Proposition 4 proposes a constitutional amendment to require that a court notify the Attorney General (AG) when a statute’s constitutionality is being challenged before the court rules on it. This gives the AG 45 days to decide whether they wish to respond and intervene. This does not control how the judge rules. This does however create delays and added costs for parents already going broke trying to get justice in the family courts.
This law is already in place by the way. They just do not have a constitutional amendment. So why do they need a constitutional amendment if the law is already in place? Because a criminal case already found the law to be unconstitutional. The Texas Constitution does not allow the legislature to interfere with judicial powers.
In 2013 a criminal case challenged the statute requiring the courts to provide this notice to the AG. The appellate court found that the statute conflicted with the Texas Constitution Article 2, Section 1, which reads: “the powers of the Texas state government are divided into the legislative, executive, and judicial branches and that no branch shall exercise any power properly attached to either of the others, except in the instances expressly permitted.”
Interesting that the law was struck down and no constitutional amendment has been passed but the civil courts continue to use this law anyway.
See In re State of Texas, Relator No 15-0139, (“Theoretically, a civil court could declare section 402.010 itself unconstitutional on separation-of-powers grounds, as the Court of Criminal Appeals has done on the criminal-law side. Ex parte Lo, 424 S.W.3d 10, 29 (Tex. Crim. App. 2013). That did not happen here. Section 402.010 was not overturned—it was overlooked.”)
Here a civil court ignored the Government Code Section 402.010 and made a ruling that a Texas statute was unconstitutional without notifying the AG and the Texas Supreme Court overturned that ruling.
THIS LAW IS EXPENSIVE FOR PARENTS
We have experienced the burden and increased cost this law imposes twice already, once in the state trial court and once in an appellate court.
This notification requirement can cost litigants in two ways:
1. Your trial court judge can stop a hearing in progress if they hear you challenge a statute in your trial and make you go through the cost and delay of rescheduling your hearing, and having to pay to bring everyone back, just so the court can notify the AG and give the AG 45 days to decide if they want to respond and if they want to intervene in your case.
2. The appellate court also will require you to notify the AG and they will do so as well in your civil case. If the AG decides to respond or intervene in your appellate case, this also increases your cost and can create delays. Now you or your attorney have to respond to another opposing counsel’s briefs and responses.
This law creates more red tape and expense for litigants. We know, we have personally experienced it.
WHAT DOES THE CONSTITUTIONAL AMENDMENT DO?
The Texas House Organization (THO) is a bipartisan committee established by the legislature to review proposed constitutional amendments. The argument they make for and against this amendment is the following:
Proponents say this amendment just provides notice to the AG so that they can decide whether they want to defend the constitutionality of a statute.
Opponents argue that this amendment would cause delay to relief from unconstitutional laws and that this is a violation of separation of powers where it would authorize the legislature “to enact laws that might erode the doctrine by establishing a period during which a court may not exercise its power.”
Another concern that the opponents have according to THO is that there is a conflict of interest between the AG and these laws. They give an example of the AG prosecuting criminal cases where they are going to defend a law they are using to prosecute someone for the state.
True the AG has a conflict of interest but he is also sworn to uphold and defend the laws of the state. As Justice Willett put it, “The attorney general may be right. He may be wrong. But he must be heard.” While that may be the case, the AG can only make a case for defending the law and they cannot force a judge to adopt their argument. It will still be up to the judge whether or not a statute is unconstitutional.
This is expensive on the litigants however. And the judiciary and legislature are always complaining about the expense of due process. The legislature and the judiciary are more than happy to cut due process out in the name of cost savings, so why not also cut out the expense that their due process causes parents. I think that’s fair.*
This law also places additional expense on the judiciary as the judge then has to take the time to hear the AG’s arguments. And who is ultimately paying for this, the taxpayers and the parents.*
The judiciary has already had financial cut backs and many courts admonish parents for wanting to be heard on their constitutional arguments and deny and rush them. The legislature has been fine with cutting due process down to nothing for parents in the name of efficiency and reducing expense. But when it benefits them and protects the unconstitutional laws that they pass, they are more than happy passing that expense along.
We have personally experienced the delays, expense and added red tape this law has caused. This law has cost parents thousands of dollars already. Parents already going through a custody battle do not need to be told by a judge that they have to stop their hearing and come back after the AG is notified when the AG was not a party to the case in the first place. This is especially costly if you are being kept from your child.
If a judge wants the input from the AG they can certainly reach out to them themselves, placing an extra burden on parents and our judiciary is costing our taxpayers and our children.
Take this burden off the people and vote NO.
I am voting NO on PROP 4.
SEE THE LAW BELOW THAT IS IN FORCE TODAY:
Texas Government Code Section 402.010
Sec. 402.010. LEGAL CHALLENGES TO CONSTITUTIONALITY OF STATE STATUTES. (a) In an action in which a party to the litigation files a petition, motion, or other pleading challenging the constitutionality of a statute of this state, the party shall file the form required by Subsection (a-1). The court shall, if the attorney general is not a party to or counsel involved in the litigation, serve notice of the constitutional challenge and a copy of the petition, motion, or other pleading that raises the challenge on the attorney general either by certified or registered mail or electronically to an e-mail address designated by the attorney general for the purposes of this section.
(a-1) The Office of Court Administration of the Texas Judicial System shall adopt the form that a party challenging the constitutionality of a statute of this state must file with the court in which the action is pending indicating which pleading should be served on the attorney general in accordance with this section.
(b) A court may not enter a final judgment holding a statute of this state unconstitutional before the 45th day after the date notice required by Subsection (a) is served on the attorney general.
(c) A party’s failure to file as required by Subsection (a) or a court’s failure to serve notice as required by Subsection (a) does not deprive the court of jurisdiction or forfeit an otherwise timely filed claim or defense based on the challenge to the constitutionality of a statute of this state.
(d) This section or the state’s intervention in litigation in response to notice under this section does not constitute a waiver of sovereign immunity.
Added by Acts 2011, 82nd Leg., R.S., Ch. 808 (H.B. 2425), Sec. 1, eff. June 17, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 1162 (S.B. 392), Sec. 1, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1276 (H.B. 1435), Sec. 4, eff. September 1, 2013.
*NOTE: It should be noted that we believe that proper due process is worth the cost. The issue written about in this post is to bring attention to the double-standard that the legislature and the courts have applied to parents. They want to ensure that the AG has due process but cut corners when it comes to due process requirements for fundamental rights of parents and their children.
DISCLAIMER: This post is not a constitutional review and not based on constitutional analysis. This does not necessarily reflect the views of FFC.