With the publication of a letter opinion by the Texas Attorney General’s office, voters across Texas might now wonder if supporters of the American Laws for American Courts (ALAC) bill were simply architects of a scam; a giant hoax perpetrated solely for purposes of political advantage.
The well-researched (IMHO), seven-page letter opinion KP-0094 dated June 15, 2016 addressed a request for an Attorney General opinion written by State Representative Dan Flynn dated December 17, 2015. Representative Flynn posed 11 questions pertaining to the extent to which current law authorizes or requires a judge of a state court to refuse to apply foreign law in certain family law disputes.
Representative Flynn asked:
“May a judge refuse to enforce a judgment regarding a family law dispute, if the judgment resulted from an application of foreign law by a court or other tribunal of another country that violated (1) a party’s right to due process guaranteed by the United States Constitution or the Texas Constitution or (2) the public policy of this state?”
Pages 1 and 2 of the letter opinion cite one U.S. Supreme Court case and two Texas cases:
- Griffin, 327 U.S. at 228 in which the U.S. Supreme Court held “A judgment obtained in violation of procedural due process is not entitled to full faith and credit when sued upon in another jurisdiction.”
- Banco Minero v. Ross, 172 S.W.711, 714-15 (Tex.1915) stating “Texas courts have long held “the chief requisite for the recognition of a foreign judgment necessarily is that an opportunity for a full and fair trial was afforded.”—declining to recognize a judgment by a Mexican court after finding that it was entered without a full and fair trial before an impartial tribunal)
- Ashfaq v. Ashfaq, 467 S.W.3d 539, 543–44 (Tex. App.-Houston [1st Dist.] 2015, no pet.) “Thus, if a judgment was obtained in a foreign jurisdiction in violation of a party’s due process rights, a state court judge may refuse to enforce the judgment. Similarly, Texas courts will consider whether a judgment obtained in a foreign country was based on foreign law contrary to this State’s public policy, and, if so, the courts may refuse to enforce the judgment.”
In his second question Representative Flynn asked:
“If the parties to a family law dispute voluntarily elect to engage in arbitration and the parties agree that foreign law will govern the dispute, may a judge refuse to enforce the decision of the arbitrator regarding the family law dispute, if the arbitrator’s application of the foreign law to the dispute would violate (1) a party’s right due process guaranteed by the U.S. Constitution or the Texas Constitution or (2) the public policy of this state?”
Page 2 of the letter opinion cites two Texas cases and a section of the Texas Civil Practice and Remedies Code in the Texas Constitution:
- Ewing v. Act Catastrophe-Tex. L.C., 375 S.W.3d 545, 551 (Tex. App.-Houston [14th Dist.] 2012, pet. denied) “Parties in an arbitration proceeding have due process rights to notice and a meaningful opportunity to be heard.”
- ClV. PRAC. & REM. CODE§ 171.044(a) (requiring notice of arbitration).
- Myer v. America Life, Inc., 232 S.W.3d 401, 413 (Tex. App.- Dallas 2007, no pet.). “a Texas court “may refuse to enforce an arbitration award that is contrary to public policy.”
If you’re so inclined you can read through the rest of Representative Flynn’s letter linked above however the summary at the end of the Texas AG letter opinion hits the ball out of the ball park:
Under Texas law, a court is not required in family law disputes to enforce a foreign law if enforcement would be contrary to Texas public policy or if it would violate a party’s basic right to due process.
That’s right! The letter opinion cites the provisions in existing law that were already in place thanks to prior Texas Legislatures, the U.S. Supreme Court and Texas court decisions.
Has it home yet? The ALAC bill was not needed—and by reviewing the facts, the timeline and the evidence I’m convinced the supporters of the ALAC bill perpetrated a hoax—a giant scam solely for political advantage.
Recall the evidence gathered through Open Records Requests and a little sleuthing.
The February 17th, 2015 letter from Jimmy Vaught, Chair, Family Law Section of the State Bar of Texas and Diana Friedman, President, Texas Family Law Foundation sent to EVERY Texas State Representative and EVERY Texas State Senator THREE MONTHS prior to the end of the session outlined that the need for an ALAC-type bill was not necessary:
“prior Texas Legislatures have made such legislation unnecessary in Texas.”
Which was followed by Steve Bresnan’s May 4, 2015 testimony at a Senate Committee on State Affairs where he said:
“I’ve given you two handouts; one is a two page letter that’s been distributed about FIVE times this session—and before and during the session—that enumerates the provisions in existing law that protect against the sort of shocking things that people are concerned about—“
Then there’s the May 27, 2015 letter to Representative Debbie Riddle written by Judge Judy Warne where Judge Warne advised Representative Riddle:
“However, if the premarital contract involves a foreign law issue, under the bill the pre-marital contract will be unenforceable if the applicable foreign law to the contract would be contrary to public policy”
This is an extremely important issue because more than a few political & not-at-all political futures were undermined (and may be seriously undermined in the future) thanks to the architects of a scam perpetrated solely for political gain.