Texas Penal Code 38.122 – Falsely Holding Oneself Out as a Lawyer

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Texas Penal Code 38.122 – Falsely Holding Oneself Out as a Lawyer

WHAT IS FALSELY HOLDING ONESELF OUT AS A LAWYER IN TEXAS?

The Texas law against falsely holding oneself out as a lawyer prohibits misrepresenting to another that a person is an attorney, with the intent to gain an economic benefit.

WHAT IS THE FALSELY HOLDING ONESELF OUT AS A LAWYER LAW IN TEXAS?

Tex. Penal Code § 38.123. FALSELY HOLDING ONESELF OUT AS A LAWYER.

(a) A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person holds himself or herself out as a lawyer, unless he or she is currently licensed to practice law in this state, another state, or a foreign country and is in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed.

(b) An offense under Subsection (a) of this section is a felony of the third degree.

WHAT IS THE PENALTY CLASS FOR FALSELY HOLDING ONESELF OUT AS A LAWYER IN TEXAS?

Falsely holding oneself out as a lawyer is a third degree felony, punishable by two to ten years in prison.

WHAT IS THE PUNISHMENT RANGE FOR FALSELY HOLDING ONESELF OUT AS A LAWYER IN TEXAS?

The punishment range for falsely holding oneself out as a lawyer, a third degree felony, is between two to ten years in prison, and a maximum $10,000 fine.

WHAT ARE THE PENALTIES FOR FALSELY HOLDING ONESELF OUT AS A LAWYER IN TEXAS?

A person charged with falsely holding himself out as a lawyer may be eligible for probation after a conviction, or deferred without a conviction, for a period not to exceed ten years.

WHAT ARE THE DEFENSES TO FALSELY HOLDING ONESELF OUT AS A LAWYER IN TEXAS?

The false-lawyer statute provides no exceptions or affirmative defenses. A defendant on trial for falsely holding oneself out as a lawyer may raise any defense, or attempt to negate at least one of the elements the State must prove at trial.

Can a person be charged with falsely holding oneself out as a lawyer if the person did not know their law license was suspended or revoked? One’s mistaken belief about his law license will not absolve him of criminal responsibility. This is because a defendant is only entitled to a mistake-of-fact jury instruction if he had a mistaken belief that would negate the required culpable mental state of the offense. The false-lawyer statute does not require the State to prove a defendant knew he was not licensed or in good standing—it simply requires the intent to gain an economic benefit through the unauthorized practice of law. If a person practices law without a license for pecuniary gain, he has falsely held himself out as a lawyer.

Can a person give free legal advice or services without a law license in Texas? Purely gratuitous comments on legal matters are not criminalized under this law. People who perform free legal services or give free advice may risk exposure to prosecution for other crimes, but the false-lawyer statute requires proof of the intent to gain an economic benefit.

WHAT IS THE STATUTE OF LIMITATIONS FOR FALSELY HOLDING ONESELF OUT AS A LAWYER IN TEXAS?

The limitation period for falsely holding oneself out as a lawyer, a third degree felony, is three years.

FALSELY HOLDING ONESELF OUT AS A LAWYER IN TEXAS

The false-lawyer statute imposes the duty to maintain professional licensing qualifications on any purportedly practicing law for economic gain. It is intended to protect the public from untrained individuals who may endanger the public’s personal and property rights, as well as the orderly administration of the judicial system.

TEXAS FALSELY HOLDING ONESELF OUT AS A LAWYER COURT CASES

The case law regarding falsely holding oneself out as a lawyer in Texas shows a person may be convicted of a felony for a single misrepresentation to another that he or she is an attorney.

In Rodriguez v. State, the defendant was a notary public, not an attorney, who ran an office for “immigration services.” She charged fees for filing paperwork, and told a man who hired her for immigration help that she was an attorney. Although her signs and business cards did not specifically identify her as an attorney, the jury found she held herself out as a lawyer—on at least one occasion—for payment.The appellate court upheld the conviction, explaining that the jury was entitled to believe the man’s testimony that the defendant told him she was an attorney.

In Celis v. State, the defendant misrepresented that he was licensed to practice in Mexico, and was admitted to the Texas bar in 2000. He was convicted of falsely holding himself out as a lawyer upon proof that he was not licensed, and accepted over $1.3 million in attorney’s fees.On appeal, the defendant claimed he was entitled to rely on his mistaken belief that he was licensed and in good standing. The Texas Court of Criminal Appeals affirmed the conviction, holding that ignorance of the law, and state bar requirements, is no excuse. Proof the defendant financially benefited for legal work without being licensed was sufficient to sustain his conviction.

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CHARGES DISMISSED

DRIVING WHILE INTOXICATED .15

Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.

CHARGES DISMISSED

DRIVING UNDER THE INFLUENCE

Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.

CHARGES DISMISSED

DRIVING WHILE INTOXICATED .15+

Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest.

CHARGES DISMISSED

DWI 2ND

Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.

CHARGES DISMISSED

DRIVING UNDER THE INFLUENCE

Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.

CHARGES DISMISSED

DRIVING UNDER THE INFLUENCE

Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.

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