By: Middleton H.B. No. 2401
A BILL TO BE ENTITLED
AN ACT
preserving religious liberty from nativist jurisprudence.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Protection of
Religious Liberty from Nativist Jurisprudence Act.
SECTION 2. Chapter 110, Civil Practice and Remedies Code,
is amended by adding Subchapter B to read as follows:
SUBCHAPTER B. PROTECTION OF RELIGIOUS LIBERTY
Sec. 110.020. DEFINITIONS. In this subchapter:
(1) "state officer or employee" includes any state or local
officer or employee of this State, including any member of the board
of trustees of any school district in this state, and any teacher,
principal, administrator, or other person employed by any school
district in this state;
(2) "court" includes any court of this State (other than an
administrative or agency tribunal) or any Article III court of the
United States;
(3) "Blaine amendments" refers to: (a) the provision
codified at article I, section 7 of the Texas Constitution, which
reads: "No money shall be appropriated, or drawn from the Treasury
for the benefit of any sect, or religious society, theological or
religious seminary; nor shall property belonging to the State be
appropriated for any such purposes"; and (b) the third sentence of
article VII, section 5(c) of the Texas Constitution, which reads:
"The permanent school fund and the available school fund may not be
appropriated to or used for the support of any sectarian school";
(4) "the Separation of Church and State doctrine" means (a)
any restriction, or denial of a benefit, that purports to be
justified on grounds of Separation of Church and State or any
element of the Supreme Court's decision in Lemon v. Kurtzman; or (b)
any restriction, or denial of a benefit, that purports to be
justified by the Blaine amendments.
Sec. 110.021. BLAINE AMENDMENTS. No state officer or
employee may enforce the Blaine Amendments unless and until the
Supreme Court of the United States overrules Espinoza v. Montana
Dept. Of Revenue, 140 S. Ct. 2246 (2020).
Sec. 110.022. SEPARATION OF CHURCH AND STATE. Except as
provided in section 110.024, no state officer or employee may
enforce the Separation of Church and State doctrine against any
person or entity in this state.
Sec. 110.023. INCORPORATION. Except as provided in section
110.024, no state officer or employee may enforce the Establishment
Clause of the First Amendment against any person or entity other
than the federal government, its officers, or its
instrumentalities.
Sec. 110.024. EXCEPTIONS. Notwithstanding the
requirements of sections 110.022 and 110.023, a state officer or
employee may enforce the Separation of Church and State doctrine or
the Establishment Clause as necessary to comply with:
(a) a judgment or decree entered by a court against that
specific officer or employee, his superiors, or the entity for whom
he works; or
(b) a directly-on-point ruling from the Supreme Court of the
United States or the U.S. Court of Appeals for the Fifth Circuit,
when there is no reasonable grounds for distinguishing that ruling
factually or legally.
Sec. 110.025. CHURCH SPEECH. No state or local officer may
enforce any restrictions on speech or expression, whether in the
form of direct duties or conditions, that single out churches or
other religious organizations; nor shall any state or local officer
chill the speech of any person, or other entity, in this state by
publishing any such restrictions as law or required by law.
Sec. 110.026. REMEDIES. (a) Any person or other entity
residing, praying, preaching, or doing business in this State may
bring a civil action in any court of this State against any state or
local officer who violates this subchapter, and upon finding that
the defendant has violated or is violating that person or entity's
rights under this statute, the Court shall award:
(1) Declaratory relief;
(2) Injunctive relief; and
(3) Costs and reasonable attorneys' fees.
(b) The plaintiff in any action brought under this section
shall have the right to a jury trial.
Sec. 110.027. AWARD OF ATTORNEYS' FEES IN ESTABLISHMENT
CLAUSE LAWSUITS. (a) Any person, entity, lawyer, or law firm that
sues to enforce the Blaine Amendments, the Separation of Church and
State Doctrine, or the Establishment Clause against any person or
entity in the State of Texas, in any state or federal court, or that
represents any litigant seeking such relief in any state or federal
court, shall be jointly and severally liable to pay the costs and
attorneys' fees of the prevailing party or parties, notwithstanding
any other provision of law.
(b) A litigant shall be deemed a "prevailing party" under
this section if a state or federal court dismisses any claim or
cause of action brought against it that seeks the relief described
in subsection (a), regardless of the reason for such dismissal, or
if a state or federal court enters judgment in its favor on any such
claim or cause of action.
(c) A prevailing party under this section may bring a civil
action to recover costs and attorneys' fees against a person,
entity, lawyer, or law firm that sought declaratory or injunctive
relief described in subsection (a) within three (3) years of the
date on which the dismissal or judgment described in subsection (b)
becomes final upon the conclusion of appellate review, or within
three (3) years of the date on which the time for seeking appellate
review expires, regardless of whether the prevailing party sought
to recover costs or attorneys' fees in the underlying action. It
shall not be a defense that the prevailing party failed to seek
recovery of costs or attorneys' fees in the underlying action, and
it shall not be a defense that the court in the underlying action
declined to recognize or enforce the requirements of this section.
(d) An award of costs and attorneys' fees under this section
shall include interest.
Sec. 110.027. SEVERABILITY. Every provision, section,
subsection, sentence, clause, phrase, or word of this subchapter,
and every application of the provisions in this subchapter to every
person, groups of persons, or circumstances, are severable from
each other. If any application of any provision in this subchapter
to any person, group of persons, or circumstances is found by a
court to be unconstitutional or invalid, on any ground for any
reason whatsoever, then the remaining applications of that
provision to all other persons and circumstances shall be severed
and may not be affected. All constitutional applications of this
subchapter shall be severed from any applications that a court
finds to be unconstitutional, leaving the constitutional
applications in force, because it is the Legislature's intent and
priority that the constitutional applications be allowed to stand
alone. The Legislature further declares that it would have passed
this subchapter, and each provision, section, subsection,
sentence, clause, phrase, or word, and all constitutional
applications of this subchapter, irrespective of the fact that any
provision, section, subsection, sentence, clause, phrase, or word,
or applications of this subchapter, were to be declared
unconstitutional by any court.
SECTION 3. This Act takes effect September 1, 2021.