Sec. 151.004 Texas Family Code
Over the years Sherry and I have spoken with a number of state legislators about constitutional rights in family law cases. One comment, from Senator Jane Nelson, which stands out in my mind is the statement that the Texas Legislature has clearly told the judiciary that they must act within constitutional limitations. She said, tell me what more we can do to get the courts to comply. That is my response to that statement. All the Texas Legislature has to do to make this message clear is to add the following language to Chapter 151 of the Texas Family Code:
Sec. 151.004. LIMITATION ON STATE JUDICIAL ACTION. Judicial action under this code is limited by state and federal constitutional constraints; every litigant under this code is entitled to a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law; and every litigant is entitled to the equal application of the laws of Texas and the equal application of the Texas Rules of Civil Procedure.
This is a very simple and clear mandate to the courts that leaves them no room at all to argue that the Legislature has told them to violate the constitution.
This is the current text of Rule 1 of the Texas Rules of Civil Procedure:
The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.
The rules of civil procedure are created by judges and do not carry the force of statutory law. This amendment is intended to give the essential element of Rule 1 the full force of statutory law. This is important because:
- It entitles you to an adjudication of your rights. A best interest determination is NOT an adjudication of your rights. It is a presumption that you have no rights. This change requires them to actually have adjudication proceedings to justify the court’s actions in compliance with substantive law. Substantive law is the law of your rights.
- It entitles you to an impartial adjudication of your rights. This means that your judge cannot enter the proceedings with an intention to rule against your interests in favor of your child’s interests. Any presumption by the judge that they will act in the interest of a child who is not a party to the suit is a biased presumption that denies you an “impartial” adjudication of your rights.
- It entitles you to a just and fair adjudication of your rights. Just means that your substantive rights are protected before the court takes any action. Fair means that the process follows well-established rules and prevents the court from making up rules or exceptions that apply only in family law cases.
- It entitles you to the established principles of substantive law. This means that the trial court must provide constitutional protections for your rights and that the appellate courts must provide proper constitutional review under well-established rules of constitutional review. Neither do so today.
Equal application of the law means that litigants in family law cases are entitled to application of the same rules and laws in the same manner as all other civil litigants generally. Today there is one set of rules for all civil cases except for family law cases and another very flexible set of rules for family law cases. This is a fundamental violation of equal protection and is the simplest and easiest equal protection argument to make. If the rules of civil procedure are applied differently to one class of litigants, the state is required to justify that different application of the rules. There is NO legitimate justification for having a different set of rules for parents in SAPCR proceedings, especially where those rules are unwritten and changed by the courts to suit their interests.
We have formatted this change in official bill submission form and are asking everybody in Texas to push their legislator to put their money where their mouth is and to tell the courts directly and specifically that they must comply with the constitution.
See the Bill here.