood, and has chosen to define the triggering conduct by reference to the entire range of barratry offenses listed in Penal Code § 38.12(a) and (b).

Thus, Busby reasons, the “conduct relevant to that focus” is not limited to in-person solicitation of clients, but includes any conduct that violates any of the enumerated subsections of § 38.12(a) and (b)—including offers to pay, payments made, financial backing, and acceptance of tainted employment.

2. Reading § 82.0651 “in concert” with § 38.12

Drawing on WesternGeco and RJR Nabisco, the dissent stresses that when one statute incorporates another, courts must read them “in concert” to determine the overall focus. In RJR Nabisco, the U.S. Supreme Court evaluated the civil RICO statute’s territorial scope by looking to the territorial scope of the criminal predicate offenses RICO incorporates.

Analogously, because § 82.0651 incorporates Penal Code § 38.12(a) and (b), it necessarily shares their broad regulatory concern with all forms of barratry defined therein. This matrix of incorporated offenses forms the proper reference point for identifying the statute’s focus.

On this view, narrow focus on only one of the subsection (a)(2) offense (“solicits employment”) is unjustified; the statute criminalizes at least nine distinct types of conduct, all of which the Legislature deemed important enough to regulate. The civil cause of action mirrors this breadth.

3. Where did the relevant conduct occur?

Having identified the focus as “conduct violating § 38.12(a) or (b),” the dissent turns to where that conduct occurred. The clients’ pleadings, he says, allege:

  • The attorneys “offer[ed] to pay or give a person money or anything of value to solicit employment” in violation of § 38.12(a)(4), and
  • They “knowingly finance[d] the commission” of that offense in violation of § 38.12(b)(1).

Crucially, Busby notes, these offers to pay and the financing decisions occurred while the attorneys were in their Texas offices. Even if the case runners’ actual knock-on-the-door solicitations happened in other states, the core economic and organizational decisions that § 38.12 expressly criminalizes took place in Texas.

Therefore, the “conduct relevant to that focus” occurred domestically, and the application of § 82.0651 is domestic, not extraterritorial. The fact that related conduct (in-person solicitation) occurred out of state does not transform the entire application into an extraterritorial one under the federal two-step framework.

B. Critique of the Majority’s Narrow Focus on In-Person Solicitation

1. The majority’s focus: “the in-person acts of solicitation”

According to the dissent, the majority singles out the “in-person acts of solicitation” as “the core conduct the Legislature sought to address” and thus as the sole relevant focus of § 82.0651. The Court states that:

“Section 82.0651’s focus is on the solicitation of the legal-services contract.”

From this premise, the majority concludes that only the location of the in-person solicitation matters for territorial analysis. Because the solicitations occurred outside Texas, the statute’s application here is deemed extraterritorial.

2. The dissent’s textual objections

Justice Busby argues that this approach is inconsistent with the text in at least three ways:

  1. Ignoring the breadth of § 38.12(a) and (b). Section 82.0651(a) covers contracts procured through “conduct violating Section 38.12(a) or (b).” That phrase incorporates all the conduct described in those subsections—soliciting, paying, offering to pay, accepting payment, financing, investing, and accepting employment from tainted solicitations. By treating § 38.12(a)(2)’s in-person solicitation as the only relevant conduct, the Court “cherry-picks” one offense and discards the others.
  2. Substituting judicial for legislative policy judgments. The dissent emphasizes that the choice to regulate a wide variety of related conduct reflects a legislative policy choice: the Legislature believed that paying/funding case runners is just as culpable and harmful as the physical act of solicitation itself. Courts, therefore, should not reclassify some of these legislatively proscribed acts as “core” and others as peripheral or irrelevant for territorial analysis.
  3. Departing from the statute’s own statement of purpose. Section 82.0651(e) speaks of protecting those in need of legal services “from unethical, unlawful solicitation” and of providing procedures to secure that protection. The dissent reads this as a broad description of soliciting-related misconduct, not a narrow reference to just the final in-person contact.

Justice Busby thus characterizes the majority’s approach as “rewrit[ing] the statute” and warns that:

“when we stray from the plain language of a statute, we risk encroaching on the Legislature’s function to decide what the law should be.” (Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999)).

3. Pleading-based disagreement

A notable feature of the dissent is its insistence that the majority misdescribes the plaintiffs’ live pleading. The majority apparently asserts that “the only conduct violating Section 38.12(a) was the actual solicitation of the clients” under § 38.12(a)(2), suggesting that there were no allegations of in-Texas offers to pay.

Busby responds by pointing directly to the complaint, which alleges violations of § 38.12(a)(4) and (b)(1) based on offers to pay and financing decisions made in Texas. This is important, because if those allegations are correct and undisputed at this procedural stage, then there is a clear domestic hook for the civil cause of action, even under the majority’s own doctrinal framework.

C. Step One: Potential for Extraterritorial Application

The dissent expressly states that, because he finds the application domestic at step two, it is unnecessary to decide whether § 82.0651 has extraterritorial reach at step one. Nevertheless, Busby flags arguments that could support some measure of extraterritorial application.

1. Incorporation of Penal Code provisions

Justice Busby cites a federal district court decision, A.S. v. Salesforce, Inc., 747 F. Supp. 3d 970 (N.D. Tex. 2024), which addressed a “different Texas statute that incorporates the Penal Code” and developed a “thorough case for extraterritoriality.” The implication is that when a civil statute explicitly incorporates criminal offenses, it may inherit the territorial reach of those predicate offenses.

He also cites RJR Nabisco, Inc. v. European Community, 579 U.S. 325 (2016), where the U.S. Supreme Court held that the civil RICO statute has partial extraterritorial reach when its predicate criminal statutes themselves reach foreign conduct. There, the Court looked to the text of the incorporated criminal laws to determine the territorial extent of the civil remedy.

These authorities suggest that, even at step one, a strong textual argument might be constructed for allowing some extraterritorial application of § 82.0651 by reference to the Penal Code provisions it incorporates.

2. The dissent’s restraint

Even though he sees these arguments as potentially persuasive, Justice Busby deliberately refrains from endorsing them, because in his view they are unnecessary to resolve the case: so long as the key “violating conduct” occurred in Texas, the civil statute is being applied domestically.

This move reflects a relatively modest interpretive philosophy: courts should avoid deciding broader questions (such as whether § 82.0651 ever reaches truly foreign conduct) when a narrower ground is available.

D. Critique of the “Focus” Test as a Tool

Beyond this case, the dissent comments more generally on the “focus” test adopted by the U.S. Supreme Court and imported by the Texas majority.

  • Busby notes that the test has been criticized as indeterminate and difficult to apply consistently, as evidenced by splits in federal circuits.
  • He cites Professors Franklin Gevurtz and Aaron Simowitz for the proposition that the focus test can be manipulated, because courts can select their preferred focus (e.g., the location of a sale vs. the location of a misrepresentation) and then label that selection as the object of “legislative concern.”
  • He analogizes these criticisms to those the Supreme Court itself levied against earlier “location of conduct” and “effects” tests when it adopted the focus test in Morrison.

However, he also points out that this particular statute poses less difficulty, because the Legislature has explicitly stated the statute’s purpose and has clearly defined the operative trigger in terms of “conduct violating” specific Penal Code provisions. In his view, there is no need to guess or infer what the Legislature’s focus might be; it has told us.

E. Anticipated Legislative Response

Justice Busby predicts that the majority’s decision may prompt the Legislature to amend § 82.0651 to clarify that the statute’s core focus includes the in-state acts of financing and paying for solicitation schemes, even when clients are solicited elsewhere. He notes that this pattern—judicial narrowing followed by congressional expansion—has occurred at the federal level in the wake of several extraterritoriality decisions.

While acknowledging that statutory clarification can be salutary, he expresses concern that, in this instance, such an amendment would be wasteful, because the current text already makes the statute’s focus apparent. The Legislature should not have to spend scarce time and resources correcting what he views as a judicial misreading.

V. Precedents and Authorities Cited

The dissent situates its analysis within a network of precedents and scholarly commentary. Understanding how these authorities are used helps clarify both the majority’s and dissent’s approaches.

1. Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023)

Abitron is a recent U.S. Supreme Court decision addressing whether the Lanham Act’s trademark provisions apply extraterritorially. The Court:

  • Applied the two-step framework;
  • Found no clear extraterritorial statement at step one; and
  • At step two, focused on “use in commerce” of the mark within the United States as the relevant conduct.

In Pohl, the Texas majority adopts this two-step structure. The dissent cites Abitron both for its procedural flexibility (steps may be taken in any order) and for its articulation of the “focus” concept (“the conduct [a statute] seeks to regulate, as well as the parties and interests it seeks to protect or vindicate”).

2. Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010)

Morrison involved the territorial scope of § 10(b) of the Securities Exchange Act. The Court rejected earlier “conduct” and “effects” tests and instead asked what the statute’s “focus” was—ultimately concluding that § 10(b) applies only to transactions in securities listed on domestic exchanges and domestic transactions in other securities.

Justice Busby quotes Morrison for the definition of a statute’s focus as the “objects of [its] solicitude” and uses it to argue that § 82.0651 may have multiple objects of solicitude—both the regulated conduct (barratry in its various forms) and the protection of vulnerable would-be clients.

3. WesternGeco LLC v. ION Geophysical Corp., 585 U.S. 407 (2018)

WesternGeco addressed whether a patent holder could recover foreign lost profits as damages for domestic infringement under 35 U.S.C. § 271(f). The Court examined § 284 (damages) in tandem with § 271(f) (infringement) to determine the “focus” of the remedial provision.

The dissent relies on WesternGeco for the principle that a statutory provision’s focus must be assessed “in concert” with other provisions that it works alongside. Thus, § 82.0651’s focus cannot be determined in isolation; it must be read together with the incorporated Penal Code provisions.

4. RJR Nabisco, Inc. v. European Community, 579 U.S. 325 (2016)

RJR Nabisco concerned the extraterritorial application of RICO. The Court held that:

  • Some RICO predicate offenses themselves apply extraterritorially;
  • To the extent a predicate offense reaches foreign conduct, RICO’s substantive provisions can apply to that conduct as well; but
  • The private civil RICO cause of action is more limited and generally does not extend to injuries suffered abroad without clear indication.

Justice Busby invokes RJR Nabisco to illustrate that courts may derive a civil statute’s territorial scope by reference to incorporated criminal statutes. This underpins his suggestion (without deciding it) that § 82.0651, which incorporates Penal Code provisions, might have at least partial extraterritorial reach.

5. Texas Cases on Territorial Scope and Statutory Interpretation

  • Citizens Insurance Co. v. Daccach, 217 S.W.3d 430 (Tex. 2007). The Court dealt with the extraterritorial application of the Texas Securities Act in a class action involving Mexican investors. It applied traditional methods of statutory interpretation and conflict-of-laws principles to limit the statute’s reach.
  • Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671 (Tex. 2006). The Court held that the Texas Free Enterprise and Antitrust Act did not permit recovery of damages for injuries occurring wholly outside Texas, emphasizing restraint in extraterritorial application.
  • Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex. 1968). The Court refused to apply the Texas wrongful death statute to a death that occurred in Mexico, reflecting an early articulation of territorial limits.

The dissent cites these cases to argue that Texas has historically addressed territorial scope through direct textual and conflict-of-laws analysis, not through the more malleable federal “focus” framework.

6. Professional Discipline and Separation of Powers

  • State Bar of Texas v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994). This case involves attorney discipline and underscores that barratry can lead to severe professional sanctions, including disbarment.
  • In re Department of Family & Protective Services, 273 S.W.3d 637 (Tex. 2009). Cited for the proposition that it is not the courts’ role to decide whether a statute is “wise” or could be “more effectively worded,” reinforcing that policy judgments belong to the Legislature.
  • In re Doe, 19 S.W.3d 346 (Tex. 2000). Referenced as an example of the “dialogue” between courts and the Legislature, where legislative amendments follow judicial decisions to clarify statutory meaning.

7. Academic Commentary on Extraterritoriality

  • Franklin A. Gevurtz, Extraterritorial Application of Statutes and Regulations, 70 Am. J. Comp. L. 1347 (2022).
  • Aaron D. Simowitz, The Extraterritoriality Formalisms, 51 Conn. L. Rev. 375 (2019).

These scholars criticize the focus test as producing unpredictable results and enabling judicial manipulation of “focus” to reach preferred policy outcomes. Justice Busby invokes these works to highlight the dangers of untethering extraterritorial analysis from statutory text.

8. A.S. v. Salesforce, Inc., 747 F. Supp. 3d 970 (N.D. Tex. 2024)

The dissent references this federal district court decision as having made a “thorough case for extraterritoriality” with respect to another Texas statute incorporating Penal Code provisions. While the details are not provided, the invocation suggests that federal courts have recognized that incorporation of criminal offenses can influence the territorial scope of associated civil remedies, echoing the logic of RJR Nabisco.

VI. Simplifying the Core Legal Concepts

1. What is “barratry” and “civil barratry”?

“Barratry” traditionally refers to the improper stirring up of litigation. In the attorney-solicitation context, it usually means that lawyers or their agents actively and unethically seek out potential clients—especially vulnerable ones, like accident victims—to secure fee-paying business.

  • Criminal barratry (Penal Code § 38.12) makes it a crime to solicit clients in certain prohibited ways—such as sending case runners to hospitals—and to pay or accept payment in exchange for such solicitation.
  • Civil barratry (Gov’t Code § 82.0651) gives victims of such solicitation the right to undo their contracts and seek civil remedies.

The civil remedy exists because criminal enforcement and professional discipline, standing alone, may not adequately compensate victims or deter violations.

2. What does “extraterritorial application” of a statute mean?

A statute applies “extraterritorially” when it governs conduct that occurs outside the geographic territory of the enacting jurisdiction (here, outside Texas). Courts presume that legislators usually legislate for their own territory unless they say otherwise. Applying a statute extraterritorially can raise:

  • Concerns about overreaching into other states’ regulatory domains;
  • Possible conflicts with foreign law; and
  • Issues of fairness to parties who may not have expected to be governed by another state’s law.

The key debate in Pohl is whether Texas’s civil barratry statute is being applied to out-of-state conduct (extraterritorially) or to in-state conduct (domestically).

3. What is the “focus” of a statute?

In the context of extraterritorial analysis, “focus” refers to what the statute is centrally concerned with—the core conduct it regulates or the principal interests it protects.

For example:

  • In Morrison, the focus of § 10(b) was determined to be “transactions” in securities, so the location of those transactions (not where misleading statements were made) governed the territorial analysis.
  • In Abitron, the focus of the Lanham Act provisions was “use in commerce” in the U.S., not foreign sales or other foreign activities.

Here, the question is whether § 82.0651’s focus is only the in-person solicitation of clients, or instead the broader “conduct violating § 38.12(a) or (b),” which includes financing and paying for those solicitations.

4. “Conduct violating a statute” vs. “effects” of that conduct

Another key distinction is between:

  • Conduct – the acts that constitute a legal violation (e.g., offering to pay a case runner, wiring funds to finance solicitation); and
  • Effects – the consequences of that conduct (e.g., a client in another state is approached and signs a contract).

The dissent argues that when § 82.0651 talks about “conduct violating” the Penal Code, it directs courts to look at where the prohibited conduct itself occurs, not merely where its effects are felt. On that view, if the financier of a barratry scheme acts in Texas, Texas can apply its civil barratry statute even if clients are physically located elsewhere.

5. Difference between criminal liability, civil remedies, and professional discipline

The case highlights three separate but related regulatory tools:

  • Criminal law – Prosecutors can charge attorneys (and others) with the felony of barratry under § 38.12. Jurisdiction can attach where any element of the offense occurs in Texas.
  • Civil remedies – Clients can sue attorneys to void their fee agreements and seek damages under § 82.0651, but only if the statute applies to the conduct at issue.
  • Professional discipline – The State Bar can discipline lawyers for professional misconduct, including barratry, under the Disciplinary Rules and related statutes.

The majority’s holding, as characterized by the dissent, does not disturb the possibility of criminal prosecution or professional discipline for the conduct at issue, but it forecloses the civil barratry remedy for clients in these circumstances. Justice Busby sees this as creating a troubling remedial gap.

VII. Potential Impact of the Decision

1. Consequences for clients solicited outside Texas

Under the majority’s focus-based approach:

  • If a Texas attorney, while in Texas, hires and pays case runners to solicit clients in another state;
  • And the in-person solicitations that lead to fee agreements occur entirely outside Texas;

then the civil barratry statute is likely unavailable to those out-of-state clients in a Texas forum, absent some additional Texas nexus. They may still have remedies under the law of their home state or under general contract and tort principles, but the specific Texas civil barratry cause of action is closed to them.

This result narrows the protection that § 82.0651 was seemingly designed to offer: “protect[ing] those in need of legal services from unethical, unlawful solicitation.”

2. Incentives for Texas lawyers and case runners

The dissent warns that the decision allows Texas attorneys to “profit” from conduct that Texas criminal law prohibits, so long as:

  • The physical act of solicitation is outsourced to case runners in other states;
  • And the resulting contracts are with clients who reside and are solicited outside Texas.

Practically, this may create:

  • A perverse incentive to structure barratry schemes so that face-to-face contact with potential clients occurs outside Texas, while planning and financing happen in Texas;
  • A patchwork regime where the availability of civil barratry remedies depends heavily on geographic choreography rather than on the substantive wrongfulness of the conduct.

3. Forum selection and litigation strategy

The decision signals that plaintiffs who reside outside Texas and were solicited there may face obstacles bringing civil barratry claims in Texas courts. This could shift litigation strategy:

  • Plaintiffs may instead sue in their own states under local laws, if comparable anti-solicitation or consumer-protection statutes exist.
  • Defendants (Texas attorneys) will likely raise Pohl in Texas courts to challenge civil barratry suits whenever the in-person solicitation occurred out-of-state, even if the financing or planning occurred in Texas.

4. Development of Texas extraterritoriality doctrine

Pohl marks a significant step in Texas jurisprudence by explicitly importing the U.S. Supreme Court’s two-step extraterritoriality framework and the associated “focus” analysis into the construction of Texas statutes. This move:

  • Aligns Texas law more closely with modern federal extraterritoriality doctrine;
  • May influence how other Texas statutes with potential cross-border effects are interpreted (e.g., consumer-protection statutes, securities laws, and other civil provisions that reference the Penal Code).
  • Raises the possibility that Texas courts will increasingly engage in abstract debates over statutory “focus,” with the attendant risks of indeterminacy and perceived judicial policymaking highlighted by the dissent.

5. Possible legislative responses

If the Legislature shares Justice Busby’s concern that the Court has undercut the intended protective scope of § 82.0651, it could respond in several ways:

  • Clarifying text. Amend § 82.0651 to state explicitly that the statute applies where any of the “conduct violating” § 38.12(a) or (b) occurs in Texas, regardless of where the client is located or solicited.
  • Express extraterritoriality. Include a clear statement that the statute applies to certain out-of-state solicitations orchestrated from Texas, thus satisfying step one of the extraterritoriality framework.
  • Expanded remedies. Provide additional civil or administrative mechanisms to address cross-border barratry, especially where prosecutorial or disciplinary resources are limited.

The dissent suggests that such a legislative response, while clarifying, should not have been necessary given the existing text, but acknowledges that similar legislative “fixes” have followed federal extraterritoriality decisions.

VIII. Evaluation of the Dissent’s Reasoning

1. Strengths of the dissent

  • Textual fidelity. The dissent hews closely to the statutory language, particularly the phrase “conduct violating Section 38.12(a) or (b).” It gives full effect to all parts of the incorporated Penal Code provisions rather than privileging one.
  • Integrated reading of related statutes. By reading § 82.0651 “in concert” with § 38.12, Busby applies the very principle articulated in WesternGeco and RJR Nabisco. This approach is structurally coherent and respects the Legislature’s choice to build the civil cause of action on top of existing criminal definitions.
  • Attention to pleadings and factual allegations. The dissent’s insistence that the record shows in-Texas offers to pay and financing of solicitors gives his analysis a firm procedural footing. If such conduct is indeed alleged and must be taken as true at this stage, there is a strong case that § 82.0651 is being applied domestically.
  • Sensitivity to remedial gaps and policy objectives. Busby’s concern that attorneys may be able to retain fees obtained through criminal conduct resonates with the statutory purpose of protecting vulnerable consumers and deterring unethical solicitation.

2. Possible weaknesses or open questions

  • Comity and competing state interests. One possible justification for the majority’s narrower reading, though not fully visible in the dissent, could be respect for other states’ regulatory choices about lawyer solicitation within their borders. The dissent does not deeply engage this dimension.
  • Line-drawing complexity. Even on the dissent’s view, difficult cases will arise: what if the financing decisions are partly in Texas and partly out of state? What if the out-of-state jurisdiction has a more permissive regime? While Busby rightly stresses the centrality of text, line-drawing in cross-border scenarios may still be challenging.
  • Scope of “conduct violating” language. Some might argue that even the phrase “procured as a result of conduct violating § 38.12(a) or (b)” is ambiguous as to which specific acts within a multi-step barratry scheme are determinative for territorial analysis—the final solicitation, the financing, or all of the above. The dissent’s answer is plausible but not the only conceivable reading.

3. Broader normative considerations

At a normative level, the dissent frames the question as whether Texas will allow its attorneys to retain profits from conduct that Texas itself classifies as a felony and ethical violation. The majority, by contrast (as reconstructed from the dissent), emphasizes territorial limits and the importance of the presumption against extraterritorial regulation.

The tension reflects a familiar conflict:

  • Consumer protection and professional integrity vs.
  • Respect for jurisdictional boundaries and legislative clarity.

Justice Busby’s approach prioritizes the protective function of § 82.0651 and treats territorial concerns as satisfied when core elements of the offense occur in Texas. The majority’s approach, in contrast, emphasizes structural constraints on Texas’s ability to reach conduct centered in other states, even when some decisions are made from Texas.

IX. Conclusion

Pohl v. Cheatham marks an important development in Texas law on two fronts: the territorial reach of the state’s civil barratry statute and the adoption of the federal two-step extraterritoriality framework, including the “focus” test, for interpreting Texas statutes.

The majority, as described by the dissent, holds that Government Code § 82.0651 focuses on the in-person acts of solicitation that procure legal-services contracts. When such solicitations occur outside Texas, the statute cannot be applied without violating the presumption against extraterritoriality. This significantly narrows the availability of Texas’s civil barratry remedy for out-of-state clients solicited by case runners on behalf of Texas lawyers.

Justice Busby’s dissent challenges both the majority’s reading of the statutory text and its application of the focus test. He contends that § 82.0651’s focus is broadly on “conduct violating § 38.12(a) or (b)” and that this conduct includes financing and offers to pay case runners, which, in this case, occurred in Texas. On that view, the application of the statute is domestic and consistent with both legislative purpose and traditional extraterritoriality principles.

Beyond this particular dispute, the decision has broader implications:

  • It signals that Texas courts will likely use the focus-based framework when confronted with statutes having potential cross-border effects.
  • It may influence how Texas lawyers structure multi-state solicitation and marketing practices, potentially creating incentives for cross-border case running.
  • It invites legislative reconsideration of § 82.0651 if the Legislature believes the Court has unduly confined the statute’s reach.

In the broader legal context, Pohl illustrates the practical stakes of extraterritoriality doctrine. What may appear as an abstract debate over statutory “focus” directly affects whether vulnerable clients have a civil remedy when they are drawn into attorney-client relationships through schemes that, at least in part, emanate from Texas. Justice Busby’s dissent underscores that, in his view, the Legislature has already spoken clearly to that concern, and the Court should have given full effect to its words.

Case Details

Year: 2025
Court: Supreme Court of Texas

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