Texas: bill would overturn recent Court of Criminal Appeals decision, require courts notify AG when law struck as unconstitutional

I mentioned in March that the Texas legislature had in 2011 enacted a law that would have required the state’s courts notify the AG when a law was struck down as unconstitutional and given 45 days notice before such a judgement was entered (Government Code 402.010(a) and (b)).

That law itself was struck down by the Texas Court of Criminal Appeals (the court of last resort for criminal matters in the state) in March as unconstitutional. In particular the court noted its displeasure at efforts to determine when a judgement could or could not be entered. (“Thus, the 45-day time frame provided for in subsection (b) is a constitutionally intolerable imposition on a court’s power to enter a final judgment and a violation of separation of powers.“)

Last week, however, an effort was made to put the provision back in place. SJR 8 of 2015 is a constitutional amendment that would, in effect, specifically authorize the legislature to enact, or reenact, Government Code 402.010

Article V Sec. 32. Notwithstanding Section 1, Article II, [the state constitution’s separation of powers provision] the legislature may:

(1) require a court to provide notice to the attorney general of a challenge to the constitutionality of a statute of this state; and

(2) prescribe a reasonable period after the provision of that notice during which the court may not enter a judgment holding the statute unconstitutional.

SJR 8 has been prefiled for the 2015 session.