The State Bar of Texas, Austin.
The State Bar of Texas, Austin. (Joel Salcido)

Although the concern over protecting lawyers’ “sincerely held religious beliefs” became a focal point as the Texas House debated the State Bar of Texas sunset bill during a tense session Monday, the bill ultimately cleared the House and they sent it back to the Senate on a 125-21 vote.

“I do not believe we can go too far in this body in ensuring that the First Amendment rights of Texans are protected,” Rep. Jeff Leach, R-Plano, said during the debate over an amendment to S.B. 302.

But Democrats argued from the House chamber’s back microphone that Texas lawyers’ religious freedoms already are protected by existing laws, and they said the amendment is “bad policy.” Some Democratic lawmakers also suggested that the amendment would allow Texas attorneys to refuse legal assistance to LGBT individuals based on the attorneys’ religious beliefs.

At one point during the debate, Rep. Celia Israel, D-Austin, asked Rep. Matt Schaefer, R-Tyler, “Do you believe homosexuality is a sin?”

“Yes, I do,” responded Schaefer, a supporter of the amendment.

The amendment takes aim at the American Bar Association’s Model Rule of Professional Conduct 8.4(g), proposed in 2016. The model rule deems it professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.”

In a Dec. 20, 2016, opinion, Texas Attorney General Ken Paxton stated that a court likely would conclude that the ABA model rule, if adopted in Texas, “would unconstitutionally restrict freedom of speech, free exercise of religion and freedom of association for members of the State Bar.” According to the opinion, a court also likely would find the rule “overbroad and void for vagueness.”

State Bar President Frank Stevenson, a Dallas partner in Locke Lord, said there are no plans to adopt the ABA model rule in Texas.

“There has never been any suggestion that it would be added as part of the disciplinary rules,” Stevenson said.

Stevenson also noted that that the so-called “religious liberty” amendment is not unique to the State Bar’s sunset legislation. Such an amendment was added to H.B. 2950, the sunset bill for the Texas Board of Nursing, and H.B. 2561, the sunset bill for the Texas State Board of Pharmacy.

The House added the amendment to the State Bar’s bill on an 85-59 vote before passing the bill on second reading by a voice vote. The bill will be considered today by the House for final passage before it is sent back to the Senate.

The bill likely will go to a conference committee that would work out differences between the House and Senate versions.

In addition to the religious liberty amendment, the House amended a provision in the bill that would have required all Texas lawyers to be fingerprinted as recommended by the Texas Sunset Advisory Commission for all state licensing agencies.

Under an amendment by Rep. Mike Schofield, R-Katy, new attorneys would have to be fingerprinted for the Texas Board of Law Examiners as part of the licensing process. The amendment provides that the State Bar would have access to those fingerprint records.

Lowell Brown, director of the State Bar’s communications division, said attorneys who already are licensed would not have to be fingerprinted under Schofield’s amendment.

“It’s not retroactive,” Brown said.