On Tuesday Texans should vote “yes” on Proposition 4, the proposed constitutional amendment that would require that the Texas Attorney General receive notice of a challenge to the constitutionality of a state statute and would give the attorney general 45 days to respond.
Fourteen other states and the federal government already have enacted some form of notice requirement similar to the one that Proposition 4 would make clear is constitutional.
A similar federal law that dates back almost a century, by comparison, provides that the federal government must receive notice and be given the opportunity to be heard before a court can strike down a duly enacted federal statute and override the collective judgment of the people’s elected representatives in Congress and the executive branch.
To similarly protect the people of Texas, Rep. Senfronia Thompson (D-Houston) passed a state version of this provision in 2011, following the example of more than a dozen other states that have done the same. As a result, the Texas Attorney General receives notice of challenges to the constitutionality of civil statutes. Because of a subsequent court ruling that questioned the constitutionality of the 2011 law, however, notice currently is not being provided in criminal cases. Proposition 4 would clarify that providing such notice is constitutional and necessary in both civil and criminal matters.
Some opponents of the bill believe—mistakenly— that the 45-day waiting period would violate Texas’ separation of powers doctrine or would prevent Texans who are challenging unconstitutional statutes from receiving relief. It would do neither.
Other Texas statutes establish similar waiting periods. Courts have not ruled that those waiting periods are an unconstitutional violation of separation of powers, and for good reason: Allowing interested parties time to intervene promotes fundamental fairness and due process. For example, Section 6.702, Family Code, long has provided that a court may not grant a divorce before the 60th day after the suit was filed.
In Proposition 4, the even shorter 45-day period is reasonable. The state is a busy litigant, with hundreds of legal actions ongoing at any given time. It is only fair that the State should receive adequate time to determine whether to intervene in a case challenging one of its laws.
What’s more, Proposition 4 would not impair a court’s ability to issue an injunction during the 45-day period or provide other appropriate relief to a petitioner while a final determination of a statute’s constitutionality is adjudicated.
Proposition 4 is neither a Democratic nor a Republican proposition. It is a commonsense, good government measure. Today, a statute seen as oppressive to a minority group may be challenged as unconstitutional by a non-profit advocacy group seeking equal treatment for all. Tomorrow, however, a bona fide environmental regulation may have its constitutionality challenged by a polluting company, or a cybersecurity law may be challenged by someone engaged in cybercrime or child pornography.
In all of these cases, the courts should have the opportunity to be briefed not only by private litigants with their own special interests and motives, but also by statewide representatives of the electorate.
Accordingly, I urge Texans to vote in favor of Proposition 4 on Tuesday (Nov. 7).