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.