IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1560-12

EX PARTE JOHN CHRISTOPHER LO

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY

Per Curiam. KELLER, P.J., filed a concurring opinion.

OPINION ON STATE’S MOTION FOR REHEARING

On original submission, this Court held Section 33.021(b) of the Texas Penal Code

facially unconstitutional. The State has filed a motion for rehearing raising three grounds.

We deny all three grounds, but write to address solely the State’s first ground in which it

alleges that the Court erred by finding Penal Code Section 33.021(b) unconstitutional

without first providing notice to the attorney general pursuant to Section 402.010 of the

Texas Government Code.
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Section 402.010, as it pertains to this case, provides:

(a) In an action in which a party to the litigation files a petition,

motion, or other pleading challenging the constitutionality of a statute of

this state, the court shall, if the attorney general is not a party to or counsel

involved in the litigation, serve notice of the constitutional question and a

copy of the petition, motion, or other pleading that raises the challenge on

the attorney general either by certified or registered mail or electronically to

an e-mail address designated by the attorney general for the purposes of this

section. Notice under this section must identify the statute in question, state

the basis for the challenge, and specify the petition, motion, or other

pleading that raises the challenge.

(b) A court may not enter a final judgment holding a statute of this

state unconstitutional before the 45 day after the date notice required by

th

Subsection (a) is served on the attorney general.

(c) A court’s failure to file or serve notice as required by Subsection

(a) does not deprive the court of jurisdiction or forfeit an otherwise timely

filed claim or defense based on the challenge to the constitutionality of a

statute of this state.

(d) This section or the state’s intervention in litigation in response to

notice under this section does not constitute a waiver of sovereign

immunity.

TEX. GOV’T CODE § 402.010 (Vernon 2011). Subsection (a) is triggered by the filing of a

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“petition, motion, or other pleading.” Appellant’s petition for discretionary review was

filed in this Court on November 7, 2012, well after the effective date of the provision,

June 17, 2011.

 This version of Section 402.010 was enacted, as a wholly new provision, effective June 1

17, 2011. The savings provision contained in the house bill provided that the new section would

apply to filings made on or after its effective date. Section 402.010 was amended effective

September 1, 2013, to require that a party making such a constitutional challenge file a form with

the court “indicating which pleading should be served on the attorney general[,]”and directing the

Office of Court Administration to adopt the form that a party should use for such purposes.
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The State suggests that subsection (b) of Section 402.010 prevents this Court from

entering a final judgment in this case because we have not complied with the notice

requirement set forth in subsection (a) of 402.010. We hold that both subsections violate

the separation-of-powers doctrine of our state constitution.

I.

The Texas Constitution includes an express separation-of-powers provision:

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, to wit: Those which are Legislative to one; those which

are Executive to another, and those which are Judicial to another; and no

person, or collection of persons, being of one of these departments, shall

exercise any power properly attached to either of the others, except in the

instances herein expressly permitted.

TEX. CONST. Art. II, § 1. The “single, tersely phrased paragraph, provides that the

constitutional division of the government into three departments (Legislative, Executive

and Judicial) shall remain intact, ‘except in the instances herein expressly permitted.’”

Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim. App. 1987). This division ensures that

power granted one branch may be exercised by only that branch, to the exclusion of the

others. “The separation of powers doctrine therefore requires that ‘any attempt by one

department of government to interfere with the powers of another is null and void.’” Id.

(quoting Ex parte Giles, 502 S.W.2d 774, 780 (Tex. Crim. App. 1974)). Our state’s

express provision “reflects a belief on the part of those who drafted and adopted our state

constitution that one of the greatest threats to liberty is the accumulation of excessive
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power in a single branch of government.” Armadillo Bail Bonds v. State, 802 S.W.2d 237,

239 (Tex. Crim. App. 1990); see also Langever v. Miller, 76 S.W.2d 1025, 1035 (Tex.

1934)(“So important is this division of governmental power that it was provided for in the

first section of the first article of the Constitution of the Republic of Texas, and alone it

constituted article 2 of each succeeding Constitution.”).

We have viewed the Texas provision as generally susceptible to violation in one of

two ways:

(1) when one branch of government assumes or is delegated a power “more

properly attached” to another branch, or

(2) when one branch unduly interferes with another branch so that the other

branch cannot effectively exercise its constitutionally assigned powers.

Ex parte Gill, 413 S.W.3d 425, 431-32 (Tex. Crim. App. 2013); see also Armadillo Bail

Bonds, 802 S.W.2d at 239. Section 402.010 does not concern the assumption or

delegation of a power, but rather presents a question of undue interference.

We examined interference by the legislature with the judicial branch in Armadillo

Bail Bonds v. State, in which we addressed whether a statute barring a trial court from

entering a bond-forfeiture judgment until eighteen months after the date of the forfeiture

in a felony case so usurped a judicial function that it violated separation of powers. We

began our analysis by examining the nature of judicial power, recognizing that “core

judicial power” embraces the power (1) to hear evidence; (2) to decide the issues; (3) to

decide the relevant questions of law; (4) to enter a final judgment on the facts and the
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law; and (5) to execute the final judgment or sentence. Armadillo Bail Bonds, 802 S.W.2d

at 239-40. Because the provision at issue required the trial court to refrain from exercising

a part of its core powers (the power to enter a final judgment) for a period of a year and a

half, it unduly interfered with the judiciary’s effective exercise of its constitutional

powers. In State v. Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991), the Court dealt

with a different subsection of the same statute at issue in Armadillo Bail Bonds,

specifically, the subsection barring a final judgment in a bail-bond forfeiture case until the

expiration of nine months after the date of the forfeiture in a misdemeanor case. Applying

the reasoning and holding from Armadillo Bail Bonds, the Court held that the provision

violated separation of powers as well. Id. at 104.

II.

Section 402.010 also contains a provision purporting to suspend a court’s power to

enter a final judgment. Subsection (b) of 402.010 reads:

A court may not enter a final judgment holding a statute of this state

unconstitutional before the 45th day after the date notice required by

Subsection (a) is served on the attorney general.

This provision attempts to suspend a judgment of this Court, or any court, virtually

indefinitely, or until forty-five days after notice has been provided to the attorney general

in accordance with subsection (a).

There are “spheres of activity so fundamental and so necessary to a court, so

inherent in its very nature as a court, that to divest it of its absolute command within these
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spheres is to make meaningless the very phrase judicial power.” Armadillo Bail Bonds,

802 S.W.2d at 241 (quoting Coate v. Omholt, 662 P.2d 591 (Mont. 1983)). Requiring that

the court refrain from entering a final judgment for a year and a half in a felony case and

for nine months in a misdemeanor case, was such a divestiture. Id.; Matyastik, 811

S.W.2d at 104. Granted, eighteen-month and nine-month restrictions are considerably

longer than a 45-day restriction. But the potential length of the delay is not so much the

problem as the fact of the attempted interference at all. Entering a final judgment is a core

judicial power; it falls within that realm of judicial proceedings “so vital to the efficient

functioning of a court as to be beyond legislative power.” Armadillo Bail Bonds, 802

S.W.2d at 240. 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.

A portion of a legislative enactment, if declared unconstitutional, does not

necessarily mean that the entire act is invalid:

Invalidity of a part [of a legislative enactment] does not destroy the entire

act, unless the valid part is so intermingled with all parts of the act so as to

make it impossible to separate them, and so as to preclude the presumption

that the legislature would have passed the act anyhow.

Meshell, 739 S.W.2d at 257 (quoting Tex.Jur.3d). The test is whether the provisions are

“essentially and inseparably connected in substance.” Id. While subsection (b) could be

excised without changing the substance of subsection (a), its removal would render the

notice provision unenforceable, particularly given the attorney general’s limited role in
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criminal cases. As a result, Section 402.010 would not make sense without the

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enforcement mechanism provided for in subsection (b). See id. at 257-58 (“provision as a

whole is rendered incapable of reasonable use” since legislature would not have passed

entire provision without including enforcement mechanism).

III.

For the reasons stated, we hold that Section 402.010(a) and (b) constitute an

unconstitutional violation of separation of powers. We deny the State’s motion for

3

Absent the consent of a local prosecutor or the request of a district or county attorney for 2

assistance, the attorney general has very limited authority to represent the state in criminal cases

in trial courts, and even less in the courts of appeals and this Court. See Saldano v. State, 70

S.W.3d 873, 880-81 (Tex. Crim. App. 2002)(attorney general has no criminal prosecution

authority, but is generally limited to representing the State in civil litigation); see, e.g.,TEX.

PENAL CODE § 31.03(j) (with consent of local prosecutor, attorney general has concurrent

jurisdiction to prosecute thefts involving state Medicaid program); TEX. PENAL CODE § 32.32

(with consent of local prosecutor, attorney general has concurrent jurisdiction to prosecute false

statements made involving mortgage loans); TEX. PENAL CODE § 35A.02(f) (with consent of

local prosecutor, attorney general has concurrent jurisdiction to prosecute offenses under Chapter

35A, Medicaid Fraud); TEX. PENAL CODE § 35.04 (attorney general may offer assistance to

prosecutor in insurance fraud case and may prosecute or assist in such case on request of

prosecutor); TEX. PENAL CODE § 39.015 (with consent of local prosecutor, attorney general has

concurrent jurisdiction to prosecute offenses under Chapter 39, Abuse of Office). Thus, the

attorney general is, with a few exceptions in Texas trial courts, not authorized to represent the

State in criminal cases.

 We also note that subsection (a), standing alone, violates separation of powers because 3

it attempts to impose a duty that falls outside of and is unrelated to any judicial functions and

powers of this Court.

This Court has jurisdiction over direct appeals in capital cases, petitions for discretionary

review, writs of habeas corpus and, in criminal law matters, writs of mandamus, procedendo,

prohibition, and certiorari. TEX. CONST. Art. V, § 5. We also have certain powers and

responsibilities to promulgate rules of evidence and rules of appellate procedure for criminal

cases. See Johnson v. State, 84 S.W.3d 658, 668-69 & n.25 (Tex. Crim. App. 2002)(discussing

recent history and scope of Court’s authority to promulgate rules of evidence and appellate

procedure). Legal proceedings before us involve claims presented by parties, and, depending

upon the nature of the proceeding, variously call upon the Court to consider and review evidence,
Lo Rehearing – 8

rehearing on all grounds.

Delivered: March 19, 2014

Publish

construe and apply laws, hear and decide legal issues, adjudicate rights, and enter final

judgments. While the constitutionality of a state statute is frequently challenged by a party and is

therefore among the legal issues facing this Court, the attorney general is typically not authorized

to represent the State in any proceeding before this Court. See fn. 2, supra. The state prosecuting

attorney has primary authority to represent the State in all proceedings before this Court. See,

e.g., Saldano, 70 S.W.3d at 877; Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001);

Aguirre v. State, 22 S.W.3d 463, 465 (Tex. Crim. App. 1999).

The subsection (a) directive to notify the attorney general of every constitutional

challenge to a state statute made by a party imposes a duty that is wholly unrelated to the Court’s

judicial powers and functions. Pursuant to this unusual provision, the legislature would have this

Court exercise a function that is not only non-judicial but would operate solely for the apparent

benefit of the attorney general. And to what extent the attorney general would benefit from

receiving such a notice is elusive, given that the attorney general has no authority to appear in

criminal cases before this Court. Indeed, the legislative history strongly suggests that the drafters

of this provision either were unaware of the limited authority of the attorney general in criminal

cases, or never intended it to apply to criminal cases at all. Compare HOUSE COMM. ON

JUDICIARY & CIVIL JURISPRUDENCE, BILL ANALYSIS, Tex. H.B. 2425, 82 Leg., R.S. nd

(2011)(drafters sought to afford attorney general opportunity to “intervene and defend” in cases

involving constitutional challenges to state statutes and also stated that the “goal” of the bill was

“to improve the attorney general’s ability to defend the state and to save the state the cost of an

appeal”); STATE AFFAIRS, BILL ANALYSIS, Tex. H.B. 2425, 82 Leg., R.S. (2011)(“notice would nd

allow the attorney general to be able to have the best opportunity to defend the state, while also

saving the state money by avoiding an unnecessary appeal process”) with fn. 2, supra.

Because Section 402.010(a) purports to burden this Court with undertaking a useless and

non-judicial act by providing notice which would not further or relate to any of this Court’s

judicial functions or powers, it unduly interferes with and infringes upon our constitutionally

assigned powers. See Armadillo Bail Bonds, 802 S.W.2d at 239 (separation of powers provision

has “incidental effect of promoting effective government by assigning functions to the branches

that are best suited to discharge them”); cf. Scoggin v. State, 38 S.W.2d 592 (Tex. Crim. App.

1931)(statute depriving officers of authority to arrest for speeding violations unless wearing

specific uniform did not “legitimately affect the legality or fairness” of the arrest and was

unwarranted interference in violation of separation of powers).