By Thompson                                            H.B. No. 402
         76R1272 MLS-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the service of notice on certain public officials of
 1-3     the filing of a case or a judgment in a case in which certain laws
 1-4     or rules are alleged to be unconstitutional.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Section 30.004, Civil Practice and Remedies Code,
 1-7     is amended by amending Subsections (a), (b), and (c) and adding
 1-8     Subsections (e) and (f) as follows:
 1-9           (a)  This section applies to a civil case in which:
1-10                 (1)  the state is named as a party;
1-11                 (2)  an agency in the executive or legislative
1-12     department is named as a party; [or]
1-13                 (3)  a party may be represented by the attorney general
1-14     as authorized by Chapter 104; or
1-15                 (4)  any federal or state statute or rule or municipal
1-16     ordinance is alleged to be unconstitutional.
1-17           (b)  On the filing of any petition or answer in a case
1-18     subject to this section, a copy of the petition or answer shall be
1-19     served on [mailed to] the attorney general at the attorney
1-20     general's office in Austin, Texas, in accordance with  Rule 21a,
1-21     Texas Rules of Civil Procedure [by United States Postal Service
1-22     certified mail, return receipt requested].
1-23           (c)  Serving [Mailing] notice as required by Subsection (b)
1-24     does not satisfy any other jurisdictional requirement relating to
 2-1     service of  process on a state officer, board, commission, agency,
 2-2     or institution that is a named party in a court proceeding.
 2-3           (e)  The provision of notice under Subsection (b) in a case
 2-4     described by Subsection (a)(4) is a jurisdictional requirement.
 2-5           (f)  In a case described by Subsection (a)(4), a court shall
 2-6     permit the attorney general to intervene on behalf of the state on
 2-7     the question of the constitutionality of the statute, rule, or
 2-8     municipal ordinance.  The attorney general may file the
 2-9     intervention at the trial or appellate level before or after the
2-10     entry of a judgment.
2-11           SECTION 2.  Chapter 2, Code of Criminal Procedure, is amended
2-12     by adding Article 2.26 to read as follows:
2-13           Art. 2.26.  NOTICE TO STATE PROSECUTING ATTORNEY OF CERTAIN
2-14     SUITS.  (a)  This article applies to a criminal case in which any
2-15     federal or state  statute or rule or municipal ordinance is alleged
2-16     to be unconstitutional.
2-17           (b)  On the filing of any charging instrument or answer in a
2-18     case described by Subsection (a), a copy of the charging instrument
2-19     or answer must be served on the state prosecuting attorney at the
2-20     state prosecuting attorney's office in Austin, Texas, in the manner
2-21     described by Rule 21a, Texas Rules of Civil Procedure, for methods
2-22     of service in civil cases.
2-23           (c)  The provision of notice under Subsection (b) in a case
2-24     described by Subsection (a)  is a jurisdictional requirement.
2-25           (d)  In a case described by Subsection (a), a court shall
2-26     permit the state prosecuting attorney to intervene on behalf of the
2-27     state on the question of the constitutionality of the statute,
 3-1     rule, or municipal ordinance.  The state prosecuting attorney may
 3-2     file the intervention at the trial or appellate level before or
 3-3     after the entry of a judgment.
 3-4           SECTION 3.  Subchapter G, Chapter 51, Government Code, is
 3-5     amended by adding Section 51.607 to read as follows:
 3-6           Sec. 51.607.  NOTICE TO SECRETARY OF STATE OF CERTAIN SUITS.
 3-7     (a)  In this section, "clerk" includes the clerk of the supreme
 3-8     court, the  clerk of the court of criminal appeals, the clerk of a
 3-9     court of appeals, a district clerk, and a county clerk.
3-10           (b)  A clerk shall file with the secretary of state a
3-11     certified copy of a judgment or order that:
3-12                 (1)  declares a federal or state statute or rule or
3-13     municipal ordinance unconstitutional;
3-14                 (2)  affirms or reverses a lower court's judgment that
3-15     declared a federal or state statute or rule or municipal ordinance
3-16     unconstitutional; or
3-17                 (3)  denies appellate review of a case involving a
3-18     court's judgment that declared a federal or state statute or rule
3-19     or municipal ordinance unconstitutional.
3-20           (c)  A judgment or order described by Subsection (b) must be
3-21     filed with the secretary of state not later than the 15th day after
3-22     the date the judgment or order is entered.
3-23           (d)  The secretary of state shall publish a summary of any
3-24     document filed under this section in the Texas Register.  The
3-25     secretary of state shall include a statement that states whether
3-26     the statute, rule, or ordinance was declared unconstitutional on
3-27     its face or unconstitutional as applied.
 4-1           (e)  A judgment or order that declares a federal or state
 4-2     statute or rule or municipal ordinance unconstitutional and that is
 4-3     no longer appealable does not have preclusive effect in other
 4-4     judicial or administrative proceedings until the judgment or order
 4-5     required by Subsection (b) is filed under Subsection (c).
 4-6           SECTION 4.  Chapter 323, Government Code, is amended by
 4-7     adding Section 323.019 to read as follows:
 4-8           Sec. 323.019.  REPORT ON LAWS DECLARED UNCONSTITUTIONAL.  The
 4-9     council shall prepare a report to the legislature not later than
4-10     December 31 of each even-numbered year.  The report shall be based
4-11     only on the information published in the Texas Register by the
4-12     secretary of state under Section 51.607(d) and shall list each
4-13     state statute, state rule, and municipal ordinance that has been
4-14     declared unconstitutional by a state or federal court in the
4-15     previous two years.
4-16           SECTION 5.  This Act takes effect September 1, 1999, and
4-17     applies only to a civil or criminal case filed on or after the
4-18     effective date.
4-19           SECTION 6.  The importance of this legislation and the
4-20     crowded condition of the calendars in both houses create an
4-21     emergency and an imperative public necessity that the
4-22     constitutional rule requiring bills to be read on three several
4-23     days in each house be suspended, and this rule is hereby suspended.