Limiting the Territorial Reach of Texas Civil Barratry Actions: Analysis of the Pohl v. Cheatham Dissent

I. Introduction

The Supreme Court of Texas’s decision in Michael A. Pohl v. Mark Kentrell Cheatham, Sr. addresses a recurring problem in modern, multi‑state law practice: how far Texas law reaches when Texas lawyers engage in misconduct that is partly executed outside Texas.

The case arises from lawsuits brought by clients who were physically located in other states but hired Texas attorneys to represent them (apparently, in litigation pending in those other states). According to the clients, while the attorneys were sitting in their Texas offices, they hired and paid “case runners” to illegally solicit the clients in those other states. That conduct, if proven, is criminal “barratry” under the Texas Penal Code and professional misconduct under the Texas disciplinary rules.

In 2011, the Texas Legislature created a civil cause of action—Texas Government Code § 82.0651—allowing clients to void fee agreements and obtain other remedies when those agreements are “procured as a result of conduct violating Section 38.12(a) or (b) of the Penal Code,” the criminal barratry statute. The central question in Pohl is whether that civil barratry statute can be applied when the in‑person solicitation of the client happened outside Texas, but key aspects of the scheme (the offers to pay and the financing of solicitors) occurred inside Texas.

The Court’s majority (whose reasoning we know only through Justice Busby’s dissent) held that applying § 82.0651 to this cross‑border scheme would amount to an impermissible “extraterritorial” application of Texas law. Justice Busby, joined by Justices Lehrmann and Boyd, issued a detailed dissent arguing that the majority misread both the statutory text and the extraterritoriality framework it purported to adopt.

This commentary focuses on the dissent, because that is the text we have. But the dissent is only intelligible against the background of the new rule effectively laid down by the majority: that Texas’s civil barratry statute cannot be used when the actual in‑person solicitation occurred in another state, even if substantial elements of the barratry offense took place in Texas.

II. Background of the Case

A. Parties and Factual Context

The petitioners are Texas attorneys, including Michael A. Pohl, who were retained by out‑of‑state clients to provide legal services in the clients’ home states. The respondents are those clients, who later sued the attorneys in Texas state court.

The clients allege that:

The Texas attorneys, while physically located in Texas, contracted with and paid “case runners” (also called “cappers”) to obtain clients.
The case runners then solicited the clients in other states—presumably through in‑person contact or telephone calls—which is the classic form of barratry or improper client solicitation.
As a result of this unlawful solicitation scheme, the clients entered into fee agreements with the Texas lawyers for representation in their out‑of‑state matters.

The clients brought suit in Texas to void those fee agreements and obtain statutory civil barratry remedies under Texas Government Code § 82.0651, alleging that their contracts were “procured as a result of conduct violating” the criminal barratry statute, Texas Penal Code § 38.12(a) and (b).

B. The Statutory Framework

1. Criminal barratry: Texas Penal Code § 38.12

Section 38.12 of the Penal Code defines a variety of barratry‑related offenses. The dissent quotes the full text of subsections (a) and (b). For context, the key provisions are:

§ 38.12(a): A person commits a third‑degree felony if, with intent to obtain an economic benefit, the person:
- (a)(2): “solicits employment, either in person or by telephone, for himself or for another”;
- (a)(3): “pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client”;
- (a)(4): “pays or gives or offers to pay or give a person money or anything of value to solicit employment”;
- (a)(5): pays or offers to pay a family member of a prospective client to solicit employment;
- (a)(6): accepts or agrees to accept money or anything of value to solicit employment.
§ 38.12(b): A person commits an offense if the person:
- (b)(1): “knowingly finances the commission of an offense under Subsection (a)”;
- (b)(2): invests funds intended to further a § 38.12(a) offense;
- (b)(3): is a professional who knowingly accepts employment that results from an unlawful solicitation under § 38.12(a).

Thus, the criminal statute does not merely target the street‑level act of soliciting a client. It reaches:

The person doing the direct solicitation.
The person paying the solicitor (case runner).
The person paying a prospective client or family member.
The person who finances or invests in the barratry scheme.
The lawyer who knowingly accepts employment arising from illicit solicitation.

2. Texas criminal jurisdiction: Penal Code § 1.04

Section 1.04(a)(1) of the Penal Code gives Texas criminal jurisdiction when “conduct that is an element of the offense” occurs inside Texas. As the dissent notes, if the Texas lawyers in Texas offered to pay and financed the case runners, those offers and financial transactions are themselves “conduct” that constitutes elements of § 38.12 offenses. Under § 1.04, Texas could prosecute those offenses even though the in‑person solicitation of clients happened in other states.

3. Civil barratry: Texas Government Code § 82.0651

In 2011, the Legislature enacted a civil remedy closely tied to the criminal barratry offenses:

§ 82.0651(a) 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.”
§ 82.0651(e) expressly states the purpose of the statute: “to protect those in need of legal services from unethical, unlawful solicitation and to provide efficient and economical procedures to secure that protection.”

The civil remedy is thus expressly triggered by “conduct violating” the criminal barratry provisions and expressly purposed to protect prospective clients from such unethical solicitation.

4. Professional discipline

Separately from criminal and civil liability, the same conduct can prompt professional discipline, including disbarment:

Government Code § 82.062.
Texas Disciplinary Rules of Professional Conduct 7.03 (regulating solicitations), 8.04(a)(9) (prohibiting certain criminal or dishonest conduct), and 8.05(a) (disciplinary authority over Texas lawyers).
State Bar of Texas v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994), recognizing barratry as grounds for professional discipline.

Justice Busby uses these provisions to underscore that Texas has a strong and explicit policy against barratry by Texas lawyers, even when aspects of the misconduct cross state lines.

III. Summary of the Dissenting Opinion

The dissent can be distilled into several key themes:

Core disagreement: The majority holds that § 82.0651 cannot be applied here because the clients were solicited outside Texas and, in the Court’s view, the statute’s “focus” is exclusively on the in‑person acts of solicitation. Applying the statute to this case would therefore be an impermissible extraterritorial application of Texas law.
Domestic conduct exists: Justice Busby counters that the Legislature explicitly linked the civil remedy to “conduct violating Section 38.12(a) or (b),” and those subsections cover a wide variety of conduct, including offering to pay and financing solicitors. Those particular acts of “conduct violating” § 38.12 allegedly occurred in Texas. Therefore, this is a permissible domestic application of the statute, not an extraterritorial one.
Misuse of the “focus” test: The dissent accepts, in principle, the two‑step extraterritoriality framework the Court borrowed from U.S. Supreme Court cases—especially Morrison and Abitron—but faults the majority’s application of the “focus of legislative concern” test at step two. By treating only the in‑person solicitation as the focus, the Court effectively rewrites the statute and ignores the complete text of § 38.12(a) and (b).
Textual focus is already specified: Section 82.0651(e) already states the statute’s purpose: to protect those in need of legal services from unethical solicitation. Section 82.0651(a) further specifies that the operative conduct is “conduct violating Section 38.12(a) or (b).” That is the Legislature’s own statement of focus; courts should not substitute their own narrower conception.
No need to reach step one: Because Justice Busby concludes the application here is domestic, he finds it unnecessary to decide whether § 82.0651 is extraterritorial in the strong sense of authorizing regulation of wholly foreign conduct. He does, however, note that there is a strong argument for partial extraterritoriality in light of federal and state authorities, including RJR Nabisco and the federal case A.S. v. Salesforce, Inc.
Institutional and practical concerns: The dissent warns that the majority’s approach both intrudes on legislative prerogative and forces the Legislature to spend time “fixing” a statute whose territorial focus was already clear from its text, simply to overcome a judicially invented narrowing gloss.

IV. Detailed Legal Analysis

A. Statutory Architecture: Penal Code § 38.12 and Government Code § 82.0651

A major strength of the dissent is its insistence on reading § 82.0651 “in concert” with the Penal Code provisions it incorporates. This approach mirrors the U.S. Supreme Court’s analysis in WesternGeco LLC v. ION Geophysical Corp., 585 U.S. 407 (2018), and RJR Nabisco, Inc. v. European Community, 579 U.S. 325 (2016), both of which emphasize that when a civil provision is expressly anchored to other statutory provisions (often criminal predicates), one must read them together to identify the statute’s true “focus.”

Here:

Section 82.0651(a) creates a civil action to void a contract for legal services “procured as a result of conduct violating Section 38.12(a) or (b).”
Section 82.0651(e) declares the Legislature’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.”

Section 38.12(a) and (b), in turn, define nine different types of conduct that qualify as criminal barratry, including:

Direct solicitation of clients in person or by phone (a)(2));
Paying or offering to pay a prospective client (a)(3));
Paying or offering to pay a “runner” to solicit employment (a)(4));
Paying family members to solicit (a)(5));
Accepting money to solicit (a)(6));
Financing or investing in the scheme (b)(1)–(2));
Knowingly accepting employment that results from unlawful solicitation (b)(3)).

The dissent’s central textual point is that § 82.0651 does not selectively incorporate only one of these forms of conduct (e.g., (a)(2) “solicits employment”). It expressly incorporates all conduct that violates any part of § 38.12(a) or (b), and it does so precisely because all of that conduct jointly contributes to “unethical, unlawful solicitation.”

In Pohl, the conduct alleged includes at least:

The Texas lawyers “offer[ing] to pay or give a person money or anything of value to solicit employment” (§ 38.12(a)(4)); and
The lawyers “knowingly financ[ing] the commission of” that offense (§ 38.12(b)(1)).

Because those actions allegedly occurred within Texas (from the lawyers’ offices), they satisfy both:

The statutory predicate—“conduct violating § 38.12(a) or (b)”; and
The geographical requirement for Texas criminal jurisdiction under § 1.04(a)(1).

Justice Busby therefore concludes that as to those elements, the case plainly involves domestic conduct and fits comfortably within the Legislature’s expressed regulatory focus.

B. The Majority’s Extraterritoriality Framework (as Reflected in the Dissent)

Although we do not have the majority opinion, the dissent describes the Court’s methodology as adopting the U.S. Supreme Court’s two‑step framework for extraterritoriality, used primarily in federal cases such as Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010); RJR Nabisco; WesternGeco; and Abitron Austrian GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023).

Under that framework (as described by the dissent):

Step one – Presumption against extraterritoriality. Courts presume that a statute applies only domestically unless the legislature clearly indicates that the statute applies to conduct in other sovereigns’ territories. The majority finds no such “clear indication” in § 82.0651.
Step two – Focus of the statute. If there is no clear statement of extraterritorial reach, courts must identify the “focus of the [legislative] concern underlying the provision at issue” and then “ask whether the conduct relevant to that focus occurred within” the forum. If the conduct relevant to the statute’s focus occurred domestically, the application is considered domestic “even if other conduct occurred abroad.” (Abitron, 600 U.S. at 418–19 (cleaned up)).

Applying this to § 82.0651, the majority, as summarized by the dissent, appears to reason:

The “focus” of § 82.0651 is on “the in‑person acts of solicitation” that procure the legal‑services contracts.
Those acts of in‑person solicitation occurred in the clients’ home states, not in Texas.
Therefore, enforcing § 82.0651 in this case would constitute an extraterritorial application of Texas law, forbidden absent a clear legislative statement—which the majority believes is lacking.

The majority further describes this in‑person solicitation as “the core conduct the Legislature sought to address” and treats other forms of conduct criminalized in § 38.12(a) and (b) as peripheral or derivative.

C. The Dissent’s Alternative Application of the Focus Test

Justice Busby does not reject the two‑step framework per se; instead, he argues that the majority misapplies step two by ignoring the statutory text that specifically identifies both the statute’s purpose and the operative conduct it targets.

1. Legislative purpose expressly stated

Section 82.0651(e) contains an unusually explicit statement of purpose:

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

In the dissent’s view, this sentence is the Legislature’s own statement of what Morrison and Abitron would call the “objects of [the statute’s] solicitude.” It tells courts:

Whom the statute seeks to protect: “those in need of legal services.”
From what: “unethical, unlawful solicitation.”
By what means: “efficient and economical procedures to secure that protection.”

This purpose is further operationalized in § 82.0651(a), which defines the scope of the civil action: it applies to legal‑services contracts “procured as a result of conduct violating Section 38.12(a) or (b).” That phrase is, for the dissent, essentially a built‑in “focus test”: the focus is on conduct that is a violation of § 38.12(a) or (b).

2. Multiple types of “conduct violating” § 38.12(a) or (b)

To determine what constitutes “conduct violating Section 38.12(a) or (b),” one must look at the full menu of conduct described in § 38.12. The dissent emphasizes that:

Direct solicitation of clients (§ 38.12(a)(2)) is only one type of prohibited conduct.
Offering to pay case runners (§ 38.12(a)(4)) and financing barratry (§ 38.12(b)(1)) are equally independent violations.
By choosing to incorporate all of § 38.12(a) and (b), the Legislature indicated an intent to regulate the entire barratry ecosystem—solicitors, payors, financiers, and lawyers who knowingly accept tainted engagements—not just the runner physically approaching the client.

Consequently, when the statute speaks of a contract “procured as a result of conduct violating Section 38.12(a) or (b),” it focuses on any of the enumerated forms of barratry, including the financing and offer‑to‑pay conduct that occurred within Texas. Under Abitron’s step two, if this conduct relevant to the statute’s focus is domestic, the application is domestic even if other conduct (like the in‑person solicitation) occurred abroad.

3. Rejecting a “core conduct” hierarchy

The dissent is particularly critical of the majority’s effort to designate the in‑person acts of solicitation as “the core conduct the Legislature sought to address,” effectively demoting all other § 38.12(a)/ (b) offenses to secondary importance. Justice Busby makes two related points:

No textual basis for “core.” Nothing in § 38.12 or § 82.0651 suggests that one of the nine listed offenses is more central than the others. All are framed as discrete violations. Courts have no warrant to declare some of them “core” and others peripheral.
Separation of powers and statutory interpretation. By selecting one subset of conduct as the statute’s focus and disregarding the rest, the Court is, in the dissent’s view, “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)). Courts should adhere to “traditional tools of statutory construction,” including text, structure, and stated purpose, instead of speculating about a “collective legislative mind.”

D. Critique of the Focus Test and Judicial Manipulation

Justice Busby also offers a more general critique of the focus‑of‑legislative‑concern test as developed in U.S. Supreme Court jurisprudence. Citing scholarly commentary by Franklin Gevurtz and Aaron Simowitz, he notes that:

The “focus” test has been criticized as indeterminate and hard to apply consistently.
Different courts and judges can identify very different “focuses” in the same statute, leading to inconsistent results and doctrinal instability.
The test is vulnerable to manipulation, as judges can elevate a preferred aspect of the statute as its “focus” and use that to support either broader or narrower applications, sometimes without anchoring the choice in the text.

Ironically, these are some of the very criticisms the U.S. Supreme Court leveled at the prior “location of conduct” and “effects” tests before moving to the focus test in Morrison. In the dissent’s view, the Pohl majority exemplifies this concern by choosing to treat only in‑person solicitation as the focus, even though the Legislature explicitly tied the civil remedy to all “conduct violating § 38.12(a) or (b).”

Because § 82.0651(e) and (a) already identify both the protected class, the evil addressed, and the relevant conduct, the dissent argues that this is an easy case in which the focus is expressed in the text, making it unnecessary to engage in the more open‑ended and subjective “focus” speculation that worries commentators.

E. Established Texas Extraterritoriality Jurisprudence

Justice Busby situates Pohl within the Court’s own prior decisions regarding the territorial scope of Texas statutes:

Citizens Insurance Co. v. Daccach, 217 S.W.3d 430 (Tex. 2007) – Interpreting the reach of the Texas Blue Sky Law (securities regulation) as applied to foreign transactions.
Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671 (Tex. 2006) – Addressing the extraterritorial application of Texas antitrust law and emphasizing limits rooted in statutory text and federalism concerns.
Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex. 1968) – Concerning whether Texas’s wrongful-death statute applied to a crash in Mexico.

While those cases recognized that Texas statutes generally do not apply to wholly foreign conduct absent clear indication, they also relied heavily on ordinary tools of statutory interpretation—text, purpose, context, and sometimes common‑law choice‑of‑law principles—rather than the U.S. Supreme Court’s “focus” rubric. The dissent urges remaining faithful to that traditional, text‑centered approach.

F. Territorial Reach of Texas Criminal and Disciplinary Law

1. Criminal jurisdiction

The dissent underscores a structural tension in the majority’s approach: under Penal Code § 1.04(a)(1), Texas clearly has criminal jurisdiction whenever “conduct that is an element of the offense” occurs inside Texas. If the offers to pay and the financing of the runners were orchestrated from Texas, Texas could:

Charge the attorneys or others under § 38.12(a)(4) for offering to pay a person to solicit employment; and
Charge under § 38.12(b)(1) for knowingly financing the commission of that offense.

Those elements occur entirely in Texas. From the dissent’s perspective, it is anomalous, and policy‑wise troubling, to say that:

Texas can criminally prosecute its lawyers for the very same conduct, and
Texas can discipline them professionally for that conduct, potentially disbarring them,

but that Texas courts cannot give the affected clients a civil statutory remedy to void the fee agreements resulting from the same scheme, solely because the solicitors’ face‑to‑face interactions with clients were in other states.

2. Professional discipline

The dissent also points to disciplinary provisions—Government Code § 82.062 and Disciplinary Rules 7.03, 8.04(a)(9), 8.05(a)—to show that Texas already regulates its lawyers’ solicitation behavior, including in multi‑state contexts. Although the details of these rules are not quoted, the citation to Rule 8.05(a) is particularly suggestive because that rule addresses the reach of Texas disciplinary authority over lawyers admitted in Texas.

This reinforces the view that Texas has a legitimate and recognized state interest in policing the solicitation conduct of its lawyers, even when some of the interactions with clients occur outside its borders.

G. Pleadings and Factual Allegations

A critical factual point in the dissent is its contention that the majority mischaracterizes the plaintiffs’ pleadings. According to Justice Busby:

The clients’ live pleading—the “Plaintiffs’ and Intervenor’s Sixth Amended Petition”—explicitly alleges that the attorneys, while in Texas, violated § 38.12(a)(4) by offering to pay persons (runners) to solicit employment, and violated § 38.12(b)(1) by financing that offense.
There is no issue before the Court at this stage disputing whether those offers and financing activities in fact occurred in Texas.
Nevertheless, the majority describes “the only conduct violating Section 38.12(a)” as “the actual solicitation of the clients” under § 38.12(a)(2), and treats that as having occurred solely outside Texas.

Justice Busby rejects any suggestion that the clients abandoned their (a)(4) allegations at oral argument by emphasizing (b)(1). As he points out, (b)(1) necessarily presupposes a violation of (a), and the clients have alleged both violations; the offer‑to‑pay and the financing are, on the face of the pleadings, Texas‑based violations.

If the dissent’s reading of the pleadings is correct, then the majority’s extraterritoriality analysis rests on an incomplete view of the alleged “conduct violating § 38.12(a) or (b).” Properly understood, the scheme involves:

Domestic conduct: the Texas lawyers’ offers to pay and financing (violations of (a)(4) and (b)(1)); and
Out‑of‑state conduct: the in‑person solicitation of clients (violation of (a)(2)).

Under the U.S. Supreme Court’s own formulation in Abitron, the presence of domestic conduct that is directly relevant to the statute’s focus often suffices to render the application domestic “even if other conduct occurred abroad.” The dissent argues that is precisely the situation here.

V. Precedents and Authorities Cited

A. U.S. Supreme Court Cases

Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010)
Introduced the modern two‑step extraterritoriality framework in the context of the federal securities laws. It rejected the earlier “conduct” and “effects” tests and instructed courts to:
- Presume statutes are domestic unless clearly stated otherwise; and
- Identify the “focus” of the statute to determine whether the case involves a domestic application.
The dissent draws on Morrison’s language about the “objects of [the statute’s] solicitude.”
RJR Nabisco, Inc. v. European Community, 579 U.S. 325 (2016)
Addressed the extraterritorial reach of RICO (Racketeer Influenced and Corrupt Organizations Act), which incorporates a list of federal criminal predicates. The Court held that:
- Some RICO predicates have extraterritorial reach, and RICO’s substantive provisions can reach foreign conduct to the extent the incorporated predicates are themselves extraterritorial.
Justice Busby cites RJR Nabisco as an example of using the incorporated criminal provisions to determine the reach of a civil statute—a method parallel to what, in his view, should be done with § 82.0651 and § 38.12.
WesternGeco LLC v. ION Geophysical Corp., 585 U.S. 407 (2018)
Concerned patent‑infringement damages for foreign losses. The Court stressed that when a statutory provision “works in tandem with other provisions, it must be assessed in concert with those other provisions” when identifying its focus. The dissent relies on this to argue that § 82.0651’s focus cannot be determined without reading it together with all of § 38.12(a) and (b).
Abitron Austrian GmbH v. Hetronic Int’l, Inc., 600 U.S. 412 (2023)
A recent case on the Lanham Act’s extraterritorial reach. It reaffirmed the two‑step framework:
- Step one: presumption against extraterritoriality.
- Step two: determine the statute’s focus and whether conduct relevant to that focus occurred in the U.S.
Justice Busby adopts the structure of Abitron’s analysis but disagrees with how the Texas Supreme Court applied its “focus” methodology.

B. Texas Cases

Citizens Insurance Co. v. Daccach, 217 S.W.3d 430 (Tex. 2007)
Involved whether foreign purchasers could invoke the Texas Securities Act. The Court emphasized statutory text, context, and policy in limiting the statute’s reach, illustrating a more traditional interpretive style that the dissent would prefer over the free‑form “focus” inquiry.
Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671 (Tex. 2006)
Addressed the extraterritorial scope of Texas antitrust laws for conduct affecting markets beyond Texas. The Court expressed concern about overreaching state law into other jurisdictions’ regulatory spheres, again using textual and structural tools rather than the focus rubric.
Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex. 1968)
Held that Texas’s wrongful‑death statute did not apply to a death occurring in Mexico, underscoring the presumption that Texas statutes do not apply to events in other sovereign territories absent clear expression.
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999)
Quoted by the dissent as a reminder that when courts “stray from the plain language of a statute, we risk encroaching on the Legislature's function to decide what the law should be.” It supports the dissent’s textualist critique of the majority’s re‑focusing of § 82.0651.
In re Department of Family & Protective Services, 273 S.W.3d 637 (Tex. 2009)
Cited for the proposition that courts should not revise statutes based on their own views of policy wisdom or better drafting.
In re Doe, 19 S.W.3d 346 (Tex. 2000)
Mentioned in connection with the idea of legislative‑judicial dialogue: when courts decide statutory questions, legislatures sometimes respond with clarifying amendments. The dissent acknowledges this phenomenon but sees it as unnecessary here because the statute is already clear.
State Bar of Texas v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994)
A disciplinary case confirming that barratry and related misconduct can warrant disbarment. It situates the civil barratry action within a broader framework of professional regulation.

C. Federal District Court and Academic Authorities

A.S. v. Salesforce, Inc., 747 F. Supp. 3d 970 (N.D. Tex. 2024)
A federal district court case involving a different Texas statute that incorporated Penal Code provisions (apparently in a human‑trafficking context). The court there made “a thorough case for extraterritoriality,” considering the text and structure of the underlying criminal predicates—parallel to what the dissent suggests may be true for § 82.0651.
Franklin A. Gevurtz, Extraterritorial Application of Statutes and Regulations, 70 Am. J. Comp. L. 1, 365–371 (2022)
Cited as scholarship criticizing the focus test’s indeterminacy and the risk of arbitrary results.
Aaron D. Simowitz, The Extraterritoriality Formalisms, 51 Conn. L. Rev. 375, 388–404 (2019)
Similarly critical of formalistic approaches to extraterritoriality, including the focus test; also cited for observations about legislative responses to judicial decisions on territorial reach.

VI. Impact and Implications

A. Practical Effects on Barratry Litigation

Although the dissent is not controlling law, it illuminates the real‑world consequences of the majority’s holding as he understands it:

Narrowing the civil remedy. Out‑of‑state clients solicited in their home states by case runners hired in Texas may be unable to use § 82.0651 to void their fee agreements, even when the Texas lawyers orchestrated and financed the scheme from Texas. This insulates certain cross‑border barratry schemes from the civil remedy the Legislature designed.
Incentives to outsource solicitation. Texas lawyers inclined toward barratry may have a perverse incentive to avoid Texas‑based solicitation but freely employ out‑of‑state runners, provided the face‑to‑face contacts occur outside Texas. Under the majority’s territorial reading, that may diminish civil exposure while leaving criminal prosecution and bar discipline as the primary checks.
Forum choices for clients. Clients may need to rely on their own states’ barratry or consumer‑protection laws rather than Texas’s civil barratry statute, even though the primary wrongdoers are Texas lawyers regulated by Texas institutions and statutes.

B. Broader Doctrinal Implications for Texas Statutory Law

Doctrinally, Pohl is important because it appears to mark a more explicit alignment of Texas law with the U.S. Supreme Court’s two‑step extraterritoriality framework:

Texas courts will presumptively apply Texas statutes only to domestic conduct absent a clear statement.
They will use the “focus” methodology to determine whether a particular case involves a domestic or extraterritorial application.

Depending on how strictly and narrowly courts identify a statute’s “focus,” this could constrain the territorial reach of other Texas statutes that:

Incorporate Penal Code provisions (e.g., human‑trafficking, money‑laundering, or organized‑crime statutes); or
Target multi‑state commercial or tortious conduct (securities, consumer protection, etc.).

The dissent’s concern is that a focus analysis untethered from explicit textual indications can be used to substantially narrow statutes the Legislature designed to address complex, multi‑jurisdictional schemes.

C. Federalism, Comity, and Professional Regulation

The majority’s decision can be understood, at least partly, as a comity‑based limitation: Texas should not regulate the solicitation of clients occurring in another state, because that state has its own regulatory regime. The dissent does not deny the importance of comity, but it stresses:

Texas’s clear interest in regulating the conduct of Texas lawyers, wherever they operate.
Texas’s stated policy of protecting those in need of legal services from unethical solicitation via § 82.0651.
The oddity of allowing criminal prosecution and bar discipline but withholding a civil remedy for the client, particularly when the relevant “conduct violating” § 38.12 occurs in Texas.

The division reflects a tension inherent in federalism: balancing deference to other states’ regulatory choices against a home state’s desire to hold its own professionals to its standards when they act partly from within the home state.

D. Civil–Criminal Symmetry

One of the most striking themes of the dissent is the lack of symmetry between criminal, disciplinary, and civil consequences under the majority’s view:

Criminal: Texas can prosecute the Texas‑based elements of the barratry scheme under § 38.12 and § 1.04.
Bar discipline: Texas can sanction and disbar the lawyers for the same conduct.
Civil (under § 82.0651): Texas courts, according to the majority, cannot provide the client with the specific civil barratry remedies if the physical solicitation occurred out of state.

The dissent views this as both conceptually and normatively problematic, because the civil statute was enacted specifically to give direct remedies to the very class of people (clients) injured by barratry. Denying that remedy in cross‑border scenarios undermines the statute’s protective purpose and creates a gap in enforcement.

E. Likely Legislative Response

Justice Busby suggests that the likely consequence of the Court’s decision is to force the Legislature to amend § 82.0651 to make even more explicit what is already apparent from its text—that the statute applies when any “conduct violating § 38.12(a) or (b)” occurs in Texas and results in a legal‑services contract, regardless of where the in‑person solicitation takes place.

He points to the federal experience in which Congress has frequently responded to Supreme Court extraterritoriality decisions by expanding or clarifying statutory reach. While he acknowledges that such legislative‑judicial dialogue can be “salutary and clarifying,” he regards it here as unnecessary and wasteful, given that the Legislature’s intent is already clearly expressed in the statutory text.

VII. Complex Concepts Simplified

A. Barratry and Civil Barratry

Barratry (in this context) means improper solicitation of legal business. Examples include:

“Ambulance chasing”—approaching accident victims in hospitals or at accident scenes to persuade them to hire a particular lawyer.
Using paid “runners” or “cappers” to visit or call potential clients to drum up business.
Paying prospective clients or their relatives money or gifts to secure representation.

Civil barratry refers to a client’s statutory right to sue when their lawyer obtained the representation through such unlawful solicitation. Under § 82.0651, the client may void the fee agreement and receive certain statutory damages, even if the lawyer competently handled the case.

B. Case Runners

Case runners (or “cappers”) are people who, for money, actively go out and solicit clients for lawyers—often by visiting accident scenes, hospitals, or neighborhoods, or by cold‑calling potential clients. Use of case runners is a classic form of barratry and is illegal in many jurisdictions, including Texas.

C. Extraterritorial Application of Law

Extraterritorial application occurs when a state or country’s law is applied to conduct that happens in the territory of another sovereign. For example, if Texas law is used to regulate a business transaction that took place entirely in France, that would generally be an extraterritorial application.

Courts generally presume that laws apply only within the enacting jurisdiction’s territory unless the legislature clearly says otherwise. This is the “presumption against extraterritoriality.”

D. The “Focus” Test

Under the modern U.S. Supreme Court framework for extraterritoriality:

Courts first look for a clear statement that the statute applies abroad.
If none exists, courts identify the statute’s “focus,” i.e., the main conduct, relationships, or harms that the legislature is concerned about.
If the conduct relevant to that focus occurred domestically, the application is considered domestic, even if other parts of the overall scheme took place abroad.

Determining the “focus” can be difficult, as statutes may have multiple purposes and regulate multiple forms of conduct. That complexity is at the heart of the dispute in Pohl: whether the focus of § 82.0651 is only the in‑person solicitation, or all “conduct violating § 38.12(a) or (b)” that leads to procurement of a legal‑services contract.

E. “Conduct Violating Section 38.12(a) or (b)”

The phrase “conduct violating Section 38.12(a) or (b)” in § 82.0651(a) is crucial. It means that:

The civil remedy is triggered by conduct that would itself be criminal barratry under any of the categories in § 38.12(a) and (b): direct solicitation, paying or offering to pay runners, paying clients or family, financing the scheme, or knowingly accepting employment from unlawful solicitation.
It is not limited to face‑to‑face solicitation; the entire chain of misconduct counts.

The dissent insists that any of these types of conduct—if they occur in Texas and lead to a legal‑services contract—can make the application of § 82.0651 domestic, even if some other steps in the scheme were outside Texas.

F. Criminal vs. Civil vs. Disciplinary Consequences

It is important to distinguish three different but related consequences of barratry:

Criminal liability: The State can prosecute under Penal Code § 38.12 and seek penalties such as imprisonment or fines.
Civil liability (barratry action): The client can sue under Government Code § 82.0651 to void the fee agreement and recover statutory damages or fees.
Professional discipline: The State Bar can investigate and sanction the lawyer (reprimand, suspension, disbarment) for violating ethical rules and statutes, including barratry provisions.

The majority’s territorial limitation in Pohl affects only the civil component, as construed by the dissent; criminal and disciplinary liabilities remain governed by their own jurisdictional and rule‑based frameworks.

VIII. Conclusion

Pohl v. Cheatham, as illuminated by Justice Busby’s dissent, is a significant decision at the intersection of professional‑responsibility law, statutory interpretation, and extraterritoriality doctrine in Texas.

On the one hand, the majority opinion (as described in the dissent) establishes a new and narrower rule for the territorial reach of Texas’s civil barratry statute: when the in‑person client solicitation occurs outside Texas, the civil barratry cause of action under § 82.0651 cannot be invoked, even if the Texas attorney orchestrated, financed, and paid for the solicitation from within Texas. The Court accomplishes this by adopting a U.S.‑Supreme‑Court‑style two‑step framework for extraterritoriality and identifying the statute’s “focus” solely with the acts of in‑person solicitation.

On the other hand, the dissent argues that this approach is textually unsound and institutionally problematic. By expressly tying § 82.0651 to “conduct violating Section 38.12(a) or (b)” and by articulating a protective purpose in § 82.0651(e), the Legislature itself identified both the relevant conduct and the intended beneficiaries of the statute. Those incorporated Penal Code provisions cover a broad range of conduct, including offers to pay runners and financing the scheme—conduct alleged to have occurred in Texas. Under the dissent’s reading, applying § 82.0651 to such domestic conduct is a straightforward domestic application, not an extraterritorial one.

The case thus raises broader questions: How should Texas courts adapt federal extraterritoriality frameworks to state statutes? To what extent should courts prioritize explicit statutory text over judicially constructed notions of “core” or “focus”? And how far should Texas law go in regulating the cross‑border activities of Texas lawyers in order to protect clients and uphold professional standards?

Whether or not one agrees with the dissent, it offers a powerful defense of textualism and legislative primacy in defining the territorial scope of Texas statutes, and it highlights a potentially significant enforcement gap in the protection of clients from unethical solicitation by Texas lawyers operating across state lines. It also sets the stage for possible legislative clarification of § 82.0651, and for future Texas cases that will test the contours of this newly articulated approach to the extraterritorial application of Texas law.