Michael A. Pohl v. Mark Kentrell Cheatham, Sr.

Supreme Court of Texas
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No. 23-0045
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Michael A. Pohl, et al.,
Petitioners,

v.

Mark Kentrell Cheatham, Sr., et al.,
Respondents

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On Petition for Review from the
Court of Appeals for the First District of Texas
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JUSTICE BUSBY, joined by Justice Lehrmann and Justice Boyd,
dissenting.

Clients who hired Texas attorneys to represent them in other
states have sued those attorneys in Texas, seeking to void their fee
agreements because the attorneys—while located in their Texas
offices—allegedly contracted with and paid case runners to solicit the
clients’ business in those states. The attorneys’ alleged conduct, if
proven, is a criminal offense that can be prosecuted in Texas.
Section 38.12 of the Penal Code makes it a third-degree felony for a
Texas attorney to “offer[] to pay or give a person money or anything of
value to solicit employment” with “intent to obtain an economic benefit,”
or to “knowingly finance[] the commission of [such] an offense.” TEX.
PENAL CODE § 38.12(a)(4), (b)(1). And Section 1.04 gives Texas
jurisdiction to prosecute when “conduct . . . that is an element of the
offense”—here, the alleged financing and offers to pay—“occurs inside
this state.” Id. § 1.04(a)(1). Independently, such professional
misconduct can result in disbarment.1
Yet today, the Court holds that Texas law has nothing to say
about whether these Texas attorneys can still profit from their allegedly
criminal and unprofessional conduct—even though the Legislature
unanimously passed a civil barratry statute in 2011 creating “an 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).” TEX. GOV’T CODE
§ 82.0651(a). Why? The attorneys’ alleged victims were located in other
states, the Court reasons, so the solicitors completed their work there.
And because the sole “focus” of the statute is on the “acts of solicitation”
themselves, applying it to the conduct here would violate the
presumption against applying Texas laws extraterritorially. Ante at 23.
In reaching this conclusion, the Court rewrites the statute. The
Legislature has expressly told us to focus on “conduct violating”
Section 38.12(a) or (b), and the many distinct parts of those subsections
demonstrate the Legislature’s intent to regulate a wide variety of
conduct. Here, the alleged violating conduct—the financing and offers
to pay the solicitors—occurred in Texas, not in other states.

1 See TEX. GOV’T CODE § 82.062; TEX. DISCIPLINARY RULES PROF’L
CONDUCT R. 7.03, 8.04(a)(9), 8.05(a), reprinted in TEX. GOV’T CODE, tit. 2,
subtit. G, app. A; State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 659 (Tex.
1994).

2
Accordingly, this suit is a permissible domestic application of the
statute. Because I can find no basis for the Court’s decision in the text
of the statutes just quoted, I respectfully dissent.
* * *
At first glance, there is a tidy appeal to the two-step analytical
framework the Court borrows from U.S. Supreme Court cases
addressing whether a federal statute applies abroad. A legislative body
is presumed to act with domestic applications in mind, so we first
consider whether it has expressed a clear intent that its laws apply to
conduct in the territory of other sovereigns. Ante at 17-18; Abitron
Austr. GmbH v. Hetronic Int’l, Inc., 600 U.S. 412, 417-18 (2023). The
Court concludes that the Legislature expressed no such intent here.2
If the law is not extraterritorial, then the second step is to
“identify the focus of the [legislative] concern underlying the provision
at issue” and “ask whether the conduct relevant to that focus occurred
within [domestic territory].” Ante at 21 (emphases added); see also

2 Ante at 18-21. Because I conclude at step two that no extraterritorial
application of Section 82.0651(a) is involved here, it is unnecessary for me to
reach the step-one question whether that statute applies extraterritorially.
See Abitron, 600 U.S. at 418 n.2 (“[C]ourts may take these steps in any order.”).
But I note that a thorough case for extraterritoriality was recently made by a
federal district court addressing a different Texas statute that incorporates the
Penal Code. See A.S. v. Salesforce, Inc., 747 F. Supp. 3d 970, 977-981 (N.D.
Tex. 2024). And the Supreme Court has interpreted a civil statute
incorporating federal criminal laws to have partial extraterritorial reach based
on the text of the latter laws. See RJR Nabisco, Inc. v. European Community,
579 U.S. 325, 338 (2016). The Court claims that I “tellingly ignore” authorities
it says point the other way in this particular context. Ante at 19 n.9. I assure
the Court that I have read its opinion and considered those authorities. But
again, I find it unnecessary to reach a decision regarding step one given my
conclusion at step two.

3
Abitron, 600 U.S. at 418. If so, the case “involves a permissible domestic
application of the statute, even if other conduct occurred abroad.”
Abitron, 600 U.S. at 419 (cleaned up). I part ways with the Court on the
application of this focus test.
A statute’s focuses “are the objects of [its] solicitude,” Morrison v.
Nat’l Austr. Bank Ltd., 561 U.S. 247, 267 (2010), which “can include the
conduct it seeks to regulate, as well as the parties and interests it seeks
to protect or vindicate,” Abitron, 600 U.S. at 418 (cleaned up). In other
words, a statute may have more than one focus, and different parts of a
statute may have different focuses. “When determining the focus of a
statute,” if it “works in tandem with other provisions, it must be
assessed in concert with those other provisions.” WesternGeco LLC v.
ION Geophysical Corp., 585 U.S. 407, 414 (2018) (emphasis added).
Thus, in RJR Nabisco, Inc. v. European Community, the Supreme Court
looked to various criminal-law predicate offenses incorporated into the
civil RICO statute to determine whether that statute reached at least
some foreign conduct. 579 U.S. 325, 338 (2016).
This “focus of legislative concern” test has been criticized as
indeterminate, difficult to apply consistently (as shown by the splits of
authority it has produced), and subject to manipulation by courts that
choose their own preferred focus over other alternatives without tying
that choice to the statutory language.3 Interestingly, these are similar
to the criticisms the Supreme Court leveled at the location-of-conduct

3 See, e.g., Franklin A. Gevurtz, Extraterritorial Application of Statutes

and Regulations, 70 AM. J. COMP. L. i347, i365-i371 (2022); Aaron D. Simowitz,
The Extraterritoriality Formalisms, 51 CONN. L. REV. 375, 388-404 (2019).

4
test and effects test, which preceded the focus test. See Morrison, 561
U.S. at 258-261.
There need be no such confusion regarding this statute, however,
because the Legislature expressly states its focus in the text. The
statute specifies that its 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.” TEX. GOV’T CODE
§ 82.0651(e). So what unethical, unlawful solicitation is the focus of the
procedures it provides? The statute tells us earlier in the same section,
where it creates a cause of action to void a contract “that was procured
as a result of conduct violating [Penal Code] Section 38.12(a) or (b).” Id.
§ 82.0651(a) (emphasis added). Here, the procuring “conduct relevant
to that focus”4 is that the attorneys (among other things) allegedly
“offer[ed] to pay or give a person money or anything of value to solicit
employment” in violation of Section 38.12(a)(4) and “knowingly
finance[d] the commission of [such] an offense” in violation of
Section 38.12(b)(1). This alleged conduct that the statute seeks to
regulate occurred at the attorneys’ Texas offices. Accordingly, the court
of appeals correctly held that this case involves a permissible domestic
application of Section 82.0651(a).
This Court reaches a contrary conclusion by treating
Section 82.0651(a) as if its sole focus were “the in-person acts of
solicitation” that “procured the legal-services contracts.” Ante at 23; see
also id. at 25 (“Section 82.0651’s focus is on the solicitation of the legal-

4 Abitron, 600 U.S. at 418 (quoting WesternGeco, 585 U.S. at 413).

5
services contract.”). This interpretive move ignores the whole text of
Penal Code Section 38.12(a) and (b), which must be read “in concert”
with Section 82.0651(a) to determine that statute’s focus. WesternGeco,
585 U.S. at 414; see RJR Nabisco, 579 U.S. at 338.
Specifically, the acts of solicitation that the Court cherry-picks as
“the core conduct the Legislature sought to address”5 are merely the
focus of Penal Code Section 38.12(a)(2), which criminalizes “solicit[ing]
employment.” By incorporating all of Penal Code Section 38.12(a)
and (b), Section 82.0651(a) “seeks to regulate”6 a much wider range of
different types of conduct, all of which the Legislature has told us it finds
necessary to “protect those in need of legal services against unethical,
unlawful solicitation.” TEX. GOV’T CODE § 82.0651(e). That is the
Legislature’s call to make, not ours.7 Here is the full text of
subsections (a) and (b), which shows their breadth:
(a) A person commits an offense if, with intent to obtain an
economic benefit the person:
(1) knowingly institutes a suit or claim that
the person has not been authorized to pursue;
(2) solicits employment, either in person or by
telephone, for himself or for another;
(3) pays, gives, or advances or offers to pay,
give, or advance to a prospective client money

5 Ante at 22 (emphasis added).

6 Abitron, 600 U.S. at 418 (cleaned up).

7 In re Dep’t of Fam. & Protective Servs., 273 S.W.3d 637, 645 (Tex. 2009)

(“[I]t is not for courts to decide if legislative enactments are wise or if particular
provisions of statutes could be more effectively worded to reach what courts or
litigants might believe to be better or more equitable results.”).

6
or anything of value to obtain employment as
a professional from the prospective client;
(4) pays or gives or offers to pay or give a
person money or anything of value to solicit
employment;
(5) pays or gives or offers to pay or give a
family member of a prospective client money
or anything of value to solicit employment; or
(6) accepts or agrees to accept money or
anything of value to solicit employment.
(b) A person commits an offense if the person:
(1) knowingly finances the commission of an
offense under Subsection (a);
(2) invests funds the person knows or believes
are intended to further the commission of an
offense under Subsection (a); or
(3) is a professional who knowingly accepts
employment within the scope of the person’s
license, registration, or certification that
results from the solicitation of employment in
violation of Subsection (a).
TEX. PENAL CODE § 38.12(a)-(b).
It is neither this Court’s role nor a feasible task to read a collective
legislative mind and select only one type of conduct from this statutory
list, elevating it as “core”8—and therefore the sole touchstone of whether
the statute is being applied domestically or extraterritorially—while
discarding the other eight types of conduct the Legislature chose to
regulate. “[W]hen we stray from the plain language of a statute, we risk

8 Ante at 22.

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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). Rather than making value judgments about a statute’s
core focus, we should stick to using traditional tools of statutory
construction to determine that focus, as we have done for decades in
deciding disputes about statutes’ territorial scope. See, e.g., Citizens Ins.
Co. v. Daccach, 217 S.W.3d 430, 442, 444-46 (Tex. 2007); Coca-Cola Co.
v. Harmar Bottling Co., 218 S.W.3d 671, 682 (Tex. 2006); Marmon v.
Mustang Aviation, Inc., 430 S.W.2d 182, 185 (Tex. 1968).
The Court attempts to avoid this problem by disregarding the
clients’ allegation that the attorneys violated Section 38.12(a)(4) when
they offered in Texas to pay the solicitors.9 In the Court’s view, the only
“conduct violating Section 38.12(a) was the actual solicitation of the
clients” under Section 38.12(a)(2), “which occurred outside Texas.” Ante
at 24. An examination of the clients’ live pleading shows this is simply
incorrect, and there is no issue before us at this stage disputing that
offers to pay in fact occurred in Texas. I did not understand the clients
to abandon these allegations at oral argument by also mentioning the
alleged violation of Section 38.12(b)(1), as the Court appears to suggest.
See id.10
Perhaps the result of today’s decision will be that the Legislature
amends the civil barratry statute to make even more explicit what the

9 Plaintiffs’ and Intervenor’s Sixth Amended Petition at 3, 21, No. 2017-

41110 (55th Dist. Ct., Harris County, Tex. Apr. 24, 2019).
10 As the statutory language quoted above shows, a violation of
subsection (b)(1) can be based on a violation of subsection (a)(4). The clients
have alleged that both violations occurred in Texas.

8
“core focus” of that statute is under the Court’s new gloss on our
extraterritoriality jurisprudence. Indeed, many of the U.S. Supreme
Court’s extraterritoriality decisions have been followed by congressional
enactments expanding the statutes’ scope.11 This sort of dialogue
between the legislative and judicial branches is often salutary and
clarifying. See In re Doe, 19 S.W.3d 346, 354 (Tex. 2000). But here,
where the focus of the statute is already apparent from its text, I regard
it as wasteful. Because the Legislature spoke clearly and should not
have to expend its limited time and resources to act again, I respectfully
dissent.

J. Brett Busby
Justice

OPINION FILED: May 9, 2025

11 See Simowitz, supra note 3, at 396.

9