By: Middleton S.B. No. 1879
A BILL TO BE ENTITLED
AN ACT
relating to 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. Title 5, Civil Practice and Remedies Code, is
amended by adding Chapter 110A to read as follows:
CHAPTER 110A. PROTECTION OF RELIGIOUS LIBERTY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 110A.001. DEFINITIONS. In this chapter:
(1) "Blaine amendments" means:
(A) Section 7, Article I, Texas Constitution; and
(B) the third sentence of Section 5(c), Article
VII, Texas Constitution.
(2) "Governmental officer or employee" means an
officer or employee of this state or a political subdivision. The
term includes a member of the board of trustees of a school district
and a teacher, principal, administrator, or other individual
employed by a school district.
(3) "Separation of Church and State Doctrine" means:
(A) any restriction, or denial of a benefit, that
purports to be justified on the grounds of separation of church and
state or any element of the United States Supreme Court's decision
in Lemon v. Kurtzman, 403 U.S. 602 (1971); or
(B) any restriction, or denial of a benefit, that
purports to be justified by the Blaine amendments.
SUBCHAPTER B. PROTECTION OF RELIGIOUS LIBERTY
Sec. 110A.051. ENFORCEMENT OF BLAINE AMENDMENTS. A
governmental officer or employee may not enforce the Blaine
amendments unless the United States Supreme Court overrules Carson
v. Makin, 142 S. Ct. 1987 (2022), and Espinoza v. Montana Department , 142 S. Ct. 1987 (2022), and Espinoza v. Montana Department
of Revenue, 140 S. Ct. 2246 (2020)., 140 S. Ct. 2246 (2020).
Sec. 110A.052. ENFORCEMENT OF SEPARATION OF CHURCH AND
STATE DOCTRINE. Except as provided in section 110A.054, a
governmental officer or employee may not enforce the Separation of
Church and State Doctrine against any person in this state.
Sec. 110A.053. ENFORCEMENT OF ESTABLISHMENT CLAUSE. Except
as provided in section 110A.054, a governmental officer or employee
may not enforce the Establishment Clause of the First Amendment of
the United States Constitution against any person other than the
federal government, its officers, or its instrumentalities.
Sec. 110A.054. EXCEPTIONS. Notwithstanding Sections
110A.052 and 110A.053, a governmental officer or employee may
enforce the Separation of Church and State Doctrine or the
Establishment Clause if necessary to comply with:
(1) a judgment or decree entered by a court against
that specific officer or employee, the officer's or employee's
superiors, or the entity that employs the officer or employee; or
(2) a directly-on-point ruling from the United States
Supreme Court of the United States or the United States Court of
Appeals for the Fifth Circuit if there are no reasonable grounds for
distinguishing that ruling factually or legally from the basis for
the officer's or employee's enforcement action.
Sec. 110A.055. RELIGIOUS ORGANIZATION SPEECH PROTECTED. A
governmental officer or employee may not:
(1) adopt or enforce any restrictions on speech or
expression, whether in the form of direct duties or conditions,
that singles out churches or other religious organizations; or
(2) chill the speech of any person by publishing a
statement that a restriction described by Subdivision (1) is the
law or is required by law.
Sec. 110A.056. REMEDIES. (a) Any person injured or
adversely affected by a violation of this chapter has standing to
bring and may bring a civil action in any court of this state
against any governmental officer or employee who violates this
chapter.
(b) On a finding that the defendant has violated or is
violating the claimant's rights under this chapter, the court in an
action brought under this section shall award:
(1) declaratory relief;
(2) injunctive relief; and
(3) costs and reasonable attorney's fees.
(c) The claimant in an action brought under this section is
entitled to a jury trial.
Sec. 110A.057. ATTORNEY'S FEES FOR ESTABLISHMENT CLAUSE
ENFORCEMENT ACTIONS. (a) Notwithstanding any other law, any
person, including an entity, attorney, or law firm, that brings an
action to enforce the Blaine amendments, the Separation of Church
and State Doctrine, or the Establishment Clause of the First
Amendment to the United States Constitution against any person in
this state in any state or federal court, or that represents a
litigant seeking such relief in any state or federal court, is
jointly and severally liable for the costs and reasonable
attorney's fees of the party against whom such relief is sought if
that party prevails, including the costs and reasonable attorney's
fees that the prevailing party incurs in its efforts to recover
costs and fees.
(b) A party is considered to prevail under Subsection (a)
if:
(1) a state or federal court dismisses any claim or
cause of action described by Subsection (a) against the party,
regardless of the reason for the dismissal; or
(2) a state or federal court enters judgment in the
party's favor on a claim or cause of action described by Subsection
(a).
(c) A prevailing party may recover costs and attorney's fees
under this section 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.
(d) A prevailing party under this section may bring a civil
action to recover costs and attorney's fees under this section not
later than the third anniversary of the later of:
(1) the date on which the dismissal or judgment
described by Subsection (b) becomes final; or
(2) the date on which the time for seeking appellate
review of the dismissal or judgment described by Subsection (b)
expires.
(e) A prevailing party under this section may bring an
action under Subsection (d) regardless of whether the party sought
to recover costs or attorney's fees in the underlying action. It is
not a defense that:
(1) the prevailing party failed to seek costs or
attorney's fees in the underlying action; or
(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.
(f) Notwithstanding any other law, including Chapter 15,
Civil Practice and Remedies Code, a civil action brought under
Subsection (d) may be brought in:
(1) the county in which all or a substantial part of
the events or omissions giving rise to the claim occurred;
(2) the county of residence for any one of the natural
person defendants at the time the cause of action accrued;
(3) the county of the principal office in this state of
any one of the defendants that is not a natural person; or
(4) the county of residence for the claimant if the
claimant is a natural person residing in this state.
(g) If a civil action is brought under Subsection (d) in any
one of the venues described by Subsection (f), then the action may
not be transferred to a different venue without the written consent
of all parties.
(h) Any contractual choice-of-forum provision that purports
to require a civil action under Subsection (d) to be litigated in
another forum shall be void as against public policy, and may not be
enforced in any state or federal court.
(i) A prevailing party under this section may recover
interest on costs and attorney's fees in an action brought under
Subsection (d).
Sec. 110A.058. IMMUNITY DEFENSES WAIVED. A governmental
officer or employee may not assert sovereign immunity, governmental
immunity, official immunity, qualified immunity, or any other form
of immunity as a defense in an action brought under this chapter.
Sec. 110A.059. IMMUNITIES PRESERVED. (a) Notwithstanding
any other law, the state and each of its officers and employees
shall have sovereign immunity, its political subdivisions and each
of their officers and employees shall have governmental immunity,
and each officer and employee of this state or a political
subdivision shall have official immunity (as well as sovereign or
governmental immunity, as appropriate) in any action, claim,
counterclaim, or any type of legal or equitable action that
challenges the validity of any provision or application of this
chapter, on constitutional grounds or otherwise, or that seeks to
prevent or enjoin the state, its political subdivisions, or any
officer, employee, or agent of this state or a political
subdivision from enforcing any provision or application of this
chapter, or from hearing, adjudicating, or docketing a civil action
brought under Section 110A.056 or Section 110A.057 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, 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.
(b) Notwithstanding any other law, the immunities conferred
by Subsection (a) shall apply in every court, both state and
federal, and in every adjudicative proceeding of any type
whatsoever.
(c) Notwithstanding any other law, no provision of state law
may be construed to waive or abrogate an immunity described in
Subsection (a) unless it expressly waives or abrogates immunity
with specific reference to this section.
(d) 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 (a) 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.
(e) 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 pronounce any provision or application of this subchapter
invalid or unconstitutional, or that would restrain the state, its
political subdivisions, any officer, employee, or agent of this
state or a political subdivision, or any person from enforcing any
provision or application of this chapter, or from hearing,
adjudicating, docketing, or filing a civil action brought under
Section 110A.056 or Section 110A.057, and no court of this state
shall have jurisdiction to consider any action, claim, or
counterclaim that seeks such relief.
(f) Nothing in this section or chapter shall be construed to
prevent a litigant from asserting the invalidity or
unconstitutionality of any provision or application of this chapter
as a defense to any action, claim, or counterclaim brought against
that litigant.
(g) Notwithstanding any other provision of law to the
contrary, any judicial relief issued by a court of this state that
disregards the immunities conferred by Subsection (a), or the
limitations on jurisdiction and relief imposed by Subsection (e),
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.
(h) Notwithstanding any other provision of law to the
contrary, any writ, injunction, or declaratory judgment issued by a
court of this state that purports to restrain the state, its
political subdivisions, any officer, employee, or agent of this
state or a political subdivision, or any person from hearing,
adjudicating, docketing, or filing a civil action brought under
Section 110A.056 or Section 110A.057 shall be regarded as a legal
nullity and a violation of the Due Process Clause of the Fourteenth
Amendment, and may not be enforced or obeyed by any officer,
employee, or agent of this state or a political subdivision,
judicial or otherwise.
(i) Notwithstanding any other provision of law to the
contrary, any officer, employee, or agent of this state or a
political subdivision, judicial or otherwise, who issues,
enforces, or obeys a writ, injunction, or declaratory judgment
described in Subsection (h) shall be subject to suit by any person
who is prevented from or delayed in bringing a civil action under
Section 110A.056 or Section 110A.057, and a claimant who prevails
in an action brought under this section shall recover:
(1) injunctive relief;
(2) compensatory damages;
(3) punitive damages of not less than $100,000; and
(4) costs and reasonable attorney's fees.
(j) Notwithstanding any other provision of law to the
contrary, any person who violates Subsections (e) or (h):
(1) may not assert and shall not be entitled to any
type of immunity defense, including sovereign immunity,
governmental immunity, official immunity, or judicial immunity;
(2) may not and shall not be indemnified for any award
of damages or costs and attorneys' fees entered against them, or for
the costs of their legal defense; and
(3) may not and shall not receive or obtain legal
representation from the attorney general of this state in any
action brought under Subsection (i).
(k) Notwithstanding any other provision of law to the
contrary, any person who sues and seeks any writ, injunction, or
declaratory judgment that would restrain any person from hearing,
adjudicating, docketing, or filing a civil action brought under
Section 110A.056 or Section 110A.057, shall pay the costs and
attorneys' fees of the person sued. A person may bring a civil
action to recover these costs and attorneys' fees in state or
federal court. It shall not be defense to a civil action brought
under this Subsection that:
(1) the plaintiff 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.
Sec. 110A.60. SEVERABILITY. (a) Mindful of Leavitt v. Jane
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
severability of a state statute regulating abortion the Supreme
Court of the United States held that an explicit statement of
legislative intent is controlling, it is the intent of the
legislature that every provision, section, subsection, sentence,
clause, phrase, or word in this chapter, and every application of
the provisions in this chapter to every person, group of persons, or
circumstances, are severable from each other.
(b) If any application of any provision in this chapter to
any person, group of persons, or circumstances is found by a court
to be invalid, preempted, or unconstitutional, for any reason
whatsoever, then the remaining applications of that provision to
all other persons and circumstances shall be severed and preserved,
and shall remain in effect. All constitutionally valid applications
of the provisions in this chapter shall be severed from any
applications that a court finds to be invalid, preempted, or
unconstitutional, because it is the legislature's intent and
priority that every single valid application of every statutory
provision be allowed to stand alone.
(c) The legislature further declares that it would have
enacted this chapter, and each provision, section, subsection,
sentence, clause, phrase, or word, and all constitutional
applications of the provisions of this chapter, irrespective of the
fact that any provision, section, subsection, sentence, clause,
phrase, or word, or applications of this chapter were to be declared
invalid, preempted, or unconstitutional.
(d) If any provision of this chapter is found by any court to
be unconstitutionally vague, then the applications of that
provision that do not present constitutional vagueness problems
shall be severed and remain in force, consistent with the
severability requirements of Subsections (a), (b), and (c).
(e) No court may decline to enforce the severability
requirements of Subsections (a), (b), (c), and (d) on the ground
that severance would "rewrite" the statute or involve the court in
legislative or lawmaking activity. A court that declines to
enforce or enjoins a state official from enforcing a statutory
provision is never rewriting a statute or engaging in legislative
or lawmaking activity, as the statute continues to contain the same
words as before the court's decision. A judicial injunction or
declaration of unconstitutionality:
(1) is nothing more than an edict prohibiting
enforcement of the disputed statute against the named parties to
that lawsuit, which may subsequently be vacated by a later court if
that court has a different understanding of the requirements of the
Texas Constitution or United States Constitution;
(2) is not a formal amendment of the language in a
statute; and
(3) no more rewrites a statute than a decision by the
executive not to enforce a duly enacted statute in a limited and
defined set of circumstances.
(f) If any state or federal court disregards any of the
severability requirements in Subsections (a), (b), (c), (d), or
(e), and declares or finds any provision of this chapter facially
invalid, preempted, or unconstitutional, when there are discrete
applications of that provision that can be enforced against a
person, group of persons, or circumstances without violating
federal law or the federal or state constitutions, then that
provision shall be interpreted, as a matter of state law, as if the
legislature had enacted a provision limited to the persons, group
of persons, or circumstances for which the provision's application
will not violate federal law or the federal or state constitutions,
and every court shall adopt this saving construction of that
provision until the court ruling that pronounced the provision
facially invalid, preempted, or unconstitutional is vacated or
overruled.
SECTION 3. If any provision of this Act or its application
to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this Act that can be
given effect without the invalid provision or application, and to
this end the provisions of this Act are declared to be severable.
SECTION 4. Chapter 110A, Civil Practice and Remedies Code,
as added by this Act, applies only to a cause of action that accrues
on or after the effective date of this Act.
SECTION 5. This Act takes effect September 1, 2023.