Us Citizens Equal Court Access In a Foreign Country
In determining whether the foreign country affords United States citizens equal court access, a court must look only to the law of the foreign country, not to its actual application.
This limitation comes not from Texas law, but from the constitutional structure of our federal system.
In Zschernig v. Miller, 389 U.S. 429, 19 L. Ed. 2d 683, 88 S. Ct. 664 (1968), the United States Supreme Court held that state courts cannot look behind a foreign country's law to determine whether its government actually provides United States citizens with the rights that its law claims it does.
The Court explained that "minute inquiries concerning the actual administration of foreign law . . .and the credibility of foreign diplomatic statements" are the kinds of "matters which the Constitution entrusts solely to the Federal Government." Zschernig, 389 U.S. at 435-36.
But the Court also stated that statutes merely requiring a "routine reading of foreign laws" to determine whether those laws theoretically provide reciprocal rights for United States citizens do not unconstitutionally encroach on the federal domain over foreign affairs. Id. at 433; see also Clark v. Allen, 331 U.S. 503, 516-17, 91 L. Ed. 1633, 67 S. Ct. 1431 (1947).
As we presume that the Legislature intended section 71.031 to comport with the Constitution, see TEX. GOV'T CODE 311.021(1), a court must limit its inquiry under the statute to whether the law of the foreign country in theory provides United States citizens with "equal treaty rights."
A court should determine this question the same way it would determine any other question of foreign law. See TEX. R. EVID. 203 (establishing the procedure for determining foreign law).
To assist in this determination, the parties may produce or the court may consider sua sponte any source, including affidavits and testimony of foreign law experts, treatises and other secondary sources, interpretations of the foreign country's law by federal courts or agencies, and the foreign country's primary legal materials -- statutes, codes, case law, court rules, legally binding executive proclamations, or any other legally authoritative documents. See id.
Under Zschernig, however, the court may not determine whether the foreign country's government in fact denies to United States citizens the rights that its law provides them in theory. See Zschernig, 389 U.S. at 434, 439-41.