3 page paper due in 2 hours. Time sensitive No plagiarism

Copyright 2017. Do not use without author’s permission. Digital publishing forthcoming, summer 2017.

The Texas Constitution: The People, History, and Government of the Lone Star State

Unit 2: American Federalism and Elections, Parties and Interest Groups in Texas

The first unit of the textbook examined the early explorations, settlements, and disputes over Texas land; migration and immigration to the state; and the constitutions, political culture, and major participants that have impacted Texas government. Unit 2 discusses Texas politics in the context of the American federalism and the role of elections, political parties, and interest groups in the state.

Chapter 4 The American Federal System and its Significance to Understanding

Texas Government

Chapter 4 examines the American system of federalism and explores the powers and

structure of local governments in Texas. Upon completing the chapter, you should be able

to demonstrate knowledge about:

 Different types of federal systems of government.  Constitutional theories about the United States federal system.  Relevant features of the United States Constitution that pertain to federalism and

landmark Supreme Court cases that have shaped American federalism.  The types of intergovernmental grants used in the United States federal system.  The structure and forms of county and municipal governments in Texas.

Introduction

A centerpiece of American and Texas political culture is a belief in the concept of limited

government. Unit 1 discusses how James Madison’s “auxiliary precautions” of separation

and checks and balances limit government by dividing power so that no one branch of

government (or person or faction) will retain all of the powers of government. Separation

of powers charges the legislative branch with the power to make law; the executive branch

the power to enforce law; and the judicial branch the power to interpret law. In contrast,

authoritarian systems of government do not embrace the political value of limited

government and in such systems one person (usually a dictator) or group of authoritarian

agents hold all power to make, enforce, and interpret law. American political culture rejects

the political ideology that supports an authoritarian system of government, and the

framers of the Constitution sought to ensure limited government by dividing power not

only among the branches of government but also among the levels of government. The

United States Constitution creates a federal system of government that divides

government powers between a central or, national government and regional or state

governments. The auxiliary precautions of federalism (the division of power among the

levels of government) and separation of powers (the separation of power among the

branches of government) ironically provide many Americans cause for both praise for a

constitutional system that protects individual rights and limits government and discontent

for a system that institutionally creates and promotes government inefficiency.

Federal governmental systems vary in terms of the amount of power and functions they

allocate to each level of government. The United Kingdom, for example, has a unitary

system of government in which the central government holds all power and any powers

held by regional governments are those specifically granted to them by the central

government. Confederate systems of government, on the other hand, contain an

extremely limited central government, and the vast amount of government powers are

retained by regional or state governments. The Articles of Confederation, the United

States’ first written constitution created a confederal system of government consisting of

a national government comprised of a legislative and judicial branch (the Articles did not

contain a provision for an executive for fear of a monarch) and a loose alliance of states

that held almost all governmental power.1 The events surrounding Shay’s Rebellion

highlighted the failures of the Articles of Confederation and demonstrated the need for a

stronger national government in order to promote a more unified nation particularly in the

areas of currency, foreign policy, taxation, and infrastructure. Ratified in 1788 and

instituted in 1789, the nation’s new Constitution – the longest continuously surviving

national constitution in the world – specifically addresses the problems the United States

faced under the Articles of Confederation by setting forth in Article I, Section 8, specific

1 The Confederate States of America during the Civil War also ensured states primary government power.

enumerated powers held by Congress including the power to coin and regulate the value

of money, declare war, lay and collect taxes, and regulate trade among the states. In order

to further define the American constitutional system of federalism, the Tenth

Amendment, ratified in 1791, sought to ensure that “The powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are reserved to the

States respectively, or to the people.”

The Tenth Amendment is a cornerstone of the United States federal system of

government. In order to understand the meaning and importance of the amendment, it is

essential to keep in mind that the United States Constitution was written to create a

national government and set forth the powers of the national government. The document

does not set forth the powers of the state governments. Since the Constitution outlines only

the powers of the national government, determining which powers are reserved to the

states through the reserved powers doctrine of the Tenth Amendment requires

interpretation of the amendment’s phrase “powers not delegated to the United States.” In

other words, a reading of the Tenth Amendment does not directly inform us of the powers

the states hold; rather, it informs us of the powers the states do not hold namely those

delegated to the national government (such as the enumerated powers to coin money,

establish post offices, and declare war).

Constitutional interpretation of the powers not delegated to the national government

and therefore reserved to the states through the reserved powers doctrine has fluctuated

throughout American history. A study of Texas government and the Texas Constitution

requires examination of Supreme Court case law as it relates to questions of federalism

because of three key features of the United States Constitution: the enumerated powers of

Congress (Article I, Section 8), the Supremacy Clause (Article VI), and the Tenth

Amendment. This chapter outlines some of the constitutional interpretations, landmark

Supreme Court cases, and events that have helped shape American federalism with respect

to the powers of the states, and serves as a companion to student readings and

understanding of American government, the United States Constitution, and the powers of

the national government. After discussing the powers of the national government and state

governments, the chapter concludes with an examination of the structure and powers of

local governments in Texas.

Constitutional Interpretation and American Federalism

Major periods of domestic crises in United States history including the Civil War, the

New Deal, and the Civil Rights Movement have been marked by the question of whether the

national government or the state governments should be primary in the division of

government power. The answers to the question have taken a series of twists and turns

throughout the nation’s history and have inevitably fallen to the courts for constitutional

interpretation. Constitutional interpretation of federalism can be defined in terms of two

general theories of American federalism – nationalism and states’ rights. National

federalism holds that the national government is primary in the division of powers, and

that the nation is constituted of individuals who come together as individuals (rather than

citizens of the states) to produce the nation. States’ rights, or compact federalism, holds

that state and local governments are primary in the division of powers, and that the nation

is constituted of communities (states) that enter into a constitutional compact in order to

maximize their common objectives such as security against external threat.

The debate between national federalist and compact federalist interpretations of the

Constitution is well represented in an extraordinary debate that surrounded the United

States Supreme Court decision in McCulloch v. Maryland (1819)2. In McCulloch, Chief

Justice John Marshall combined the Necessary and Proper Clause (also known as the

“elastic clause”) of Article I, Section 8, with the Supremacy Clause of Article VI to interpret

the doctrine of implied powers. The doctrine of implied powers holds that the powers of

the national government extend beyond the powers specifically enumerated in Article I,

Section 8. Briefly stated, the Supreme Court held in McCulloch that although the power to

create a national bank was not explicitly enumerated in the Constitution, the document did

provide Congress the enumerated power to do all things “necessary and proper” to fulfill

the enumerated powers (Article I, Section 8). And, since Congress has the enumerated

power to coin money and regulate the value of money, it was necessary and proper for

Congress to establish a national bank.

2 McCulloch v. Maryland, 17 U.S. 316 (1819).

For the Record: Early Debates between the Anti-Federalists and the Federalists3 One of the earliest expressions of the compact federalist idea in United States history was made by Dr. John Witherspoon, a New Jersey delegate to the Continental Congress who argued before the assembly that the colonies should be considered individuals and that the Congress should be viewed as a collection of colonies. Witherspoon argued that:

[The colonies] are now collected as individuals making a bargain with each other, and of course had a right to vote as individuals... That nothing relating to individuals could ever come before Congress; nothing but what would respect the colonies. He distinguished between an incorporating and a federal union . . . He expressed his hopes that in the present enlightened state of men's minds we might expect a lasting confederacy if it was founded on fair principles. 4

There is little doubt but that the constitutional vision embodied in Witherspoon's speech was embraced by a majority of the colonial delegates in writing the nation's first constitution, the Articles of Confederation. The Federalist’s call for a new constitution signified not only the political desire to consolidate the states through a uniform system of laws, currency, and infrastructure to support economic expansion but also an accompanying desire to instill in the people a sense of national unity and allegiance that would lend psychological support to these new national objectives. The grounds upon which the Anti-Federalists united against the Federalists in opposition to the proposed Constitution was its consolidation of the states and the potential such consolidation held for the destruction of the states. Patrick Henry of Virginia, who almost single handedly carried the opposition argument for the first week of the Philadelphia Convention, used his forensic skill and common manner to rally the Anti-Federalists against consolidation.5 Henry argued at the Philadelphia Convention:

The fate of. . . America may depend on this: Have they said, we the States? Have they made a proposal of compact between the States? If they had, this would be a confederation: It is otherwise most clearly a consolidated government. The question turns … on that poor little thing – the expression We the people, instead of the States of America.6

Henry’s emphasis on the practical reasons for rejecting the new Constitution - to prevent consolidation and the destruction of the states - was accompanied by theoretical arguments for rejecting the document. Luther Martin of Maryland emerged at the Convention as the chief spokesperson for Anti-Federalist constitutional theory. Martin argued that "the people of the continent "were not in a "state of nature" as the proposed Constitution assumed; rather, they

3 Large portions of this segment of “For the Record” was taken from Davis, Terri B., “The Rhetoric of Political Conservativism in the Post-Reagan Era,” Open Journal of Political Science, Vol. 6, No. 2, April 2016. 4 Witherspoon, John, cited in Ford, W.C., Gaillard Hunt, John Clement Fitzpatrick, and Roscoe R. Hill (eds.), (1907). Journals of the Continental Congress 1774-1789, 34 volumes. Washington, D.C.: Library of Congress, pp. 1103-1104. 5 Storing, Herbert J. (1981). The Complete Anti-Federalist, 7 volumes. Chicago: University of Chicago Press, Vol. 2, p. 207. 6 Henry, Patrick, cited in Storing, Storing, Herbert J. (1981). The Complete Anti-Federalist, 7 volumes. Chicago: University of Chicago Press, Vol. 2, p. 212).

had escaped the state of nature by entering into a constitutional compact that had given birth to the respective State governments. These government-creating compacts not only pre-existed the compact under immediate consideration (the United States Constitution) but were still operative. The national Constitution was therefore to be viewed as a creature of the states rather than of individuals independent of their states.7 Based largely on the proposed Constitution's failure to embrace the compact theory of government, Martin and other Anti-Federalists attending the Convention refused to sign the document.8 The objectors were, of course, in the minority, and the United States Constitution was adopted in 1788 by a vote of 63-11.9

Since the Tenth Amendment reserves to the states all powers not delegated to the national

government, the McCulloch decision necessarily limited state powers by interpreting the

“delegated” powers of Congress to include the implied powers. The McCulloch decision

outraged states' rights advocates who viewed Marshall's implied powers doctrine as a

blatant and illegitimate encroachment on the powers of the states. The Richmond Enquirer,

the “preeminent keeper of the states' rights flame," almost immediately began running a

series of published attacks on the decision arguing that the Constitution was adopted by

the states, not the people of the states,10 and that the very life of the Constitution depended

upon the existence of state governments.11 For the first – and only – time in United States’

history, a chief justice responded to attacks in the national media. Chief Justice Marshall

published a rebuttal to the attacks in the Alexandria Gazette under the pseudonym “A

Friend of the Constitution.”12 In his rebuttal, Marshall reiterated his argument in McCulloch

by writing that the United States “is emphatically and truly a government of the people”

and not the states.13

7 Storing, Herbert J. (1981). The Complete Anti-Federalist, 7 volumes. Chicago: University of Chicago Press, Vol. 2, pp. 19-82. 8 Ibid, pp. 3-83. 9 Ibid, pp. 255-256. 10 “Hampden” Essays, 1819. Reprinted in Gunther, Gerald (ed.) (1969). John Marshall’s Defense of McCulloch v. Maryland. Stanford: Stanford University Press, p. 140. 11 A Virginian's “Amphictyon” Essays, 1819. Reprinted in Gunther, Gerald (ed.) (1969). John Marshall’s Defense of McCulloch v. Maryland. Stanford: Stanford University Press, pp. 56 - 57. 12 Gunther, Gerald (ed.) (1969). John Marshall’s Defense of McCulloch v. Maryland. Stanford: Stanford University Press 13 Marshall’s “A Friend to the Union” Essays, April 24 - 28, 1819. Reprinted in Gunther, Gerald (ed.) (1969). John Marshall’s Defense of McCulloch v. Maryland. Stanford: Stanford University Press, pp. 78 – 105, citation p. 84.

While the Court’s decision in McCulloch expanded powers of Congress through the

necessary and proper clause, congressional powers were further expanded in the twentieth

century through the Supreme Court’s broad interpretation of the commerce clause.

Contained in Article I, Section 8, the commerce clause reads in relevant part that Congress

has the power “To regulate commerce with foreign Nations, and among the several

States...” The ability of Congress to regulate interstate trade through the commerce clause

was first established in Gibbons v. Ogden (1824)14, which held that the power of Congress

to regulate interstate commerce included the power to regulate navigation. Volumes of

post-Gibbons cases demonstrate how the Court further expanded the powers of Congress

through the commerce clause but two cases in particular serve to highlight the Court’s

general interpretation of the commerce clause in the twentieth century. National Labor

Relations Board v. Jones & Laughlin Steel Corporation (1937)15 was one of the first cases

to uphold an act of the New Deal by ruling that Congress has the power to regulate

intrastate activities that have a substantial impact on interstate commerce, and Heart of

Atlanta Motel v. U. S. (1964)16 upheld the Civil Rights Act of 1964 by holding that Congress

has the power under the commerce clause to regulate “individual moral behavior” with

respect to racial discrimination in public accommodations given the substantial

detrimental impact it has on interstate commerce. While NLRB and Heart of Atlanta

embody a national federalist approach to constitutional interpretations of federalism, they

also demonstrate cooperative federalism in terms of public policy. Under cooperative

federalism, the national government retains significant power and the states serve to aid

the national government in coordinated efforts to address national problems. Cooperative

federalist public policy was pursued by Congress through the New Deal during the Great

Depression, and during the civil rights movement and the “Great Society” era of social

welfare and social insurance in the 1960s.

The late twentieth century witnessed a shift away from national federalism and

cooperative federalism toward new federalism, which seeks to reduce the size and

powers of the national government and restore the powers of the states. The shift first

14 Gibbons v. Ogden, 22 U.S. 1, (1824). 15 National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U. S. 1 (1937). 16 Heart of Atlanta Motel v. U. S., 379 U. S. 241 (1964).

occurred in public policy and then in judicial interpretation due in large part to a

substantial number of vacancies opening up on the Supreme Court and lower federal courts

during the Republican administrations of President Ronald Reagan and President George

W. Bush. A states’ rights majority voting bloc emerged on the Supreme Court in the 1990s,

first surfacing in the area of federalism in the landmark Supreme Court case U. S. v. Lopez

(1995).17 In Lopez, Chief Justice William Rehnquist (a Reagan appointee), joined by

Associate Justices O’Connor, Scalia, Kennedy (Reagan appointees), and Thomas (a Bush

appointee) declared the federal Gun Free School Zones Act of 1990 unconstitutional on

grounds that regulating guns in school zones had no substantial impact on interstate

commerce. Two years later, the same majority voting bloc held that the necessary and

proper clause did not empower Congress to require local chief law enforcement officers to

perform functions required by the Brady Handgun Violence Prevention Act (Printz v. U. S.,

1997)18 and, five years later, ruled that the federal Violence Against Women Act of 1994

had no substantial impact on interstate commerce (U. S. v. Morrison, 2000).19

Federalism and Intergovernmental Relations

The new federalism represented in Lopez, Printz, and Morrison was evident in American

public policy before the Supreme Court handed down its decisions in the late twentieth and

early twenty-first centuries. President Richard Nixon, for example, pushed Congress to

create general revenue sharing programs in the early 1970s in an attempt to restore the

power and discretion of the states.20 And, while President Ronald Reagan terminated

general revenue sharing in 1986,21 he also persuaded Congress to consolidate social

welfare programs in order to give state and local governments a greater degree of

discretion over how federal welfare funds were used in the states. The national

government’s use of intergovernmental grants – financial transfers from the federal

government to support state and local programs – is not unique to new federalism and has

been used throughout United States history to entice state and local governments to

17 U. S. v. Lopez, 514 U. S. 549 (1995). 18 Printz v. U. S., 521 U. S. 898 (1997). 19 U. S. v. Morrison, 529 U. S. 598 (2000). 20 Under general revenue sharing programs, federal funds are distributed to state and local governments with very few restrictions on how and where the funds are spent. 21 American Government, OpenStax, Rice University, Chapter 3, “American Federalism,” 2016.

support and carry out national objectives. Since the Reagan administration, the use of

intergovernmental grants has fluctuated with grants for health-related programs growing

at a faster rate than non-health related programs.22 And, since the 9/11 attacks the national

government’s use of federal grants has taken on a bi-partisan flair. Democratic President

Barack Obama initiated the Affordable Care Act which created and provided “indefinite

appropriations” for the Department of Health and Human Services to award grants to state

governments to support the establishment of state-based market exchanges for individuals

and small businesses to “shop” for health care coverage.23 Republican President George W.

Bush initiated both “No Child Left Behind” which imposed both new requirements and

increased funding for state educational systems,24 and executive orders that created the

Office of Faith-Based and Community Initiatives which allowed religious groups and local

religious non-profit organizations to by-pass states altogether and directly receive federal

grants to provide social services.25 Rather than rejecting his predecessor’ faith-based

initiatives, President Obama actually expanded the program in November 2010.26

Generally, intergovernmental grants seek to improve human capital and well-being

(through policy areas such as education and health-related service) as well as physical

capital (by providing grants to build and maintain road, bridges, buildings, and other

infrastructures).27 Congress determines the types of federal grants to be provided state

and local governments as well as the formulas, award criteria, and conditions and

outcomes that might be attached to grants.28 Congress also determines whether or not

grants will include maintenance-of-effort (MOE) provisions which require state and local

22 “Federal Grants to State and Local Governments,” Congressional Budget Office Report, March 2013, https://www.cbo.gov/publication/43967. 23 Mach, Annie L. and C. Stephen Redhead, “Federal Funding for Health Insurance Exchanges,” Congressional Research Service, a Division of the Library of Congress, October 29, 2014, https://fas.org/sgp/crs/misc/R43066.pdf. 24 Duncombe, William, Anna Lukemeyer, and John Yinger, “The No Child Left Behind Act: Have Federal Funds Been Left Behind?” Center for Policy Research, The Maxwell School of Public Administration, Syracuse University, September 2006, http://cpr.maxwell.syr.edu/efap/Publications/costing_out.pdf. 25 “Fact Sheet: Task Force for Faith-Based and Community Initiatives,” United States Department of Justice Archive, https://www.justice.gov/archive/fbci/about.html. 26 Dwyer, Devin, “Faith-Based Debate: Obama Signs Order on Funds for Churches,” ABC News, November 18, 2010, http://abcnews.go.com/Politics/president-obama-executive-order-faith-based-initiative- church/story?id=12180146. 27 “Federal Grants to State and Local Governments,” Congressional Budget Office Report, March 2013, https://www.cbo.gov/publication/43967. 28 Ibid.

governments to match or partially pay for the federally funded program or project with

nonfederal state and local funds.29

There are two primary categories of grants offered to state and local governments by the

federal government. Block grants give state and local government considerable discretion

over how the awarded funds are to be spent, and include programs such as community

development, Temporary Assistance to Needy Families or TANF, and substance abuse

treatment. Categorical grants place more spending constraints on state and local

governments by specifying how federal funds are to be spent in specific categories of a

program area. Programs such as Head Start programs, Early Learning Initiative programs,

and Magnet School programs are examples of categorical grants. Furthermore, categorical

grants may be awarded based on the merit of a proposed project or through non-

competitive grants provided to all applicant states. Project grants are competitive grants

that are limited to a specific project over a fixed period of time. State and local governments

have almost no discretion over project grant spending, and the award often carries precise

conditions and controls such as demonstrating students are making adequate progress or

ensuring a construction project has successfully passed an environmental assessment.30

Formula grants are non-competitive grants awarded to states based on mathematical

formulas designed to ensure fair and equitable distribution of funds by including factors

such as state population or the number of students attending public schools in each state.

The federal government provided $607 billion in grants to state and local governments in

2011, accounting for 17 percent of federal outlays and a quarter of spending by states and

localities. Nearly half of that amount was for Medicaid.31

State and Local Governments in Texas

Another complicated layer of government that underlies American federalism is the

relationship between state and local governments. In the United States federal system, the

power of the state is divided into three spheres: the state government, county governments

(or parishes in Louisiana and boroughs in Alaska), and local governments (also known as

cities or municipalities). The states have historically retained authority over the police

29 Ibid. 30 Ibid. 31 Ibid.

powers, or traditional government functions, of regulating the safety, health, morals,

and education of its citizens. Examples of state police powers include matters concerning

the licensing and regulation of the sale of alcoholic beverages; marriage, divorce, adoption,

child protection, and probate; public school textbooks and curriculum; the licensing of

attorneys and health care practitioners; and vaccination requirement for children enrolling

in and attending public schools.

County Governments in Texas

The level of government directly below that of the state is Texas counties. First created

as extended “municipalities” under Spanish and Mexican rule, the original local

governments of Texas consisted of four major Spanish settlements – San Antonio, Bahia

(Goliad), Nacogdoches, and the Rio Grande Valley. After Texas gained independence from

Mexico, the state was divided into three “departments” – Bexar, Brazos, and Nacogdoches –

and 23 “municipalities” that became counties under the Republic of Texas.32 The number

of Texas counties rose from 36 in 1845 (when Texas joined the Union) to 122 by the time of

the Civil War and 254 by 1931.33 Today, the number of Texas counties remains at 254.

The structure of county government is outlined in the Texas Constitution of 1876. Since

counties are created by the constitution, they serve as functional agents of the state and

their powers are limited by specific laws passed by the Texas legislature.34 The heart of

county government in Texas is the county commissioners’ court. The commissioners’

courts consist of four commissioners and one county judge. County commissioners are

elected to four-year staggered terms by the voters residing in designated county precincts.

The county judge is elected at-large by the voters of the county to preside over and serve as

a voting member of the county commissioners’ court. County judges in Texas are not

required to hold a law degree since their functions are largely administrative, such as

overseeing the election process and presiding over the commissioners’ court. And, while

officially and constitutionally referred to as “courts,” the functions of the commissioners

court are primarily administrative rather than judicial. Their statutory and constitutional

32 “History of Texas Counties,” Texas Association of Counties, https://www.county.org/texas-county- government/county-govt-structure/Pages/History.aspx. 33 Ibid. 34 Ibid.

duties include setting the county tax rate and collecting taxes, building and maintaining

county roads, managing the county’s fiscal and financial responsibilities, providing for

necessary county buildings, dividing the county into precincts, issuing vehicle registrations

and transfers, and managing public lands held by the county.35

In addition to the county commissioners’ court and the county judge, Texas counties

have additional elected officers that are charged with overseeing specific county functions.

The county clerk oversees elections, voting, and official records and documents including

birth, death, and marriage certificates. The tax assessor-collector calculates the amount of

property tax that will be charged to property owners and collects taxes including property

taxes, sales taxes on automobiles and collecting fees for automobile registrations and

transfers of title, issuing liquor, beer and wine licenses, and registering voters. The county

treasurer is responsible for depositing all revenue collected by the county, disbursing

funds ordered by the county commissioners’ court, and maintaining all county financial

records. The county attorney serves as legal advisor for county government and

represents the county in civil and criminal cases. The justice of the peace presides over

certain civil matters, small claims courts, and misdemeanor criminal offenses punishable

by fine only (such as traffic offenses). Finally, the sheriff is the chief law enforcement

officer of the county and supervisor of county jail and prisons. The sheriff’s staff consists of

elected precinct constables that generally enforce civil laws such as serving subpoenas,

seizing property as ordered by a court, executing judgments, and carrying out duties for the

justice of the peace courts; and, deputies who must have law enforcement training and

generally assist the sheriff with enforcing criminal law through criminal investigations,

arresting suspects, working patrol, and supervising county correctional facilities. The civil –

criminal law distinction between constables and deputies has become blurred as Texas

counties have grown in population and the duties of the county sheriff have increased.

Constables in many Texas counties have been charged with assisting in criminal law

enforcement particularly with respect to traffic codes violations and emergency response.

35 “County Commissioner,” Texas Association of Counties, https://www.county.org/texas-county- government/texas-county-officials/Pages/County-Commissioner.aspx.

Texas is also divided into districts that consist of one or more counties. Districts have

elected officials charged with performing functions specific to the district. District court

judges preside over state district courts with delegated jurisdiction over criminal law

including state felony criminal cases, and civil law such as divorce, adoption, and probate.

The district clerk is the official custodian of court documents in cases heard in district

courts. The district attorney is the chief prosecuting officer for the district court,

represents the state in criminal cases, works with law enforcement to investigate and

prepare criminal cases, and determines whether an alleged criminal offense should be

brought before the grand jury.

Texas Municipal Government

The structure of municipal government in Texas has been significantly impacted by state

legislation and constitutional amendments that demonstrate the state’s political inclination

toward granting local governments a wide degree of discretionary authority. Whereas the

structure of county government is outlined by the state Constitution, Texas cities are

subject only to statutes, and the state legislature has provided cities far greater freedom

over determining the type of government structure they adopt. For this reason, the forms

of municipal governments vary across the state.

The first city charter was granted by the Congress of the Republic of Texas to the city of

San Augustine in 1837, and the first city charter granted by the newly formed Texas

Legislature was to the city of New Braunfels in 1846.36 The state legislature continued to

enact legislative charters establishing Texas cities until 1909, when the state passed a

constitutional amendment allowing for the creation of general law cities. General law

cities are municipalities that are limited to government structures and powers specifically

granted by state law, 37 and generally apply to cities with a population of less than 5,000

residents. In 1912, the Home Rule Amendment was ratified allowing municipalities of

36 Blodgett, Terrell, “Home Rule Charters,” Texas State Historical Association Online, Texas State Historical Association, https://tshaonline.org/handbook/online/articles/mvhek. 37 “General Law City: Law and Legal Definition,” USLegal.Com, https://definitions.uslegal.com/g/general-law- city/.

more than 5,000 residents to adopt their own home rule charters and pass ordinances of

their own choosing, subject only to the Texas constitution and general laws.38

For the Record: Dillon’s Rule v. the Cooley Rule

Established in 1868 by Iowa State Supreme Court Chief Justice John Forrest Dillon and quickly adopted by state supreme courts around the nation,39 Dillon’s Rule holds that local governments including counties and municipalities are creatures of the states and all their powers derive from the state government. Dillon's Rule was challenged in 1871 by Judge Thomas Cooley of the Michigan Supreme Court. Adopted by Texas and a few other states, the Cooley Rule held that municipalities possess some inherent rights of local self-government. After the United States Supreme Court upheld Dillon’s Rule in 1903 and again in 1923, the states that had adopted the Cooley Rule were required to abandon the doctrine.40 Keep in mind that both Dillon’s Rule (1868) and the Cooley Rule (1871) were established before the current Texas Constitution was ratified in 1876, and in many ways the structure of local governments in Texas appear to embrace both doctrines. County governments operate under Dillon’s Rule since they are constitutionally creatures of the state and bound by the laws of the state legislature. Likewise, general law cities are bound by the state. However, the Home Rule Amendment clearly embraces the Cooley Rule of inherent local self-government by allowing cities the authority to adopt their own home rule charters, design their own structure of city government, and pass city ordinances of their own choosing.

Ratification of the Home Rule Amendment allowed cities to create their own forms of

municipal government. Only three general forms of city government have been adopted by

Texas cities: the commission system, the mayor-council system, and the council-manager

system. The commission system of city government was once used in Galveston but has

now been replaced by the mayor-council form of government.

For the Record: The Commission System of City Government Created in response to the devastating Galveston Hurricane of 1901 that claimed an estimated 6,000 lives, the commission system was designed as the result of a compromise between the citizens of Galveston, Governor Joseph D. Sayers, and Speaker of the Texas House of Representatives John Nance Garner. The Port of Galveston – at the time the only major port on

38 Blodgett, Terrell, “Home Rule Charters,” Texas State Historical Association Online, Texas State Historical Association, https://tshaonline.org/handbook/online/articles/mvhek. 39 “Local Government Authority,” National League of Cities, http://www.nlc.org/local-government-authority. 40 Ibid.

the Texas Gulf Coast and essential to the cotton economy of the state – had been obliterated by the hurricane, and it was in state’s interest to quickly rebuild. When the citizens of Galveston approached the Texas legislature for funding to rebuild the city and port, Governor Sayers insisted that funding be provided only on the condition that the state maintain control over the rebuilding effort. The governor then proposed that he be allowed to appoint a five-member commission to oversee the rebuilding of the city and port.41 The Texas legislature at first rejected Governor Sayers’ proposal but ultimately agreed to provide state funds to rebuild Galveston with the assistance of a five-member commission consisting of three members appointed by the governor and two members elected by the voters of Galveston. The rebuilding of both the City of Galveston and the Port of Galveston was accomplished through the commission system. City commissioners served as both the legislative and executive branch of city government with each commissioners presiding over specific departments of essential to the city’s rebuilding including water and sewage, roads and bridges, and finance. The system was so successful at rebuilding Galveston that other cities adopted the commission form of city government. In Texas, the cities of Houston, Fort Worth, El Paso, and Greenville soon adopted the plan, and the first city outside of Texas to adopt the commission system was Des Moines, Iowa, followed by Shreveport, Louisiana, Jackson, Mississippi, and Mobile, Alabama.42 Criticisms about the commission system’s lack of a chief executive, tendency toward internal squabbling, and dilution of minority voting strength brought adoption of the commission system to a halt in the mid-twentieth century.43 The “father city” of the commission system, Galveston, did away with the system in 1960, replacing it with a council-manager form of government.44 Today, Portland, Oregon is the only major United States city that still uses the commission system of government.45

The mayor-council form of city government in Texas consists of a mayor and a number

of council members or aldermen. The mayor is elected at-large by the city’s voters, and the

city is divided into wards or aldermanic districts from which the resident voters elect their

representative to the city council. The mayor presides at council meetings and is the chief

executive officer of the city in his service as head of the police force and budgetary officer of

the city. Proposals and appointments made by the mayor are or may be subject to council

approval. The city council serves as the chief legislative branch of city government and is

41 Mora, Sherri, and William Ruger, The State of Texas: Government, Politics, and Policy, 2nd ed., (New York: McGraw Hill Education), 2015, p. 170. 42 Rice, Bradley R., “Commission Form of City Government,” The Texas Handbook Online, Texas State Historical Association, https://www.tshaonline.org/handbook/online/articles/moc01. 43 Ibid. 44 Ibid. 45 Portland, Oregon, “Government: Elected Officials,” City of Portland, Oregon, https://www.portlandoregon. gov/25783.

responsible for zoning and planning, economic development, city taxes, appropriations,

ordinances, and other city functions.46

There are two types of mayor-council city governments in the state: the weak mayor

form and the strong mayor form. The weak mayor form of city government grants the

mayor limited powers over the budget; divides power so that the mayor shares executive

and legislative power with other elected city officials and the council; limits the number of

terms the mayor can serve; and allows the mayor little or no veto authority.47 The weak

mayor form is used in fewer than 40 Texas home rule cities. The strong mayor form grants

the mayor power to appoint and remove department heads, prepare the city budget for

consideration by the council, and to veto council proposals.48 Many Texas cities, towns, and

villages, particularly smaller general law cities, use one of the two types of the mayor-

council form of city government. The largest Texas home rule city to adopt the mayor-

council form of city government is Houston which has a strong mayor system with the

mayor assisted by a chief city administrator hired by the city council and an elected

controller responsible for the city’s budget.49

The council-manager form is the most popular system of city government in both the

United States and Texas. Currently, 251 of Texas’ 290 home rule cities have adopted the

council-manager form of government50 including the cities of San Antonio, Dallas, Fort

Worth, El Paso, and Beaumont. Council-manager systems generally consist of an at-large

elected mayor who presides over the city council, and other council members elected at-

large or by place or district within the city. The mayor and council members are typically

low paid, part-time officials who recruit, hire, and pay a full-time, trained professional city

manager to run the business of the city.51 Today, most city managers have graduate

degrees in public administration and may be paid as much as $150,000 a year.52 While city

46 MacCorkle, Stuart A., “Mayor-Council Form of City Government,” The Texas Handbook Online, Texas State Historical Association, https://tshaonline.org/handbook/online/articles/mom01. 47 Ibid. 48 Ibid. 49 Ibid. 50 Mora, Sherri, and William Ruger, The State of Texas: Government, Politics, and Policy, 2nd ed., (New York: McGraw Hill Education), 2015, p. 170. 51 Blodgett, Terrell Blodgett, “Council-Manager Form of City Government,” The Texas Handbook Online, Texas State Historical Association, https://tshaonline.org/handbook/online/articles/moc02. 52 Ibid.

managers are hired, well-trained professionals, they must serve at the pleasure of elected

city council members who frequently “pass the buck” on to the city manager when projects

and city services do not run according to plan.53

Located within Texas system of federalism are special purpose districts authorized by

state law to provide one or a limited number of functions. Special purpose districts

generally have fiscal and administrative authority to operate within their respective

spheres. All special districts are governed by a board but their structures vary widely with

some boards elected by the public and most appointed by the states, counties, or

municipalities that have joined the district. Their operating revenue derives from a varied

of sources ranging from taxes, service charges, grants, special assessments, or a

combination of sources.54 Examples of special districts include school districts, port

authorities, water districts, and river authorities.

For the Record: Special Purpose Districts – River Authorities

Texas voters recognized the need to develop and conserve the state’s water resources as early as 1917, when a state constitutional amendment was ratified to allow the Texas Legislature to create River Authorities.55 The Brazos River Authority, created in 1929, was the first state agency in the United States specifically created for the purpose of develop and managing the water resources of an entire river basin.56 Today, there are twenty-three river authorities operating in Texas.57 Among the Texas special district river authorities are the Brazos River Authority, the Lower Neches Valley Authority (LNVA), and the Trinity River Authority (TRA). Beaumont is home to the main office of LNVA created in 1933 to serve the Neches River Basin and Neches-Trinity Coastal Basin. It operates within Tyler, Hardin, Liberty, Chambers, and Jefferson Counties and serves the watersheds of the Neches River and its tributaries occupying an area of approximately 10,300 square miles. The river rises near Colfax, Texas and flows generally southward for a distance of 416 miles before entering the coastal estuary, Sabine Lake, and ultimately into the Gulf of Mexico.58 The TRA is a special purpose district that provides conservation and reclamation of water for the reservoir and recreation facilities that are located within a nearly 18,000-square-mile area

53 Ibid. 54 “Special Districts,” National League of Cities Report, http://www.nlc.org/local-us-governments. 55 Interim Report to the 82nd Texas Legislature, House Select Committee on Special Purpose Districts, January, 2011, http://www.house.state.tx.us/_media/pdf/committees/reports/81interim/House-Select-Committee- on-Special-Purpose-Districts-Interim-Report-2010.pdf, p. 31. 56 “Brazos River Authority,” Handbook of Texas Online, Texas State Historical Association, http://www.tshaonline.org/handbook/online/articles/mwb01. 57 Lower Neches Valley Authority, http://lnva.dst.tx.us/about/. 58 Ibid.

that comprises the Trinity River basin.59 The TRA was created in 1955 by an act of the Texas Legislature. Its first Central Regional Wastewater System began operation in 1959 to serve four member cities in the Dallas-Fort Worth area, and in 1969 the TRA completed construction of Lake Livingston Dam to help satisfy water demand for the city of Houston.60 Today, the special district provides services such as overseeing the recreational area of Wolf Creek Park on Lake Livingston.61

Conclusion

Chapter 4 has examined the foundations, theories, and history of American federalism

and concentrated on the powers and structures of county and city governments as well as

special districts in Texas. Chapter 5 discusses the role of elections, political parties, and

interest groups in Texas history and the landscape of Texas politics today.

Key Terms

authoritarian systems federal systems federalism unitary systems confederal systems Articles of Confederation enumerated powers Tenth Amendment reserved powers doctrine implied powers national federalism compact federalism necessary and proper clause commerce clause McCulloch v. Maryland supremacy clause Patrick Henry Luther Martin Gibbons v. Ogden NLRB v. Jones & Laughlin Steel Heart of Atlanta Motel v. U.S. U. S. v. Lopez Printz v. U. S. U. S. v. Morrison cooperative federalism new federalism general revenue sharing intergovernmental grants block grants categorical grants maintenance-of-effort provisions project grants formula grants police powers county commissioners courts county judges county tax assessor-collector county clerk county attorney county treasurer justice of the peace county sheriff county constables county deputies district clerk district attorney district judge general law cities Home Rule Amendment Dillon’s Rule Cooley Rule commission form mayor-council form strong mayor form weak mayor form council-manager form Brazos River Authority Lower Neches Valley Authority Trinity River Authority

59 Trinity River Authority of Texas, “Clean Water for a Healthy Environment,” http://www.trinityra.org/. 60 Ibid. 61 Ibid.