By: Cain H.B. No. 4949
A BILL TO BE ENTITLED
AN ACT
relating to a period of prayer and Bible reading in public schools.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter C, Chapter 25, Education Code, is
amended by adding Section 25.0823 to read as follows:
Sec. 25.0823. PERIOD OF PRAYER AND BIBLE READING. (a) The
board of trustees of a school district or the governing body of an
open-enrollment charter school that is not operated by or
affiliated with a religious organization may by record vote adopt a
policy requiring every campus of the district or school to provide
students and employees with an opportunity to participate in a
period of prayer and Bible reading on each school day in accordance
with this section.
(b) A policy adopted under Subsection (a) must prohibit:
(1) a student or employee of the school district or
open-enrollment charter school from being permitted to participate
in the period of prayer and Bible reading unless the employee or
parent or guardian of the student submits to the district a signed
consent form that includes:
(A) an acknowledgment that the student or
employee has a choice as to whether to participate in the period of
prayer and Bible reading;
(B) a statement that the person has no objection
to the student's or employee's participation in or hearing of the
prayers or Bible readings offered during the period; and
(C) an express waiver of the person's right to
bring a claim under state or federal law arising out of the adoption
of a policy under this section, including claims under the United
States Supreme Court's interpretations of the Establishment
Clause, which forever releases the school district and all school
officials from any such claims that the signatory might assert in
state or federal court; and
(2) the provision of a prayer or Bible reading over a
public address system.
(c) An employee or parent or guardian of a student may
revoke the person's consent provided under Subsection (b)(1) by
informing the appropriate school administrator, as determined by
the school district or open-enrollment charter school, and no
student or employee whose consent has been withdrawn may continue
participating in the period of prayer and readings from the Bible
unless and until a new consent form is executed and submitted in
accordance with Subsection (b)(1). A person who withdraws consent
under this section remains bound by the waiver of claims described
in Subsection (b)(1)(C).
(d) A policy providing for a period of prayer and Bible
reading adopted under Subsection (a) must include provisions
ensuring a prayer or Bible reading is not provided in the physical
presence or within the hearing of a person for whom a signed consent
form has not been submitted under Subsection (b)(1) or has been
revoked under Subsection (c), or in any manner that would inflict
"injury in fact" on such a person under Article III of the
Constitution. In order to comply with this subsection, a policy may
require that the period of prayer and Bible reading be provided:
(1) before normal school hours;
(2) only in classrooms or other areas in which a
consent form under Subsection (b)(1) has been submitted for every
employee and student, which may include an entire district or
school campus if a consent form has been submitted for each employee
and student at the campus; or
(3) by any other method recommended by the attorney
general or legal counsel for the district or school.
(e) The attorney general, on request from the board of
trustees of a school district or the governing body of an
open-enrollment charter school, shall:
(1) provide advice on best methods for a district or
school to comply with the requirements of this section;
(2) provide a model consent form that may be used for
purposes of providing consent under Subsection (b)(1); and
(3) defend the district or school in a cause of action
arising out of the adoption of a policy providing for a period of
prayer and Bible reading under Subsection (a).
(f) If the attorney general defends a district or school
under Subsection (e)(3), the state is liable for the expenses,
costs, judgments, or settlements of the claims arising out of the
representation. The attorney general may settle or compromise any
and all claims under this subsection. The state may not be liable
for any expenses, costs, judgments, or settlements of any claims
arising out of the adoption of a policy providing for a period of
prayer and Bible reading under Subsection (a) against a district or
school not being represented by the attorney general.
(g) Notwithstanding any other law, any person, including an
entity, attorney, or law firm, who seeks declaratory or injunctive
relief to prevent a school district or open-enrollment charter
school from adopting or implementing a policy providing for a
period of prayer and Bible reading under Subsection (a) in any state
or federal court, or that represents any litigant seeking such
relief in any state or federal court, is jointly and severally
liable to pay the costs and reasonable attorney's fees, including
interest, of the prevailing party, including the costs and
reasonable attorney's fees that the prevailing party incurs in its
efforts to recover costs and fees.
(h) For purposes of this section, a party is considered a
prevailing party if a state or federal court:
(1) dismisses any claim or cause of action brought
against the party that seeks the declaratory or injunctive relief
described by Subsection (g), regardless of the reason for the
dismissal; or
(2) enters judgment in the party's favor on any such
claim or cause of action.
(i) A prevailing party may recover costs and attorney's fees
under Subsection (h) only to the extent that those costs and
attorney's fees were incurred while defending claims or causes of
action on which the party prevailed.
(j) Regardless of whether a prevailing party sought to
recover costs or attorney's fees in the underlying action, a
prevailing party under this section may bring a civil action to
recover costs and attorney's fees against a person, including an
entity, attorney, or law firm, that sought declaratory or
injunctive relief described by Subsection (g) not later than the
third anniversary of the date on which, as applicable:
(1) the dismissal or judgment described by Subsection
(h) becomes final on the conclusion of appellate review; or
(2) the time for seeking appellate review expires.
(k) It is not a defense to an action brought under
Subsection (j) that:
(1) a prevailing party under this section failed to
seek recovery of costs or attorney's fees in the underlying action;
(2) the court in the underlying action declined to
recognize or enforce the requirements of this section; or
(3) the court in the underlying action held that any
provisions of this section are invalid, unconstitutional, or
preempted by federal law, notwithstanding the doctrines of issue or
claim preclusion.
(l) Notwithstanding any other law, the state has sovereign
immunity, its officers and employees have sovereign and official
immunity, a school district or open-enrollment charter school has
governmental immunity, and each member of the governing body of a
school district or open-enrollment charter school and employee of a
school district or open-enrollment charter school has governmental
and official immunity in any action, claim, or counterclaim or any
type of legal or equitable action that challenges the validity of
any provision or application of this section, on constitutional
grounds or otherwise, unless that immunity has been abrogated or
preempted by federal law in a manner consistent with the
Constitution of the United States. The sovereign immunity
conferred by this section upon the state and each of its officers
and employees includes the constitutional sovereign immunity
recognized by the Supreme Court of the United States in Seminole
Tribe of Florida v. Florida, 517 U.S. 44 (1996), and Alden v. Maine, , 517 U.S. 44 (1996), and Alden v. Maine,
527 U.S. 706 (1999), which applies in both state and federal court
and which may not be abrogated by Congress or by any state or
federal court except pursuant to legislation authorized by section
5 of the Fourteenth Amendment, by the Bankruptcy Clause of Article
I, or by Congress's powers to raise and support Armies and to
provide and maintain a Navy.
(m) Notwithstanding any other law, the immunities conferred
by Subsection (l) shall apply in every court, both state and
federal, and in every adjudicative proceeding of any type
whatsoever.
(n) Notwithstanding any other law, a provision of state law
may not be construed to waive or abrogate an immunity described by
Subsection (l) unless it expressly waives or abrogates immunity
with specific reference to this section.
(o) Notwithstanding any other law, no attorney representing
the state, its political subdivisions, or any officer, employee, or
agent of this state or a political subdivision is authorized or
permitted to waive an immunity described in Subsection (l) or take
any action that would result in a waiver of that immunity, and any
such action or purported waiver shall be regarded as a legal nullity
and an ultra vires act.
(p) Notwithstanding any other law, including Chapter 37,
Civil Practice and Remedies Code, and sections 22.002, 22.221, and
24.007 through 24.011, Government Code, no court of this state may
award declaratory or injunctive relief, or any type of writ, that
would declare or pronounce any provision or application of this
section invalid or unconstitutional, or that would restrain the
state, its political subdivisions, including a school district or
open-enrollment charter school, any officer, employee, or agent of
this state or a political subdivision, including each member of the
governing body of a school district or open-enrollment charter
school and employee of a school district or open-enrollment charter
school, or any person from enforcing any provision or application
of this section, and no court of this state shall have jurisdiction
to consider any action, claim, or counterclaim that seeks such
relief.
(q) Nothing in this section shall be construed to prevent a
litigant from asserting the invalidity or unconstitutionality of
any provision or application of this section as a defense to any
action, claim, or counterclaim brought against that litigant.
(r) Notwithstanding any other law, any judicial relief
issued by a court of this state that disregards the immunities
conferred by Subsection (l), or the jurisdictional and remedial
limitations imposed by Subsection (p), shall be regarded as a legal
nullity because it was issued by a court without jurisdiction, and
may not be enforced or obeyed by any officer, employee, or agent of
this state or a political subdivision, judicial or otherwise.
SECTION 2. Section 25.901, Education Code, is amended to
read as follows:
Sec. 25.901. EXERCISE OF CONSTITUTIONAL RIGHT TO PRAY. A
public school student has an absolute right to individually,
voluntarily, and silently pray or meditate in school in a manner
that does not disrupt the instructional or other activities of the
school. A person may not require[, encourage,] or coerce a student
to engage in or refrain from such prayer or meditation during any
school activity.
SECTION 3. Each board of trustees of a school district and
each governing body of an open-enrollment charter school shall take
a record vote not later than six months after the effective date of
this Act on whether to adopt a policy requiring every campus of the
district or school to provide a period of prayer and Bible reading
under Section 25.0823, Education Code, as added by this Act.
SECTION 4. This Act applies beginning with the 2023-2024
school year.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2023.