Territorial Limits on Texas Civil Barratry Actions: The Busby Dissent in Pohl v. Cheatham

I. Introduction

The decision in Michael A. Pohl, et al. v. Mark Kentrell Cheatham, Sr., et al. from the Supreme Court of Texas addresses a difficult intersection of attorney ethics, criminal law, and the territorial reach of Texas civil statutes. The case focuses on whether the Texas civil barratry statute, Government Code § 82.0651, can be used to void attorney–client fee agreements when Texas lawyers allegedly arranged and financed unlawful client solicitation (“barratry”) occurring in other states.

The text provided is the dissenting opinion authored by Justice Brett Busby, joined by Justices Lehrmann and Boyd. Although the binding rule comes from the majority (which is not reproduced in the text), the dissent sharply frames the core legal issue:

Can clients located outside Texas sue Texas lawyers in Texas to void fee contracts under § 82.0651 when the alleged barratry consists of out-of-state in-person solicitation by “case runners”, but the offers to pay and financing of that solicitation occurred inside Texas?

The majority, applying the modern “presumption against extraterritoriality” and the “focus of the statute” test drawn from U.S. Supreme Court precedent, concludes that applying § 82.0651 in this situation would be an impermissible extraterritorial use of Texas law. It therefore holds that the Texas civil barratry statute provides no remedy.

Justice Busby’s dissent contends that this conclusion is impossible to square with the text and structure of § 82.0651 and Penal Code § 38.12, and that the statute is being applied to conduct that clearly occurred in Texas. His opinion is a significant exposition on:

How Texas should determine the territorial reach of its statutes;
How to interpret civil statutes that incorporate criminal prohibitions; and
The extent to which Texas can regulate the conduct of its own lawyers when they target clients in other states.

This commentary proceeds primarily from the text of the dissent, reconstructing the majority’s rule where necessary and focusing on the new doctrinal terrain it marks out, as well as the implications spotlighted by the dissent.

II. Summary of the Dissenting Opinion

Justice Busby argues that the majority misapplies the federal extraterritoriality framework and improperly rewrites the Texas civil barratry statute. His core contentions are:

The relevant conduct occurred in Texas. The clients allege that the Texas lawyers, from their Texas offices:
- Offered to pay case runners to solicit clients (Penal Code § 38.12(a)(4)); and
- Financed the commission of those offenses (Penal Code § 38.12(b)(1)).
That conduct is criminal in Texas and independently sanctionable under Texas disciplinary rules.
Section 82.0651’s focus is wider than the majority admits. The civil barratry statute allows clients to void contracts “procured as a result of conduct violating Section 38.12(a) or (b).” Penal Code § 38.12(a)–(b) lists nine different forms of misconduct, including but not limited to in-person solicitation. By incorporating all of § 38.12(a)–(b), the Legislature chose to regulate a broad range of conduct.
This is a domestic, not extraterritorial, application. Under the “focus” test (from cases like Abitron and Morrison), a case involves a permissible domestic application if “the conduct relevant to [the statute’s] focus” occurs domestically, even if other conduct occurs abroad. Because the finance and offers-to-pay elements occurred in Texas, the dissent concludes that applying § 82.0651 here is domestic.
The majority impermissibly narrows the statute. The majority treats the “core conduct” or “focus” of § 82.0651 as only the in-person solicitation of clients (Penal Code § 38.12(a)(2)) that occurred out-of-state, and disregards the other statutory subsections (especially (a)(4) and (b)(1)) and the plaintiffs’ allegations that those were violated inside Texas. Justice Busby views that as judicial rewriting of the statute.
Legislative intent and express statutory purpose are ignored. Section 82.0651(e) explicitly states its purpose: “to protect those in need of legal services from unethical, unlawful solicitation and to provide efficient and economical procedures to secure that protection.” The dissent sees this as a clear indication that the Legislature was focused broadly on barratry-related conduct by Texas lawyers, not only on where the face-to-face solicitation occurred.
Legislative fix would be “wasteful” because the text is already clear. Justice Busby notes that, in response to restrictive extraterritoriality decisions, Congress has often amended federal statutes, and suggests Texas may now do the same. But he believes such a fix should be unnecessary because the existing text already supports the domestic application he describes.

In short, the dissent concludes that the majority has left a gap in the protection the Legislature intended to afford victims of barratry: Texas lawyers can be criminally prosecuted and professionally disciplined for financing out-of-state barratry from Texas, but—under the majority’s rule—can still keep the fees they earned from that misconduct, even against Texas civil barratry challenges.

III. Statutory and Regulatory Framework

A. Texas Penal Code § 38.12 – Criminal Barratry

Penal Code § 38.12 makes certain barratry-related conduct a third-degree felony when undertaken “with intent to obtain an economic benefit.” Justice Busby reproduces the critical provisions, which include:

§ 38.12(a)(2): “solicits employment, either in person or by telephone, for himself or for another”;
§ 38.12(a)(3): pays or offers to pay a prospective client anything of value to obtain employment;
§ 38.12(a)(4): “pays or gives or offers to pay or give a person money or anything of value to solicit employment”;
§ 38.12(a)(5): pays or offers to pay a family member of a prospective client to solicit employment;
§ 38.12(a)(6): accepts money to solicit employment;
§ 38.12(b)(1): “knowingly finances the commission of an offense under Subsection (a)”;
§ 38.12(b)(2): invests funds to further an offense under (a);
§ 38.12(b)(3): a professional who knowingly accepts employment that results from prohibited solicitation.

These provisions together criminalize a network of behavior around barratry: the direct solicitation, the paying of runners, financing, and accepting cases obtained through barratry.

B. Texas Government Code § 82.0651 – Civil Barratry

In 2011, the Legislature enacted Government Code § 82.0651, which provides a civil counterpart to the criminal barratry statute. The core elements referenced in the dissent are:

§ 82.0651(a): “A client may bring 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): The statute’s declared purpose is “to protect those in need of legal services from unethical, unlawful solicitation and to provide efficient and economical procedures to secure that protection.”

Thus, § 82.0651 is expressly tethered to the Penal Code’s definition of barratry and is remedial in nature: its goal is to void fee contracts tainted by barratry and thereby deprive wrongdoers of the fruits of unlawful solicitation.

C. Texas Penal Code § 1.04 – Territorial Jurisdiction

Section 1.04(a)(1) gives Texas criminal jurisdiction if “conduct . . . that is an element of the offense” occurs inside Texas. Justice Busby uses this to illustrate that:

If the offers to pay and the financing decisions were made in Texas, those are “conduct elements” of § 38.12 offenses;
Therefore, Texas can criminally prosecute the lawyers based on those Texas-based acts, even if the runners’ in-person solicitations happen in other states.

He reasons that, if Texas has criminal jurisdiction based on in-state conduct elements, the same logic supports treating the civil barratry claim as a domestic application when it targets that same in-state conduct.

D. Professional Discipline

The dissent notes that, apart from criminal liability, the same conduct can result in attorney discipline and disbarment under:

Government Code § 82.062;
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), a leading case on barratry-related discipline.

This underscores that Texas’s regulatory interest is in the conduct of its lawyers, irrespective of where the clients physically are, and gives context to the dissent’s insistence that the civil remedy should track those same regulatory interests.

IV. The Majority’s New Rule (Reconstructed)

Though we only have the dissenting opinion, its critique allows a reasonably clear reconstruction of the majority’s governing rule.

A. Adoption of the Federal Two-Step Extraterritoriality Framework

According to the dissent, the Court borrows the U.S. Supreme Court’s two-step approach (seen in Abitron, Morrison, RJR Nabisco, etc.):

Step One – Presumption against extraterritoriality: Determine whether the Legislature has clearly indicated that § 82.0651 applies extraterritorially. The majority finds no such clear statement.
Step Two – Identify the statute’s “focus”: If no extraterritorial intent is clear, determine the “focus of the legislative concern underlying the provision at issue” and ask whether “the conduct relevant to that focus” occurred in Texas. If the conduct relevant to the focus occurs abroad, applying the statute would be impermissibly extraterritorial.

B. The Majority’s Identified “Focus” of § 82.0651

Justice Busby reports that the majority characterizes the focus of § 82.0651 as the “acts of solicitation” that “procured the legal-services contracts” and the “in-person acts of solicitation” of the clients. In other words, the majority:

Treats the core regulated conduct as only the physical or telephonic solicitation of clients under Penal Code § 38.12(a)(2);
Deems the ancillary acts—offers to pay, financing, acceptance of employment, etc.—as not the relevant “focus” for territorial analysis.

Because the clients were located outside Texas and the actual solitication occurred where they were, the majority concludes that the crucial, “relevant” conduct occurred elsewhere.

C. The Resulting Holding

On that framing, the Court holds (as summarized by the dissent):

Applying § 82.0651 to these facts would regulate out-of-state solicitation of clients,
which would be an extraterritorial application of a Texas civil statute,
and is therefore barred by the presumption against extraterritoriality absent a clear legislative directive.

The practical effect is that:

Texas lawyers may still face criminal prosecution and discipline for financing or arranging barratry from Texas, because Texas criminal and disciplinary rules are clearly applicable; but
Clients allegedly solicited out-of-state cannot use § 82.0651 to void their contracts on that basis, because doing so would be treated as an impermissible extraterritorial application of the civil statute.

This is the new legal principle or rule effectively established by the Court’s decision, and it forms the backdrop for Justice Busby’s dissent.

V. Detailed Analysis of the Dissent

A. Acceptance of the Framework, Disagreement on the Application

Justice Busby does not attack the use of the federal two-step extraterritoriality framework itself. He acknowledges:

Legislatures are presumed to legislate with domestic applications in mind;
Courts may use the two-step analysis from cases like Abitron; and
The steps can be taken in any order, as the U.S. Supreme Court has observed.

His dispute is at step two: how to identify the statute’s “focus” and determine what conduct is “relevant to that focus” for territorial purposes.

B. Textual Focus: “Conduct Violating Section 38.12(a) or (b)”

The dissent’s central textual point is that § 82.0651(a) expressly defines its domain as contracts “procured as a result of conduct violating Section 38.12(a) or (b).” In his view:

The statute itself tells courts what its focus is: the “conduct violating” § 38.12(a) or (b);
That “conduct” is not limited to one subsection—(a)(2) (in-person solicitation)—but encompasses all of the conduct criminalized by § 38.12(a) and (b);
The “objects of the statute’s solicitude” include both:
- The range of conduct the Legislature chose to regulate (offers to pay, financing, acceptance of tainted employment, etc.); and
- The persons and interests the statute aims to protect (“those in need of legal services”).

Justice Busby thus sees the majority as ignoring the statute’s explicit cross-reference and substituting its own narrower idea of legislative “concern.”

C. “Working in Tandem”: Incorporation of Penal Code § 38.12

Relying on WesternGeco and RJR Nabisco, the dissent emphasizes that when a statute “works in tandem with” another provision or incorporates other laws, courts must assess their focus together. Applying that principle:

§ 82.0651’s focus cannot be identified without reading it “in concert with” § 38.12(a)–(b);
In RJR Nabisco, the U.S. Supreme Court considered the territorial scope of RICO by examining the extraterritorial reach of its criminal predicate offenses; analogously,
Here, the civil barratry statute’s reach should be informed by the conduct and territorial logic of the Penal Code provisions it incorporates.

This approach strongly supports including in-state offers-to-pay and financing as relevant conduct for territorial analysis.

D. Territorial Nexus: Why the Application Is Domestic

On the facts alleged, Justice Busby highlights two key forms of “conduct violating” § 38.12 that indisputably occurred in Texas:

Offers to pay runners (Penal Code § 38.12(a)(4)) – The lawyers, from Texas, allegedly offered money or anything of value to case runners to solicit client employment.
Financing the commission of barratry (Penal Code § 38.12(b)(1)) – The lawyers allegedly “knowingly finance[d] the commission of an offense under Subsection (a).”

These are distinct conduct elements of the barratry offense, not merely incidental to the out-of-state solicitation. Because they occurred in Texas:

They trigger Texas criminal jurisdiction under Penal Code § 1.04(a)(1); and
They are the very conduct that “procured” the fee contracts, making § 82.0651’s application domestic under the federal “focus” test as interpreted in Abitron: the conduct relevant to the statute’s focus occurred domestically, even though other related conduct occurred outside the state.

E. Critique of the Majority’s “Core Conduct” Approach

Justice Busby is particularly critical of the majority’s practice of elevating one statutory subsection as the “core” focus and discounting the others. He labels this “cherry-picking,” arguing:

§ 38.12(a)(2) (solicitation of employment) is but one of several forms of proscribed conduct;
The Legislature tied § 82.0651 to all of § 38.12(a) and (b), not merely (a)(2);
Court-crafted labels like “core focus” risk overriding the Legislature’s policy choices by treating some statutory prohibitions as central and others as peripheral without any textual basis.

He warns that this approach:

Invites courts to impose their own view of what the law should target,
Undermines the Legislature’s deliberate decision to criminalize and civilly sanction broader conduct surrounding barratry, and
Conflicts with Texas precedent emphasizing adherence to statutory text, such as Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864 (Tex. 1999).

F. Pleadings and Factual Allegations

The dissent asserts that the plaintiffs’ live pleading specifically alleged:

Violations of § 38.12(a)(4) (offers to pay runners) occurring in Texas; and
Violations of § 38.12(b)(1) (financing such offenses) occurring in Texas.

Justice Busby notes that there is no dispute at this procedural stage about whether those offers and financing decisions took place in Texas; the majority’s characterization that only the out-of-state solicitation is the “conduct violating” § 38.12(a) is therefore, in his view, just wrong as a reading of the pleadings.

G. Legislative–Judicial Dialogue and Separation of Powers

Justice Busby acknowledges that, in the federal system, restrictive extraterritoriality rulings have often been followed by legislative amendments expanding statutory reach. He cites scholarship (Gevurtz, Simowitz) and notes that such “dialogue” can be “salutary and clarifying.”

However, he sees that prospect as:

Unnecessary, because § 82.0651 already speaks clearly; and
Wasteful, because the Court is effectively forcing the Legislature to restate what is already evident in the text.

He frames this as a separation-of-powers issue: when courts stray too far from statutory text by inventing “core focuses,” they improperly encroach on the Legislature’s domain, contrary to cases like:

In re Department of Family & Protective Services, 273 S.W.3d 637 (Tex. 2009); and
Fitzgerald, where the Court warned about judicial re-writing of statutes.

VI. Precedents and Authorities Cited

A. U.S. Supreme Court Cases on Extraterritoriality

Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010)
Morrison abandoned the earlier “conduct” and “effects” tests and held that § 10(b) of the Securities Exchange Act applies only to “transactions in securities listed on domestic exchanges, and domestic transactions in other securities.” Importantly, Morrison introduced the concept of identifying the “focus” of a statute by reference to the “objects of the statute’s solicitude.”
RJR Nabisco, Inc. v. European Community, 579 U.S. 325 (2016)
The Court assessed the extraterritorial reach of RICO by analyzing the underlying criminal predicate statutes. Where a predicate statute clearly applied extraterritorially, RICO could reach foreign conduct to that extent. Justice Busby uses this as a template: if criminal predicates like § 38.12 are incorporated into a civil statute, their territorial logic should inform the civil statute’s reach.
WesternGeco LLC v. ION Geophysical Corp., 585 U.S. 407 (2018)
There, the Court considered whether a patent statute allowed recovery for foreign lost profits based on domestic acts of infringement. It emphasized that when a statutory provision “works in tandem” with another, both must be considered in determining the statute’s focus. Justice Busby invokes this to argue that § 82.0651’s focus must be understood along with § 38.12.
Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023)
The Court applied the two-step extraterritoriality framework to the Lanham Act. It stressed that even if some conduct occurs abroad, a case involves a permissible domestic application if “the conduct relevant to [the statute’s] focus” occurred in U.S. territory. Justice Busby adopts that language directly to argue that the offers-to-pay and financing acts in Texas are the relevant conduct for § 82.0651.

B. Texas Supreme Court Cases on Territorial Scope and Statutory Construction

Citizens Insurance Co. v. Daccach, 217 S.W.3d 430 (Tex. 2007)
Addressed the Texas Securities Act and the circumstances under which it could apply to foreign transactions. The Court deployed conventional statutory construction tools to determine territorial reach. Justice Busby invokes this as an example of using traditional textual methods rather than malleable “focus” analyses detached from the statutory text.
Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671 (Tex. 2006)
The Court limited the Texas Free Enterprise and Antitrust Act’s reach regarding injuries occurring outside Texas, based on statutory text and comity concerns. Again, this is cited as an instance where the Court looked carefully to legislative language and context.
Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex. 1968)
Although principally a choice-of-law case regarding wrongful death actions for foreign accidents, Marmon is a classic Texas case on when and how Texas statutes can reach events occurring outside the state. It stands for the idea that territorial issues are resolved by close textual and contextual analysis.
Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864 (Tex. 1999)
The Court cautioned that when it departs from plain statutory language, it risks invading the Legislature’s function “to decide what the law should be.” Justice Busby leans on this to criticize the majority’s departure from the broad cross-reference to § 38.12(a)–(b).
In re Department of Family & Protective Services, 273 S.W.3d 637 (Tex. 2009)
The Court emphasized that it is not for courts to rewrite statutes because they might achieve better or more equitable results. The dissent cites this to underscore the impropriety of narrowing § 82.0651 based on perceived “core conduct.”
In re Doe, 19 S.W.3d 346 (Tex. 2000)
This case is mentioned in connection with the idea that legislative–judicial dialogue—statutes amended in response to judicial decisions—is often “salutary.” Justice Busby uses it to frame his concern that forcing a legislative fix here is unnecessary.
State Bar of Texas v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994)
A disciplinary case confirming that barratry-related misconduct can be grounds for severe professional sanctions, including disbarment. It underscores Texas’s longstanding condemnation of barratry and bolsters the dissent’s view that Texas has a strong regulatory interest in this area.

C. Other Authorities

A.S. v. Salesforce, Inc., 747 F. Supp. 3d 970 (N.D. Tex. 2024) The dissent notes this federal district court decision as offering a “thorough case for extraterritoriality” under another Texas statute that incorporates the Penal Code, suggesting that the logic of incorporating criminal provisions can support broader territorial reach.
Academic commentary Justice Busby references scholarship by Franklin Gevurtz and Aaron Simowitz criticizing the “focus” test as indeterminate and manipulable—precisely the problem he sees in the majority’s selection of a single “core” conduct type from among many in § 38.12.

VII. Impact and Implications

A. For Attorney Conduct and Cross-Border Solicitation

The practical consequence of the majority’s rule, as highlighted by the dissent, is substantial:

Texas lawyers who orchestrate and finance barratry from their Texas offices, but use case runners physically located in other states to approach clients, may:
- Be criminally liable in Texas; and
- Be subject to professional discipline;
- Yet still retain the fees earned under the resulting contracts, shielded from civil barratry claims under § 82.0651 by the extraterritoriality doctrine.

In other words, the criminal and disciplinary regimes apply, but the civil remedy that directly deprives lawyers of their ill-gotten fees does not apply when the clients are out-of-state and the face-to-face solicitation occurs there.

This may:

Encourage multi-state solicitation structures that shift the physical act of solicitation to other states while retaining the financing and coordination in Texas; and
Leave out-of-state clients reliant on their own states’ civil remedies (if any) rather than Texas’s civil barratry statute, even where the lawyers are Texas-based and the case is filed in Texas.

B. For Texas’s Use of the Federal Extraterritoriality Framework

The decision also entrenches the use of the federal two-step extraterritoriality framework in Texas statutory interpretation:

Texas courts will likely apply Morrison/Abitron-style tests when asked whether Texas statutes can reach conduct involving other states; and
The way a statute’s “focus” is characterized will be outcome-determinative in many such cases.

Justice Busby’s dissent warns that the “focus” test is prone to manipulation—courts can select whichever piece of conduct they prefer as “core” and then label all other statutory elements as peripheral. The majority’s selection of § 38.12(a)(2) as the key conduct, to the exclusion of (a)(4) and (b)(1), is his example.

C. For Statutes Incorporating Penal Code Provisions

More broadly, the case signals that when a Texas civil statute incorporates Penal Code provisions:

The civil statute’s territorial reach may be limited by how narrowly courts define its “focus,” even if the incorporated Penal Code provisions would support prosecution for in-state conduct with out-of-state effects;
There may be a disconnect between criminal and civil enforcement mechanisms: Texas may prosecute, but civil plaintiffs may be barred from using parallel civil statutes if the relevant victims or physical acts are outside Texas.

This could affect other statutes that reference Penal Code offenses and could generate further litigation over the proper way to identify a statute’s “focus.”

D. Litigation Strategy Going Forward

For practitioners:

Plaintiffs’ lawyers bringing civil barratry claims will likely:
- Try to frame and plead the case so that the “conduct violating” § 38.12 clearly occurred in Texas (for example, by emphasizing Texas-based target lists, communications, or payments);
- Explore alternative causes of action (fraud, breach of fiduciary duty, unjust enrichment) not subject to the same extraterritorial focus analysis; and
- Consider filing in the client’s home state under that state’s barratry or consumer-protection laws.
Defense counsel will invoke the majority’s rule to:
- Argue that any case involving out-of-state clients and out-of-state in-person contacts is barred under § 82.0651, even if planning, funding, and direction occurred in Texas; and
- Urge further narrowing of the “focus” of other statutes, citing Pohl as precedent.

E. Potential Legislative Response

Justice Busby openly anticipates the possibility of legislative correction. The Legislature could, for example:

Amend § 82.0651 to add an explicit territorial clause, such as: “This section applies when any conduct violating Penal Code § 38.12(a) or (b) occurs in this state, regardless of the client’s domicile or location.”
Clarify that the statute’s focus includes financing, offers-to-pay, and acceptance of tainted employment, not only in-person solicitation;
Broaden the remedial reach to protect out-of-state clients solicited for litigation in Texas courts or by Texas attorneys.

Such amendments would respond directly to the majority’s extraterritorial concerns and bring civil remedies in line with existing criminal and disciplinary frameworks.

VIII. Complex Concepts Simplified

A. What Is “Barratry”?

Barratry, in this context, means improper or unlawful solicitation of clients by lawyers (or on their behalf). Common examples include:

“Case runners” or “cappers” approaching accident victims in hospitals to steer them to a particular law firm;
Offering money or gifts to potential clients (or their relatives) to induce them to hire a lawyer;
Paying non-lawyers to drum up business in ways the ethics rules forbid.

In Texas, such conduct can be:

A crime under Penal Code § 38.12;
A basis for disciplinary action against the lawyer; and
A basis for clients to void their fee contracts under Government Code § 82.0651 (subject to the territorial limitations adopted by the majority in this case).

B. Civil Barratry vs. Criminal Barratry

Criminal barratry is the state prosecuting a lawyer (or others) for committing the offense. Possible outcomes include conviction and imprisonment.

Civil barratry is a client (or sometimes another party) suing to:

Void a fee contract obtained through barratry;
Recover damages or statutory remedies.

The key point in this case: the Legislature created both mechanisms—criminal (Penal Code § 38.12) and civil (Gov’t Code § 82.0651)—and tied them together.

C. Presumption Against Extraterritoriality

This is a rule of interpretation: unless a statute clearly says otherwise, courts assume the Legislature intended it to apply only to conduct within its own territory. The concerns include:

Respect for other states’ sovereignty;
Avoiding conflicts of law between different jurisdictions;
Predictability for regulated parties.

However, even with this presumption, a statute can still apply where some relevant conduct occurs in-state; the key is identifying what conduct is relevant to the statute’s “focus.”

D. The “Focus of the Statute” Test

Under the modern U.S. Supreme Court framework:

Courts look at what the statute is mainly concerned with—the “objects of its solicitude”—by examining its text, structure, and purpose;
They then determine whether the conduct central to that concern occurred within the territory.

If the conduct relevant to the focus happened inside the state, the statute’s application is considered “domestic,” even if other related conduct occurred elsewhere. Justice Busby argues that, properly understood, the focus of § 82.0651 includes all conduct violating § 38.12(a)–(b), including offers-to-pay and financing made in Texas.

E. “Conduct Element” and Territorial Jurisdiction

In criminal law, an “element” of the offense is a fact the prosecution must prove (such as an act, mental state, or result). Texas’s jurisdictional rule, Penal Code § 1.04, says Texas courts have jurisdiction if any conduct element of the offense occurs here.

Justice Busby uses that idea analogically: if an element like “offers to pay” or “financing” occurs in Texas, that is enough to treat the case as involving domestic conduct for both criminal and civil purposes.

IX. Evaluation and Critical Perspective

From a doctrinal perspective, the dissent is a robust defense of:

Textualist statutory interpretation—taking seriously the Legislature’s explicit cross-references and purpose statement;
A broader view of what conduct is relevant in territorial analysis; and
Aligning civil, criminal, and disciplinary regulation of attorney misconduct.

Its strengths include:
- Careful attention to the full list of prohibited acts in Penal Code § 38.12(a)–(b);
- Use of U.S. Supreme Court precedent that emphasizes reading interlocking statutes “in concert”; and
- A clear articulation of the policy consequences of the majority’s narrower approach.
The majority’s countervailing concerns (inferred from the dissent) likely include:
- Comity and respect for other states’ regulation of in-person solicitation within their borders;
- A reluctance to allow Texas civil law to attach consequences based on events primarily occurring elsewhere; and
- Consistency with a strict reading of the presumption against extraterritoriality absent explicit language to the contrary.
The dissent’s most significant warning is that, by aggressively narrowing what counts as “core” conduct, the majority risks:
- Undermining the Legislature’s choice to condemn a network of conduct surrounding barratry;
- Leaving victims of such misconduct under-protected; and
- Requiring unnecessary legislative repair to restore the scope the Legislature already expressed in the statutory text.
X. Conclusion

Pohl v. Cheatham marks an important development in Texas law on the territorial reach of civil statutes, especially those that regulate attorney conduct and incorporate Penal Code provisions. The majority, following the federal extraterritoriality framework, narrows the Texas civil barratry statute to exclude cases where the in-person solicitation and the clients are outside Texas, even if the offers-to-pay and financing of that solicitation emanate from Texas.

Justice Busby’s dissent contends this outcome contradicts the statutory text, which clearly focuses on “conduct violating” Penal Code § 38.12(a)–(b), and undermines the Legislature’s explicit aim “to protect those in need of legal services from unethical, unlawful solicitation.” He argues that applying § 82.0651 to Texas-based offers and financing is a straightforward domestic application, not an extraterritorial one.

The decision creates a tension: Texas may criminally and disciplinarily sanction its lawyers for orchestrating barratry from Texas, yet it now denies certain clients a civil remedy to void the resulting fee contracts. Whether the Legislature will respond by expanding or clarifying § 82.0651 remains to be seen, but Pohl will stand as a significant precedent on how Texas courts deploy the presumption against extraterritoriality and how they determine the “focus” of Texas statutes going forward.