By: Middleton S.B. No. 1396               A BILL TO BE ENTITLED   AN ACT   relating to a period of prayer and Bible reading in public schools.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Subchapter C, Chapter 25, Education Code, is   amended by adding Section 25.0823 to read as follows:          Sec. 25.0823.  PERIOD OF PRAYER AND BIBLE READING.  (a) The   board of trustees of a school district or the governing body of an   open-enrollment charter school that is not operated by or   affiliated with a religious organization may by record vote adopt a   policy requiring every campus of the district or school to provide   students and employees with an opportunity to participate in a   period of prayer and Bible reading on each school day in accordance   with this section.          (b)  A policy adopted under Subsection (a) must prohibit:                (1) a student or employee of the school district or   open-enrollment charter school from being permitted to participate   in the period of prayer and Bible reading unless the employee or   parent or guardian of the student submits to the district a signed   consent form that includes:                      (A)  an acknowledgment that the student or   employee has a choice as to whether to participate in the period of   prayer and Bible reading;                      (B)  a statement that the person has no objection   to the student's or employee's participation in or hearing of the   prayers or Bible readings offered during the period; and                      (C)  an express waiver of the person's right to   bring a claim under state or federal law arising out of the adoption   of a policy under this section, including claims under the United   States Supreme Court's interpretations of the Establishment   Clause, which forever releases the school district and all school   officials from any such claims that the signatory might assert in   state or federal court; and                (2)  the provision of a prayer or Bible reading over a   public address system.          (c)  An employee or parent or guardian of a student may   revoke the person's consent provided under Subsection (b)(1) by   informing the appropriate school administrator, as determined by   the school district or open-enrollment charter school, and no   student or employee whose consent has been withdrawn may continue   participating in the period of prayer and readings from the Bible   unless and until a new consent form is executed and submitted in   accordance with Subsection (b)(1). A person who withdraws consent   under this section remains bound by the waiver of claims described   in Subsection (b)(1)(C).          (d)  A policy providing for a period of prayer and Bible   reading adopted under Subsection (a) must include provisions   ensuring a prayer or Bible reading is not provided in the physical   presence or within the hearing of a person for whom a signed consent   form has not been submitted under Subsection (b)(1) or has been   revoked under Subsection (c), or in any manner that would inflict   "injury in fact" on such a person under Article III of the   Constitution. In order to comply with this subsection, a policy may   require that the period of prayer and Bible reading be provided:                (1)  before normal school hours;                (2)  only in classrooms or other areas in which a   consent form under Subsection (b)(1) has been submitted for every   employee and student, which may include an entire district or   school campus if a consent form has been submitted for each employee   and student at the campus; or                (3)  by any other method recommended by the attorney   general or legal counsel for the district or school.          (e)  The attorney general, on request from the board of   trustees of a school district or the governing body of an   open-enrollment charter school, shall:                (1)  provide advice on best methods for a district or   school to comply with the requirements of this section;                (2)  provide a model consent form that may be used for   purposes of providing consent under Subsection (b)(1); and                (3)  defend the district or school in a cause of action   arising out of the adoption of a policy providing for a period of   prayer and Bible reading under Subsection (a).          (f)  If the attorney general defends a district or school   under Subsection (e)(3), the state is liable for the expenses,   costs, judgments, or settlements of the claims arising out of the   representation. The attorney general may settle or compromise any   and all claims under this subsection. The state may not be liable   for any expenses, costs, judgments, or settlements of any claims   arising out of the adoption of a policy providing for a period of   prayer and Bible reading under Subsection (a) against a district or   school not being represented by the attorney general.          (g)  Notwithstanding any other law, any person, including an   entity, attorney, or law firm, who seeks declaratory or injunctive   relief to prevent a school district or open-enrollment charter   school from adopting or implementing a policy providing for a   period of prayer and Bible reading under Subsection (a) in any state   or federal court, or that represents any litigant seeking such   relief in any state or federal court, is jointly and severally   liable to pay the costs and reasonable attorney's fees, including   interest, of the prevailing party, including the costs and   reasonable attorney's fees that the prevailing party incurs in its   efforts to recover costs and fees.          (h)  For purposes of this section, a party is considered a   prevailing party if a state or federal court:                (1)  dismisses any claim or cause of action brought   against the party that seeks the declaratory or injunctive relief   described by Subsection (g), regardless of the reason for the   dismissal; or                (2)  enters judgment in the party's favor on any such   claim or cause of action.          (i)  A prevailing party may recover costs and attorney's fees   under Subsection (h) only to the extent that those costs and   attorney's fees were incurred while defending claims or causes of   action on which the party prevailed.          (j)  Regardless of whether a prevailing party sought to   recover costs or attorney's fees in the underlying action, a   prevailing party under this section may bring a civil action to   recover costs and attorney's fees against a person, including an   entity, attorney, or law firm, that sought declaratory or   injunctive relief described by Subsection (g) not later than the   third anniversary of the date on which, as applicable:                (1)  the dismissal or judgment described by Subsection          (h)  becomes final on the conclusion of appellate review; or                (2)  the time for seeking appellate review expires.          (k)  It is not a defense to an action brought under   Subsection (j) that:                (1)  a prevailing party under this section failed to   seek recovery of costs or attorney's fees in the underlying action;                (2)  the court in the underlying action declined to   recognize or enforce the requirements of this section; or                (3)  the court in the underlying action held that any   provisions of this section are invalid, unconstitutional, or   preempted by federal law, notwithstanding the doctrines of issue or   claim preclusion.          (l)  Notwithstanding any other law, the state has sovereign   immunity, its officers and employees have sovereign and official   immunity, a school district or open-enrollment charter school has   governmental immunity, and each member of the governing body of a   school district or open-enrollment charter school and employee of a   school district or open-enrollment charter school has governmental   and official immunity in any action, claim, or counterclaim or any   type of legal or equitable action that challenges the validity of   any provision or application of this section, on constitutional   grounds or otherwise, unless that immunity has been abrogated or   preempted by federal law in a manner consistent with the   Constitution of the United States. The sovereign immunity conferred   by this section upon the state and each of its officers and   employees includes the constitutional sovereign immunity   recognized by the Supreme Court of the United States in Seminole   Tribe of Florida v. Florida, 517 U.S. 44 (1996), and Alden v. Maine, , 517 U.S. 44 (1996), and Alden v. Maine,   527 U.S. 706 (1999), which applies in both state and federal court   and which may not be abrogated by Congress or by any state or   federal court except pursuant to legislation authorized by section   5 of the Fourteenth Amendment, by the Bankruptcy Clause of Article   I, or by Congress's powers to raise and support Armies and to   provide and maintain a Navy.          (m)  Notwithstanding any other law, the immunities conferred   by Subsection (l) shall apply in every court, both state and   federal, and in every adjudicative proceeding of any type   whatsoever.          (n)  Notwithstanding any other law, a provision of state law   may not be construed to waive or abrogate an immunity described by   Subsection (l) unless it expressly waives or abrogates immunity   with specific reference to this section.          (o)  Notwithstanding any other law, no attorney representing   the state, its political subdivisions, or any officer, employee, or   agent of this state or a political subdivision is authorized or   permitted to waive an immunity described in Subsection (l) or take   any action that would result in a waiver of that immunity, and any   such action or purported waiver shall be regarded as a legal nullity   and an ultra vires act.          (p)  Notwithstanding any other law, including Chapter 37,   Civil Practice and Remedies Code, and sections 22.002, 22.221, and   24.007 through 24.011, Government Code, no court of this state may   award declaratory or injunctive relief, or any type of writ, that   would declare or pronounce any provision or application of this   section invalid or unconstitutional, or that would restrain the   state, its political subdivisions, including a school district or   open-enrollment charter school, any officer, employee, or agent of   this state or a political subdivision, including each member of the   governing body of a school district or open-enrollment charter   school and employee of a school district or open-enrollment charter   school, or any person from enforcing any provision or application   of this section, and no court of this state shall have jurisdiction   to consider any action, claim, or counterclaim that seeks such   relief.          (q)  Nothing in this section shall be construed to prevent a   litigant from asserting the invalidity or unconstitutionality of   any provision or application of this section as a defense to any   action, claim, or counterclaim brought against that litigant.          (r)  Notwithstanding any other law, any judicial relief   issued by a court of this state that disregards the immunities   conferred by Subsection (l), or the jurisdictional and remedial   limitations imposed by Subsection (p), shall be regarded as a legal   nullity because it was issued by a court without jurisdiction, and   may not be enforced or obeyed by any officer, employee, or agent of   this state or a political subdivision, judicial or otherwise.          SECTION 2.  Section 25.901, Education Code, is amended to   read as follows:          Sec. 25.901.  EXERCISE OF CONSTITUTIONAL RIGHT TO PRAY.  A   public school student has an absolute right to individually,   voluntarily, and silently pray or meditate in school in a manner   that does not disrupt the instructional or other activities of the   school. A person may not require[, encourage,] or coerce a student   to engage in or refrain from such prayer or meditation during any   school activity.          SECTION 3.  Each board of trustees of a school district and   each governing body of an open-enrollment charter school shall take   a record vote not later than six months after the effective date of   this Act on whether to adopt a policy requiring every campus of the   district or school to provide a period of prayer and Bible reading   under Section 25.0823, Education Code, as added by this Act.          SECTION 4.  This Act applies beginning with the 2023-2024   school year.          SECTION 5.  This Act takes effect immediately if it receives   a vote of two-thirds of all the members elected to each house, as   provided by Section 39, Article III, Texas Constitution. If this   Act does not receive the vote necessary for immediate effect, this   Act takes effect September 1, 2023.