Monthly Archives: November 2017

Texas Prop 4 and Separation of Powers

When I initially heard about Prop 4 (S.J.R. 6 from the 85th Reg. Session) on the November ballot, I was concerned that it encroached too far on the judicial sphere and imperiled the ability of plaintiffs to get relief from unconstitutional laws.  However, after reviewing it, the amendment only requires the notice and “waiting period” before a final judgment is entered, and does not encroach on a court’s ability to enter injunctive relief against an unconstitutional state law.

Texas Government Code sec. 402.010, passed in 2011, requires that, where a party to litigation challenges the constitutionality of a state “statute,” the court must provide notice of the challenge to the Texas Attorney General’s office.  Further, “[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.”  The idea is to ensure the State has notice of any court challenges to state statutes so that the State may intervene to defend it, if it wishes to do so. In most civil cases, when a party is challenging the constitutionality of a state statute, the plaintiff will be suing the appropriate state official or institution, the Attorney General’s office will be involved in the defense, and this provision is not triggered.  However, it is not uncommon for cases to arise in which a party brings a constitutional challenge to a state statute where the State is not a party.  One prime example: the Texas Election Code authorizes a candidate or PAC to sue a political adversary for alleged illegal contributions or expenditures. See Tex. Elec. Code 253.131-.32. Those cases arise with some regularity, and the party sued often raises (with good reason) constitutional objections to the statutes at issue. A recent example is the Texas Democratic Party’s lawsuit against King Street Patriots, a nonprofit organization which the TDP alleged had violated various Election Code provisions, with KSP arguing (successfully) the statutes could not be applied to it. See King Street Patriots v. Tex. Democratic Party, 521 S.W.3d 729 (Tex. 2017).

The notice-and-waiting-period requirement in Gov’t Code sec. 402.010 would apply in such a case, but it was held unconstitutional as a violation of the separation of powers by the Texas Court of Criminal Appeals. Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). The Court had previously recognized that part of the “core judicial power” is the power to “enter final judgment based on the facts and the law,” and held that “the 45–day time frame provided for in subsection (b) is a constitutionally intolerable imposition on a court’s power to enter a final judgment and a violation of separation of powers.” Id. at 29. The Legislature responded with S.J.R. 6, which essentially says that, despite the express separation of powers provision in the Texas Constitution, the Legislature is authorized to do what it did in section 402.010. The proposed constitutional amendment expressly provides that section 402.010 will be “validated and effective” if Prop 4 is approved at the polls, and will apply to any challenges filed beginning in 2018.

If Prop 4 is approved, it should not at all harm the ability of plaintiffs to get timely relief from unconstitutional statutes. The 45-day waiting period limits only the court’s ability to “enter a judgment holding the statute unconstitutional.”  The word “judgment” has a particular meaning, and includes only the final disposition in a case, disposing of all parties and claims. A “judgment” is therefore different than other orders a court may enter on a party’s motion, such as TROs, temporary injunctions, and anything else short of a final judgment. See, e.g., Lindley v. Flores, 672 S.W.2d 612, 614 (Tex. App.–Corpus Christi 1984). The statute (sec. 402.010) actually makes this more apparent since it uses the term “final judgment” (whereas the constitutional provision says “judgment”), but the word “final” is not necessary, as there is only one type of “judgment” in Texas practice, and any temporary order (such as an injunction prohibiting the government from enforcing the offending statute while the litigation is pending) would not be subject to the 45-day waiting period.

This reading is the only legitimate interpretation of S.J.R. 6, based on its plain text (and that of sec. 402.010), and it is further supported by the federal counterpart to S.J.R. 6.  Federal Rule of Civil Procedure 5.1 imposes a similar waiting period, stating that the party and the court must provide notice to the attorney general of a constitutional challenge and permit same to intervene within 60 days, and during that 60 days, the court “may not enter a final judgment holding the statute unconstitutional.” The federal advisory committee’s note explains that “[p]retrial activities may continue without interruption during the intervention period, and the court retains authority to grant interlocutory relief.” Senator Zaffirini, the sponsor of S.J.R. 6, expressly justified the amendment as the state counterpart to the federal rule.

A couple of takeaways:

First: it is clear from the language of the amendment (and the statute that it would resurrect) that Prop 4 will not establish any hindrance whatsoever to a Texas court’s ability to enter timely and effective relief against an unconstitutional Texas statute through entry of a TRO or temporary injunction. This is true regardless of whether the sponsors and those who voted for the amendment in the Legislature would be surprised to hear that. Therefore, I don’t think it presents any problem, and is good policy to notify the AG of such challenges.

Second: the Texas Constitution is entirely too easy to amend. This exercise does point up a danger that the Legislature could someday draft an amendment that does real violence to the principle of separation of powers. While a bad constitutional amendment, if passed, would mean that the thing accomplished would by definition be consistent with the constitution (as amended), the constitution should not be amended in ways that undermine sound principles of separation of powers. (For example, if the Lege proposed an amendment to authorize imposing the waiting period on even preliminary orders like temporary injunctions.) Legislators have a duty to guard against this, and voters have a duty to pay attention and reject bad amendments when they are proposed.