Dead Law: How Void, Repealed or Superseded Laws Can Rise Again
Well, it’s Halloween again, and I usually like to get into the spirit of the season—pun intended—by writing a blog on an eerie topic. This year, I’m channeling something from beyond the grave. It’s faint but getting stronger. Yes, I can sense it clearly now. It’s…it’s…dead law!
Okay, so it’s not the spirit of your great Aunt Myrtle, but I find it just as chilling. That’s right, laws can die. Some get declared void or unconstitutional, some get repealed, some get superseded, and some merely sunset. And sometimes, on nights when the moon is full and the air is still, some of those dead laws can return to haunt the living. Here are a few examples:
Perhaps the most common type of haunted law is old legislation that is specifically continued in effect as-is for certain purposes despite being amended or repealed by new legislation. It is common for an Act of the Texas Legislature to state something like this, which is actual language from House Bill 3167 of the 86th Regular Session:
The change in law made by this Act applies only to a plat application filed on or after the effective date of this Act. A development or plan application filed before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose.
Sometimes, language such as this can result in old law being continued in effect for decades or more depending on the conditions it is continued in effect for. Usually, when such language is included in an act, it is not within the portion of the act that gets codified, so it may take some grave digging into the legislative history to find out whether this type of dead law lingers on.
Another frequent haunting is from dead law that is cited or otherwise referenced by living law, which seems to occur most often in statutory definitions. Statutorily defined terms can be quite lengthy and technical, making it cumbersome to restate the entire definition each time the same term is used in a different code, chapter, subchapter, etc. Therefore, when a new law uses the same term and intends for it to have the same meaning as a previously enacted law, the definition in the new lay may simply state that the term has the same meaning as the other law. However, sometimes that other law dies. A grotesque example of this type of haunting is in Chapter 27 of the Texas Property Code. There, the terms “construction defect,” “contractor,” “structural failure,” and “third-party inspector” are all defined by references to Chapter 401 of the Texas Property Code, which (cue scary music) no longer exists. You see, after Chapter 27 was enacted, Chapter 401 sunset, meaning it has ceased to be. It’s expired and gone to meet is maker. It’s a stiff. Bereft of life, it rests in peace. It’s rung down the curtain and joined the choir invisible. This is an ex-chapter.
So, what happens to the terms as used in Chapter 27, then? Well, because courts give effect to the intent of any given legislation, those definitions live on. You can think of Chapter 401 as an organ donor, and of Chapter 27 as the transplant recipient. Not that there’s anything scary about organ donation, which I think is admirable; it’s just a handy analogy.
There are other ways for dead law to go on haunting, such as by “vesting,” but I think we’ve frightened ourselves enough for now. Besides, a new client has just arrived for a consultation, and he’s dripping wet and wearing a hockey mask for some reason. I’d better go see what that’s all about. Happy Halloween!
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