Difference between revisions of "Texas Constitution"

Revision as of 01:20, July 19, 2023

The Texas Constitution is the governing document for the state of Texas. At 297 pages long, ^[1] it contains about 85,000 words and is longer than nearly all other state constitutions, except Alabama.^[2]

The current Constitution was adopted by voters in 1876, the seventh one in its history (including when it was part of Mexico as well as an independent republic and part of the Confederacy).

The Constitution is highly restrictive: it states that the Texas government has only the powers specifically enumerated therein (it does not have the state equivalent of the United States Constitution's "Necessary and Proper Clause") and also significantly limits the government's ability to take on debt and/or pledge the state's credit for certain obligations. As such, through November 2022, when the most recent election to amend the state constitution was held, 700 amendments have been proposed, of which the voters have approved 517, rejected 180, and interestingly three amendments never made it to the ballot. The number of amendments is somewhat high given that the Texas Constitution allows for only one mode of amendment: amendments initiated and passed by 2/3 of each chamber of the Texas Legislature and subsequently approved by a majority of the voters. Because of the frequent amendments, it is also the second-longest state constitution behind the extremely verbose Alabama Constitution even after a recompilation of the latter. Attempts at a total rewrite or major revisions to the Texas Constitution in the 1970's were rejected by voters: the only significant revisions took place in 1969 when the entirety of Article XIII (an obsolete provision dealing with Spanish and Mexican land titles) and 53 other obsolete sections from other Articles were proposed for removal and approved.

Unlike the Alabama or United States Constitutions, amendments (or repeals thereof) are incorporated into the actual text of the Texas Constitution. This has resulted in some odd numbering, because whatever number is assigned in the resolution proposing an amendment is the one used, even if another amendment with the same number is also proposed and approved in the same year: for example, Article III (dealing with the Legislature) has two separate sub-sections both numbered "49-n" and two other separate ones each numbered "49-d-14" (and a prior two numbered "49-g", though one of those was later repealed).

Structure

• Preamble
  • The preamble states: "Humbly invoking the blessings of Almighty God, the people of the State of Texas do ordain and establish this Constitution."
• Article I: Bill of Rights
  • The Texas Constitution's Bill of Rights is more restrictive than the United States Constitution's in places (for example, suspension of habeas corpus is strictly prohibited, whereas the national Constitution allows for suspension in limited instances) and contains provisions not found in the national Constitution (such as the guarantee of the right to hunt and fish, subject only to laws allowing for wildlife preservation).
• Article II: The Powers of Government
  • As with the national structure, the powers are separated into the three, co-equal branches of Legislative, Executive and Judicial.
• Article III: Legislative Department
  • Establishes a bicameral legislature consisting of a 150-member House of Representatives and a 31-member Senate, and qualifications for the same. Also states when the Legislature shall meet (a maximum of 140 days every other year, in years ending with an odd number); notably, the Legislature lacks the power to call itself into special session except for impeachment hearings.
  • Section 10 requires that 2/3 of a chamber's membership be present to constitute a quorum (this differs from Congress which requires only a simple majority, one of only four states to require such a high percentage). Democrats have (both when they were in power and when they were not) used (or misused) this requirement to literally leave the state so as to prevent a quorum.
  • Sections 49 through 51 heavily restrict the Legislature's ability to take on debt, pledge the state's credit against obligations, or spend in excess of projected revenue. As such, numerous sub-sections (which are titled Sections) have been added (after voter approval) to issue bonds for various projects.
    • Section 49a requires the Texas Comptroller of Public Accounts to prepare and certify, prior to the start of each regular session, the amount of revenue estimated for the next biennium (beginning September 1 after the Legislature adjourns and ending August 31 in the second year following). Absent a public emergency and then only with 4/5 vote of both chambers can this estimate be exceeded; should the Legislature pass appropriations in excess of the estimate the Comptroller has the authority to return it to the originating chamber.
    • Section 49-g (the second sub-section so numbered, a prior one was later repealed) establishes the Economic Stabilization Fund, more popularly called the "Rainy Day Fund". The fund has grown tremendously in recent years (with rising oil and gas prices, as it is funded from severance taxes above an established threshold) and is sometimes used by the Legislature to fund major capital projects.
• Article IV: Executive Department
  • Establishes the offices, qualifications, and duties of the Executive Branch officers: Governor, Lieutenant Governor, Secretary of State, Attorney General, Comptroller of Public Accounts, and the Commissioner of the General Land Office. (The Agriculture Commissioner is a position designated by legislative action.) With the exception of the Secretary of State, all positions are popularly elected every four years (the Secretary of State must be confirmed by the Texas Senate). The Governor and Lieutenant Governor are elected separately. Also determines qualifications for notaries public.
  • Notably, only the Governor can call the Legislature into special session, can do so as often as desired (a tactic which has been used in recent years), and the Legislature can only debate and vote on matters which the Governor includes in the proclamation announcing the call (the Governor can amend the proclamation to add other items).
• Article V: Judicial Department
  • Establishes the various courts in the state, including the bifurcated final appellate court system of a Court of Criminal Appeals (for criminal cases) and a Supreme Court (for civil cases), and qualifications for judges.
• Article VI: Suffrage
  • Establishes qualifications for voters and rules for elections.
• Article VII: Education
  • Establishes provisions for public schools and public universities. This article has been the subject of numerous lawsuits over public school funding.
  • The allowability of homeschooling in Texas is not guaranteed by the Texas Constitution; it was the subject of a lawsuit (Leeper v. Arlington ISD) in which the state Supreme Court upheld its allowability.
• Article VIII: Taxation and Revenue
  • Contains numerous restrictions on taxation at both the state and local levels. Notably, a statewide property tax is prohibited as well as a personal income tax (which Texas has never had, a feature it prominently mentions and uses to attract people and businesses to the state). Also includes many exemptions from property tax (such as 100% disabled veterans and their surviving spouses, and religious and nonprofit organizations).
• Article IX: Counties
  • Describes the procedures for creating counties (of which Texas has 254, the most of any state) and establishing county seats. Also discusses various hospital districts, airports, and mental health facilities.
• Article X: Railroads
  • Contains a single Section stating that railroads are "public highways" and railroad companies are "common carriers". The remainder of this Article was repealed in 1969 as part of a major effort to remove obsolete provisions.
• Article XI: Municipal Corporations
  • Establishes counties as political sub-units of the state, grants certain powers to cities and counties, and authorizes the Legislature to create school districts and other special districts.
  • Texas operates under Dillon's Rule, whereby home rule provisions are only allowed where specifically authorized by the Legislature, as follows:
    • Cities with populations exceeding 5,000 can adopt city charters under home rule, if authorized by the voters; the charter cannot be inconsistent with either the Texas Constitution or the general laws of the state (if the population falls below this limit, home rule can still continue). Cities with populations of 5,000 or fewer may only operate under the general laws of the state.
    • School districts can adopt home rule if authorized by the voters (none, however, have ever done so).
    • Counties and non-school special districts can only operate under the general laws of the state.
• Article XII: Private Corporations
  • Contains two sections, one directing the Texas Legislature to establish general laws for the establishment of private corporations, and the other prohibiting their creation by special law. Five other sections were repealed (four in the 1969 effort and a fifth in 1993).
• Article XIII: Spanish and Mexican Land Titles
  • This entire section, which established certain provisions for Spanish and Mexican land titles to appease the Mexican government, was repealed in its entirety in 1969.
• Article XIV: Public Lands and Land Office
  • Contains a single Section establishing the General Land Office (the Commissioner is discussed under Article IV). The remainder of this Article was repealed in 1969 as part of a major effort to remove obsolete provisions.
• Article XV: Impeachment
  • Contains procedures of impeachment (similar to the United States Congress, the House determines whether to impeach and the Senate decides whether to remove the person from office and a 2/3 vote of the Senate is required). Power is limited to removal, and disqualification, from the office or any other "office of honor, trust or profit" (however, the person is still subject to criminal law).
• Article XVI: General Provisions
  • Contains general miscellaneous provisions. Notable ones are:
    • Section 1 which contains the Oath of Office
    • Section 28 which prohibits garnishment of wages at the state level except for child support and alimony. (This does not prohibit Federal wage garnishment for unpaid student loans or income taxes.)
    • Section 37 provides for protection of the mechanic's lien.
    • Section 50 provides for protection of the homestead (generally, one's personal residence) from forced sale except for debts related to it, such as mortgages, mechanic's liens, and home equity loans and home equity lines of credit (HELOC's). It includes extremely detailed and specific restrictions on the latter two items (as Texas was the last state to allow after much public pressure), such as limitations on the amount which can be borrowed (or drawn against a HELOC), a specified 14-day waiting period before closing, and specific rules on where closing can take place.
    • Notably, although Texas is a right-to-work state, the guarantee is only by law, not in the Constitution.
• Article XVII: Mode of amending the Constitution of this State
  • Notwithstanding the sheer number of amendments proposed (not to mention those filed in the Legislature but never passed) since 1876, the Constitution provides only one method for amendment: an amendment passed by 2/3 of each chamber of the Texas Legislature and subsequently approved by a majority of voters. There is no provision for the initiative, for calling a constitutional convention, or for any periodic conventions to review and propose amendments. (A proposed 1974 convention required the voters to amend the Constitution to add Section 2, which was repealed in 1999.) The Article also discusses how amendments are to be provided to the public (posting at the county courthouse and publication in newspapers of record).

Case law

There are more than 13,000 decisions within the Fifth Circuit and more than 9,000 decisions within the Texas state court system addressing the unconstitutionality of a statute or conduct under the Texas Constitution. Many of these decisions relate to:

• the single-subject rule
• separation of powers doctrine
• Article I § 8 - Freedom of Speech^[3]
• Article I § 27 - Right of Assembly; Petition for Redress of Grievances. 7 decisions within 5th Circuit; 24 within state court)
• Article III § 16 -