Focus Report, Volume 85, Number 6, September 2017 Page: Page12
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Court notice to attorney general of
constitutional challenge to state laws
SJR 6 by Zaffirini (Schofield)Background
Government Code, sec. 402.010(a) requires courts
to notify the attorney general when a party to a lawsuit
files a petition, motion, or other pleading that challenges
the constitutionality of a Texas statute. Under sec.
402.010(b), a court must wait 45 days after giving this
notice before entering a final judgment that holds a
Texas statute unconstitutional.
The requirement to give this notice does not apply
if the attorney general is a party to or counsel involved
in the lawsuit challenging the constitutionality of a state
law. Parties in the lawsuit must file a form with the court
identifying which pleading in the case is challenging the
constitutionality of a state law.
In Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App.
2013), the Texas Court of Criminal Appeals held that
Government Code, secs. 402.010(a) and 402.010(b)
violated the separation of powers provision in the Texas
Constitution, Art. 2,.sec. 1. The provision states that 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.
Digest
Proposition 4 would amend Texas Constitution, Art.
2, sec. 1, authorizing the Legislature to require courts
to notify the attorney general when a party to litigation
filed a petition, motion, or other pleading challenging
the constitutionality of a state statute if the party notified
the court of the challenge. The proposition also would
authorize the Legislature to establish a period of up to 45
days after a court gave the required notice during which
the court could not enter a judgment holding the statute
unconstitutional.Proposition 4 includes a temporary provision that
would make current Government Code, sec. 402.010
validated and effective upon approval of the proposed
amendment. That section would apply only to a petition,
motion, or other pleading filed on or after January 1.
2018.
The ballot proposal reads: 'The constitutional
amendment authorizing the legislature to require a court
to provide notice to the attorney general of a challenge
to the constitutionality of a state statute and authorizing
the legislature to prescribe a waiting period before
the court may enter a judgment holding the statute
unconstitutional.
Supporters say
Proposition 4 would ensure that the state has an
opportunity to defend Texas laws from constitutional
challenges. In 2013, the Texas Court of Criminal
Appeals struck down a Texas law requiring courts to
notify the attorney general of such challenges, and
the proposed amendment is needed to restore this law.
Proposition 4 would amend the Constitution to make it
clear that the Legislature may require courts to provide
notice of a constitutional challenge and may establish
a reasonable period for the attorney general to respond
after receiving such notice.
It is important that the state, through the attorney
general, have an opportunity to weigh in when the
constitutionality of a law is challenged. Proposition
4 would protect the prerogative of the Legislature to
pass laws on behalf of Texans and to have those laws
maintained. Without Proposition 4, laws enacted by
the Legislature could be struck down without the state
having a chance to defend them.
The proposed amendment would not alter the state's
separation of powers doctrine nor restrict the ability of
courts to strike down on constitutional grounds certain
laws enacted by the Legislature. The GovernmentPage 12 House Research Organization
House Research Organization
Page 12
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Texas. Legislature. House of Representatives. Research Organization. Focus Report, Volume 85, Number 6, September 2017, periodical, September 7, 2017; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth1033148/m1/12/: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.