Lone Star Legal

Wednesday, March 9, 2011 | 0

By Julius Young
Boxer & Gerson

If I needed another reminder why I don't want to live in Texas, I have one now.

A Texas attorney who is a certified workers' comp specialist has been threatened with legal action over use of the term "workers comp" in his blog, http://www.texasworkerscomplaw.com.

The blog is authored by Lubbock attorney John Gibson. Gibson received a seize and desist letter from the Texas Commissioner of Workers' Compensation.

The state seeks to prohibit him from using the terms "workers' compensation" or "workers' comp" in conjunction with "Texas."

Gibson's blog is called the Texas Workers' Compensation Law Blog. The blog is about workers' comp in Texas. What's he supposed to call it? The turnip law blog?

Here's a pdf of the complaint Gibson has filed in Federal Court against the Texas Department of Insurance, Division of Workers' Compensation and Rod Bordelon, Commissioner of the Texas Department of Insurance:
http://www.workcompcentral.com/pdf/2011/misc/gibsonlawsuit.pdf

Seeking declaratory and injunctive relief, the complaint seeks a ruling that blogger Gibson's constitutional rights of free speech and expression have been violated. The lawsuit also challenges the validity of a Texas statute, Texas labor Code Chapter 419, alleging:

" In 2005, as part of their ongoing efforts to recodify and streamline the provisions of Texas law relating to workers’ compensation insurance, the State of Texas adopted new provisions of Texas Labor Code Chapter 419, pertaining to restriction of usage of certain words and word combinations by any person, not just persons engaged in the business of insurance."

"Section 419.002, Texas Labor Code, a copy of which is attached hereto as Exhibit “A” purports to regulate and restrict persons, from using the term “Texas Workers’ Compensation” or any term using both “Texas” and “Worker’s Compensation” or any term using both “Texas” and “Workers’ Comp” in connection with “any impersonation, advertisement, solicitation, business name, business activity, document, product or service.” This section also prohibits use of “any combination or variation of the words or initials, or any term deceptively similar to the words or initials. . .”1 Section 419.002(b) further restricts usage of a picture or map of the state of Texas in conjunction with the use of the words above."

"Section 419.004, TEXAS LABOR CODE, directs a civil penalty not to exceed $5,000 for each violation of § 419.002, and empowers the attorney general to bring suit to collect the civil penalty, however the commissioner of the Division of Workers’ Compensation, pursuant to § 419.003, TEXAS LABOR CODE, is delegated with the responsibility to enforce § 419.002, however there is no process, or alternatively, insufficient legal process, for determining whether individuals have violated § 419.002, in that the Commissioner and the Commissioner’s staff are uniformly empowered to determine whether there has been a violation and assess a penalty, without first requiring that the individual accused of a violation have the opportunity to be heard, and having reasonable standards imposed on precisely what will be considered a violation, and there is no reference to how any such officer would be trained or familiarized with the constitutional implications of the regulations."

But doth the freedom-lovin' folks in the Texas statehouse overreach?

Those don't-tread-on-me conservatives who value personal and corporate liberty?

As Gibson's complaint notes:

"The terms whose conjunctive use is regulated by the Statute, “Texas” “Workers’” and “Compensation,” as well as the map or shape of the State of Texas, are terms which are not uniquely the intellectual property of the State of Texas, but rather are in the public domain. Based on the varied ways in which these terms could be used, there is no governmental interest served by regulation of these terms, and the prohibition of the use of these terms together serves as an impermissible restraint on otherwise protected First Amendment Activity. For instance, under the terms of the regulation, a physician or medical clinic would be prohibited from advertising that they accept workers’ compensation patients in Texas. Any attorney who was board certified would also be strictly prohibited from using the phrase “Board Certified in Workers’ Compensation Law by the Texas Board of Legal Specialization,” which is the accepted manner and form for disclosing Board Certification in Texas. These and other unnecessary restrictions on advertising are the result of § 419.002, without serving any governmental interest."

Let's hope that the ACLU will give support to Gibson if needed.

Meanwhile, I'll be sending a check to Gibson's blog defense fund.

Go, Johnny, go.

<i>Julius Young is an applicants' attorney with the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, http://www.workerscompzone.com</i>