Opinion
Civil Action No. SA-06-CV-0043 OG (NN).
October 19, 2006
ORDER DIRECTING CERTIFICATION TO THE ATTORNEY GENERAL OF THE STATE OF TEXAS PURSUANT TO 28 U.S.C § 2403(b).
The matter before the Court is the certification to the Texas Attorney General of the fact that plaintiffs have challenged the constitutionality of a Texas statute in plaintiffs' motion for partial summary judgment (Docket Entry 16). Plaintiffs filed their motion on September 19, 2006, requesting among other things, that the Court find that defendant is not entitled to the procedures and limitations set forth in Chapter 74 of the Texas Civil Practice and Remedies Code because said statute violates Article 1, Section 3 of the Texas Constitution.
Pertinent to this matter is 28 U.S.C. § 2403(b) which requires federal courts to notify States of constitutional challenges to their State statutes. Under section 2403(b), if the State, its agencies, officers, or employees are not parties to the case, and the challenged statute affects the public interest, the federal court must certify the fact to the State attorney general.
In this case, the State of Texas is not a party, and none of its agencies, officers, or employees are parties. The statute at issue, Chapter 74 of the Texas Civil Practice and Remedies Code, addresses liability relating to health care claims. Through Chapter 74 and its precursor, Texas Revised Civil Statute Article 4590i, the Texas legislature addressed what it described as a medical "'crisis [that] has had a material adverse effect on the delivery of medical and health care in Texas.'" Accordingly, the statute addresses a matter affecting the public in Texas.
Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005) (quoting Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(6), 1977 Tex. Gen. Laws 2039, 2040 (former Tex.Rev.Civ. Stat. art. 4590i, § 1.02(6)), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 and citing Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847, 884 ("reiterating the Legislature's concern about the gravity of an ongoing 'medical malpractice insurance crisis' caused in part by an increased number of health care liability claims since 1995").
Therefore, the Clerk of Court shall certify to the Attorney General of the State of Texas pursuant to Section 2403(a) of Title 28 of the United States Code and Federal Rule of Civil Procedure 24(c) that plaintiff in this case has drawn into question the constitutionality of Chapter 74 of the Texas Civil Practice and Remedies Code under Article 1, Section 3 of the Texas Constitution.
It is so Ordered.
CERTIFICATE PURSUANT TO 28 U.S.C. 2403(b)
To: The Honorable Greg Abbott, Attorney General of the State of TexasOn behalf of this Court and pursuant to 28 U.S.C. 2403(b) and Federal Rule of Civil Procedure 24(c), I certify that in this case there is drawn into question the constitutionality of Chapter 74 of the Texas Civil Practice and Remedies Code, a statute affecting the public interest. The above-named plaintiff has brought into issue the constitutionality of said statute under Article 1, Section 3 of the Texas Constitution, see Docket Entry 16.