Texas Family Code Updates Part 3 of 3

The 86th Regular Session & Family Law: Mail Theft, Anti-SLAPP, and Religious Liberties – CHANGES IN EFFECT AS OF SEPTEMBER 1

This post is the third in our three-part series, The 86th Regular Session & Family Law & Trusts, aimed at summarizing key changes from the legislative session that could surface in the course of a family law practice. The focus this week is on three bills from areas not typically applicable to family law that nonetheless could impact a family law case.

Mail Theft – It’s a State Offense

HB 37 – Mail Theft, Amendment to Texas Penal Code 31.20, Effective September 1, 2019.

With the passage of House Bill 37, it is now a Texas state criminal offense to intentionally take mail with the intent to deprive the addressee of his or her mail without the addressee’s consent.
Proponents of the bill were largely looking to empower state and local law enforcement to hinder identity thieves. In the context of family law, divorcing and recently divorced persons now have state criminal liability to fear if they pilfer their ex-spouse’s mail. Though the law has escalating penalties for voluminous mail thieves, divorce clients will want to know it is a class A misdemeanor to take the mail of even one addressee, punishable by up to one year in jail and/or up to a $4,000 fine.

Can’t Anti-SLAPP a Family Law Matter

HB 2730 – Texas’s Anti-SLAPP Statute Will Not Apply to Family Law Cases, Amendment to Texas Civil Practice & Remedies Code 27.003 and 27.010, Effective September 1, 2019.

Texas Civil Practice & Remedies Code 27.003(a) states that if a legal action is based on or is in response to a party’s exercise of the right of free speech, right to petition, or right of association … that party may file a motion to dismiss the legal action. This is Texas’s anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, a law designed to award dismissals to defendants being sued for exercising their first amendment rights.

With the passage of House Bill 2730, the Tex. Civ. Prac. & Rem Code 27.010 exemption list will now explicitly prohibit anti-SLAPP dismissals in family law matters. “Exemptions. (a) This chapter does not apply to … (6) a legal action filed under Title 1, 2, 4, or 5, Family Code.”

Religious Freedom & Fears of Rhetoric: SB 1978 Going to the Meaning of Marriage

SB 1978 – Religious Beliefs and Marriage, Amendments to Texas Government Code 2400.002 and 2400.003, Effective September 1, 2019.

Senate Bill 1978 passed a divided house and senate to establish a new private right of action for injunctive or declaratory relief for any person making a claim that the government adversely acted against him or her on the basis of his or her membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.

• Tex. Gov. Code 2400.002. ADVERSE ACTION PROHIBITED. Notwithstanding any other law, a governmental entity may not take any adverse action against any person based wholly or partly on the person’s membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.
• Tex. Gov. Code 2400.003. RELIEF AVAILABLE. (a) A person may assert an actual or threatened violation of Section 2400.002 as a claim or defense in a judicial or administrative proceeding and obtain:
  • (1) injunctive relief;
  • (2) declaratory relief; and
  • (3) court costs and reasonable attorney ’s fees.

The bill was dubbed by some as the #SaveChickfilA Bill after proponents cited as reason for it the recent case of the San Antonio City Council excluding Chick-fil-A from an airport contract on the basis of Chick-fil-A donating to charities that actively discourage homosexual conduct and have historically opposed same-sex marriage legalization, entities such as The Salvation Army and Fellowship of Christian Athletes. While the bill’s final form resembles little more than a newly codified reinforcement of existing constitutional religious liberties, its opponents, in particular the LGBTQ caucus, fear its passage reflects an existing entrenchment of hateful, anti-gay sentiment and will only serve to promote and propagate rhetoric reinforcing the same.

So what does any of this have to do with family law in Texas?

In short, the current Texas legislative majority is actively interested in protecting religious liberties, in particular when the subject of religious beliefs pertains to the meaning of marriage.

Indeed, the first draft of the bill shows its authors had a mind to particularly protect the liberties of those with religious beliefs and moral convictions regarding marriage. See below the introduced version of the statute’s key prohibition alongside its final form that the legislators compromised to pass:

• Introduced Version:
  • 2400.002. ADVERSE ACTION PROHIBITED. Notwithstanding any other law, a governmental entity may not take any adverse action against any person based wholly or partly on a person’s belief or action in accordance with the person ’s sincerely held religious belief or moral conviction, including beliefs or convictions regarding marriage.
• Enrolled (Final) Version:
  • 2400.002. ADVERSE ACTION PROHIBITED. Notwithstanding any other law, a governmental entity may not take any adverse action against any person based wholly or partly on the person’s membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.

So even though the Supreme Court has ruled on a U.S. federal constitutional definition of marriage, the Texas legislature is very concerned that those in Texas who disagree with it, may continue to do so and not be adversely affected at the hands of the government.

Now might this current concern yield future legislative action or inaction adverse to the marriage rights of same-sex couples in Texas? The truth is, it is relatively impossible to predict what the legislature will do, and perhaps less possible to predict public rhetoric, so time will tell. But we’ll be watching!

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