THE TEXAS CONSTITUTION / 2.9 Articles

| July 21, 2015

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THE TEXAS CONSTITUTION / 2.9 Articles

 

Articles of the Texas Constitution

The Texas Constitution consists of a preamble followed by 17 articles, starting with the bill of rights (Article I) and ending with the mode of amendment (Article XVII). The articles cover both the essential features of government, such as powers and institutions, and more tangential items, including railroads (Article X) and private corporations (Article XII).

Preamble

In the preamble to the Texas Constitution, the framers used just 20 words to introduce the approximately 23,500 remaining words (today, with amendments, more than 85,000). By comparison, the framers of the U.S. Constitution used 52 words in their preamble.

Image courtesy of Joshua Blank and the Texas Politics Project

Bill of Rights

The bill of rights in the Texas Constitution can be better understood by comparing it to the Bill of Rights of the United States Constitution. Texas puts the bill of rights at the beginning of its constitution, in Article I. By contrast, the U.S. Constitution included its Bill of Rights only as an addendum—the first ten amendments.

Originally spanning 29 sections, the Texas Bill of Rights may seem to be more extensive than the entire U.S. Constitution. But in fact, there is considerable overlap in the Texas document, giving it only the appearance of covering more ground; for example, freedom of religion is enshrined in specific ways in several early sections (4-7).

Generally speaking, both bills of rights cover the same items, just in a different order. In the Texas Bill of Rights, the freedoms of speech and the press are protected in section 8. Peaceful public assembly, the last of the U.S. First Amendment rights, appears in section 27. Protection against unwarranted searches and seizures is assured in section 9.

Rights of the accused in criminal prosecutions are specified in sections 10-21, which include the following:

  • A right to a speedy trial
  • Not having to provide evidence against oneself
  • A right to bail
  • The obligation of the state to provide its own evidence to support charges
  • Protection against double jeopardy
  • A right to a trial by jury
  • No ex post facto laws
  • No imprisonment for debts
  • Requirement of due process of law

The Texas Bill of Rights has a declaratory tone that differs from that of the U.S. Constitution. In reaction to perceived government overreach by the Radical Republicans, the framers of the Texas document justified its specific protections with sweeping generalizations aimed at what they saw as the major political dangers of the time:

  • National government—“The maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government unimpaired to all the States” (Article I, section 1). This suggests a threat of secession.
  • State government—“[The people of Texas] have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient” (Article I, section 2). This reads like justification for the convention delegate’s actions in drafting the new constitution.
  • Government favoritism—“All free men, when they form a social compact, have equal rights and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services” (Article I, section 3). This seems like an explicit criticism of the perceived corruption of Governor E.J. Davis’s administration (1870-1874).

Other rights are specified separately in Article VI, on suffrage. That article covers the basic right to vote as well as voting qualifications, both of them critical to a functioning democracy.

 

 

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THE TEXAS CONSTITUTION / 2.10 Powers and Organization

 

Powers and Organization

After composing the bill of rights, members of the 1875 constitutional convention addressed governmental powers and organization. The constitution’s second article gave an overview of how governmental authority would be divided among three branches. The next three articles covered each one of the branches in turn.

Separation of Powers

In dedicating an entire article to the concept, the Texas framers chose to more explicitly establish the separation of powers than did the framers of the U.S. Constitution. Like the U.S. model, legislative power in Texas is in the hands of a legislature composed of two parts, a house and a senate. Executive power is in the hands of a governor and other offices including a lieutenant governor, an attorney general, a comptroller, an agriculture commissioner, and a land commissioner. Judicial power is in the hands of judges elected either statewide or from regional and local jurisdictions.

A scheme of separation of powers is designed to ensure that those who serve in different branches of government are selected by and accountable to different constituencies. To reinforce this, the Texas Constitution clearly prohibits a single individual from exercising the powers of more than one branch:

The powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy; to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

Legislative Branch

The first and longest of the three articles dealing with the branches of government focuses on the legislative branch, mirroring the primacy given that branch in the U.S. Constitution. Originally 58 sections long, this article now spans 65, with many subsections added and many original sections repealed. It is composed of three main areas of coverage:

  • Organization, apportionment of seats, and qualifications for office (sections 1-28)
  • Proceedings (sections 29-41)
  • Powers, requirements, and restrictions on powers (sections 42-58)

The sections on organization, apportionment, and qualifications are unremarkable. They include expected provisions such as specification of a bicameral legislature, the number of seats in each chamber, terms of office, the duration and frequency of the legislative session, and so on.

The same holds true for the sections on proceedings. These say that no law may be passed without first having been a formal bill that goes through the processes of proposal, deliberation, and approval outlined in the constitution. Section 37 explicitly requires proposed bills to be referred to a committee—and reported on by that committee—before the general membership may consider them. While the Texas Constitution doesn’t specify how committees should be structured, it’s noteworthy that such internal legislative directions are included in the constitution.

Other notable sections of Article II relate to powers, requirements, and restrictions on legislative powers. Here we see how the framers truly dwelt on the details. For instance, section 46 states, “The Legislature shall, at its first session after the adoption of this Constitution, enact effective vagrant laws.”

Perhaps more important to governance, section 48 originally specified a list of items for which the legislature may raise money through taxation. Repealed in 1969, this section listed permissible spending items such as erecting public buildings and protecting the frontier. Also related to fiscal policy is the limitation on total public debt—originally capped at only $200,000—in section 49. This section has been amended 21 times; today, the cap is actually calculated as having to be less than 5 percent of the three-year average of general revenue funds. In 2012, though not at the 5 percent cap, the state had approximately $41 billion in outstanding debt.

On matters concerning local authority in counties and municipalities, the framers listed a number of areas in which the legislature could not pass laws. It could not regulate local government affairs, locate or change county seats, or specify election locations. Such restrictions may seem at odds with the constitution’s thorough description of county and municipality regulations, but they’re consistent with the framers’ distrust of elected representatives at all levels.

Executive Branch

Article IV carefully outlines seven offices of the executive branch. All but one are to be filled through popular elections. The very first section lists these seven executive offices:

The executive department of the State shall consist of a governor, who shall be the chief executive officer of the State, a lieutenant-governor, secretary of State, comptroller of public accounts, treasurer, commissioner of the general land office and attorney general.

Most portions of this article (sections 4-16) focus on the governor’s powers and duties. Many of the remaining sections cover the other six executive offices. By making six of these senior executive authorities separately elected (the secretary of state is appointed by the governor rather than elected), the framers divided and dispersed this branch’s authority and ability to govern actively. Thus, it created six possible obstruction points and checks to activities, programs, or plans of each of the executive department officials. Today there are just five, as the office of the treasurer was abolished in 1996.

Judicial Branch

Article V, on the judicial branch, created a more extensive structure than just the highest state court. Section 1 established six levels or types of courts:

The judicial power of this State shall be vested in one Supreme Court, in a Court of Appeals, in District Courts, in County Courts, in Commissioners’ Courts, in Courts of Justices of the Peace, and in such other courts as may be established by law.

The courts listed in section 1 are referred to as constitutional courts because of the source of their authority—the constitution. Other courts not listed here (see the chapter on the justice system) are sometimes referred to as statutory courts because they were created by legislative statutes.

The 27 sections of Article V that follow specify the mode of selection (popular election for all courts), terms of office, and jurisdictions of each of the courts. These sections identify the three types of local courts: county courts, commissioners’ courts, and justice of the peace courts. Because of sparse settlement in much of the state at the time, these courts were, in essence, the local government of many areas.

 

 

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THE TEXAS CONSTITUTION / 2.11 Education, Taxation, and Revenue

 

Education, Taxation, and Revenue

Education

Public education has been a part of the state constitution since the 1827 Constitution of Coahuila y Tejas. The mandate to create a state public education system under that first constitution was never fulfilled, and eventually removed. But later Texas constitutions reintroduced the mandate. Statewide public education received extra attention in the constitution of 1866, following the Civil War; this document outlined new initiatives for public schools, including creating the office of the state superintendent for public instruction, an office maintained in the constitution of 1869.

The Texas Constitution of 1876 reaffirmed some of the education funding provisions that previous constitutions had included. Article VII, for example, specified that all lands and proceeds from those lands that had been previously reserved for the state system of public education would be reserved under the new constitution. This occurred despite conflict in the decade before the 1875 convention over spending on public schools in the face of concerns over taxation and accumulating public debt.

Yet some important changes weakened statewide public education. In the constitution of 1876, a state board of education replaced the office of state superintendent for public instruction. Composed of the governor, comptroller, and secretary of state, the board was charged with managing public funds and overseeing state schools (section 8). The constitution’s framers also abolished compulsory school attendance and sought to limit spending on public education.

The main innovation in Article VII was the restriction that the state could spend no more than one-fourth of its general revenue on public schools. The framers were careful to protect existing financial sources for public education by prohibiting their use for anything other than education. This practice of dedicating funds—whether for schools, roads, or other purposes—is a prominent feature of Texas governance today.

The constitution also established the University of Texas, and created permanent funds for both this new university and for previously established asylums for “the lunatic, blind, deaf and dumb, and orphaned.” Like the two prior constitutions, it provided for separate schools for African Americans.

Taxation and Revenue

In the provisions for fiscal authority in Article VIII (Taxation and Revenue), the constitution establishes limits on taxation and spending similar to those imposed on the state’s public schools; the main general restriction provided in the article’s short first sentence apparently aims to limit the legislature’s ability to classify objects for purposes of taxation: “Taxation shall be equal and uniform.” Article VIII also limits the ability of the legislature to impose local property taxes and personal income taxes.

The many sections of Article VIII together serve as a restrictive tax code, detailed down to the county and municipal levels. They address questions related to exemptions, tax rates, restrictions on appropriation of funds, and procedural requirements. Section 1, for example, stipulates that “persons engaged in mechanical or agricultural pursuits shall never be required to pay an occupation tax” and “two hundred and fifty dollars worth of household and kitchen furniture, belonging to each family in this State, shall be exempt from taxation.” Section 2 prohibits taxation of schools, religious places of worship, nonprofit places of burial, institutions of public charity, and public property used for public purposes.

Finally, Article VIII specifies procedural and institutional requirements related to property assessment and tax collection. Property is assessed and taxes collected in each county where the property is located, or (in the case of “unorganized” counties) in the county to which that county is attached for judicial purposes.

 

 

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THE TEXAS CONSTITUTION / 2.12 Governing Locally

 

Governing Locally

Existing and New Counties

Article IX is narrowly focused on the formation of counties, an important topic for a frontier state like Texas in the 19th century. After granting the legislature the power to create counties “for the convenience of the people,” this article lists a series of restrictions. New counties created outside already-existing counties had to be no smaller than 900 square miles and “shaped in a square form.” Aware that this may not be possible in border areas, the framers allowed smaller county sizes in such cases.

The framers also recognized that geographically large counties could split into smaller ones. New counties created from existing counties could be no smaller than 700 square miles. But, they also must not be “nearer than twelve miles of the county seat” of any county from which the new county’s territory was taken.

This article provides additional details on county seat location and removal—the main concern being that the county seat should be roughly in the geographic center of the county (i.e., within five miles of it).

Local Government

In addition to various pieces in the constitution that touch on local government, there are two articles exclusively dedicated to the subject. One of these, Article IX, covers the creation of new counties and the minimal specifications of existing counties (as discussed above). The other, Article XI, though dedicated to “municipal corporations” in theory, addresses issues related to taxation in both municipal and county government.

 

 

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THE TEXAS CONSTITUTION / 2.13 Amendments and Other Articles

 

Amendments

To be adopted, constitutional amendments usually need more support for passage than ordinary statutory laws do. Article XVII of the Texas Constitution, like the U.S. Constitution, requires a two-step process of proposal and ratification. To be proposed, an amendment must receive support from two-thirds of all members elected to each chamber of the legislature. To be ratified, a proposed amendment must receive the support of a simple majority of citizens voting in a popular election on a date to be specified by the legislature.

Despite the relatively stringent requirements for their passage, hundreds of amendments have been successfully proposed and ratified since the Texas Constitution was first adopted. By 2011, some 653 amendments had been proposed, 474 of which were ratified by popular vote. That averages to more than nine amendments proposed and six ratified for each two-year legislative session since 1876.

Piling all these amendments on an already lengthy core document leads to what might be referred to as “amendment chaining,” or the need to pass still more amendments in response to earlier amendments. In other words, amendments beget amendments.

But sometimes amendments fail to be born. The added burden and delay involved in seeking a constitutional amendment often leads to missed opportunities to enact important public policy, and the need for amendments to establish relatively simple government policies can immobilize elected officials in the face of complex problems.

The requirement that voters sort through and decide on numerous proposed amendments during each biennial special constitutional election also causes a fair degree of public confusion, uncertainty, and even cynicism. One usually needs considerable education on the issues to cast an informed vote on an amendment on the ballot, which, in modern media-centered political campaigning, opens the door for powerful interests to wield considerable influence in shaping public opinion. Voters can feel simultaneously overwhelmed and uninformed, and the result is chronically low voter turnout.

Figure 1

Turnout as a Percentage of the Voting-Age Population in Texas Special Constitutional and Presidential Elections (1976-2013)

 

Presidential Elections

 

Special Constitutional Elections

1980

1984

1988

1992

1996

2000

2004

2008

2012

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

50%

55%

A line graph showing the percentage of people who vote in national presidential elections and Texas special elections. National elections average 40-60% from 1976-2013, where as for that same time period voting for Texas special elections remains under 20% (averaging less than 10% overall.)

Federal Election Commission; Texas Secretary of State

Other Articles

The other articles of the constitution of 1876 cover a range of items. Many might seem more appropriately covered in legislative statutes than in the organic legal document of the state’s democratic government.

These articles can be grouped into three categories:

  • Essential features of any constitution—disposition of property under previous legal systems (Spanish and Mexican land titles) and impeachment of public officers
  • Detailed organizational and policy specifications—articles on education, taxation and revenue, counties, municipal corporations, railroads, private corporations, and public lands and the land office
  • General provisions—a laundry list of items all contained in Article XVI (General Provisions) dealing with the legislature, personal debts, fences, competitive bidding on state contracts, and more

The articles detailing organizational and policy specifications do include some important provisions. At the same time, they also include minutiae like permitting the legislature to aid Gulf Coast counties to construct sea walls. The “general provisions” listed in Article XVI (spanning 57 subsections, of which many have been repealed) almost seem like afterthoughts that should have been incorporated into other articles of the constitution.

Even here, the framers did include some historically important provisions, like protection against homestead foreclosure (sections 49-51) and provision for community property between married couples (section 52). Homestead and community property provisions do seem properly situated in an article containing residual provisions not easily categorized.

But Article XVI also contains important provisions that should probably have been placed elsewhere. Section 44, for example, requires the legislature to define the duties and provide for the election of a county treasurer and county surveyor for all counties in the state. This seems like an odd place for it, given the existence of a whole article on counties, as well as a separate provision for county tax assessors and tax collectors in the article on taxation and revenue.

 

 

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THE TEXAS CONSTITUTION / 2.14 V. Attempts at Revision

 

V Modern attempts at revising the constitution have been hampered not only by an inability to reach consensus given the interests at stake, but also by the difficulty of presenting complex issues to an uninformed electorate.

The constitution of 1876 was last in a series of new, updated, and revised constitutions in Texas. But it wasn’t the last attempt to rewrite the foundational law of the state. The closest anyone came was a multi-year effort about a century later, in the 1970s. Another attempt came in the late 1980s, but it did not progress nearly as far.

Pressure to update and streamline the Texas Constitution began to build in the late 1960s. In 1969, a full 56 outdated and obsolete provisions were repealed. But desire for a more fundamental overhaul and restructuring of the constitution persisted.

In 1971, the Texas Legislature passed a resolution calling for a constitutional revision commission that would convene members of the next legislature, in 1973. Voters approved the commission, which would investigate the need for revision and make recommendations.

Despite its commitment to a streamlined and efficient constitution and a relatively open process, once the commission convened, many interest groups targeted it seeking special treatment. This led to compromises that limited the actual utility of the convention’s recommendations. In 1974, both houses of the legislature met to consider the recommendations in a convention. Despite lasting 150 days, the convention failed by three votes to support submitting a document to voters for ratification.

The 64th Legislature, meeting in 1975, approved eight amendments, which together constituted a new constitution, and submitted them to the voters. But in the special election in November of 1975—almost 100 years after the ratification of the current Texas Constitution—all eight amendments were overwhelmingly defeated.

With only 23 percent of the state’s 5.9 million registered voters casting ballots, many citizens confessed ignorance of the issues at stake. The revision effort was also hindered by Governor Dolph Briscoe’s warnings that adoption would result in a state income tax, an increase in the cost of state government, an overly powerful legislature, and the adoption of a Missouri Plan form of judicial selection.

The Missouri Plan proposed a nonpartisan commission that would review candidates for a judicial vacancy and send a list of the most qualified candidates to the governor for him to choose from within 60 days. The commission would have seven members: three citizens, a chief justice, and three lawyers elected by the state bar association. Some critics of the Missouri Plan complained that lawyers, with three seats on the seven-member commission, would possess undue influence over the selection of judicial candidates. Others criticized the behind-closed-doors selection of candidates to be short-listed for the governor.

After its defeat in the November 1975 special election, Lieutenant Governor Bill Hobby declared constitutional revision in Texas “dead for the foreseeable future.”

Despite Lieutenant Governor Hobby’s prediction, the collapse of the 1975 constitutional revision effort did not close the door on attempts to modify or more fundamentally change the Texas Constitution. Four years later, in 1979, the 66th Legislature submitted to voters six amendments that would implement some of the provisions from the 1974 convention. Voters ratified three of them:

  • An amendment creating a single property tax appraisal district in each county
  • An amendment giving criminal appellate jurisdiction to the state’s 14 courts of appeals, which until then exercised only civil jurisdiction
  • An amendment granting the governor limited authority to remove appointed state officials

But this new empowerment of state and local government did little to streamline the constitution. Continued dissatisfaction with the document led to two other major attempts at fundamental revision in the 1990s.

In 1995, Senator John Montford (D-Lubbock) drew up a streamlined constitution similar to the one produced in the 1970s. But Montford resigned his state senate position in 1996 to become chancellor of the Texas Tech University System, and his initiative to revise the constitution died after he left the legislature.

Several years later, in 1998, Senator Bill Ratliff (R-Mt. Pleasant) and Representative Rob Junell (D-San Angelo) completely rewrote the 1876 constitution with the help of Angelo State University students. The two legislators introduced a second draft of their streamlined constitution for consideration by the 76th Legislature. The bill did not receive enough support in committee, however, and was consequently never considered on the floor by the full membership of either chamber.

 

 

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THE TEXAS CONSTITUTION / 2.15 Conclusion

 

Conclusion

The Texas Constitution, originally ratified in 1876, is characterized by prominent limitations stemming from its length, complexity, wording, and organization. Yet the document is also a clear reflection of the era in which it was written. At that time, skepticism toward overactive government was dominant—and clearly on the minds of the constitution’s framers as they sought to shape a government that met the needs of a frontier society in a large and complex state. Though it is just one of several moving parts of the Texas government (along with politicians, parties, and bureaucrats), the constitution alone lays the government’s uniquely Texan foundation.

Despite the constitution’s limitations and diminishing relevance to today’s demographically and commercially diverse modern state, attempts at wholesale revision have met strong resistance. And despite widespread acknowledgment of the document’s shortcomings, a majority of Texans still believe that the way Texas runs its government serves as a model for other states to follow.10

 

 

 

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