Bill Caption

Proposing a constitutional amendment authorizing the legislature to require a court to provide notice to the attorney general of a challenge to the constitutionality of a state statute and authorizing the legislature to prescribe a waiting period before the court may enter a judgement holding the statute unconstitutional. 

Fiscal Notes

Bill Analysis

This constitutional amendment would empower the legislature to exercise control over the judicial branch. If passed the legislature may require a court to provide notice to an attorney general if the constitutionality of a statute is being challenged. Upon receiving a notice, the legislature would be empowered to prescribe a reasonable period, not to exceed 45 days, for which the court may not enter a judgement on the constitutionality of the statute. SJR 6 would also add a temporary provision for the 85th legislative session that would grant the legislature these powers until the vote is held for this constitutional amendment on November 7, 2017. 

Vote Recommendation Notes

Article II, Section 1 of the Texas Constitution states that "The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy". This bill would establish a provision that supersedes this constitutional limitation.

Tampering with our state constitution in such a manner is a dangerous precedent to set. There is no current or foreseeable need for the legislature to state that government should be afforded a specific window restricting judges from entering a judgement holding a statute unconstitutional within that window. Our judicial process is one that is meant to hold the other branches of government accountable and is capable of addressing the goal of this bill under current authority. 

Invalidating the separation of powers clause in order to authorize the legislature to take a certain act in and of itself would lead a reasonable person to conclude that if not for that invalidation the act would be unconstitutional. This gives the appearance of government protecting itself. This seems to be a bill with a solution in search of a problem.

We also note that at the end of Article II, Section 1 it states "except in the instances herein expressly permitted." If this type of action were authorized under this provision, this bill would be unnecessary and a statute imposing such a timeframe and requirement would be all that is required to implement this proposal.

For these reasons, we oppose SJR 6.