© 2017 by Kevin Stewart

New Precedent for Constitutional Points of Order?

May 11, 2017

     On Tuesday, a point of order was sustained under Rule 8, Section 1: the bill caption is inaccurate. HB 731 by Rep. Bohac would have made certain threats by gang members a third degree felony. The caption referenced an "offense," rather than specifying that it related to a criminal offense. Therefore, the caption violated Rule 8, Section 1(c). This was almost exactly like the point of order that was sustained on HB 1156 by Rep. Sarah Davis that would criminalize the unlawful restraint of a dog (discussed in a post on May 3rd).

     Unlike the point of order on Sarah Davis' bill, though, HB 731 was on third reading. This is a key distinction. When a bill passes on 2nd reading, points of order based on the work of the committee are "scrubbed" from the bill and not eligible to be called on 3rd reading. Thus, if you don’t call such a point of order on second reading, it is waived (see Handbook §6.3). However, points of order based on constitutional provisions have special rules. First, they cannot be waived, and second, they cannot be overturned by a suspension vote (see Handbook §6.2). This is the first time that the chair has had the opportunity to discuss the new subsections in Rule 8, Section 1 and how they relate to constitutional points of order.

     The chair clarified that "improper captions are a constitutional matter. Section 35(b) of the Texas Constitution states that, '[t]he rules of procedure of each house shall require that the subject of each bill be expressed in its title in a manner that gives the legislature and the public reasonable notice of that subject.’”  The House Rules comport with this constitutional requirement in Rule 8, Section 1(a)(1): "[bills shall consist of] a title or caption… that gives the legislature and the public reasonable notice of the subject of the proposed measure.”  But the constitution does not require a bill to state whether it creates or modifies criminal penalties, as required by the subsection cited in this point of order.

     It appears that the criminal-penalty requirements in subsection (c) were treated as a constitutional point of order because the requirements of subsection (a)(1) are in the constitution. Assumedly, the other subsections in that rule—(b), requiring a statement if the bill creates a tax or fee, and (d), requiring a statement if the bill creates or expands a license— should also be considered "constitutional requirements” by extension. Therefore, be advised that the requirements of Rule 8, Section 1, even subsections (b), (c), and (d), can be called on third reading as constitutional points of order. Additionally, because they are constitutional points of order, they cannot be overturned by a suspension vote when they are successful. In other words, some of the most frequently cited points of order this session are more powerful than people thought.

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