Middleton Bill Bars Officials From Enforcing The Establishment Clause

The text as introduced · 2,468 words

By: Middleton
S.B. No. 2574

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.

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 Espinoza v. Montana Department of Revenue

Espinoza v. Montana Department of Revenue

Carson v. Makin

Sec. 110A.052. ENFORCEMENT OF ESTABLISHMENT CLAUSE. Except

as provided by Section 110A.053, 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.053. EXCEPTIONS. Notwithstanding Section

110A.052, a governmental officer or employee may enforce the

Establishment Clause of the First Amendment of the United States

Constitution 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 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.054. 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 this chapter, the court in an action brought under this

section shall award:

(1) declaratory relief;

(2) injunctive relief;

(3) nominal or compensatory damages; and

(4) court costs and reasonable attorney's fees.

(c) Notwithstanding any other law, a person may bring an

action under this section not later than the sixth anniversary of

the date the cause of action accrues.

(d) Notwithstanding any other law, a defendant in an action

brought under this section may not assert and is not entitled to

sovereign immunity, governmental immunity, official immunity, or

qualified immunity.

Sec. 110A.055. 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 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 court costs and

reasonable attorney's fees of the party against whom such relief is

sought if that party prevails, including the court costs and

reasonable attorney's fees the prevailing party incurs to recover

court costs and reasonable attorney's 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;

(2) a state or federal court enters judgment in the

party's favor on a claim or cause of action described by Subsection

(a); or

(3) another party that seeks declaratory or injunctive

relief described by Subsection (a) voluntarily dismisses or

nonsuits its claims against the prevailing party under any law,

including the Federal Rules of Civil Procedure and the Texas Rules

of Civil Procedure.

(c) A prevailing party under this section may recover court

costs and reasonable attorney's fees under this section only to the

extent those court costs and reasonable attorney's fees were

incurred while defending claims or causes of action on which the

party prevailed.

Sec. 110A.056. IMMUNITIES PRESERVED. (a) Subject to

Subsection (b) but notwithstanding any other law, the state has

sovereign immunity, a political subdivision has governmental

immunity, and an officer, employee, or agent of this state or a

political subdivision has 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:

(1) challenges the validity of a provision or

application of this chapter, on constitutional grounds or

otherwise; or

(2) seeks to prevent or enjoin the state, a political

subdivision, or an officer, employee, or agent of this state or a

political subdivision from:

(A) enforcing a provision or application of this

chapter; or

(B) hearing, adjudicating, or docketing an

action brought under Section 110A.054 or 110A.055.

(b) Subsection (a) does not apply to the extent that

immunity has been abrogated or preempted by federal law in a manner

consistent with the United States Constitution.

(c) The sovereign immunity conferred by this section on the

state and each of its officers, employees, and agents includes the

constitutional sovereign immunity recognized by the United States

Supreme Court 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 may not be abrogated by Congress or

by any state or federal court except under legislation authorized

by:

(1) Section 5 of the Fourteenth Amendment, United

States Constitution;

(2) the Bankruptcy Clause of Article I, United States

Constitution;

(3) Congress's powers to raise and support armies and

to provide and maintain a navy; or

(4) any other ground that may be recognized by the

United States Supreme Court.

(d) Notwithstanding any other law, the immunities conferred

by this section shall apply in every court, both state and federal,

and in every adjudicative proceeding of any type.

(e) Notwithstanding any other law, a provision of state law

may not be construed to waive or abrogate an immunity described by

this section unless it expressly waives or abrogates immunity with

specific reference to this section.

(f) Notwithstanding any other law, an attorney representing

the state, a political subdivision, or an officer, employee, or

agent of this state or a political subdivision may not waive an

immunity described by this section or take any action that would

result in a waiver of that immunity. A purported waiver or action

described by this subsection is regarded as a legal nullity and an

ultra vires act.

Sec. 110A.057. LIMITS ON STATE COURT JURISDICTION. (a)

Notwithstanding any other law, including Chapter 37 of this code

and Sections 22.002, 22.221, 24.007, 24.008, 24.009, 24.010, and

24.011, Government Code, with respect to an action brought under

Section 110A.054 or 110A.055, a court of this state may not award

declaratory or injunctive relief, or any type of writ, that would:

(1) pronounce any provision or application of this

chapter invalid or unconstitutional; or

(2) restrain the state, a political subdivision, an

officer, employee, or agent of this state or a political

subdivision, or any person from:

(A) enforcing a provision or application of this

chapter; or

(B) hearing, adjudicating, docketing, or filing

an action brought under Section 110A.054 or 110A.055.

(b) A court of this state does not have jurisdiction to

consider any action, claim, or counterclaim that seeks relief

described by Subsection (a).

(c) This chapter may not 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 the litigant with respect to

an action brought under Section 110A.054 or 110A.055.

(d) Notwithstanding any other law, any judicial relief

issued by a court of this state that disregards immunity conferred

by Section 110A.056(a) or the limitations on jurisdiction and

relief imposed by this section:

(1) is regarded as a legal nullity because the issuing

court is without jurisdiction; and

(2) may not be enforced or obeyed by any officer,

employee, or agent of this state or a political subdivision,

judicial or otherwise.

(e) Notwithstanding any other law, any writ, injunction, or

declaratory judgment issued by a court of this state that purports

to restrain the state, a political subdivision, an officer,

employee, or agent of this state or a political subdivision, or any

person from hearing, adjudicating, docketing, or filing an action

brought under Section 110A.054 or 110A.055 is regarded as a legal

nullity and a violation of the Due Process Clause of the Fourteenth

Amendment to the United States Constitution and may not be enforced

or obeyed by any officer, employee, or agent of this state or a

political subdivision, judicial or otherwise.

(f) Notwithstanding any other law, including rules adopted

under Chapter 26, a court may not certify a plaintiff or defendant

class with respect to any claim that seeks declaratory or

injunctive relief, or any type of stay or writ, that would:

(1) pronounce any provision or application of this

chapter invalid or unconstitutional;

(2) restrain or prevent the state, a political

subdivision, any officer, employee, or agent of this state or a

political subdivision, or any other person from enforcing any

provision or application of this chapter; or

(3) restrain or prevent a court from hearing,

adjudicating, docketing, or filing an action brought under Section

110A.054 or 110A.055.

Sec. 110A.058. SEVERABILITY. (a) Mindful of Leavitt v. Jane L.

Jane L.

the severability of a state statute the United States Supreme Court

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 not 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

United States Constitution or Texas 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 Subsection (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 constitution, 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 constitution,

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. Every provision, section, subsection, sentence,

clause, phrase, or word of this Act, and every application of the

provisions in this Act to every person, groups of persons, or

circumstances, are severable from each other. If any application of

any provision in this Act 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 Act 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 Act, and each provision,

section, subsection, sentence, clause, phrase, or word, and all

constitutional applications of this Act, irrespective of the fact

that any provision, section, subsection, sentence, clause, phrase,

or word, or applications of this Act, were to be declared

unconstitutional by any court.

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, 2025.