Texas 2023 - 88th Regular

Texas House Bill HB5003 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	By: Cain H.B. No. 5003
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to preserving religious liberty from nativist
7	7	jurisprudence.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. This Act shall be known as the Protection of
10	10	Religious Liberty from Nativist Jurisprudence Act.
11	11	SECTION 2. Title 5, Civil Practice and Remedies Code, is
12	12	amended by adding Chapter 110A to read as follows:
13	13	CHAPTER 110A. PROTECTION OF RELIGIOUS LIBERTY
14	14	SUBCHAPTER A. GENERAL PROVISIONS
15	15	Sec. 110A.001. DEFINITIONS. In this chapter:
16	16	(1) "Blaine amendments" means:
17	17	(A) Section 7, Article I, Texas Constitution; and
18	18	(B) the third sentence of Section 5(c), Article
19	19	VII, Texas Constitution.
20	20	(2) "Governmental officer or employee" means an
21	21	officer or employee of this state or a political subdivision. The
22	22	term includes a member of the board of trustees of a school district
23	23	and a teacher, principal, administrator, or other individual
24	24	employed by a school district.
25	25	(3) "Separation of Church and State Doctrine" means:
26	26	(A) any restriction, or denial of a benefit, that
27	27	purports to be justified on the grounds of separation of church and
28	28	state or any element of the United States Supreme Court's decision
29	29	in Lemon v. Kurtzman, 403 U.S. 602 (1971); or
30	30	(B) any restriction, or denial of a benefit, that
31	31	purports to be justified by the Blaine amendments.
32	32	SUBCHAPTER B. PROTECTION OF RELIGIOUS LIBERTY
33	33	Sec. 110A.051. ENFORCEMENT OF BLAINE AMENDMENTS. A
34	34	governmental officer or employee may not enforce the Blaine
35	35	amendments unless the United States Supreme Court overrules Carson
36	36	v. Makin, 142 S. Ct. 1987 (2022), and Espinoza v. Montana Department , 142 S. Ct. 1987 (2022), and Espinoza v. Montana Department
37	37	of Revenue, 140 S. Ct. 2246 (2020)., 140 S. Ct. 2246 (2020).
38	38	Sec. 110A.052. ENFORCEMENT OF SEPARATION OF CHURCH AND
39	39	STATE DOCTRINE. Except as provided in section 110A.054, a
40	40	governmental officer or employee may not enforce the Separation of
41	41	Church and State Doctrine against any person in this state.
42	42	Sec. 110A.053. ENFORCEMENT OF ESTABLISHMENT CLAUSE. Except
43	43	as provided in section 110A.054, a governmental officer or employee
44	44	may not enforce the Establishment Clause of the First Amendment of
45	45	the United States Constitution against any person other than the
46	46	federal government, its officers, or its instrumentalities.
47	47	Sec. 110A.054. EXCEPTIONS. Notwithstanding Sections
48	48	110A.052 and 110A.053, a governmental officer or employee may
49	49	enforce the Separation of Church and State Doctrine or the
50	50	Establishment Clause if necessary to comply with:
51	51	(1) a judgment or decree entered by a court against
52	52	that specific officer or employee, the officer's or employee's
53	53	superiors, or the entity that employs the officer or employee; or
54	54	(2) a directly-on-point ruling from the United States
55	55	Supreme Court of the United States or the United States Court of
56	56	Appeals for the Fifth Circuit if there are no reasonable grounds for
57	57	distinguishing that ruling factually or legally from the basis for
58	58	the officer's or employee's enforcement action.
59	59	Sec. 110A.055. RELIGIOUS ORGANIZATION SPEECH PROTECTED. A
60	60	governmental officer or employee may not:
61	61	(1) adopt or enforce any restrictions on speech or
62	62	expression, whether in the form of direct duties or conditions,
63	63	that singles out churches or other religious organizations; or
64	64	(2) chill the speech of any person by publishing a
65	65	statement that a restriction described by Subdivision (1) is the
66	66	law or is required by law.
67	67	Sec. 110A.056. REMEDIES. (a) Any person injured or
68	68	adversely affected by a violation of this chapter has standing to
69	69	bring and may bring a civil action in any court of this state
70	70	against any governmental officer or employee who violates this
71	71	chapter.
72	72	(b) On a finding that the defendant has violated or is
73	73	violating the claimant's rights under this chapter, the court in an
74	74	action brought under this section shall award:
75	75	(1) declaratory relief;
76	76	(2) injunctive relief; and
77	77	(3) costs and reasonable attorney's fees.
78	78	(c) The claimant in an action brought under this section is
79	79	entitled to a jury trial.
80	80	Sec. 110A.057. ATTORNEY'S FEES FOR ESTABLISHMENT CLAUSE
81	81	ENFORCEMENT ACTIONS. (a) Notwithstanding any other law, any
82	82	person, including an entity, attorney, or law firm, that brings an
83	83	action to enforce the Blaine amendments, the Separation of Church
84	84	and State Doctrine, or the Establishment Clause of the First
85	85	Amendment to the United States Constitution against any person in
86	86	this state in any state or federal court, or that represents a
87	87	litigant seeking such relief in any state or federal court, is
88	88	jointly and severally liable for the costs and reasonable
89	89	attorney's fees of the party against whom such relief is sought if
90	90	that party prevails, including the costs and reasonable attorney's
91	91	fees that the prevailing party incurs in its efforts to recover
92	92	costs and fees.
93	93	(b) A party is considered to prevail under Subsection (a)
94	94	if:
95	95	(1) a state or federal court dismisses any claim or
96	96	cause of action described by Subsection (a) against the party,
97	97	regardless of the reason for the dismissal; or
98	98	(2) a state or federal court enters judgment in the
99	99	party's favor on a claim or cause of action described by Subsection
100	100	(a).
101	101	(c) A prevailing party may recover costs and attorney's fees
102	102	under this section only to the extent that those costs and
103	103	attorney's fees were incurred while defending claims or causes of
104	104	action on which the party prevailed.
105	105	(d) A prevailing party under this section may bring a civil
106	106	action to recover costs and attorney's fees under this section not
107	107	later than the third anniversary of the later of:
108	108	(1) the date on which the dismissal or judgment
109	109	described by Subsection (b) becomes final; or
110	110	(2) the date on which the time for seeking appellate
111	111	review of the dismissal or judgment described by Subsection (b)
112	112	expires.
113	113	(e) A prevailing party under this section may bring an
114	114	action under Subsection (d) regardless of whether the party sought
115	115	to recover costs or attorney's fees in the underlying action. It is
116	116	not a defense that:
117	117	(1) the prevailing party failed to seek costs or
118	118	attorney's fees in the underlying action; or
119	119	(2) the court in the underlying action declined to
120	120	recognize or enforce the requirements of this section; or
121	121	(3) the court in the underlying action held that any
122	122	provisions of this section are invalid, unconstitutional, or
123	123	preempted by federal law, notwithstanding the doctrines of issue or
124	124	claim preclusion.
125	125	(f) Notwithstanding any other law, including Chapter 15,
126	126	Civil Practice and Remedies Code, a civil action brought under
127	127	Subsection (d) may be brought in:
128	128	(1) the county in which all or a substantial part of
129	129	the events or omissions giving rise to the claim occurred;
130	130	(2) the county of residence for any one of the natural
131	131	person defendants at the time the cause of action accrued;
132	132	(3) the county of the principal office in this state of
133	133	any one of the defendants that is not a natural person; or
134	134	(4) the county of residence for the claimant if the
135	135	claimant is a natural person residing in this state.
136	136	(g) If a civil action is brought under Subsection (d) in any
137	137	one of the venues described by Subsection (f), then the action may
138	138	not be transferred to a different venue without the written consent
139	139	of all parties.
140	140	(h) Any contractual choice-of-forum provision that purports
141	141	to require a civil action under Subsection (d) to be litigated in
142	142	another forum shall be void as against public policy, and may not be
143	143	enforced in any state or federal court.
144	144	(i) A prevailing party under this section may recover
145	145	interest on costs and attorney's fees in an action brought under
146	146	Subsection (d).
147	147	Sec. 110A.058. IMMUNITY DEFENSES WAIVED. A governmental
148	148	officer or employee may not assert sovereign immunity, governmental
149	149	immunity, official immunity, qualified immunity, or any other form
150	150	of immunity as a defense in an action brought under this chapter.
151	151	Sec. 110A.059. IMMUNITIES PRESERVED. (a) Notwithstanding
152	152	any other law, the state and each of its officers and employees
153	153	shall have sovereign immunity, its political subdivisions and each
154	154	of their officers and employees shall have governmental immunity,
155	155	and each officer and employee of this state or a political
156	156	subdivision shall have official immunity (as well as sovereign or
157	157	governmental immunity, as appropriate) in any action, claim,
158	158	counterclaim, or any type of legal or equitable action that
159	159	challenges the validity of any provision or application of this
160	160	chapter, on constitutional grounds or otherwise, or that seeks to
161	161	prevent or enjoin the state, its political subdivisions, or any
162	162	officer, employee, or agent of this state or a political
163	163	subdivision from enforcing any provision or application of this
164	164	chapter, or from hearing, adjudicating, or docketing a civil action
165	165	brought under Section 110A.056 or Section 110A.057 unless that
166	166	immunity has been abrogated or preempted by federal law in a manner
167	167	consistent with the Constitution of the United States. The
168	168	sovereign immunity conferred by this section upon the state and
169	169	each of its officers and employees includes the constitutional
170	170	sovereign immunity recognized by the Supreme Court of the United
171	171	States in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996),
172	172	and Alden v. Maine, 527 U.S. 706 (1999), which applies in both state
173	173	and federal court and which may not be abrogated by Congress or by
174	174	any state or federal court except pursuant to legislation
175	175	authorized by section 5 of the Fourteenth Amendment, by the
176	176	Bankruptcy Clause of Article I, or by Congress's powers to raise and
177	177	support Armies and to provide and maintain a Navy.
178	178	(b) Notwithstanding any other law, the immunities conferred
179	179	by Subsection (a) shall apply in every court, both state and
180	180	federal, and in every adjudicative proceeding of any type
181	181	whatsoever.
182	182	(c) Notwithstanding any other law, no provision of state law
183	183	may be construed to waive or abrogate an immunity described in
184	184	Subsection (a) unless it expressly waives or abrogates immunity
185	185	with specific reference to this section.
186	186	(d) Notwithstanding any other law, no attorney representing
187	187	the state, its political subdivisions, or any officer, employee, or
188	188	agent of this state or a political subdivision is authorized or
189	189	permitted to waive an immunity described in Subsection (a) or take
190	190	any action that would result in a waiver of that immunity, and any
191	191	such action or purported waiver shall be regarded as a legal nullity
192	192	and an ultra vires act.
193	193	(e) Notwithstanding any other law, including Chapter 37,
194	194	Civil Practice and Remedies Code, and sections 22.002, 22.221, and
195	195	24.007 through 24.011, Government Code, no court of this state may
196	196	award declaratory or injunctive relief, or any type of writ, that
197	197	would pronounce any provision or application of this subchapter
198	198	invalid or unconstitutional, or that would restrain the state, its
199	199	political subdivisions, any officer, employee, or agent of this
200	200	state or a political subdivision, or any person from enforcing any
201	201	provision or application of this chapter, or from hearing,
202	202	adjudicating, docketing, or filing a civil action brought under
203	203	Section 110A.056 or Section 110A.057, and no court of this state
204	204	shall have jurisdiction to consider any action, claim, or
205	205	counterclaim that seeks such relief.
206	206	(f) Nothing in this section or chapter shall be construed to
207	207	prevent a litigant from asserting the invalidity or
208	208	unconstitutionality of any provision or application of this chapter
209	209	as a defense to any action, claim, or counterclaim brought against
210	210	that litigant.
211	211	(g) Notwithstanding any other provision of law to the
212	212	contrary, any judicial relief issued by a court of this state that
213	213	disregards the immunities conferred by Subsection (a), or the
214	214	limitations on jurisdiction and relief imposed by Subsection (e),
215	215	shall be regarded as a legal nullity because it was issued by a
216	216	court without jurisdiction, and may not be enforced or obeyed by any
217	217	officer, employee, or agent of this state or a political
218	218	subdivision, judicial or otherwise.
219	219	(h) Notwithstanding any other provision of law to the
220	220	contrary, any writ, injunction, or declaratory judgment issued by a
221	221	court of this state that purports to restrain the state, its
222	222	political subdivisions, any officer, employee, or agent of this
223	223	state or a political subdivision, or any person from hearing,
224	224	adjudicating, docketing, or filing a civil action brought under
225	225	Section 110A.056 or Section 110A.057 shall be regarded as a legal
226	226	nullity and a violation of the Due Process Clause of the Fourteenth
227	227	Amendment, and may not be enforced or obeyed by any officer,
228	228	employee, or agent of this state or a political subdivision,
229	229	judicial or otherwise.
230	230	(i) Notwithstanding any other provision of law to the
231	231	contrary, any officer, employee, or agent of this state or a
232	232	political subdivision, judicial or otherwise, who issues,
233	233	enforces, or obeys a writ, injunction, or declaratory judgment
234	234	described in Subsection (h) shall be subject to suit by any person
235	235	who is prevented from or delayed in bringing a civil action under
236	236	Section 110A.056 or Section 110A.057, and a claimant who prevails
237	237	in an action brought under this section shall recover:
238	238	(1) injunctive relief;
239	239	(2) compensatory damages;
240	240	(3) punitive damages of not less than $100,000; and
241	241	(4) costs and reasonable attorney's fees.
242	242	(j) Notwithstanding any other provision of law to the
243	243	contrary, any person who violates Subsections (e) or (h):
244	244	(1) may not assert and shall not be entitled to any
245	245	type of immunity defense, including sovereign immunity,
246	246	governmental immunity, official immunity, or judicial immunity;
247	247	(2) may not and shall not be indemnified for any award
248	248	of damages or costs and attorneys' fees entered against them, or for
249	249	the costs of their legal defense; and
250	250	(3) may not and shall not receive or obtain legal
251	251	representation from the attorney general of this state in any
252	252	action brought under Subsection (i).
253	253	(k) Notwithstanding any other provision of law to the
254	254	contrary, any person who sues and seeks any writ, injunction, or
255	255	declaratory judgment that would restrain any person from hearing,
256	256	adjudicating, docketing, or filing a civil action brought under
257	257	Section 110A.056 or Section 110A.057, shall pay the costs and
258	258	attorneys' fees of the person sued. A person may bring a civil
259	259	action to recover these costs and attorneys' fees in state or
260	260	federal court. It shall not be defense to a civil action brought
261	261	under this Subsection that:
262	262	(1) the plaintiff failed to seek recovery of costs or
263	263	attorney's fees in the underlying action;
264	264	(2) the court in the underlying action declined to
265	265	recognize or enforce the requirements of this Section; or
266	266	(3) the court in the underlying action held that any
267	267	provisions of this Section are invalid, unconstitutional, or
268	268	preempted by federal law, notwithstanding the doctrines of issue or
269	269	claim preclusion.
270	270	Sec. 110A.60. SEVERABILITY. (a) Mindful of Leavitt v. Jane
271	271	L., 518 U.S. 137 (1996), in which in the context of determining the , 518 U.S. 137 (1996), in which in the context of determining the
272	272	severability of a state statute regulating abortion the Supreme
273	273	Court of the United States held that an explicit statement of
274	274	legislative intent is controlling, it is the intent of the
275	275	legislature that every provision, section, subsection, sentence,
276	276	clause, phrase, or word in this chapter, and every application of
277	277	the provisions in this chapter to every person, group of persons, or
278	278	circumstances, are severable from each other.
279	279	(b) If any application of any provision in this chapter to
280	280	any person, group of persons, or circumstances is found by a court
281	281	to be invalid, preempted, or unconstitutional, for any reason
282	282	whatsoever, then the remaining applications of that provision to
283	283	all other persons and circumstances shall be severed and preserved,
284	284	and shall remain in effect. All constitutionally valid applications
285	285	of the provisions in this chapter shall be severed from any
286	286	applications that a court finds to be invalid, preempted, or
287	287	unconstitutional, because it is the legislature's intent and
288	288	priority that every single valid application of every statutory
289	289	provision be allowed to stand alone.
290	290	(c) The legislature further declares that it would have
291	291	enacted this chapter, and each provision, section, subsection,
292	292	sentence, clause, phrase, or word, and all constitutional
293	293	applications of the provisions of this chapter, irrespective of the
294	294	fact that any provision, section, subsection, sentence, clause,
295	295	phrase, or word, or applications of this chapter were to be declared
296	296	invalid, preempted, or unconstitutional.
297	297	(d) If any provision of this chapter is found by any court to
298	298	be unconstitutionally vague, then the applications of that
299	299	provision that do not present constitutional vagueness problems
300	300	shall be severed and remain in force, consistent with the
301	301	severability requirements of Subsections (a), (b), and (c).
302	302	(e) No court may decline to enforce the severability
303	303	requirements of Subsections (a), (b), (c), and (d) on the ground
304	304	that severance would "rewrite" the statute or involve the court in
305	305	legislative or lawmaking activity. A court that declines to
306	306	enforce or enjoins a state official from enforcing a statutory
307	307	provision is never rewriting a statute or engaging in legislative
308	308	or lawmaking activity, as the statute continues to contain the same
309	309	words as before the court's decision. A judicial injunction or
310	310	declaration of unconstitutionality:
311	311	(1) is nothing more than an edict prohibiting
312	312	enforcement of the disputed statute against the named parties to
313	313	that lawsuit, which may subsequently be vacated by a later court if
314	314	that court has a different understanding of the requirements of the
315	315	Texas Constitution or United States Constitution;
316	316	(2) is not a formal amendment of the language in a
317	317	statute; and
318	318	(3) no more rewrites a statute than a decision by the
319	319	executive not to enforce a duly enacted statute in a limited and
320	320	defined set of circumstances.
321	321	(f) If any state or federal court disregards any of the
322	322	severability requirements in Subsections (a), (b), (c), (d), or
323	323	(e), and declares or finds any provision of this chapter facially
324	324	invalid, preempted, or unconstitutional, when there are discrete
325	325	applications of that provision that can be enforced against a
326	326	person, group of persons, or circumstances without violating
327	327	federal law or the federal or state constitutions, then that
328	328	provision shall be interpreted, as a matter of state law, as if the
329	329	legislature had enacted a provision limited to the persons, group
330	330	of persons, or circumstances for which the provision's application
331	331	will not violate federal law or the federal or state constitutions,
332	332	and every court shall adopt this saving construction of that
333	333	provision until the court ruling that pronounced the provision
334	334	facially invalid, preempted, or unconstitutional is vacated or
335	335	overruled.
336	336	SECTION 3. If any provision of this Act or its application
337	337	to any person or circumstance is held invalid, the invalidity does
338	338	not affect other provisions or applications of this Act that can be
339	339	given effect without the invalid provision or application, and to
340	340	this end the provisions of this Act are declared to be severable.
341	341	SECTION 4. Chapter 110A, Civil Practice and Remedies Code,
342	342	as added by this Act, applies only to a cause of action that accrues
343	343	on or after the effective date of this Act.
344	344	SECTION 5. This Act takes effect September 1, 2023.