                                  Fourth Court of Appeals
                                          San Antonio, Texas

                                     MEMORANDUM OPINION
                                              No. 04-14-00282-CV

                                         IN RE STATE OF TEXAS

                                      Original Mandamus Proceedings 1

Opinion by: Marialyn Barnard, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: May 28, 2014

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On April 23, 2014, relator the State of Texas filed a petition for writ of mandamus

challenging the trial court’s order denying a party’s plea to the jurisdiction. Relator complains, in

part, that the parties and the court failed to provide notice to the attorney general of a party’s

challenges to the constitutionality of a state statute as required by the Texas Government Code.

See TEX. GOV’T CODE ANN. § 402.010(a) (West Supp. 2013). The record reflects that the petitioner

in the underlying proceeding for divorce or, alternatively, suit affecting the parent-child

relationship, filed multiple pleadings challenging the constitutionality of Texas state laws. The

record does not reflect that notice of the constitutional challenge with a copy of the pleadings was




1
 This proceeding arises out of Cause No. 2012CI02421, styled A.L.F.L. v. K.L.L., pending in the 438th Judicial District
Court, Bexar County, Texas, the Honorable Barbara Hanson Nellermoe presiding.
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provided to the attorney general as required by statute. Therefore, we conditionally grant

mandamus relief.

                                                     Background

           A.L.F.L. and K.L.L. were married in Washington, D.C. in 2010. In February 2013, after

the couple had returned to Texas, K.L.L. gave birth to a child conceived through artificial

insemination. A.L.F.L. and K.L.L. then separated five months later. The couple’s out-of-state

marriage certificate was registered as a foreign judgment in Texas in October 2013 without

objection. 2 A.L.F.L. filed a suit for divorce and, in the alternative, a suit affecting the parent-child

relationship in February 2014.

           K.L.L. filed a motion to dismiss the divorce proceeding, a plea to the jurisdiction, a request

to decline jurisdiction and an original answer, asserting that Texas laws prohibiting same-sex

marriage and the recognition of out-of-state same-sex marriages preclude the trial court’s authority

to entertain the divorce action. A.L.F.L. responded to these motions by asserting, in part, that

Article 1, Section 32 of the Texas Constitution and related provisions of the Texas Family Code

are unconstitutional. The trial court conducted a hearing on March 27, 2014, on K.L.L.’s first

amended plea to the jurisdiction and motion to deny divorce filing. The parties submitted trial

briefs after the oral hearing and the court subsequently entered an order denying both the plea to

the jurisdiction and the motion to dismiss the divorce proceeding.

           The order, signed on April 22, 2014, holds Article 1, Section 32 of the Texas Constitution

and Texas Family Code section 6.204 facially unconstitutional and Texas Family Code sections

102.003 and 160.204(a)(1) unconstitutional as applied. The trial court ordered that A.L.F.L.’s

request for temporary orders be set for hearing in the district court and that a copy of the order be



2
    Cause No. 2013-CI-17882, styled A.L.F.L. v. K.L.L., filed in the 438th Judicial District Court, Bexar County, Texas.

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sent to the Office of the Attorney General. The trial court e-mailed a copy of its order to the

attorney general’s office the same day. The State filed a petition in intervention in the trial court

the following day, as well as this original petition for writ of mandamus.

       In addition to arguing that the trial court’s order is substantively erroneous, the State

contends in this mandamus proceeding that the trial court abused its discretion by issuing a

decision invalidating a state constitutional provision and a state statute without providing prior

notice to the attorney general. This court issued a temporary stay of the challenged order pending

the determination of the mandamus proceeding.

                                             Analysis

       Mandamus is an extraordinary remedy and properly issues only to correct a clear abuse of

discretion or the violation of a duty imposed by law where there is no other adequate legal remedy.

Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). A clear abuse of discretion occurs when

the trial court fails to comply with a duty clearly mandated by statute or the rules of procedure.

Manuel v. Spector, 712 S.W.2d 219, 221 (Tex. App.—San Antonio 1986, orig. proceeding).

Mandamus is appropriate to enforce a procedural requirement to provide notice. See In re

Acceptance Ins., 33 S.W.3d 443, 454 (Tex. App.—Fort Worth 2000, orig. proceeding).

       When a party to litigation “files a petition, motion or other pleading challenging the

constitutionality of a statute of this state,” the Texas Government Code requires that the party or

the court provide notice and a copy of the pleadings to the attorney general “if the attorney general

is not a party to or counsel involved in the litigation.” TEX. GOV’T CODE ANN. § 402.010(a) (West

Supp. 2013). This statute provides that the party asserting the constitutional challenge “shall” file

in the trial court a form adopted by the Office of Court Administration indicating which pleadings

should be served, and the court “shall” serve notice and a copy of the pleadings “by certified or



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registered mail or electronically to an e-mail address designated by the attorney general for the

purposes of this section.” Id.

        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. It is undisputed that A.L.F.L.’s pleadings contain constitutional

challenges and that neither the parties nor the trial court followed the requirements of section

402.010. Although the statute provides that the failure to provide notice as required does not

deprive the trial court of jurisdiction, we conclude that the trial court’s determination of the

constitutional challenges without prior notice to the attorney general deprives the State of an

important right and constitutes an abuse of discretion for which mandamus relief is available. See

Acceptance Ins., 33 S.W.3d at 454.

        In her response to the petition for writ of mandamus, A.L.F.L. contends that the trial court

did not abuse its discretion because the State does not have a justiciable interest in the outcome of

the underlying proceeding. The statute requiring notice to the attorney general of constitutional

challenges includes no such requirement. The statute is clear and requires the court to provide

notice in any litigation in which a party raises a constitutional challenge to state laws. A.L.F.L.’s

argument is, therefore, unavailing.

        In addition however, due to the nature of the complaint raised by this original proceeding,

we conclude that the State does have a justiciable interest in the underlying controversy sufficient

to entitle it to seek mandamus relief regarding the trial court’s failure to provide the required notice.

See Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (recognizing that a person need not be

a party to the underlying litigation to seek mandamus relief). Although the State did not file its

intervention until after the order at issue was signed by the trial court, it seeks by this proceeding

to protect its right to notice as required by statute. For the reasons discussed in this opinion, we
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conclude that the attorney general was entitled to notice of the constitutional challenges plead in

the underlying proceeding and, accordingly, the State is entitled to pursue mandamus relief to

redress the trial court’s failure to provide it.

        A.L.F.L. further argues that the attorney general was not entitled to notice because the

statute requiring it has been held by the Texas Court of Criminal Appeals to create an

unconstitutional violation of the separation of powers. See Ex Parte Lo, 424 S.W.3d 10, 29 (Tex.

Crim. App. 2013) (denying the State’s motion for rehearing which was based in part on the

allegation that the Court of Criminal Appeals erred by finding a penal code provision

unconstitutionally overbroad without first providing notice to the attorney general). The Court of

Criminal Appeals’ holding in Ex parte Lo is not binding in this civil proceeding, however. See

TEX. CODE CRIM. PROC. ANN. art. 4.04 (West 2005) (“The Court of Criminal Appeals shall have

. . . final appellate and review jurisdiction in criminal cases. . .”).

        Alternatively, A.L.F.L. argues that the trial court complied with the statutory requirement

and provided adequate notice by sending a copy of its order to the attorney general’s attention after

its entry. A.L.F.L. relies on the case of In re C.M.D. in support of this proposition. See In re

C.M.D., 287 S.W.3d 510, 514 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding) (holding

evidence that attorney general’s office was provided with a copy of the trial court’s order finding

the state’s paternity registry statute unconstitutional satisfied any notice required by Texas Family

Code section 37.006(b)). We find C.M.D. distinguishable.

        The trial court in C.M.D. determined sua sponte that portions of the family code were

unconstitutional. Id. at 513. Hence, there were no pleadings by the parties which could have been

provided to the attorney general’s office in advance of the trial court’s ruling. The court of appeals

determined that providing a copy of the order after the fact satisfied the requirements of the Family

Code in that circumstance. Id. at 514. Here, in contrast, the parties filed pleadings raising
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constitutional challenges to state laws which the trial court considered at a hearing, in addition to

evidence and argument.

       Finally, A.L.F.L. contends that the trial court did not abuse its discretion because it acted

in accordance with a recent order issued by the United States District Court for the Western District

of Texas in the case of De Leon v. Perry. See De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014

WL 715741, at *1 (W.D. Tex. Feb. 26, 2014). According to A.L.F.L., because the trial court’s

order mirrored in many respects the preliminary injunction ordered by the federal district court,

the trial court did not act “without reference to any guiding rules or principles of law.” A.L.F.L.’s

argument is again misplaced. The De Leon case involves two homosexual couples who have

brought challenges to the prohibition of same-sex marriage under Texas’s constitutional

amendment — one couple seeking recognition of an out-of-state marriage, and one seeking to

marry in Texas. Id. at *1. Both suits sought declaratory and injunctive relief enjoining state

officials from enforcing Article I, Section 32 of the Texas Constitution and the corresponding

provisions of the Texas Family Code. Id. at *3. The Attorney General of the State of Texas was a

party to the litigation in both cases. Therefore, the notice requirement under the Government Code

was not at issue. The federal district court’s order in De Leon is inapplicable to the question of

whether the trial court here abused its discretion by failing to provide notice of constitutional

challenges as required by statute.

       Because we conclude the trial court clearly abused its discretion in entering the challenged

order without providing prior notice to the State, we do not reach the remainder of the State’s

arguments regarding the substance of the trial court’s ruling.

                                            Conclusion

       Based on the foregoing analysis, we hold the trial court abused its discretion in failing to

provide notice to the attorney general of a constitutional challenge to Texas state laws raised by a
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party’s pleading in the underlying litigation. Accordingly, we conditionally grant the petition for

writ of mandamus and direct the trial court to vacate its order of April 22, 2014, and provide the

notice required by the Texas Government Code prior to conducting a hearing on K.L.L.’s plea to

the jurisdiction and ruling on the constitutionality of Texas state laws. See TEX. GOV’T CODE ANN.

§ 402.010(a) (West Supp. 2013). The writ will issue only if the trial court fails to vacate its order

as directed within ten days from the date of this court’s order. The temporary stay previously

granted by this court will remain in effect until the April 22, 2014 order has been vacated.


                                                  Marialyn Barnard, Justice




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