                   IN THE SUPREME COURT OF TEXAS
                                               ════════════
                                                 NO. 15-0139
                                               ════════════

                                     IN RE STATE OF TEXAS, RELATOR

           ═════════════════════════════════════════════
                      ON PETITION FOR WRIT OF MANDAMUS
           ═════════════════════════════════════════════


        JUSTICE WILLETT, joined by JUSTICE DEVINE, concurring in the dismissal of the petition
for writ of mandamus.


       Last summer, the United States Supreme Court in Obergefell v. Hodges constitutionalized

a 50-state right to same-sex marriage.1 For all practical purposes, that federal constitutional case

disposes of this state procedural case. The core controversy—whether the Fourteenth Amendment

forbids States from preferring traditional marriage—is decided, although, as with a stone dropped

into a pond, assorted spin-off disputes are rippling swiftly throughout post-Obergefell America.

       I write today not to belabor a societal debate but to underscore a legal point presumably

beyond debate: Laws matter. When John Adams enshrined the ideal of “a government of laws and

not of men” into the 1780 Massachusetts Constitution, he upended things, declaring that citizens

should be governed by clear laws consistently applied, not personal whims.2 Adams was echoing




       1
           135 S. Ct. 2584 (2015).
       2
           See MASS. CONST. pt. 1, art. XXX.
Aristotle, who two millennia earlier wrote, “law should govern.”3 The Rule of Law is one of

America’s—and Texas’s—foundational presumptions. In this case, regrettably, Texas law was

frustrated rather than followed.

         Section 402.010 of the Government Code plainly requires Texas courts to notify the

attorney general of state constitutional challenges.4 Not only that, section 402.010 also forbids

courts from declaring a statute unconstitutional within 45 days after giving such notice. 5 “The

purpose of this statute is to provide the attorney general with the opportunity to be heard on issues

important to the laws of the state—the laws the attorney general’s office is charged with defending

and enforcing.”6

         Make no mistake: The Legislature well understands how to give courts wiggle room, and

some Texas notice rules expressly permit case-by-case discretion.7 But not this one. A court’s duty

to alert the attorney general to constitutional attacks is categorical: “The court shall . . . .”8 The



         3
           See ARISTOTLE’S POLITICS: A TREATISE ON GOVERNMENT, bk. III, ch. 16, at 117 (William Ellis trans.,
1895); see also F.A. HAYEK, THE CONSTITUTION OF LIBERTY 145 (1960) (“There is clear evidence that the modern
use of the phrase ‘government by laws and not by men’ derives directly from this statement of Aristotle.”).
         4
            TEX. GOV’T CODE § 402.010(a) (“The court shall, if the attorney general is not a party to or counsel involved
in the litigation, serve notice of the constitutional challenge and a copy of the petition, motion, or other pleading that
raises the challenge on the attorney general . . . .”).
         5
           Id. § 402.010(b) (“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.”).
         6
         In re State, No. 04-14-00282-CV, 2014 WL 2443910, at *2 (Tex. App.—San Antonio, May 28, 2014, orig.
proceeding) (mem. op.).
           7
             See, e.g., TEX. GOV’T CODE § 75.551(a)(2) (requiring notice to attorneys in a case of a judicial assignment
“if it is reasonable and practicable and if time permits”); TEX. AGRIC. CODE § 72.044(b) (sanctioning notice to an
opposing party “if the court determines that justice requires the notice”); TEX. R. CIV. P. 245 (permitting courts to set
cases for trial “on written request of any party, or on the court’s own motion, with reasonable notice” (emphasis
added)).
         8
             TEX. GOV’T CODE § 402.010(a).


                                                            2
Legislature imposed a no-exceptions rule, including for cases—and causes—thought to be exigent

or momentous.

         In this case, rather than the statutorily mandated 45-day minimum, a mere one minute

elapsed between the trial court’s order allowing the plaintiffs to file their pleadings in paper form

(8:51 a.m.) and its order finding that the “unconstitutional statutory and state constitutional

prohibitions in Texas against same-sex marriage” were causing the plaintiffs immediate and

irreparable damage (8:52 a.m.). Despite the constitutional stakes (or perhaps because of them), the

trial court failed to comply with the Legislature’s unqualified command that the State’s chief legal

officer be afforded the opportunity to defend the constitutionality of Texas law.9

         When violations of law slip uncorrected through the cracks of judicial review (as when a

case is dismissed as moot), it may seem that the beneficiaries of such violations receive a free pass.


         9
           Perhaps the trial court thought itself free to disregard section 402.010. Two days before this litigation began,
a Travis County probate court in an estate proceeding had purported to strike down certain Texas marriage laws. The
State sought appellate relief that same day. Plaintiffs in today’s case referenced the probate court’s order in their
original petition and application for a temporary restraining order. It is thus possible the trial court believed the probate
court’s order had altered the status quo and was binding precedent, somehow dispensing with the notification
requirement. Possible, maybe. Plausible, hardly.

           First, courts are not bound by the decisions of other courts of non-superior jurisdiction. That is, Texas courts
are obligated to follow only higher Texas courts and the United States Supreme Court. Second, the trial court knew
when it granted the TRO that (1) the State had already appealed the probate court’s ruling, and (2) the constitutionality
of Texas’s opposite-sex marriage laws was also pending in this Court. Third, the trial court’s order was more expansive
than the probate court’s order. The probate court only invalidated sections 2.401 and 6.204(b) of the Family Code and
article I, section 32, of the Texas Constitution. By contrast, plaintiffs here challenged, and the trial court invalidated,
all “statutory and state constitutional prohibitions in Texas against same-sex marriage, including as set out in and
applied through Texas Family Code §§ 2.001, 2.012, and 6.204, and in Article I, § 32 of the Texas Constitution.” The
trial court thus invalidated laws not previously invalidated by the probate court—sections 2.001 and 2.012, together
with all other statutory and constitutional prohibitions of same-sex marriage. Fourth, the notification statute—section
402.010—contains no exceptions. There is nothing opaque or discretionary about it. Texas trial courts are required to
notify the attorney general every time Texas law comes under constitutional attack. Period. The probate court’s non-
precedential order from two days earlier cannot justify the trial court’s disregard of section 402.010.

        Theoretically, a civil court could declare section 402.010 itself unconstitutional on separation-of-powers
grounds, as the Court of Criminal Appeals has done on the criminal-law side. Ex parte Lo, 424 S.W.3d 10, 29 (Tex.
Crim. App. 2013). That did not happen here. Section 402.010 was not overturned—it was overlooked.


                                                             3
The pass is not free. It comes at the expense of the Rule of Law. Here, the Legislature’s notice

mandate is unsubtle and unequivocal, as was the trial court’s failure to follow it.

         Unfortunately, rancorous cultural disputes seem to induce jugglery, by lawyers and judges

alike. In 2014, for example, a Texas court of appeals rebuked a trial court for doing the very thing

that happened here—declaring Texas marriage law unconstitutional without first alerting the

attorney general.10 But it is precisely in divisive, consequential cases when by-the-book

fastidiousness by courts is most vital, to blunt even the appearance of evasive corner-cutting or

politicized judging.

         This was an invalid invalidation. No matter the cause du jour, no matter the perceived

exigencies, Texas law forbids the striking down of Texas law without first respecting the attorney

general’s statutory opportunity—and constitutional duty—to defend it. Every Texas jurist swears

allegiance to the Rule of Law, vowing to “preserve, protect, and defend the Constitution and laws

of the United States and of this State, so help me God.”11 That solemn oath comes first—always—

not our ideology, not our legacy, and not our desire to be fêted as on the “right side of history.”

         No doubt, the attorney general’s presence in a lawsuit may be unwelcome:

         I understand that in certain proceedings everyone in the courtroom—litigants,
         counsel, and judges alike—may prefer no involvement by the attorney general. But
         Texas law commands involvement by the attorney general, no matter how righteous
         or urgent the cause is thought to be. That’s precisely the point of the notice law.
         The Legislature has determined that state law is entitled to a vigorous defense. The
         attorney general isn’t omnipresent, able to monitor every filing in every courthouse
         across 254 counties. The tension is between what the parties logically want (their
         case off the radar) and what Texas legally requires (their case on the radar). The


         10
            In re State, 2014 WL 2443910, at *4 (holding that “the trial court abused its discretion in failing to provide
notice to the attorney general of a constitutional challenge to Texas state laws”).
         11
              TEX. CONST. art. XVI, § 1.


                                                            4
        notice law recognizes, and forthrightly aims to thwart, the desire to engage in
        procedural corner-cutting to avoid unwanted attention.12

Texas law could not be clearer: The State’s chief legal officer—sworn to “preserve, protect, and

defend” Texas law—should in fact be permitted to preserve, protect, and defend it. Circumvention

of that law, by courts and by officers of courts, is an unacceptable way to litigate fateful

constitutional issues. The attorney general may be right. He may be wrong. But he must be heard.13

        By a 5-4 vote, the Highest Court in the Land has mandated the recognition of same-sex

marriage from sea to shining sea. People of goodwill can debate the merits of that ruling, but no

one can debate the clarity of section 402.010. A Texas court’s notice duty is mandatory—zero

exceptions.

        My focus today is legal, not cultural. In a judicial system that demands no-favorites

adherence to clear and predictable legal rules, furtiveness (to tilt the playing field) and faithfulness

(to keep it level) cannot coexist. Faithfully applying the law cannot mean short-circuiting one

Texas law in order to strike down another.

        A law may be unfashionable. It may even be unconstitutional. But it cannot be undefended.




                                                        __________________________________________
                                                        Don R. Willett
                                                        Justice


OPINION DELIVERED: April 15, 2016


        12
             State v. Naylor, 466 S.W.3d 783, 804 (Tex. 2015) (Willett, J., dissenting).
        13
             See id.


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