Constitution of Texas

The Constitution of the State of Texas is the document that establishes the structure and function of the government of the U.S. state of Texas, and enumerates the basic rights of the citizens of Texas.

The opening of the hand-written Texas Constitution of 1876.

The current document was adopted on February 15, 1876, and is the seventh constitution in Texas history (including the Mexican constitution) . The previous six were adopted in 1827 (while Texas was still part of Mexico and half of the state of Coahuila y Tejas), 1836 (the Constitution of the Republic of Texas), 1845 (upon admission to the United States), 1861 (at the beginning of the American Civil War), 1866 (at the end of the American Civil War), and 1869.

At 86,936 words, the constitution is the second-longest state constitution in the United States, exceeded only by the Constitution of Alabama, which is 388,882 words long.[1] It is also one of the most amended constitutions,[2] exceeded only by the Alabama Constitution (which has been amended over 800 times despite having been adopted 25 years after Texas' current constitution) and the California Constitution (which, due to provisions allowing amendments via initiative, is subject to frequent revision). From 1876 to 2019 the Texas Legislature proposed 690 constitutional amendments, 507 were approved by the electorate, 180 were defeated, and 3 never made it on the ballot.[3] Most of the amendments are due to the document's highly restrictive nature. The constitution stipulates that the State of Texas has only those powers explicitly granted to it; there is no counterpart of the federal necessary and proper clause.

As with many state constitutions, it explicitly provides for the separation of powers and incorporates its bill of rights directly into the text of the constitution (as Article I). The bill of rights is considerably lengthier and more detailed than the federal Bill of Rights, and includes some provisions unique to Texas.

Articles of the Texas Constitution of 1876

Article 1: "Bill of Rights"

Article 1 is the Texas Constitution's bill of rights. The article originally contained 29 sections; five sections have since been added. Some of the article's provisions concern specific fundamental limitations on the power of the state. The provisions of the Texas Constitution apply only against the government of Texas. However, a number of the provisions of the U.S. Constitution are held to apply to the states as well, under the Due Process Clause of the 14th Amendment to the U.S. Constitution.

Differences with the US Bill of Rights

While the bill of rights contains many similar rights as the United States Bill of Rights, it is considerably lengthier and more detailed and includes some provisions unique to Texas.

Section 12 recognizes the writ of Habeas Corpus as a right and prohibits its suspension under any circumstance whatsoever. This differs slightly from the U.S. Constitution, which allows its suspension "in Cases of Rebellion or Invasion the public security shall require it".

Section 21 prohibits corruption of blood and forfeiture of estates (including in cases of suicide), extending beyond the federal limitation (Article III, Section 3) which applies only in cases of Treason and even permits forfeiture during the life of the attained (but not after).

Section 34 guarantees the right to hunt, fish and harvest wildlife, subject to wildlife conservation laws. However, the section explicitly states that it does not affect "any provision of law relating to trespass, property rights or eminent domain".

Invalidated sections

Section 32, added in 2005, denies state recognition of same-sex marriage, a practice which was invalidated by the US Supreme Court ruling in Obergefell v. Hodges.

Section 4 purports to prohibit officeholders from the requirements of any religious test, provided they "acknowledge the existence of a Supreme Being". This conflicts with the U.S. Constitution's No Religious Test Clause, and would almost certainly be held unenforceable if challenged, as was a similar South Carolina requirement in Silverman v. Campbell, and a broader Maryland restriction in Torcaso v. Watkins.

Other rights

Section 11 guarantees that every person detained prior to trial are bailable by sufficient sureties, save for Capital offenses, subject to specific exceptions.

Article 2: "The Powers of Government"

Article 2 provides for the separation of powers of the legislative, executive, and judicial branches of the state government, prohibiting each branch from encroaching on the powers of the others.

Article 3: "Legislative Department"

Article 3 vests the legislative power of the state in the "Legislature of the State of Texas", consisting of the state's Senate and House of Representatives. It also lists the qualifications required of senators and representatives, and regulates many details of the legislative process. The article contains many substantive limitations on the power of the legislature and a large number of exceptions to those limitations.

Two-thirds (2/3) of the elected members in either house constitutes a quorum to do business therein (Section 10), contrary to the provision for the United States Congress requiring only a majority. A smaller number in each House is empowered to adjourn from day to day, and compel the attendance of absent members.

As with the United States Constitution, either house may originate bills (Section 31), but bills to raise revenue must originate in the House of Representatives (Section 33).

Section 39 allows a bill to take effect immediately upon the Governor's signature if the bill passes both chambers by a two-thirds vote, unless otherwise specified in the bill. If the bill does not pass by this majority it takes effect on the first day of the next fiscal year (September 1).

The largest Section within this article is Section 49 ("State Debts"), which includes 30 separate sub-sections (including two sub-sections both added in 2003 and both curiously numbered as "49-n"). Section 49 limits the power of the Legislature to incur debt to only specific purposes as stated in the Constitution; in order to allow the Legislature to incur debt for a purpose not stated numerous amendments to this section have had to be added and voted upon by the people In addition, Section 49a requires the Texas Comptroller of Public Accounts to certify the amount of available cash on hand and anticipated revenues for the next biennium; no appropriation may exceed this amount (except in cases of emergency, and then only with a four-fifths vote of both chambers), and the Comptroller is required to reject and return to the Legislature any appropriation in violation of this requirement. Section 49-g created the state's "Rainy Day Fund" (technically called the "Economic Stabilization Fund").

Article 4: "Executive Department"

Article 4 describes the powers and duties of the Governor, Lieutenant Governor, Secretary of State, Comptroller, Commissioner of the General Land Office, and Attorney General. With the exception of the Secretary of State the above officials are directly elected in what is known as a "plural executive" system. (Although the Texas Agriculture Commissioner is also directly elected, that is the result of Legislative action, not a Constitutional requirement.)

The qualifications of the Governor of Texas is that he is at least thirty years of age, a citizen of the United States, and had resided in the State for at least five years preceding his election. The Governor is prohibited from holding any other office, whether civil, military or corporate, during his tenure in office, nor may he practice (or receive compensation for) any profession.

The Governor is the "Chief Executive Officer of the State" and the "Commander in Chief of the military forces of the State, except when they are called in actual service of the United States". He is vested with power to call forth the Militia, convene the Legislature for special session in extraordinary occasions, to execute the laws of the State, and to fill up vacancies not otherwise provided for by law, if consented to by two-thirds of the Senate. The Governor has a qualified negative on all bills passed by the Legislature, which may be overridden by two-thirds of both Houses of the Legislature by votes of the yeas and nays. Finally, the Secretary of State (who has the constitutional duty of keeping the Seal of the State) is appointed by the Governor, by and with the advice and consent of the Senate.

All commissions are signed by the Governor, being affixed with the State Seal and attested to by the Secretary of State.

Under Section 16 of this article, the Lieutenant Governor automatically assumes the power of Governor if and when the Governor travels outside of the state, or is subject to impeachment by the Texas House of Representatives.

Article 5: "Judicial Department"

Main article: Judiciary of Texas

Article 5 describes the composition, powers, and jurisdiction of the state's Supreme Court, Court of Criminal Appeals, and District, County, and Commissioners Courts, as well as the Justice of the Peace Courts.

Article 6: "Suffrage"

Article 6 denies voting rights to minors, felons, and people who are deemed mentally incompetent by a court (though the Legislature may make exceptions in the latter two cases). It also describes rules for elections.

Qualified voters are, except in treason, felony and breach of peace, privileged from arrest when attending at the polls, going and returning therefrom.

Article 7: "Education"

Article 7 establishes provisions for public schools, asylums, and universities. Section 1 states, "it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools". This issue has surfaced repeatedly in lawsuits involving the State's funding of education and the various restrictions it has placed on local school districts.

This Article also discusses the creation and maintenance of the Permanent University Fund (Sections 11, 11a, and 11b) and mandates the establishment of "a University of the first class" (Section 10) to be called The University of Texas, as well as "an Agricultural, and Mechanical department" (Section 13, today's Texas A&M University, which opened seven years prior); it also establishes Prairie View A&M University in Section 14. The University of Texas was originally created in the Constitution of 1858, and Texas A&M University was created from the Morrill Act. In 1915 and 1919, Constitutional Amendments were proposed to separate the two university systems, although both failed.

Article 8: "Taxation and Revenue"

Article 8 places various restrictions on the ability of the Legislature and local governments to impose taxes. Most of these restrictions concern local property taxes.

Section 1-e prohibits statewide property taxes. This Section has been the subject of numerous school district financing lawsuits claiming that other Legislative restrictions on local property taxes have created a de facto statewide property tax; the Texas Supreme Court has at times ruled that the restrictions did in fact do so (and thus were unconstitutional) and at other times ruled that they did not.

Texas has never had a personal income tax. In 2019, the constitution was amended to ban any future income tax, which has the effect of requiring a 2/3 majority of the legislature to vote to repeal the ban. Previously, the requirement to pass any future income tax was passage by a statewide referendum, which requires a simple majority vote of the legislature to add the question to a referendum.[4]

In May 2006 the Legislature replaced the existing franchise tax with a gross receipts tax.

Article 9: "Counties"

Article 9 provides rules for the creation of counties (now numbering 254) and for determining the location of county seats. It also includes several provisions regarding the creation of county-wide hospital districts in specified counties, as well as other miscellaneous provisions regarding airports and mental health.

Article 10: "Railroads"

Main article: Article X of the Texas Constitution

Article 10 contains a single section declaring that railroads are considered "public highways" and railroad carriers "common carriers". Eight other sections were repealed in 1969.

Article 11: "Municipal Corporations"

Article 11 recognizes counties as legal political subunits of the State, grants certain powers to cities and counties, empowers the legislature to form school districts.

Texas operates under Dillon's Rule: counties and special districts are not granted home rule privileges, while cities and school districts have those privileges only in the limited instances specified below.

Sections 4 and 5 discuss the operation of cities based on population. Section 4 states that a city with a population of 5,000 or fewer has only those powers granted to it by general law; Section 5 permits a city, once its population exceeds 5,000, to adopt a charter under home rule provided the charter is not inconsistent with limits placed by the Texas Constitution or general law (the city may amend to maintain home rule status even if its population subsequently falls to 5,000 or fewer).

School districts may adopt home rule,[5] but none have chosen to do so.[6]

Article 12: "Private Corporations"

Article 12 contains two sections directing the Legislature to enact general laws for the creation of private corporations and prohibiting the creation of private corporations by special law. Four other sections were repealed in 1969, and a fifth section in 1993.

Article 13: "Spanish and Mexican Land Titles"

Article 13 established provisions for Spanish and Mexican land titles from the Mexican War Era to please the Mexican government. This article was repealed in its entirety in 1969.

Article 14: "Public Lands and Land Office"

Article 14 contains a single section establishing the General Land Office and the office of commissioner of the General Land Office. Seven other sections were repealed in 1969.

Article 15: "Impeachment"

Article 15 describes the process of impeachment and lists grounds on which to impeach judges. The House of Representatives is granted the power of impeachment, while the Senate has power to try all impeachments.

No person may be convicted save by the consent of two-thirds of the Senators present, who have taken an oath or affirmation to impartially try the impeached. Judgement in impeachment cases does not extend beyond removal from office and disqualification from public office. The convicted remains subject to trial, indictment and punishment according to law.

All officers while subject to impeachment charges are suspended until the verdict by the Senate has been delivered.

Article 16: "General Provisions"

Article 16 contains miscellaneous provisions, including limits on interest rates, civil penalties for murder, and the punishment for bribery.

Section 28 prohibits garnishment of wages, except for spousal maintenance and child support payments (however, this does not limit Federal garnishment for items such as student loan payments or income taxes).

Section 37 provides for the constitutional protection of the mechanic's lien.

Section 50 provides for protection of a homestead against forced sale to pay debts, except for foreclosure on debts related to the homestead (mortgage, taxes, mechanic's liens, and home equity loans including home equity lines of credit). This section also places specific restrictions on home equity loans and lines of credit (Texas being the last state to allow them), the section:

• limits the amount of a home equity loan, when combined with all other loans against a home, to no more than 80 percent of the home's fair market value at the time of the loan,
• requires that the advance on a home equity line of credit be at least $4,000 (even if the borrower wants to borrow less than that amount, though nothing prohibits a borrower from immediately repaying the credit line with a portion of said advance),
• requires a 14-day waiting period before any loan or line of credit is effective (at the initial borrowing; later borrowings against a line of credit can still be made in less time), and
• places restrictions on where closing can take place.

Although Texas is a right-to-work state, such protections are governed by law; the state does not have a constitutional provision related to right-to-work.

Article 17: "Mode of amending the Constitution of this State"

Notwithstanding the large number of amendments (and proposed amendments) that the Texas Constitution has had since its inception, the only method of amending the Constitution prescribed by Article 17 is via the Legislature, subject to voter approval. The Constitution does not provide for amendment by initiative, constitutional convention, or any other means. A 1974 constitutional convention required the voters to amend the Constitution to add a separate section to this Article; the section was later repealed in 1999.

The section also prescribes specific details for notifying the public of elections to approve amendments. It requires that the legislature publish a notice in officially approved newspapers that briefly summarizes each amendment and shows how each amendment will be described on the ballot. It also requires that the full text of each amendment be posted at each county courthouse at least 50 days (but no sooner than 60 days) before the election date.

Once an amendment passes it is compiled into the existing framework (i.e., text is either added or deleted), unlike the United States Constitution.

Attempts at revision

Because of the unwieldiness of the state constitution, there have been attempts to draft a new constitution or to significantly revise the existing one:

• The most successful of the attempts took place in 1969, when 56 separate obsolete provisions (including the entirety of Article 13, and 22 entire sections from Articles 10, 12, and 14) were successfully repealed.[7]
• In 1971 the Texas Legislature placed on the November 1972 ballot an Amendment which called for the Legislature to meet in January 1974 for 90 days as a constitutional convention, for purposes of drafting a new state Constitution. The measure passed (thus adding Section 2 to Article 17; the section was later repealed in November 1999) and the Legislature met. However, even with an additional 60 days added to the session, the convention failed by a mere three votes to propose a new constitution.[7]
• In 1975, the Legislature, meeting in regular session, revived much of the work of the 1974 convention and proposed it as a set of eight amendments to the existing constitution. All eight of the amendments were overwhelmingly rejected by the voters (in 250 the state's 254 counties, all eight amendments were defeated; only in Duval and Webb counties did all eight amendments pass).[7]
• In 1979 the Legislature placed on the ballot four amendments which had their origins in the 1974 convention; of which three were approved by the voters:[8]
  • One amendment created a single property tax "appraisal district" in each county for purposes of providing a uniform appraised value for all property in a county applicable to all taxing authorities (previously, each taxing authority assessed property individually and frequently did so at dissimilar values between the authorities)
  • Another amendment gave to the Texas Court of Appeals criminal appellate jurisdiction (previously, the Courts had jurisdiction over civil matters only; though death penalty cases still bypass this level)
  • The last amendment gave the Governor of Texas limited authority to remove appointed statewide officials
• In 1995, Senator John Montford drafted a streamlined constitution similar to the 1974 version. However, Montford resigned his seat to become chancellor of the Texas Tech University System, and his initiative subsequently died.[8] Later that year, though, voters approved an amendment abolishing the office of State Treasurer and moving its duties to the Texas Comptroller of Public Accounts office.
• In 1998, a bipartisan effort (led by Republican Senator Bill Ratliff and Democratic Representative Rob Junell) produced a rewritten constitution, with the help of students from Angelo State University (Junell's district included the San Angelo area). The second draft was submitted to the 76th Legislature, but failed to gain support in committee.[8]

History

On March 1, 1845, the US enacted a congressional joint resolution proposing the annexation of Texas to the United States (Joint Resolution for annexing Texas to the United States, J.Res. 8, enacted March 1, 1845, 5 Stat. 797). On June 23, 1845, the Texan Congress accepted the US Congress's joint resolution, and consented to President Jones' calling of a convention to be held on July 4, 1845.[9][10] A Texas convention debated the annexation offer and almost unanimously passed an ordinance assenting to it on July 4, 1845.[11] The convention debated through August 28, and adopted the Constitution of the State of Texas on August 27, 1845.[12] The citizens of Texas approved an annexation ordinance and new constitution on October 13, 1845. On December 29, 1845, the United States admitted the State of Texas to the Union (Joint Resolution for the admission of the state of Texas into the Union, J.Res. 1, enacted December 29, 1845, 9 Stat. 108).

On June 17, 1865, President Andrew Johnson appointed Andrew Jackson Hamilton as the provisional civilian governor of the state and directed him to convene a constitutional convention restricted to loyal Americans.[13] A referendum was held on June 25, 1866, pursuant to the laws then in force on March 29, for the ratification of the amendments proposed by the convention.[14]

Texas adopted yet a new constitution document in 1866 once the United States accepted Texas back into the Union. Then, delegates met in 1869 and drafted a new constitution once again. This time, the newly modified law of the land aimed to protect rights for former slaves, and placed more power on centralized state power (p. 57, Practicing Texas Politics, 2015).

See also

• Texas Declaration of Independence
• Constitution of the Republic of Texas
• Law of Texas

References

• Braden, George (1972). Citizens' guide to the Texas Constitution. Austin: Texas Advisory Commission on Intergovernmental Relations. ISBN 978-0-88408-070-1.
• Hill, John L., ed. (1976). Constitution of the State of Texas. Austin: [Office of the Attorney General of Texas].
  • Includes the text of the constitution as of November 2, 1976, along with a brief informational introduction.

1. http://knowledgecenter.csg.org/kc/system/files/1.1.2017.pdf
2. "Number of state constitutional amendments in each state". Ballotpedia. Lucy Burns Institute.
3. "Constitutional Amendments". Legislative Reference Library of Texas. Texas Legislature.
4. "Texas Proposition 4, Prohibit State Income Tax on Individuals Amendment (2019)". Ballotpedia. Retrieved 2020-05-12.
5. https://statutes.capitol.texas.gov/Docs/ED/htm/ED.12.htm#B Texas Education Code, Chapter 12, Subchapter B.
6. "Page Not Found " Search " Texas Public Policy Foundation" (PDF). www.texaspolicy.com. Archived from the original (PDF) on 2012-10-29. Retrieved 2019-01-10.
7. "Constitutional Revision, 1971–1975". Texas Politics. University of Texas College of Liberal Arts. 2009. Archived from the original on 2013-11-23. Retrieved 2015-12-23.
8. "Recent Attempts at Constitutional Revision". Texas Politics. University of Texas College of Liberal Arts. 2009. Archived from the original on 2013-11-23. Retrieved 2015-12-23.
9. Gammel, H.P.N. (1898). The Laws of Texas, 1822–1897. 2. pp. 1225–1227.CS1 maint: ref=harv (link)
10. Weeks 1846.
11. Gammel 1898, pp. 1228–1230.
12. Weeks, Wm. F. (1846). Debates of the Texas Convention. Archived from the original on 2016-03-10. Retrieved 2019-01-10.CS1 maint: ref=harv (link)
13. Presidential Proclamation No. 42, 17 June 1865, 13 Stat. 765
14. Gammel, H.P.N., ed. (1898). The Laws of Texas, 1822–1897. 5. University of North Texas. pp. 888–895.

External links

• "Book of the States" (PDF). The Council of State Governments. January 2017. Retrieved 2019-06-06.
• "Amendments to The Texas Constitution Since 1876" (PDF). Texas Legislative Council. November 2017. Retrieved 2019-06-06. Text of all amendments added to the Texas Constitution since 1876.
• "The Constitution". Texas Politics. Liberal Arts Instructional Technology Services, College of Liberal Arts, University of Texas at Austin. 31 July 2013. Archived from the original on 28 July 2013. Retrieved 2013-07-31. Part of a larger website about Texas government and politics.
• Braden, George D.; et al. (August 1977). "The Constitution of the State of Texas: An Annotated and Comparative Analysis" (PDFs). Texas State Law Library. Retrieved 2013-07-31. Constitution text as of April 22, 1975, including "information regarding the origins, historical development, and contemporary meaning of each section" along with "interpretive comments" (annotations completed 1973–1976).
• "Texas Constitutions 1824–1876" (searchable text and JPEG images). Tarlton Law Library, Jamail Center for Legal Research. 2013. Retrieved 2013-07-31. Historic constitutions and constitutional convention materials, 1824–1876, including the original, unamended text of the 1876 constitution.
• Gammel, H. P. N. (1898–1939). "Gammel's Laws of Texas" (JPEG images only). Portal to Texas History. University of North Texas Libraries. Retrieved 2013-07-31. 32-volume "compilation of the laws and political documents of Texas" covering 1822–1939; includes the 1836 Constitution of the Republic of Texas, as well as the state constitutions of 1861 and 1866.