Constitution of Texas

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The Constitution of the State of Texas is the document that describes the structure and function of the government of the U.S. State of Texas.

The current document took effect on February 15, 1876, and is the sixth constitution in Texas history. The previous five were the constitution of Coahuila y Tejas, the 1836 Constitution of the Republic of Texas and the state constitutions of 1845, 1861, 1866, and 1869.The first Texas constitution was written in 1836.

The current constitution is among the longest of state constitutions in the United States; since its initial adoption, as of November 2011 a total of 653 amendments have been proposed, of which 90 were approved by voters and 179 were rejected.

Most of the amendments are due to the document's highly restrictive nature – the Texas Constitution states that the State of Texas has only those powers explicitly granted to it; there is no state equivalent of the federal constitution's Necessary and Proper Clause contained within. Thus, the Texas Constitution functions as a limiting document, while the federal constitution is a granting document. However, despite its length, it is not nearly as long as the Alabama Constitution (which has been amended over 800 times despite having been adopted 25 years after Texas' current constitution) nor the California Constitution (which, due to provisions allowing amendments via the initiative, is subject to frequent revision).

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[edit]

Article 1: "Bill of Rights"[edit]

Article One is the Texas Constitution's bill of rights. The article originally contained 29 sections; four sections have since been added. Most of the article's provisions concern specific fundamental limitations on the power of the state government and certain rights granted to citizens that cannot be ignored under any circumstances.

"All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient." (Article 1, Section 2)

The provisions of the Texas constitution apply only against the government of Texas. However, a number of the provisions of the federal constitution are held to apply both to the states as well under the Due Process Clause of the 14th Amendment to the federal constitution. This means that the Texas courts must interpret a duplicated state provision, such as the freedom of speech, at least as broadly as the federal courts do its federal counterpart. The Texas courts may (but are not required to) interpret the state provision more broadly, ruling that it limits government power more than its federal counterpart (Braden, 1972).

Section 4 purports to prohibit office holders from the requirements of any religious test, provided they "acknowledge the existence of a Supreme Being". The latter requirement, as well as similar provisions in several other state constitutions, violates the First Amendment prohibition on establishment of religion and the free exercise thereof (which includes the right to not hold a religious belief), and more particularly violates Article VI, which prohibits any religious test for office. Since it would almost certainly be struck down by the courts if challenged, it has not been enforced in modern times. A similar position in Maryland was struck down by the Supreme Court of the United States on First Amendment grounds in the case of Torcaso v. Watkins.[1]

Section 32 denies state recognition to same-sex unions. It was adopted in November 2005.

Article 2: "The Powers of Government"[edit]

Provides for the separation of the powers of the government. It also states that the government is not allowed to take over the other facets of government, and that all power must be separated equally between governments.

Article 3: "Legislative Department"[edit]

Article 3 vests the legislative power of the state in the "Legislature of the State of Texas", and establishes that the legislature consists of the state Senate and House of Representatives. It also lists the qualifications required of senators and representatives and regulates the details of the legislative process. Finally, the article contains many substantive limitations on the power of the legislature and a large number of exceptions to those limitations. In particular, Section 49 limits the power of the legislature to incur debt, while numerous other sections following Section 49 (including two sections both curiously numbered as "49-n") permit the legislature to issue bonds for specific purposes. Section 66 created the state's "Rainy Day Fund".

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).

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 4/5ths vote of both chambers), and the Comptroller is permitted to reject and return to the Legislature any appropriation in violation of this requirement.

Section 39 allows a bill to take effect immediately upon the Governor's signature if the bill passes both chambers by 2/3 vote unless otherwise specified in the bill; otherwise, the bill takes effect on September 1 (the beginning day of the state's fiscal year).

Article 4: "Executive Department"[edit]

Describes the powers and duties of the Texas Governor, Lieutenant Governor, Secretary of State of Texas, Comptroller of public accounts, 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; the Lieutenant Governor is elected separately from the Governor (not as a team), as are other officials such as the Comptroller of public accounts, Commissioner of the general land office, and Attorney General.

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 of Texas.

Article 5: "Judicial Department"[edit]

Describes the composition, powers, and jurisdiction of the Supreme Court, the Court of Criminal Appeals, the District, County, and Commissioners Courts, and the Justice of the Peace Courts.

Article 6: "Suffrage"[edit]

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). Describes rules for elections.

Article 7: "Education"[edit]

Establishes provisions for public schools, asylums, and universities. ". . . it shall be 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" (Article 7, Texas Constitution). This issue has surfaced in recent lawsuits involving the State's funding of education and 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, today's University of Texas) as well as an agricultural and mechanical college (Section 13, today's Texas A&M University, which opened seven years prior to UT). (Interestingly, Section 13 calls for A&M to be a branch of UT; in practice the two schools have always been separate and are today the flagship institutions of their respective University Systems.) ↓

Article 8: "Taxation and Revenue"[edit]

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.)

Texas does not have a personal income tax. Section 24 of the article, added by an amendment adopted in 1993, restricts the ability of the Legislature to impose such a tax. Under the section, a law imposing a personal income tax must be ratified in a statewide referendum to take effect; any further change in the tax must also be ratified to take effect, if it would increase the "collective liability" of all persons subject to the tax. The proceeds from the tax must first be used to reduce local school property taxes, with any remainder being used for the support of education.

No such restriction exists on imposition of a corporate income tax or similar tax; in May 2006 the Legislature replaced the existing franchise tax with a gross receipts tax.

Article 9: "Counties"[edit]

Provides rules for the creation of counties and 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"[edit]

Contains a single section declaring that railroads are considered "public highways" and railroad carriers "common carriers". (This section may not have much force of law, as railroad operations, even those where a railroad physically exists in only one state, are governed by the Surface Transportation Board, a federal agency.) Eight other sections were repealed in 1969.

Article 11: "Municipal Corporations"[edit]

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

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 maintain home rule status even if its population subsequently falls to 5,000 or fewer. The Constitution does not grant home rule privileges to counties or other special districts. As such, Texas operates primarily under Dillon's Rule.

Article 12: "Private Corporations"[edit]

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"[edit]

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"[edit]

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"[edit]

Describes the process of impeachment and lists grounds on which to impeach judges. The House of Representatives is granted the power of impeachment.

Article 16: "General Provisions"[edit]

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

Section 15 provides that Texas is a community property state.

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). This section also 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. It also requires that the advance on a home equity line of credit be at least $4,000 (though nothing prohibits a borrower from immediately repaying the credit line with a portion of said advance).

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

Article 17: "Mode of amending the Constitution of this State"[edit]

Notwithstanding the large number of amendments (and proposed amendments) that the 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[edit]

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

See also[edit]

References[edit]

External links[edit]