BILL ANALYSIS

C.S.H.B. 2139

By: Burrows

Judiciary & Civil Jurisprudence

Committee Report (Substituted)

BACKGROUND AND PURPOSE

When the legislature convenes, it goes to great lengths to craft legislation in specific ways to ensure specific results. Words such as "shall" or "must" are often debated at length to achieve the desired effects. C.S.H.B. 2139 seeks to ensure that what the legislature passes is interpreted by the court system as it is written by clarifying the definitions of "shall" and "must" under the Code Construction Act, prohibiting a court from inquiring into the intent of the legislature when interpreting statute, and requiring that a court interpret statute using only the meaning that the words would have to an ordinary speaker of the English language.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.H.B. 2139 amends the Government Code to revise the Code Construction Act and statutory provisions governing the construction of civil statutes.

Construction of the Words "Must" and "Shall"

C.S.H.B. 2139 revises provisions of the act relating to construction of the words "must" and "shall" by establishing that the use of "shall" does not indicate that an action is discretionary and by changing the specification that "must" creates or recognizes a condition precedent to a specification that "must" imposes a requirement and either creates a duty or creates or recognizes a condition precedent.

Legislative Intent

C.S.H.B. 2139 repeals a provision of the act establishing that in enacting a statute, the following is presumed:

· compliance with the Texas Constitution and the U.S. Constitution is intended;

· the entire statute is intended to be effective;

· a just and reasonable result is intended;

· a result feasible of execution is intended; and

· public interest is favored over any private interest.

The bill also repeals the requirement for a court, in interpreting a civil statute, to diligently attempt to ascertain legislative intent and consider at all times the old law, the evil, and the remedy.

C.S.H.B. 2139 prohibits a court, when interpreting a code statute or a civil statute, from inquiring into what members of the legislature intended to accomplish by enacting the statute. The bill requires the court to enforce the statutory text as written and in accordance with the meaning that the words of the statute would have to an ordinary speaker of the English language.

Statute Construction and Legislative History

C.S.H.B. 2139 repeals the authorization under the act for a court to consider the following matters in construing a statute, whether or not the statute is considered ambiguous on its face:

· the object sought to be attained;

· the circumstances under which the statute was enacted;

· legislative history;

· common law or former statutory provisions, including laws on the same or similar subjects;

· consequences of a particular construction;

· administrative construction of the statute; and

· the title (caption), preamble, and emergency provision.

The bill also repeals provisions establishing that the Revised Statutes are state law, must be liberally construed to achieve their purpose and to promote justice, and are exempt from the common law rule requiring strict construction of statutes in derogation of the common law.

C.S.H.B. 2139 prohibits a court, when interpreting a code statute or a civil statute, from considering, consulting, citing, relying on, or giving any weight to the following elements of legislative history:

· any statement from an individual legislator, including a statement by the author or sponsor of the bill that enacted the statute or a statement made during a committee hearing or debate of the bill on the floor of a house of the legislature;

· a committee report; or

· a statement of a presiding officer or the governor made on the signing of the bill.

Severability and Saving Constructions

C.S.H.B. 2139 repeals provisions relating to the severability of statutes that establish the following:

· if any code statute contains a provision for severability, that provision prevails in interpreting that statute, and if any code statute contains a provision for nonseverability, that provision prevails;

· provisions governing the severability of statutes not in a code do not affect the power or duty of a court to ascertain and give effect to legislative intent concerning severability of such a statute; and

· for a code statute that does not contain a provision for severability or nonseverability, or another statute that does not expressly provide otherwise, if any provision of the statute or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the statute that can be given effect without the invalid provision or application, and to this end the provisions of the statute are severable.

C.S.H.B. 2139 establishes the following relating to severability for both code statutes and civil statutes:

· unless a statute contains a provision expressly providing for nonseverability, every provision, section, subsection, sentence, clause, phrase, and word of the statute, including every discrete application of the provision, section, subsection, sentence, clause, phrase, or word to any person, group of persons, or circumstance, is severable;

· if any application of any statutory provision, section, subsection, sentence, clause, phrase, or word to any person, group of persons, or circumstance is determined by a court to be invalid, preempted, or unconstitutional, regardless of the reason, all remaining applications of that statutory provision or provision part to any other person, group of persons, or circumstance shall be severed and preserved and remain in effect;

· it is the legislature's intent that every valid, non-preempted, and constitutional application of its statutory enactments be allowed to stand alone and remain enforceable;

· a court may not decline to enforce the severability requirements established by the bill on the grounds that the severance would rewrite the statute or involve the court in legislative or lawmaking activity;

· a court that declines to enforce, or that enjoins a state official from enforcing, wholly or partly, a statute is not considered to be rewriting a statute or engaging in legislative or lawmaking activity because the statute continues to contain the same words as before the court's decision; and

· a judicial injunction or declaration of unconstitutionality:

o is only an edict prohibiting enforcement of the disputed statute against the parties to that lawsuit and may subsequently be vacated by a higher court based on a different understanding of the law;

o is not a formal amendment of the language in a statute; and

o does not rewrite the statute any more than a decision by the executive not to enforce a duly enacted statute in a limited and defined set of circumstances.

If a court, in violation of these bill provisions, declares or finds any statutory provision, section, subsection, sentence, clause, phrase, or word to be facially or totally invalid, preempted, or unconstitutional, when there are discrete applications of that statutory provision or provision part that could be enforced against a person, group of persons, or circumstance without violating federal law or the federal or state constitutions, then that statutory provision or provision part shall be interpreted, as a matter of state law, as if the legislature had explicitly limited its application to the person, group of persons, or circumstance for which its application will not violate federal law or the federal or state constitutions. The bill requires every court to adopt and apply this saving construction until the court ruling declaring the statutory provision or provision part facially or totally invalid, preempted, or unconstitutional is vacated or overturned.

Grammatical and Scrivener's Errors

C.S.H.B. 2139 establishes that a court construing a code statute or civil statute that contains a grammatical or scrivener's error that would be apparent to an ordinary reader of the English language may interpret the statute consistent with the understanding of the statute by an ordinary reader of the English language. The bill repeals provisions regarding the construction of law that do the following:

· authorize the transposition of words and clauses to give meaning to a law that would otherwise be meaningless due to a grammatical error; and

· establish that punctuation of a law does not control or affect legislative intent in enacting the law.

The bill retains the specification that a grammatical error does not vitiate a law and extends it to scrivener's errors also. The bill makes this specification applicable to code statutes as well as civil statutes.

Other Changes to the Act

C.S.H.B. 2139 revises certain provisions of the act to remove references to intent or purpose as follows:

· replaces the statement that an amendment that reenacts text in compliance with the constitutional requirement to do so does not indicate legislative intent that the reenacted text prevail over changes in the text made by another amendment, unless clearly indicated to the contrary, with the statement that such a reenactment does not mean that the reenacted text prevails in that manner;

· changes the circumstances under which a general provision that is enacted after a special or local provision with which it is irreconcilable prevails from those in which the manifest intent is that the general provision prevail to those in which the general provision clearly and unambiguously supersedes the special or local provision;

· replaces the requirement for a uniform act in a code to be construed to effect its general purpose to make uniform the law of those states that enact it with a requirement for the act to be construed to make such laws uniform when possible; and

· replaces the statement that use in a statute of "person," as defined under the act to include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction with the statement that such use does not waive sovereign immunity unless context so indicates.

Repealers

C.S.H.B. 2139 repeals the following provisions of the Government Code:

· Section 311.021;

· Section 311.023;

· Section 311.032;

· Section 312.005;

· Section 312.006;

· Section 312.012; and

· Section 312.013.

EFFECTIVE DATE

September 1, 2023.

COMPARISON OF INTRODUCED AND SUBSTITUTE

While C.S.H.B. 2139 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.

Both the introduced and substitute revise provisions relating to the construction of the words "shall" and "must" under the Code Construction Act. However, the versions differ in the following ways:

· the substitute does not include the specification from the introduced that "must" and "shall" are synonymous with each other;

· the substitute includes a specification, which was not in the introduced, that the use of the word "shall" does not indicate that an action is discretionary; and

· while the introduced replaced language specifying that "must" creates or recognizes a condition precedent with the specification that "must" imposes a duty, the substitute establishes that "must" imposes a requirement and either creates a duty or creates or recognizes a condition precedent.

The substitute omits the language in the introduced providing for the bill's possible immediate effect contingent on receiving the requisite constitutional vote.