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Amendments to the Texas Constitution originate in the House of Representatives and then go to voters for approval. Here, Texas Speaker of the House Joe Straus strikes the gavel as the Texas House votes to pass a proposed constitutional amendment that would boost spending for roads and bridges.

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W HY THE TEXAS CONSTITUTION MATTERS The Texas Constitu­ tion is the legal framework within which government works in Texas just as the U.S. Constitution is the legal framework for our national institutions. Perhaps even more than the U.S. Constitution, the Texas Constitution has an immediate and enormous impact on the everyday lives of Texans. There are rights guaranteed to Texans in Article 1 of the Texas Constitution that go far beyond

those of the U.S. Constitution, addressing issues related to Texans’ private lives. For example, Article 1, Section 7, stipulates that no money will be appropriated or drawn from the treasury that benefits a sect, religious society, or religious seminary. Section 7 clearly lists the conditions that must be met by the state if it wants to take, damage, or destroy the private property of individuals. Section 30 provides a detailed list of the rights that the victims of crime have, including the right to be treated with dignity and privacy in the criminal process and a right to confer with representatives of the prosecutor’s office. Section 31—now rendered inoperable by a U.S. Supreme Court decision in 2015—narrowly defines a marriage as consisting “only of the union of one man and one woman.” Section 33 guarantees Texans a right to access and use public beaches. One could argue that each of these cases is more a matter of policy preference than of constitutional right. By placing these in the Bill of Rights of the Texas Constitution, particular policy posi­ tions take on a protected status. It is more difficult to change a right enshrined in the Texas Constitution than it is to change a policy backed by statutory law.

Given the length and detail of the Texas Constitution, the amendment process assumes a central role in the political process. Every few years, the Texas legislature presents to the voters a list of proposed amendments to the state constitution. There are some important differences between the amending pro­ cess for the Texas Constitution and that for the U.S. Constitution. For example, voter approval is necessary for the amendments to the Texas Constitution to take effect. Moreover, since 1789 there have been only 27 amendments to the U.S. Constitution but 491 amendments to the Texas Constitution as of 2016. In 2013, 9 amendments were proposed and passed. In 2014, 1 amendment was passed. In 2015, 7 were put before the electorate and approved.

Occasionally, amendments deal with overall structural issues of government. In 1979, for example, an amendment passed giving the governor limited authority to remove appointed statewide officials. In 1995 a constitutional  amendment passed that abolished the office of the state treasurer,

The Texas Constitution

2

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placing its duties in the Texas Comptroller’s Office. In such cases, amend­ ments to the Texas Constitution function like those to the U.S. Constitution. At other times, though, the amendments to the Texas Constitution are a far cry from those to the U.S. Constitution. There are many more amendments to the Texas Constitution that have dealt with technical problems in the constitution, reflecting efforts to clean up specific language in the state constitution that was now out of date. In 2007 an amendment passed that eliminated the county Office of the Inspector of Hides and Animals.1 The office had been ef­ fectively vacated with the passage of a new Agricultural Code that eliminated the office in law.2 But the constitution needed to be brought up to date with the law. In 2013, Proposition 2 eliminated language relating to a State Medi­ cal and Education Board and a State Medical Education Fund, neither of which were operational.

Other amendments to the Texas Constitution grapple with pressing policy matters. Interestingly, the electorate is asked to give its approval of certain policy initiatives directly through the amendment process, something that is inconceivable at the national level. In 2009 amendments were passed protecting private property from certain property takings by the state through eminent domain, establishing a National Research University Fund, and allow­ ing members of emergency service districts to serve for four years. In 2011 amendments were passed allowing the Texas Water Development Board to issue bonds so that loans could be given to local governments for water projects and granting the City of El Paso more borrowing authority. Among the amendments passed in 2013, Proposition 6 provided for the creation of two funds to help finance important water projects in the future. In 2015, Proposition 7 provided for the creation of funds to help finance transportation projects throughout the state. Without the passage of these amendments by the electorate, effective public policy in a variety of areas central to the future of Texas would have ground to a halt. Far more than the U.S. Constitution, the Texas Constitution is involved with the nuts and bolts of public policy and must be taken into account frequently by Texas legislators seeking to address problems in new and innovative ways.

CHAPTERGOALS

• Identify the main functions of state constitutions (pp. 45–47)

• Describe the six Texas constitutions and their role in Texas political life (pp. 47–62)

• Analyze the major provisions of the Texas Constitution today (pp. 62–71)

• Describe modern efforts to change the Texas Constitution (pp. 71–79)

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constitution the legal structure of a government, which establishes its power and authority as well as the limits on that power

separation of powers the division of governmental power among several institutions that must cooperate in decision making

checks and balances the constitutional idea that overlapping power is given to different branches of government to limit the concentration of power in any one branch

tyranny according to James Madison, the concentration of power in any one branch of government

The Role of a State Constitution

State constitutions perform a number of important functions. They legitimate state political institutions by clearly explaining the source of their power and authority. State constitutions also delegate power, explaining which powers are granted to par­ ticular institutions and individuals and how those powers are to be used. They also are responsible for the establishments of local governments, including counties, mu­ nicipalities, and special purpose districts. They prevent the concentration of political power by providing political mechanisms that check and balance the powers of one po­ litical institution or individual officeholder against another. Finally, they define the limits of political power. Through declarations of rights, state constitutions explicitly for bid the intrusion of certain kinds of governmental activities into the lives of individuals.

The idea of constitutional government in Texas since its first constitution has been heavily indebted to the larger American experience. Five ideas unite the U.S. and Texas constitutional experiences. First, political power in both the United States and Texas is ultimately derived from the people. The Preamble to the U.S. Constitution begins with the clear assertion that it is “We the People of the United States” that ordains and establishes the Constitution. Echoing these sentiments, the Preamble to the Texas Constitution proclaims that “the People of  the State of  Texas, do ordain and establish this Constitution.” In both documents, political power is something that is ar­ tificially created through the constitution by a conscious act of the people.

Second, the U.S. and Texas constitutions feature separation of powers. The legis­ lative, executive, and judicial branches of government have their own unique powers derived from the people. Each branch has its corresponding duties and obligations.

Third, the U.S. and Texas constitutions structure political power in such a way that the power of one branch is checked and balanced by the power of the other two branches. The idea of checks and balances reflects a common concern among the framers of the U.S. Constitution and the authors of Texas’s various constitutions that the intent of writing a constitution was not just to establish effective governing insti­ tutions. Its purpose was also to create political institutions that would not tyrannize the very people who established them. In this theory of checks and balances, both the U.S. and Texas constitutions embody the ideas articulated by James Madison in The Federalist Papers, nos. 10, 47, and 51. There, Madison argued that one of the most effec­ tive ways of preventing tyranny (the concentration of power in one branch) was to pit the self­interest of officeholders in one branch against the self­interest of officehold­ ers in the other branches. Good intentions alone would not guarantee liberty in either the United States or Texas. Rather, constitutional means combined with self­interest would ensure that officeholders had an interest in preserving a balance among the dif­ ferent branches of government.

The concern for preventing the emergence of tyranny is also found in a fourth idea that underlies the U.S. and Texas constitutions: the idea of individual rights. Government is explicitly forbidden from violating a number of particular rights that the people possess. Some rights, such as freedom of speech, freedom of assembly, and

Identify the main functions of state constitutions

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federalism a system of government in which power is divided, by a constitution, between a central government and regional governments

supremacy clause Article VI of the U.S. Constitution, which states that the Constitution and laws passed by the na­ tional government and all treaties are the supreme law of the land and superior to all laws adopted by any state or any subdivision

necessary and proper clause Article I, Section 8, of the U.S. Constitution; it provides Congress with the authority to make all laws “necessary and proper” to carry out its powers

freedom of religion, are guaranteed by both the U.S. Constitution and the Texas Con­ stitution. Interestingly, the Texas Constitution also guarantees other rights not found in the U.S. Constitution, such as certain victims’ rights and the right to have an “ef­ ficient system of public free schools.” In this the Texas Constitution can be seen as guaranteeing a broader set of rights than the U.S. Constitution.

The final idea embodied in both the U.S. and Texas constitutions is that of federalism. Federalism is the division of government into a central government and a series of regional governments (see Chapter 3). Both kinds of government exercise direct authority over individual citizens of the United States and of each particular state. Article IV, Section 4, of the U.S. Constitution guarantees that every state in the Union will have a “Republican Form of Government.” Curiously, no attempt is made to explain what exactly a “Republican Form of Government” entails. The Tenth Amend­ ment to the U.S. Constitution also recognizes the importance of the idea of federal­ ism to the American political system. It reads, “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.” According to the U.S. Constitution, enormous reser voirs of political power are thus derived from the people who reside in the states themselves.

However, some important differences distinguish the constitutional experi­ ence of Texas from that of the United States. Most important is the subordinate role that Texas has in the federal system. Article VI of the U.S. Constitution contains the supremacy clause, declaring the Constitution and the laws of the United States to be “the supreme Law of the Land.” The supremacy clause requires all judges in every state to be bound by the U.S. Constitution, notwithstanding the laws or constitution of their particular state. In matters of disagreement, the U.S. Constitution thus takes precedence over the Texas Constitution.

One of the major issues of the Civil War was how the federal system was to be understood. Was the United States a confederation of autonomous sovereign states that were ultimately independent political entities capable of secession (much like the current European Union)? Was the United States a perpetual union of states that were ultimately in a subordinate relationship to the central government? The results of the war and the ratification of the Fourteenth Amendment in 1868 ultimately re­ solved this question in terms of the latter. The idea that the United States was a per­ petual union composed of subordinate states would have profound implications for constitutional government in Texas throughout the late nineteenth and twentieth centuries. The incorporation of the Bill of Rights through the Fourteenth Amend­ ment, which made much of the Bill of Rights apply to the states, became a dominant theme of constitutional law in the twentieth century. The Fourteenth Amendment effectively placed restrictions on Texas government and public policy that went far beyond those laid out in Texas’s own constitution.

Another major difference between the U.S. and Texas constitutions lies in the necessary and proper clause of Article I, Section 8, of the U.S. Constitution. Section 8 begins by listing in detail the specific powers granted to Congress by the Constitution. The Founders apparently wanted to limit the scope of national government activities. But Section 8 concludes by granting Congress the power necessary to accomplish its constitutional tasks. The net effect of this clause was to provide a constitutional basis for an enormous expansion of central government activities over the next 200­plus years.

Drafters of Texas’s various constitutions generally have been unwilling to grant such an enormous loophole in the exercise of governmental power. Although granting

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state government the power to accomplish certain tasks, Texas constitutions have generally denied officeholders broad grants of discretionary power to accomplish their goals.

Texas’s power to establish local governments has no analogous feature in the U.S. Constitution. States such as Texas are sovereign entities unto themselves deriving power directly from the people in the state through the state constitution. Texas is not created by the U.S. Constitution, although it is subject to it, as we shall see in Chapter 3. Local governments derive their authority directly from the state constitu­ tion and the people of  Texas, not from the people in their locality. Self­government for local governing bodies in Texas ultimately means self­government by the people of Texas under the state constitution.

The Texas Constitutions: 1836–1876

Many myths surround the origins of Texas as a state. Some trumpet its unique ori­ gins as an independent republic that fought to attain its own independence from an oppressive regime much like the United States did. Others suggest that Texas has a certain privileged position as a state given the way that it entered the Union or that it reserved for itself a right to break up into separate states or even to leave the Union. To separate the myth from the reality, it is necessary to understand the Founding of Texas out of its war of independence with Mexico and its subsequent constitutional development.

Texas has operated under seven constitutions, one when it was part of a state un­ der the Mexican political regime prior to independence, one as an independent re­ public, one as a member of the Confederacy, and four as a state in the United States. Each was shaped by historical developments of its time and, following the first consti­ tution, attempted to address the shortcomings of each previous constitution. To un­ derstand constitutional government in Texas today demands a clear understanding of the founding of Texas and the specific historical circumstances that gave rise to each constitution. The constitutional regime operating in Texas today is the product of a long course of political and legal development in the state. In this section, we look at historical circumstances that gave rise to Texas’s constitutions.

The Texas Founding

Political scientists refer to “the Founding” as that period in American history when the foundational principles of American political life were established, roughly the period of time from the Declaration of Independence in 1776 through the ratification of the Constitution (1790) and the Bill of Rights (1791). Texas has a founding period, but one that is much longer and more convoluted.

Describe the six Texas constitutions and their role in Texas political life

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On the face of it, Texas’s road to independence appears to mirror that of the United States. Like the United States, Texas had a period of discontent with the gov­ erning regime that culminated in a Declaration of Independence. This document cat­ aloged grievances against Mexico and announced the establishment of a new Republic of Texas. But whereas Britain was a stable and powerful empire in the mid­eighteenth century, Mexico was not. Mexico had only recently freed itself from Spain and was experiencing a lengthy period of domestic turmoil. In addition, while the American colonies had been effective self­governing entities before the Declaration of Indepen­ dence, Texas was not. The Texas Founding encompassed a number of phases of consti­ tutional government. These phases stretched from 1836 when Texas declared itself an independent republic to 1876 when reconstruction after the Civil War came to an end and a new (Texas’s current) state constitution was put into place.

The Constitution of Coahuila y Tejas, 1827 Despite the growing fears of American expansionism following the Louisiana Purchase, in 1803 Spanish Texas was still sparsely populated. In 1804 the population of Spanish Texas was esti­ mated to be 3,605. In 1811, Juan Bautista de las Casas launched the first revolt against Spanish rule in San Antonio. The so­called Casas Revolt was successfully put down by the summer of 1811. The next year, a second challenge to Spanish rule took place along the border between Texas and the United States. After capturing Nacogdoches, La Bahia, and San Antonio, rebel forces under José Bernardo Gutiérrez de Lara issued a declaration of independence from New Spain and drafted a constitution. By 1813, however, this revolt had also been put down, and bloody reprisals had depopulated the state. Texas remained part of New Spain until the Mexican War of Independence.3

The Mexican War of Independence grew out of a series of revolts against Spanish rule during the Napoleonic Wars. Burdened by debts brought on by a crippling war with France, Spain sought to extract more wealth from its colonies. The forced abdi­ cation of Ferdinand VII in favor of Napoleon’s brother Joseph in 1808 and an inten­ sifying economic crisis in New Spain in 1809 and 1810 undermined the legitimacy of Spanish rule. Revolts broke out in Guanajuato and spread throughout Mexico and its Texas province. Although these rebellions were initially put down by royalist forces loyal to Spain, by 1820 local revolts and guerrilla actions had helped to weaken con­ tinued royal rule from Spain. On August 24, 1821, Mexico was formally granted inde­ pendence by Spain.

Being part of Mexico, the first federal constitution that Texas operated under was the Mexican Constitution. At the national level, there were two houses of Congress in Mexico. The lower house was composed of deputies serving two­year terms. In the upper house, senators served four­year terms and were selected by state legislatures. The president and vice president were elected for four­year terms by the legislative bodies of the states. There was a supreme court, composed of 11 judges, and an attor­ ney general. Although the Mexican Constitution mandated separate legislative, execu­ tive, and judicial branches, no attempt was made to define the scope of states’ rights in the Mexican confederation. Local affairs remained independent of the central government. Although the Mexican Constitution embodied many of the ideas found in the U.S. Constitution, there was one important difference: Catholicism was estab­ lished as the state religion and was supported financially by the state.4

Under the Mexican Constitution of 1824, the state of Coahuila and the sparsely populated province of  Texas were combined into the state of  Coahuila y Tejas. Saltillo,

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Mexico, was the capital. More than two years were spent drafting a constitution for the new state. It was finally published on March 11, 1827.

The state of Coahuila y Tejas was formally divided into three separate districts, with Texas composing the District of Bexar. Legislative power for the state was placed in a unicameral legislature composed of 12 deputies elected by the people. The people of the District of Bexar (Texas) elected 2 of these. Along with wide­ranging legislative powers, the legislature was also empowered to elect state officials when no majority emerged from the popular vote, to serve as a grand jury in political and military mat­ ters, and to regulate the army and militia. Executive power was vested in a governor and a vice governor, each elected by the people for a four­year term. Judicial power was placed in state courts. The Constitution of 1827 formally guaranteed citizens the right to liberty, security, property, and equality. Language in the Constitution of 1827 also supported efforts to curtail the spread of slavery, an institution of vital impor­ tance to planters who were immigrating from the American South. The legislature was ordered to promote education and freedom of the press. As in the Mexican federal constitution, Catholicism was the established state religion.5

Political instability in Mexico in the late 1820s and early 1830s largely undercut the provisions and protections of both the federal and state constitutions under which Texans lived. But they were important to political debate at the time as discontent against the central government built up. At least in the early stages of the Texas rebel­ lion against Mexico, many Texans could, and did, see themselves as defending these constitutions and most of the political principles that they represented. The turn away from defending the Mexican Constitution of 1824 and the state constitution of 1827 to articulating a new constitutional regime relying more on American political and cultural values was a fundamental step on the road to independence for Texas.

This 1844 cartoon satirized congressional opposition to the annexation of Texas. Personi­ fied as a beautiful young woman, Texas is holding a cornucopia filled with flowers. Though James K. Polk, elected to the presidency in 1844, welcomes Texas, the Whig Party leader Senator Henry Clay, with arms folded, warns, “Stand back, Madam Texas! For we are more holy than thou! Do you think we will have anything to do with gamblers, horse­racers, and licentious profligates?”

unicameral comprising one body or house, as in a one­house legislature

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The Constitution of the Republic of Texas, 1836

Texas’s break with Mexico was in large part a constitutional crisis that culminated in separation. Americans had come to Texas for a variety of reasons. Some, like Ste­ phen F. Austin, had come to Texas in the service of the Mexican state as empresa­ rios, individuals whose goal was to encourage immigration into Texas from America through the distribution of land made available by the Mexican government. They saw themselves as Mexican citizens working with the constitutional regime of 1827. There were other American immigrants who came to Texas as part of America’s move westward. They were far less committed to integrating themselves into the Mexican political community. For these people, independence from Mexico either as an independent Republic or as part of the United States was the ultimate political objective.

Recognizing the dangers to Mexican authority by Americans coming into Texas, Mexican officials made various attempts to limit the influx of new American immi­ grants. These restrictions, along with other grievances, led to growing discontent among Texans over their place in the Mexican federal system. Ultimately, Texans called for political conventions in 1832 and 1833 to discuss new constitutional forms of government. Along with demands for a more liberal immigration policy for people from the United States and for the establishment of English­ and Spanish­speaking primary schools, calls for separate statehood for Texas emerged from the conventions. The 1833 convention actually drafted a constitution for this newly proposed state modeled on the Massachusetts Constitution of 1780. Stephen F. Austin’s attempt to bring the proposed constitution to the attention of the central government in Mexico City led to his imprisonment, which in turn pushed Texas closer to open rebellion against the central Mexican government.

On November 7, 1835, a declaration was adopted by a meeting of state political leaders at San Felipe, which stated the reasons Texans were beginning to take up arms against the Mexican government. The declaration proclaimed that Texas was rising up in defense of its rights and liberties as well as the republican principles articulated in the Mexican Constitution of 1824. It was one thing to call for a defense of republi­ can principles under the Mexican Constitution of 1824; it was something else to call for separation from Mexico; and it was something else again to advocate separation from Mexico followed by union with the United States. In the end, the declaration was but a prelude to the formal Texas Declaration of Independence that emerged out of the Convention of 1836 held at Washington­on­the­Brazos.

Of the 59 delegates attending the Convention of 1836, only 10 had lived in Texas prior to 1830. Two had arrived as late as 1836. Thirty­nine of the delegates were from southern slave states, 6 were from the border state of Kentucky, 7 were from north­ ern states, 3 were from Mexico (including 2 born in Texas), and 4 were from other English­speaking lands.6 The final products of the convention—the Texas Declaration of Independence and the Constitution of 1836—reflected the interests and values of these participants.

In their own Declaration of Independence, delegates to the convention pro­ claimed that the federal constitutional regime they had been invited to live under by the rulers of Mexico had been replaced by a military tyranny that combined a “des­

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potism of the sword and the priesthood.” Echoing the American Declaration of In­ dependence, they presented a long list of grievances against the central government, including the failure to provide freedom of religion, a system of public education, and trial by jury.

The Texas Declaration of Independence Like the Founders during the American Revolution, leaders of the Texas Revolution felt they needed to justify their actions in print. Written by George C. Childress and adopted by the general con­ vention at Washington­on­the­Brazos on March 2, 1836, the Texas Declaration of  In­ dependence stated why it was necessary to separate from Mexico and create an inde­ pendent republic (see Appendix, pp. A1–A3). Not surprisingly, the document draws heavily on the ideas of John Locke and Thomas Jefferson for inspiration. The de­ scription of the role of the government, “to protect the lives, liberty, and property of the people,” repeated verbatim Locke’s litany of the primary reasons for establishing government. Like Jefferson’s Declaration, Texas’s declaration catalogs a list of griev­ ances against the Mexican regime. According to Texas’s declaration, the existing gov­ ernment had abdicated its duties to protect the governed and had broken the trustee relationship that binds a people to those in authority. By dissolving civil society into its original elements, the government had forced the people to assert their inalienable right of self­preservation and to take political affairs into their own hands again. The “melancholy conclusion” of Texas’s declaration echoed ideas that Locke and Jefferson would have understood well: any government that stripped a people of their liberty was unacceptable to those raised on principles of self­government. Self­preservation demanded “eternal political separation” from the very state (Mexico) that had invited them to settle in Texas (see Figure 2.1).

The Republic of Texas 1836–45 This map shows the Republic of Texas with its large claimed territory. Texas’s current bound aries were not established until 1850. Even then, minor controversies persisted along the Red River.

FIGURE 2.1

UNITED STATES

TEXAS

Claimed Territory

MEXICO

Nueces River

Brazos River

San Antonio River

Arkansas River

Red River

Rio Grande

Washington- on-the- Brazos

San Antonio

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After declaring Texas a separate republic independent from Mexico, the conven­ tion proceeded to draft and pass a new constitution reflecting these republican senti­ ments. Resembling the U.S. Constitution in being brief and flexible (fewer than 6,500 words), the 1836 Constitution established an elected chief executive with consider­ able powers, a bicameral legislature, and a four­tiered judicial system composed of justice, county, district, and supreme courts.7 Power was divided among these three branches, and a system of checks and balances was put into place. Complicated proce­ dures were included for amending the constitution, and a bill of rights was elaborated.

The values of American democracy percolated through the document. White male suffrage was guaranteed. Ministers and priests were ineligible for public office. Checks and balances were established between the three branches of government.

A number of important provisions from Spanish­Mexican law were adapted for the Texas Republic in the constitution, including the idea of community property, homestead exemptions and protections, and debtor relief. By 1840, the Republic of Texas adopted the rules of English Common Law to replace Spanish Law in most civil and criminal matters, with one notable exception. Following Spanish and Mexican law, Texas initially retained ownership of all minerals under the ground even as land

bicameral having a legislative assembly composed of two chambers or houses

The Texas Declaration of Independence was written by George C. Childress and adopted at the Convention of 1836. Childress modeled the document on the American Declaration of Independence (see Appendix).

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grants gave individual ownership to the land itself. Until the Constitution of 1866, a consensus existed that the best model for developing the state and its mineral re­ sources was through direct state ownership of all mineral rights. Under the constitu­ tions of 1866, 1869, and 1876, a new model was adopted granting ownership of mineral rights to the private individuals who owned the land under which minerals were found. Some claims to mineral rights were kept, largely in western parts of the state to fund public schools and higher education. But the new idea was that private entrepre­ neurs would do a better job developing the state’s natural resources than state actors. The complicated history of mineral rights and oil and gas law (as well as the entire oil and natural gas industry) in the nineteenth and twentieth centuries follows directly from the decisions made in later constitutions to replace the original mineral rights provisions of the constitutions of 1836, 1845, and 1861.

One of the most important aspects of the Constitution of 1836, at least from the perspective of newly immigrated Americans from the South, was the defense of slav­ ery as an institution. The Constitution of Coahuila y Tejas of 1827 had challenged, albeit unsuccessfully, the existence of slavery as an institution. Although the 1836 Constitution of the Republic of  Texas outlawed the importation of slaves from Africa, it guaranteed that slaveholders could keep their property and that new slaveholding immigrants could bring their slaves into Texas with them. The results of this constitu­ tional protection were monumental. In 1836, Texas had a population of 38,470, includ­ ing 5,000 slaves. By 1850 the slave population had grown to 58,161, over one­quarter of the state’s population. By 1860 there were more than 182,566 slaves, accounting for more than 30 percent of the state’s population.8 The Constitution of 1836 not only saved slavery as an institution in Texas but also provided the protections needed for slavery to flourish.

Writing a constitution is one thing; putting it into effect is another. Only after the Battle of San Jacinto, where on April 21 Sam Houston’s force of 900 men overran the 1,300­man force of Santa Anna and captured general and dictator Santa Anna him­ self, did Texas really become an independent state with a working constitution. Many questioned whether the Lone Star Republic would survive given the dismal state of its finances, an army that couldn’t protect rather audacious land claims to the west and the south, a hostile Mexico that only reluctantly accepted Texas’s secession, and a United States that appeared to be unwilling to bring Texas into the Union.9 Annexa­ tion to the United States in 1845 ended such questions and brought into being a new constitution, this time a state constitution that would operate within the framework of the U.S. Constitution.

The Texas State Constitution of 1845

The next phase of Texas’s Founding took place from 1845 to 1861. Although the 1836 Constitution called for annexation by the United States, Texas remained an indepen­ dent republic for nine years. There were concerns in the United States that if Texas were admitted to the Union, it would be as a slave state. Texas’s admission to the Union could alter the delicate balance between slave and free states and further di­ vide the nation over the sensitive subject of slavery. Additionally, it was feared that annexation by the United States would lead to war with Mexico. The defeated Mexi­ can general and dictator Santa Anna had repudiated the Treaty of Velasco, which had

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ended the war between Texas and Mexico. Still claiming Texas as part of its territory, Mexico undoubtedly would have gone to war to protect what it felt to be rightfully its own.

Hesitation over admitting Texas to the Union was overcome by the mid­1840s. On March 1, 1845, the U.S. Congress approved a resolution that brought Texas into the Union as a state (see Appendix, pp. A5–A6). The annexation resolution had a number of interesting provisions. First, the Republic of Texas ceded to the United States all military armaments, bases, and facilities pertaining to public defense. Sec­ ond, Texas retained a right to all “its vacant and unappropriated lands” as well as to its public debts. This was no small matter, because Texas claimed an enormous amount of land that extended far beyond its present state boundaries. The boundary issues were not resolved until Congress passed the Compromise of 1850, which, among other things, established Texas’s boundaries in exchange for a payment from the federal government where some of the funds were used to pay Texas’s debts. Finally, Texas was given permission to break up into four additional states when population proved adequate.

On July 4, 1845, Anson Jones, fourth and final president of  the Republic of  Texas, called a convention in Austin to draft a state constitution. Drafters of the constitution relied heavily on the Constitution of 1836, although the final document ended up be­ ing almost twice as long. The familiar doctrines of separation of powers, checks and balances, and individual rights defined the basic design of government.

Under the Constitution of 1845, the legislature would be composed of two houses. The House of Representatives would have between 45 and 90 members, elected for two­year terms. Members were required to be at least 21 years of age. The Senate would be composed of  between 19 and 33 members, elected for four­year terms. Half of the Senate would be elected every two years. As in the U.S. Constitution, revenue bills would originate in the House. Executive vetoes could be overturned by a two­thirds vote of each house. In a separate article on education, the legislature was ordered to establish a public school system and to set aside lands to support a Permanent School

The lowering of the Republic flag marked Texas’s annexation to the Union on March 1, 1845. A state constitution was drafted shortly thereafter to reflect Texas’s new role.

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Fund. Another interesting power granted to the legislature was the power to select the treasurer and comptroller in a joint session.

This constitution provided for an elected governor and lieutenant governor. The governor’s term was set at two years. He could serve only four years as governor in any six­year period. Among the executive powers granted to the governor were the powers to convene and adjourn the legislature, to veto legislation, to grant pardons and re­ prieves, and to command the state militia. The governor also had the power to appoint the attorney general, secretary of state, and district and supreme court judges, subject to the approval of the Senate.

The Constitution of 1845 established a judicial branch consisting of a supreme court composed of three judges, district courts, and lower courts deemed necessary by the legislature. Judges on the higher courts were to be appointed to six­year terms and could be removed from office subject to a two­thirds vote of both houses of the legislature.

Amending the Constitution of 1845 was difficult. After being proposed by a two­ thirds vote of each house, amendments had to be approved by a majority of the voters. In the next legislature, another two­thirds vote of each house was necessary for rati­ fication. Only one amendment was ever made to the Constitution of 1845. In 1850, an amendment was added to provide for the election of state officials who were originally appointed by the governor or by the legislature.10

This constitution retained some of the unusual provisions from the annexation resolution. Texas could divide itself into as many as five states and was responsible for paying its own foreign debt. It would retain title to its public lands, which could be sold to pay its debt. There was even a provision allowing Texas to fly its flag at the same height as the U.S. flag.

The Constitution of 1861: Texas Joins the Confederacy

The issue of slavery had delayed Texas’s admission into the United States for nine years, until 1845. Northerners rightly feared that admission of Texas into the Union would intensify southern efforts to extend the slave system westward and would de­ stroy the tenuous balance of power between slave and free states that had been estab­ lished under the Missouri Compromise. While slavery made it difficult for Texas to get into the Union in 1848, slavery drove Texas from the Union in 1861. By 1860 slavery had become a vital institution to the Texas economy. Concentrated in east Texas and along the Gulf Coast, slaves had come to constitute 30 percent of the population. How­ ever, in large sections of  the state, particularly in the north and west, the economy was based on ranching or corn and wheat production rather than cotton. There, slavery was virtually nonexistent. The question of whether Texas should secede was a con­ troversial one that divided the state along regional and ethnic as well as party lines.

Pressure to secede mounted following the presidential election of Abraham Lincoln in November 1860. A staunch Unionist, Governor Sam Houston refused to convene a special session of the legislature to discuss secession (see Appendix, pp. A7–A8). Seeking to bypass Houston, a number of influential political leaders in the state, including the chief justice of the Texas Supreme Court, called for a special convention in January 1861 to consider secession. Giving in to the pressure, Houston

56 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

called a special session of the legislature in the hopes of undercutting the upcoming secession convention. The legislature, however, had other ideas, validating the call for the convention and turning its chambers over to the convention.

Lawyers and slaveholders dominated the secession convention. Lawyers com­ posed 40 percent of the delegates; slaveholders composed 70 percent. The Texas Or­ dinance of Secession, produced by the convention on February 2, 1861, reflected this proslavery membership (see Appendix, pp. A9–A10). In striking language, it pro­ claimed that the northern states had broken faith with Texas, particularly regarding the institution of slavery. Northerners had violated the very laws and constitution of the federal Union by appealing to a “higher law” that trampled on the rights of  Texans. In language that people living in the twenty­first century find hard to understand, the Ordinance of Secession proclaimed,

We hold as undeniable truths that the governments of the various States, and of the con­ federacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were right­ fully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial and tolerable.11

Texas voters approved secession from the Union on February 23, 1861. The seces­ sion convention reconvened to enact a new constitution to guide the state as it en­ tered the Confederacy. There were surprisingly few changes in the final document. This constitution was similar to the Constitution of 1845 except that references to the United States of America were replaced with references to the Confederate States of America. Public officials had to declare allegiance to the Confederacy, and slavery and states’ rights were defended. A clause in the 1845 Constitution that provided for the possible emancipation of slaves was eliminated, and freeing slaves was declared illegal. But for the most part, the document accepted the existing constitutional frame­ work. Controversial proposals, such as resuming the African slave trade, were re­ jected. The move out of the Union into the Confederacy may have been a radical one, but the new constitution was conservative insofar as it reaffirmed the existing consti­ tutional order in the state.12

This image shows what the Texas State capitol looked like in the 1850s. It burned in 1881. Texas’s first constitution after joining the Union as a state was ratified in 1845. It lasted until 1861 when Texas seceded from the Union along with other southern states.

Confederacy the Confederate States of America, those southern states that seceded from the United States in late 1860 and 1861 and argued that the power of the states was more important than the power of the central government

57T H E T E X A S C O N S T I T U T I O N S : 1 8 3 6 – 1 8 7 6

The Constitution of 1866: Texas Rejoins the Union

Defeat in the Civil War led to the institution of another state constitution in 1866. The provisional governor, pro­Union Andrew Jackson Hamilton, called a constitutional convention on November 15, 1865, a little over six months after the surrender of Lee’s army in Virginia. Delegates were elected on January 8, 1866, and the convention was held February 7. Under the provisions of President Andrew Johnson’s “Presidential Reconstruction,” few former secessionists were excluded from voting. As a result, the convention was dominated by former secessionists, many who had held commissions in the Confederate army.

A number of actions were taken to bring the state into compliance with Presi­ dent Andrew Johnson’s policy of Reconstruction, so­called Presidential Reconstruc- tion. These included the rejection of the right to secession (see Appendix, p. A11), a repudiation of the war debt incurred by the state, and an acceptance of the abolition of slavery. The convention granted freedmen fundamental rights to their persons and property and gave them the right to sue and be sued as well as the right to con­ tract with others. However, it did not extend suffrage to former slaves, and they were banned from holding public office. The various amendments to the Constitution of 1861 passed by the convention came to be known as the Constitution of 1866.

As in the two previous constitutions, the size of the House was set between 45 and 90, and that of the Senate between 19 and 33. Terms of office remained the same as under the 1845 and 1861 constitutions, although salaries were increased. Reappor­ tionment was to be based on the number of white male citizens, who would be counted in a census every 10 years.

The governor’s salary was also increased, and the term was extended to 4 years, with a limit of 8 years in any 12­year period. The governor was also granted, for the first time, a line­item veto on appropriations. The comptroller and the treasurer were to be elected by the voters for 4­year terms.

Under the new constitution, the state supreme court was expanded from three to five judges and terms were increased to 10 years. Their salaries also were increased. The chief justice was to be selected from the five judges on the supreme court. District court judges were to be elected for 8­year terms, and the attorney general for a 4­year term.

Voters ratified the Constitution of 1866 in June in a relatively close referendum, 28,119 to 23,400. The close vote was attributed to a widespread unhappiness with the increase in salaries of the various state officers.13 But there were problems facing the Constitution of 1866. Many pro­unionists who had been driven from the state during the war rejected the constitution, arguing it was the product of a convention domi­ nated by former secessionists. They appealed to the increasingly Radical Republican Congress in Washington, D.C., for redress, arguing that former secessionists should be disenfranchised and forbidden from holding office. Elections were held in Texas, and a legislative session met under the provisions of the Constitution of 1866. New laws were passed by the legislature, including the Black Codes, which limited the social, political, and economic status of African Americans in Texas. In response, Radical Re­ publicans in Washington passed the Congressional Reconstruction Acts of 1867.

Presidential Reconstruction a reconstruction plan for reintegrating former confederate states back into the Union and freeing the slaves that placed mild demands upon the existing white power structure

58 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

The Reconstruction Constitution of 1869

Republicans in Congress had come to see the initial efforts of reintegrating Texas and other southern states back into the Union as a failure. Under the direction of Congress, General Winfield Scott, the commander of the Texas and Louisiana military district, summarily dismissed most state officials elected to office under the 1866 Constitu­ tion and called for a new convention to write a new constitution in Texas in 1868. This time, however, former secessionists would be banned from voting or holding office. Against limited Democratic opposition, Radical Republicans easily won the vote for a convention by 44,689 to 11,440. Of the 90 delegates to the convention, only 6 had served in the previous constitutional convention. Ten were African American. The vast majority represented the interests of various wings in the Republican Party. The convention was a rancorous affair as delegates argued over a wide range of issues, in­ cluding railroad charters, lawlessness in the state, and whether laws passed during the war years were legal. In the final days of the convention, delegates finally got down to the constitutional matters and the problems of accepting the Thirteenth and Four­ teenth Amendments. Although delegates never completed their task of reworking the Constitution of 1866, their efforts were published under orders by military officials, without being submitted to the voters, and became the Constitution of 1869.

A number of features of the Constitution of 1869 stand out.14 The U.S. Constitu­ tion was declared to be the supreme law of the land. Slavery was forbidden, and Af­ rican Americans were given the right to vote. Fourteenth Amendment guarantees of equality before the law were recognized. Additionally, the constitution altered the re­ lationship among the three branches of government.

The House of Representatives was set at 90 and the Senate at 30 members. Sena­ torial terms were extended to six years, with one­third of the seats to be elected every biennium. Legislative sessions were to be held annually.

The most critical changes were in the executive branch and the courts. The pow­ ers of the governor were vastly expanded. Among other things, the governor was given wide­ranging appointment powers that included the power to appoint judges. The state supreme court was reduced from five to three judges. The term of supreme court judges was also lowered to nine years, with one new judge to be appointed every three years. Salaries for state officials were increased.

Underlying and fueling the debate over the Constitution of 1869 was another deeper constitutional debate about the meaning of the Secession Ordinance of 1861, the Constitution of 1861, and the Texas government that had functioned under the Confederacy. From the perspective of the U.S. Constitution, had Texas ever “left the union”? Was the Constitution of  1861 “illegal”? And what about the laws that had been passed by the legislature under the powers granted by the 1861 Constitution? Were they the law of the land, or did they have no legal force at all? Were all laws that had been written and all contracts that had been made during the period of rebellion “null and void”? This debate came to an end with the U.S. Supreme Court decision Texas v. White et al. (1869). Here, the court ruled that Texas had never left the Union, which was “perpetual, and as indissoluble as the union between the original states.” The Or­ dinance of Succession of 1861 and all acts of the legislature that gave effect to that or­ dinance were considered to be “null” (see Appendix, pp. A11–A12).

Radical Republicans a bloc of Republicans in the U.S. Congress who pushed through the adoption of African American suffrage as well as an extended period of military occupation of the South following the Civil War

59T H E T E X A S C O N S T I T U T I O N S : 1 8 3 6 – 1 8 7 6

A Republican affiliated with the Radical faction of the party and a former Union general, Edmund Davis, governed under this constitution. Davis had vast authority, since the constitution had centralized power in the executive while reducing local governmental control. Varying interpretations exist of the government provided by Davis, though the popular perception at the time was that Davis presided over a cor­ rupt, extravagant administration that eventually turned to the state police and the militia to attempt to maintain its regime. Closer to the truth may be the fact that Davis sought to maintain his rule by relying on former slaves who had become a bulwark of the Republican Party in the state and by limiting the reintegration of former Confed­ erates back into state politics.

In 1872 the Democrats regained control of the state government, and in 1873 the Democrat Richard Coke was elected governor. Davis attempted to maintain control over the governor’s office by having his handpicked supreme court invalidate Coke’s election. Davis refused to give up his office and surrounded himself with state police in the capitol. However, when Democrats slipped past guards and gathered upstairs in the capitol to organize a government, Davis was unable to obtain federal troops to retain him in office. Democrats were able to form a government, and Davis left office.

TABLE 2.1

The Changing Texas Constitutions, 1845–1876 The common perception of major constitutional provisions is that they are fixed in time and never to be changed. In Texas, however, constitutional changes are commonplace.

1836 1845 1861 1866 1869 1876

LegISLATuRe

Session frequency annual biennial biennial annual annual biennial

House term length 1 year 2 years 2 years 2 years 2 years 2 years

Senate term length 3 years 4 years 4 years 4 years 6 years 4 years

SuPReme CouRT

Size * 3 3 5 3** 3†

Term length 4 years 6 years 6 years 10 years 9 years 6 years

Method of selection elected†† appointed‡ elected elected appointed elected

goveRnoR

Term length 2 years 2 years 2 years 4 years 4 years 2 years‡‡

* Chief justice and district judges acting as associate judges. The constitution provides for 3–8 district judges. ** Increased to 5 in 1874 by constitutional amendment. † Amended. Currently 9 members. †† Elected by joint ballot by the Texas congress. ‡ Election made selection method in 1850 by constitutional amendment. ‡‡ Amended. Currently 4 years.

60 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

The Constitution of 1876

The final phase of Texas’s Founding takes place with the passage of the Constitution of 1876. To prevent another government such as Davis’s, efforts were made to write a new constitution. In 1874 a constitution was proposed and later rejected by a sit­ ting legislature.15 Finally, in 1875 a new constitutional convention was called. Three delegates were selected by popular vote from each of the 30 senatorial districts. The final composition of the convention included 75 white Democrats and 15 Republicans, 6 of whom were African American. Not one of the elected delegates had participated in the constitutional convention of 1868–69. Forty of the delegates were farmers, and 40 were members of the grange, a militant farming organization that had emerged to improve the plight of farmers.

The document that emerged from this convention, the Constitution of 1876, is still the basis for Texas government today. In an era of agriculture when prices and incomes were low and when little was demanded or expected from government, much in the 1876 Constitution made sense. However, one might question whether a consti­ tution designed primarily by white males for whites in a rural agrarian society—and for the purpose of keeping the likes of Edmund Davis from ever controlling the state again—is the best foundation for government in the modern era.

The framers were committed to a constitution with four major themes. First, they wanted strong popular control of state government. Second, they believed that a

The example of Edmund Davis’s reign motivated the revision of executive branch power in the Constitution of 1876. The framers of  that constitution sought popular control of state government in order to limit the appointment powers of the governor as provided by the Constitution of 1869.

grange a militant farmers’ movement of the late nine­ teenth century that fought for improved conditions for farmers

61T H E T E X A S C O N S T I T U T I O N S : 1 8 3 6 – 1 8 7 6

constitution should seriously limit the power of state government. Third, they sought economy in government. Fourth, the framers sought to promote agrarian interests, particularly those of small farmers, who formed the basis of support for the Grange movement.

Popular control of state government meant that the governor’s vast appointment powers were limited by making judges and other public officials subject to election. But popular control of the government did not mean that all the electorate voted. When the framers of the 1876 Constitution thought of popular control of state gov­ ernment, they thought of control by white males.

In the effort to limit the powers of state government, the constitution placed great restrictions on the actions of government, restrictions that could be modified only through a complex constitutional amendment process. Executive authority was diffused among numerous officeholders, rather than concentrated in the hands of the governor. Although subsequently changed by constitutional amendment, an initial provision further limited gubernatorial power by setting a two­year term limit for the office. The legislature was part­time, ordinarily sitting for a proscribed time period every other year. This was in contrast to the 1869 Constitution, which provided that the legislature meet in annual sessions.

Economy in government was accomplished in several ways. The constitution restricted the extent of government debt and of government’s power to tax. In addi­ tion, there were limits on the salaries of state officials, especially those of legislators. A major economic depression had begun in 1873, and many Texans were experiencing economic hardship. One way money was saved was by decentralizing public educa­ tion. Schools were segregated, and compulsory education laws were eliminated. By having local control over education, white landowners could avoid paying taxes for the education of African American students.

Texas at that time was an agricultural state. Wishing to protect agrarian interests, the framers wrote provisions protecting homesteads and restricting institutions that were perceived to be harmful to farmers, such as banks and railroads. Greater respon­ sibility was placed on local instead of state officials. There were also detailed regula­ tions on railroad competition, freight and passenger rates, and railroad construction incentives.

The Constitution of  1876 broke with the more activist government model laid out by the two reconstruction constitutions of  1866 and 1869. The debates of the Constitu­ tional Convention of 1875 drew attention to the fact that Texas was undergoing rapid change. New social and economic conditions, particularly the aggregation of capital in “immense railroad systems,” gave rise to new social and political problems. These, in turn, demanded the institu­ tion of new restrictions on the powers of state government to prevent corruption. Ironically, a new constitution with new provisions that restricted the activities of government became the bulwark of a conservative white social and po­ litical order in the state throughout the late nineteenth and early twentieth centuries (see Governor Richard Coke’s In­ augural Address in 1876, Appendix, p. A13).

Even in its earliest stages, the Texas Constitution of 1876 was a lengthy, rigid, and detailed document, and pur­ posely so. Regulations curtailing government power were

SOCIAL RESPONSIBILITY: GET INVOLVED

• Considering the history of Texas constitutions, why does the state constitution place so many limits on state government?

• What changes could be made to the constitution to increase its effectiveness? What could you do to make your suggestions known?

62 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

placed not in statutes where they could easily be reversed, but in the body of the con­ stitution. The goal of this design was to ensure that the Radical Republicans and Ed­ mund Davis would never again be able to reign and spend in Texas. They, of course, never did, although over the years the constitution became an increasingly unwieldy document (see Tables 2.1 and 2.2).

The Constitution of Texas Today

The U.S. Constitution has two great virtues: brevity and flexibility. Neither of these virtues can be said to characterize the Texas Constitution. The U.S. Constitution is

TABLE 2.2

A Constitutional Timeline, 1836–1876

DATe mAJoR FeATuReS

1836 The Constitution of the Republic of Texas following the revolution

• Adopted U.S. Constitution as a working model, including separation of powers, checks and balances, bill of rights.

• Rejected Catholicism as state religion. • Defended slavery.

1845 The first Constitution of the State of Texas after annexation by the United States.

• Affirmed many of the institutional features of the U.S. Constitution and the 1836 Constitution of Texas.

• Difficult amendment process. • Texas retained ownership of all public lands and minerals under

these lands.

1861 The constitution following secession from the Union.

• Affirmed broad features of the 1845 Constitution. • Radical defense of slavery as an institution. • A conservative defense of existing white­dominated political and

economic system.

1866 Embodied values of Presidential Reconstruction. Suspended by military rule under Radical Reconstruction.

• Affirmed broad institutional features of the 1845 and 1861 constitutions. • Reflected values of former secessionists. • Accepted results of Civil War and an end to slavery. • Rejected equality before the law or the franchise for former slaves.

1869 The product of Radical Reconstruction. Never completed and went into effect without approval by the people.

• Affirmed U.S. Constitution as the “Supreme Law of the Land.” • Affirmed 13th Amendment (ending slavery) and the 14th Amendment

(granting equality under the law and due process to all former slaves). • Powers of governor greatly expanded. • Salaries of state officials increased.

1876 Texas’s current constitution. Amended 491 times.

• Backs away from radical features of reconstruction including the acceptance of the dominance of the national government over the state.

• Reflects a break with activist constitutions of 1869. • Promotes traditional agrarian interests like the Grange in Texas. • Promotes values of “economy” and “efficiency.” • Powers of governor and legislature are cur tailed. • Provides for election of judges. • Provides for future regulation of railroads.

Analyze the major provisions of the Texas Constitution today

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limited to 7 short articles and 27 amendments, and takes up only 8 pages of the World Almanac. Much in the federal document is left unsaid, allowing lawmaking to be ac­ complished by statute. In contrast, in 2016 the Texas Constitution contained 16 ar­ ticles (Table 2.3; another article that concerned Spanish and Mexican land titles was deleted from the constitution in 1969). Six hundred and seventy­three amendments have been proposed by the legislature. Four hundred and ninety­one have been ap­ proved by the electorate, while 179 have been defeated. Curiously, three amendments were proposed by the legislature, but for obscure historical reasons never voted on by the electorate.16 Many of the articles are lengthy, complex affairs, taking up over 67 pages of text in one edition of the Texas Almanac. But it is not just the length that differentiates the two constitutions. There is a difference in tone. The Texas Constitu­ tion reflects the writers’ fears of what government could do if the principle of limited government was not clearly established.

In addition to its severe limits on executive power, the Texas Constitution also addresses a number of specific policy problems directly in the text, turning what might appear to be matters of public policy into issues of constitutional authority. By granting a variety of boards and districts a special place in the constitution, the fram­ ers set out additional checks and balances that make it difficult for governors to exer­ cise power effectively. Quite unintentionally, the Texas Constitution became a place where special interests could promote and protect their own agendas, even in the face of considerable political opposition.

The Texas Constitution: An Overview

Ar ticle 1: The Bill of Rights

Ar ticle 2: Separation of Powers in State Government

Ar ticle 3: The State Legislature

Ar ticle 4: The Plural Executive

Ar ticle 5: The Judicial Depar tment

Ar ticle 6: Suffrage

Ar ticle 7: Public Education

Ar ticle 8: Taxation and State Revenues

Ar ticles 9 and 11: Local Government, Including Counties and Municipal Corporations

Ar ticle 10: Empowering the State to Regulate Railroads and to Create the Texas Railroad Commission

Ar ticle 12: Empowering the State to Create General Laws for Corporations

Ar ticle 13: Concerning Spanish and Mexican Land Titles, Now Deleted from the Constitution

Ar ticle 14: Creates the General Land Office to Deal with Registering Land Titles

Ar ticle 15: Impeachment Provisions

Ar ticle 16: General Provisions Covering a Wide Range of Topics

Ar ticle 17: Amendment Procedures

TABLE 2.3

limited government a principle of constitutional government; a government whose powers are defined and limited by a constitution

64 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

The contrasts in character between the federal and Texas constitutions are a di­ rect reflection of the differences in their framers’ underlying goals. The U.S. Constitu­ tion was written to overcome the liabilities of the Articles of Confederation and create a government that could act effectively in the public welfare in a variety of policy ar­ eas. The Texas Constitution was written to prevent the expansion of governmental authority and the return of a system of political power that was perceived as acting against the interests of the people.

The Preamble

The preamble to the Texas Constitution is surprisingly short: “Humbly invoking the blessings of Almighty God, the people of the State of  Texas do ordain and establish this Constitution.” This brevity is more than made up for in what follows.

Article 1: Bill of Rights

Article I of the U.S. Constitution establishes and delegates power to the legislative branch of government. One of the overriding concerns of the Founders was to cre­ ate a legislature that could act effectively in public affairs. What came to be known as the Bill of Rights—the first 10 amendments to the Constitution—was added after the original Constitution was drafted and approved.

In contrast, the Texas Constitution puts its Bill of  Rights up front as Article 1, well before any discussion of the legislature, the executive, or the courts. From the begin­ ning, the purpose of the Texas Constitution was not simply to create a set of institu­ tions that could wield political power. It was to limit the way political power is used and to prevent it from being abused.

Section 1 of the Bill of Rights proclaims that “Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of local self­government, unimpaired to all the States.” On the face of it, this proc­ lamation would seem to be relatively noncontroversial, as it appears to accept the Constitution of the United States and the perpetuity of the Union. Put into proper historical context, however, it meant something very different. The Constitution of 1869, written under the watchful eyes of Radical Republicans in Texas and in the U.S. Congress, had rejected the “heresies of nullification and secession” and explicitly acknowledged that the U.S. Constitution was “the supreme law of the land” and that the Texas Constitution was “subject to national authority.” Article 1, Section 1—the product of a constitutional convention in 1876 that was hostile to many of the efforts of Reconstruction—concedes two very different things: (1) that Texas is free and inde­ pendent “subject” to the U.S. Constitution and (2) that free and perpetual institutions depend upon local self­government that is “unimpaired.” No mention is made of the supremacy of the U.S. Constitution over the state constitution. The idea of a “perpet­ ual union” is made to depend upon “the preservation of self­government,” meaning an independent and autonomous state government freed from an intrusive national authority. Texas may have lost the Civil War, but Article 1, Section 1, claims autonomy

65T H E C O N S T I T U T I O N O F T E X A S T O D AY

to the state from outside forces that would have surprised many politicians outside the state. Such sentiments continue to resonate throughout parts of Texas today.

The Texas Bill of Rights embodies certain ideas captured in earlier state consti­ tutions and the U.S. Bill of Rights. All “free men” are declared to have free and equal rights that cannot be denied or abridged because of sex, race, color, creed, or national origin. Freedom of religious worship is guaranteed, and there will be no religious test for office. Liberty of speech and liberty of the press are guaranteed. Individuals are protected from unreasonable search and seizure, from excessive bail, from bills of at­ tainder and ex post facto laws, and from double jeopardy. Article 1 also guarantees an individual a right to trial by jury and the right to bear arms “in the lawful defense of himself or the State; but the Legislature shall have the power, by law, to regulate the wearing of arms, with a view to prevent crime” (Article 1, Section 23).

Article 1 also contains some ideas that move beyond those guaranteed by the first 10 amendments to the U.S. Constitution. The right to republican government, some­ thing clearly stated in the main body of the U.S. Constitution but not in the U.S. Bill of Rights, is powerfully articulated in the first two sections of Article 1. According to Article 1 of the Texas Constitution, all political power is inherent in the people, and 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 1, Section 2).

The differences between the Texas Bill of Rights and the U.S. Bill of Rights are not simply matters of where best to articulate a philosophy of republican government. They also involve very concrete matters of public policy. Section 26 in the Texas Bill of Rights, for example, forbids monopolies that are contrary to the public interest, and states that the law of primogeniture and entail (a law designed to keep large landed properties together by restricting inheritance to the firstborn) will never be in effect in the state. Although monopolies remain a public concern today, primogeniture and entail are not. Section 11 in the Texas Bill of Rights grapples with the complicated issue of bail and under what specific circumstances an individual can be denied bail. Sig­ nificantly, Section 11 has been the subject of three major constitutional revisions: in 1955, 1977, and 1993. Section 30, adopted in 1989, provides a long list of the “rights of crime victims,” including the right to be treated fairly and with dignity, the right to be protected from the accused, and the right to restitution. Although these are important matters of public policy for Texas today, they could hardly be considered proper mate­ rial for the U.S. Constitution.

Article 2: The Powers of Government

Like the U.S. Constitution, Article 2 divides the power of government in Texas into three distinct branches: the legislative, the executive, and the judicial. It also stipu­ lates that no one in any one branch shall be attached to either of the other branches, except where explicitly permitted (as in the case of the lieutenant governor’s role in the Senate). The article—one short paragraph of text—assures that a version of the separation of powers doctrine found in the U.S. Constitution will be embodied in Texas institutions.

republican government a representative democracy, a system of government in which power is derived from the people

66 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

Article 3: Legislative Department

Article 2 is one of the shortest articles in the Texas Constitution. Article 3 is the lon­ gest, comprising almost one­third of the text. Like Article I of the U.S. Constitution, Article 3 of the Texas Constitution vests legislative power in two houses: a Senate of 31 members and a House of Representatives of no more than 150 members. It stipulates the terms of office and qualifications. House members serve two­year terms, whereas senators serve four­year terms, half being elected every two years. House members must be citizens of the United States, must be at least 21 years of age, and must have resided in the state for two years and in their district for one year. Senators must be citizens of the United States, must be at least 26 years old, and must have resided in the state for five years and in their districts for one year. In addition, Article 3 pro­ vides for the selection of officers in both houses of the legislature, states when and for how long the legislature shall meet (Section 5), and explains how the legislative proceedings will be conducted (Sections 29–41) and how representative districts will be apportioned (Sections 25, 26, and 28).

Like Article 1, Texas’s Bill of Rights, Article 3 moves well beyond the U.S. Con­ stitution, putting limits on what the legislature can do. For example, it puts limits on legislators’ salaries and makes it difficult to increase those salaries. Article 3 also cre­ ates a bipartisan Texas Ethics Commission whose job, among other things, is to rec­ ommend salary increases for members of the legislature and to set per diem rates for legislators and the lieutenant governor. Article 3, Section 49a, also subjects the legis­ lature to the actions of the comptroller of public accounts, whose duty is to prepare a report prior to the legislative session on the financial condition of the state treasury and to provide estimates of future expenditures by the state. This provision of the Texas Constitution effectively limits the state legislature to the financial calculations and endorsements of the comptroller, a check on the legislature all but unimaginable to the writers of the U.S. Constitution.

Putting constraints on certain legislative actions is only part of the story. The largest portion of Article 3 (Sections 47–64) is dedicated to addressing a variety of policy problems, including lotteries, emergency service districts, the problem of debt creation, problems surrounding the Veterans’ Land Board and the Texas Water De­ velopment Board, Texas park development, the creation of a state medical education board, and even the establishment of an economic development fund in support of the now defunct superconducting supercollider.

Article 4: Executive Department

Article II of the U.S. Constitution concentrates executive power in the presidency. The desire was to create a more effective and more responsible executive than had been possible under the Articles of Confederation. The Texas Constitution lists a number of offices in the executive, legislative, and judicial branches, which are specified in Table 2.4. Article 4 of the Texas Constitution states that the executive shall consist of six distinct offices: the governor, who serves as the chief executive; the lieutenant governor, who serves as the president of the Senate; the secretary of state, who keeps the official seals of the state; the comptroller of public accounts; the commissioner of

67T H E C O N S T I T U T I O N O F T E X A S T O D AY

Major Constitutional Officers in Texas

LegISLATIve (ARTICLe 3)

oFFICe/PoSITIon eLeCTeD By/APPoInTeD By DuTIeS

Speaker of the House Elected by House members Leads the House

President Pro Tempore of the Senate

Elected by Senate members. Most senior member of the Senate from either par ty.

Leads Senate in absence of the lieutenant governor

exeCuTIve (ARTICLe 4)

Governor Elected by Texas voters for 4­year term Chief executive of the state

Lieutenant Governor Elected by Texas voters for 4­year term Acts as governor in absence of governor and presides over Senate

Secretary of State Appointed by the governor by and with advice and consent of Senate

Chief election officer of Texas

Comptroller of Public Accounts Elected by Texas voters Chief steward of state finances

Commissioner of the General Land Office

Elected by Texas voters Manages state assets, investments, and mineral rights from state lands and serves as chair for numerous state boards and commissions

Attorney General Elected by Texas voters Represents the state in cases where the state is a par ty

JuDICIAL (ARTICLe 5)

Justice of Supreme Cour t 9 positions elected by Texas voters for 6­year terms

Decides on civil cases reaching Texas Supreme Cour t

Judge of Cour t of Criminal Appeals

9 positions elected by Texas voters for 6­year terms

Decides on criminal cases reaching Texas cour t of criminal appeals

Justice of the Cour t of Appeal 80 justices in 14 cour ts of appeal elected by Texas voters for 6­year terms from multimember districts

Decides on cases reaching Texas cour t of appeal

District Cour t Judge 456 district cour t judges elected by Texas voters for 4­year terms from a mixture of multi­ and single­member districts

Decides on cases in Texas district cour t

Other county­level cour t officials are also elected for 4­year terms on a county or precinct basis. Municipal cour t judges are usually appointed.

oTHeR ImPoRTAnT oFFICeS

Texas Railroad Commissioner (Ar ticle 13, Section 30)

3 officers elected by Texas voters for 6­year overlapping terms

Regulates the oil and gas industry, gas utilities, pipeline safety, and surface coal and uranium mining (no longer regulates railroads)

State Board of Education Member (Ar ticle 7)

15 members elected by Texas voters from single­member districts for 4­year terms

Makes statewide policies for public schools

Agricultural Commissioner (office established under Agricultural Code, not the constitution)

Elected by Texas voters to a 4­year term

Regulates state agriculture and administers state agriculture policy

TABLE 2.4

68 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

the General Land Office; and the attorney general, who acts as the state’s chief legal officer. With the exception of the secretary of state, who is appointed by the gover­ nor and approved by the Senate, all other offices are elected by qualified voters every four years. Besides creating a plural executive, Article 4 guarantees its members will have independent political bases in the electorate. This provides an additional check against any concentration of powers in the hands of any one person.

Article 5: Judicial Department

Article III of the U.S. Constitution succinctly provides for a Supreme Court and em­ powers Congress to create any necessary lower courts. Nothing could be further from the detailed discussion of the state courts found in Article 5 of the Texas Constitu­ tion. Besides creating one supreme court to hear civil cases and one court of criminal appeals to hear criminal cases, Article 5 provides for such lesser courts as courts of appeal, district courts, commissioner’s courts, and justice of  the peace courts, and em­ powers the legislature to establish other courts as deemed necessary. It also goes into such details as the retirement and compensation of judges, the jurisdictions of the var­ ious courts, and the duties of  judges; it states what to do in the case of court vacancies; and it includes a series of discussions on particular issues involving the lower courts.

An even greater difference between the federal Constitution and the Texas Con­ stitution is the crucial role the latter gives to elections. Federal judges are appointed by the executive and approved by the Senate. In Texas, the people elect state judges. Nine supreme court and nine court of criminal appeals judges are elected at large in the state. Lower court positions are elected by voters in their relevant geographic loca­ tions. Much like the U.S. Constitution, the Texas Constitution seeks to create an inde­ pendent judiciary that can check and balance the other two branches of government. But it seeks an additional check as well. It wants the people to watch over the courts.

Article 6: Suffrage

Article 6 contains a short but detailed discussion about who may vote in Texas. It also empowers the legislature to enact laws regulating voter registration and the selection of electors for president and vice president.

Article 7: Education

The concerns found in the Texas Declaration of Independence over the need for pub­ lic schools to promote a republican form of government are directly addressed in Ar­ ticle 7, which declares, “A general diffusion of  knowledge [is] essential to the preser­ vation of the liberties and rights of the people.” Section 1 makes it a duty of the state legislature to support and maintain “an efficient system of public free schools.” The Texas Supreme Court’s interpretation of this provision as applying to school funding in the state has led to political battles over school finance for 40 years. Sections 2–8

plural executive an executive branch in which power is frag­ mented because the election of statewide officeholders is independent of the election of the governor

69T H E C O N S T I T U T I O N O F T E X A S T O D AY

provide for their funding and the creation of a State Board of Education to oversee the operations of elementary and secondary education in the state. State universities are the subject of over half of Article 7, where detailed discussions of the funding and operations of particular state institutions are put directly into the text.

Article 8: Taxation and Revenue

The complex issue of taxation is the subject of Article 8. Once again we find a highly detailed account of several important policy issues built directly into the text of the constitution. One of the most controversial sections of the Texas Constitution centers on the issue of the income tax. Section 1 enables the legislature to tax the income of individuals and businesses. This power, however, is subject to Section 24, which was passed by the 73rd Legislature in 1993. Section 24 requires that the registered voters in the state approve a personal income tax and that the proceeds from this tax be dedi­ cated to education and tax relief. As with other portions of the constitution, the net effect of these provisions is to curtail severely what the state legislature can do and how it is to do it. If Section 24 of Article 8 is any indication, the public fear of unre­ sponsive and potentially tyrannical government is as alive today as it was in 1876.

Articles 9 and 11: Local Government

These articles provide highly detailed discussions of the creation, organization, and operation of counties and municipal corporations.

Articles 10, 12, 13, and 14

These heavily revised articles deal with a series of specific topics: the railroads (10), private corporations (12), Spanish and Mexican land titles (13), and public lands (14). Article 10 empowers the state to regulate railroads and to establish the Railroad Com­ mission. Article 12 empowers the state to create general laws creating private corpo­ rations and protecting the public and individual stockholders. Article 13, now entirely deleted from the constitution, dealt with the nineteenth­century issue of Spanish and Mexican land titles. Article 14 created a General Land Office to deal with the registra­ tion of land titles.

Article 15: Impeachment

Impeachment is, in the U.S. Constitution, one of the major checks Congress holds against both the executive and judicial branches of government. The House of Rep­ resentatives holds the power to impeach an individual; the Senate is responsible for conducting trials. A two­thirds vote in the Senate following impeachment by the House leads to the removal of an individual from office.

impeachment under the Texas Constitution, the formal charge by the House of Representa­ tives that leads to trial in the Senate and possible removal of a state official

70 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

A similar process is provided for in Article 15 of the Texas Constitution. The House has the power to impeach. The Senate has the power to try the governor, lieu­ tenant governor, attorney general, land­office commissioner, and comptroller, as well as judges of the supreme court, the courts of appeal, and district courts. Con­ viction requires a two­thirds vote of the senators present. In contrast to the U.S. Constitution, the Texas Constitution rules that all officers against whom articles of impeachment are proffered are suspended from their office. The governor is em­ powered to appoint a person to fill the vacancy until the decision on impeachment is reached.

Despite these similarities to the impeachment procedures in the U.S. Constitu­ tion, the Texas Constitution has its own caveats. Most notably, the Texas Constitu­ tion does not explicitly define impeachable offenses in terms of “Treason, Bribery, or other high Crimes and Misdemeanors,” as the U.S. Constitution does. The House and Senate (and the courts) decide what constitutes an impeachable offense.17 In ad­ dition, the supreme court has original jurisdiction to hear and determine whether district court judges are competent to discharge their judicial duties. The governor may also remove judges of the supreme court, courts of appeal, and district courts when requested by the two­thirds vote of each legislature. Significantly, the reasons for removing a judge in this case need not rise to the level of an impeachable offense, but need only involve a “willful neglect of duty, incompetence, habitual drunkenness, oppression in office, or other reasonable cause” (Article 15, Section 8). The barriers to removing a judge by political means are thus, at least on paper, much lower in Texas than in national government.

In 1980, Section 9 was added to Article 15, providing a new way to remove officials appointed by the governor. With the advice and consent of two­thirds of the members of the Senate present, a governor may remove an appointed public official. If the leg­ islature is not in session, the governor is empowered to call a special two­day session to consider the proposed removal.

Article 16: General Provisions

Article 16 is one of the lengthiest in the Texas Constitution and has no parallel in the U.S. Constitution. It is literally a catchall article tackling a variety of issues ranging from official oaths of office to community property to banking corporations and stock laws to the election of the Texas Railroad Commission to the state retirement sys­ tems. Here, perhaps more than anywhere else, we see the complexity and confusion of the philosophy reflected in the Texas Constitution.

Article 17: Amending the Constitution

Like the U.S. Constitution, the Texas Constitution explicitly delineates how it can be amended. Essentially, amendments undergo a four­stage process: First, the legisla­ ture must meet in either regular or special session and propose amendments. Second,

71R E C E N T AT T E M P T S T O R E W R I T E T H E  T E X A S C O N S T I T U T I O N

these amendments must be approved by a two­thirds vote of all the members elected to each house. Third, a brief statement explaining the amendments must be published twice in each recognized newspaper in the state that meets the publication require­ ments for official state notices. Finally, the amendments must be approved by a ma­ jority of the state voters.

Recent Attempts to Rewrite the Texas Constitution

Given the difficulty of amending the state constitution, a surprising number of amendments have been proposed since 1876. A considerable number of these have been turned down in the popular vote. As Table 2.5 shows, demands for amending the Constitution have intensified in recent years, as legislators have dealt with the problem of making changes in public policy while being constrained by an unwieldy constitutional document.

Describe modern efforts to change the Texas Constitution

Amending the Texas Constitution The Constitution of Texas has been amended 491 times since its inception in 1876.

yeARS numBeR PRoPoSeD numBeR ADoPTeD

1876–1900 31 17

1901–20 56 21

1921–40 71 47

1941–60 78 59

1961–80 151 98

1981–2000 180 148

2001–10 79 77

2011 10 7

2013 9 9

2014 1 1

2015 7 7

Total 673 491

SOURCE: Texas Legislative Council and Texas Secretary of State.

TABLE 2.5

72 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

Sharpstown and the Failed Constitutional Reforms of 1974

A drive to rewrite the Texas Constitution grew out of a major stock fraud that broke in the early 1970s, involving the Sharpstown State Bank and the National Bankers Life Insurance Corporation. Fol­ lowing the 1970 elections, which had been dominated, as generally was the case, by the conservative wing of the Democratic Party, a suit filed in Dallas federal court by the Securities and Exchange Commission alleged that a number of influential Democrats, in­ cluding Governor Preston Smith, the state Democratic chairman and state banking board member Elmer Baum, Speaker of the House Gus Mutscher, and others, had been bribed. By the fall of 1971 Mutscher and two of his associates had been indicted. On March 15, 1972, they were convicted and sentenced to five years’ probation.

The convictions fueled a firestorm in the state to “throw the rascals out.” During the 1972 elections, “reform” candidates dominated the Democratic primary and the general election. The

conservative rancher­banker Dolph Briscoe became governor, but only by a plurality, making him the first governor in the history of the state not to receive a majority of the popular vote. Other reform­minded candidates such as Lieutenant Governor Wil­ liam P. Hobby, Jr., and Attorney General John Hill were successful. When the smoke cleared, half of the House seats were occupied by new members, and the Senate had witnessed a higher­than­normal rate of turnover. The elections had one other out­ come: an amendment was passed empowering the legislature to sit as a constitutional convention whose task would be to rewrite the constitution.18

The constitutional convention met on January 8, 1974, in Austin. The idea was for the convention to draft a new constitution that would then be presented to state vot­ ers for ratification. Originally scheduled to last 90 days, the convention was extended to 150 days. Even so, it did not have enough time. Bitter politics, coupled with the in­ tense demands of highly mobilized special interests, made it impossible to reach the necessary agreement. In the end, proponents of a new constitution failed to achieve a two­thirds majority by three votes (118 to 62, with 1 abstention).

The movement to rewrite the constitution did not die at the convention. During the next session of the legislature, eight constitutional amendments were passed that effectively would have rewritten the constitution through the normal amendment process. Each proposal, however, was turned down by the electorate in a special elec­ tion on November 4, 1975. The Constitution of 1876 remained alive, if not well.

Recent Amendments

In the 2015 constitutional amendment elections, voters were asked to consider seven proposed amendments. All the amendments passed, although only approximately 11.34 percent of registered voters bothered to vote, up from 8.55 percent in the 2013

Land developer Frank Sharp was convicted of violating federal banking and security laws in 1972. The Sharpstown scandal rocked Texas politics and led to calls for constitutional reform.

The Texas Constitution is the second-longest state constitution in the United States. The framers of the Texas Constitution gave the state government very

government could not use ambiguity to expand its powers. As a result, the Texas Constitution requires frequent amendments to address situations not

the original constitution. The Texas Constitution has been amended 484 times as of 2015, fourth most of any state.

< 19,999 words

20,000–39,999 words

40,000–59,999 words

60,000–79,999 words

> 79,999 words

State Constitution Length (estimated)

< 75 amendments

75–149 amendments

150–224 amendments

225–300 amendments

> 300 amendments

AK

HI

WA

OR

CA

NV UT

NM

TX

KS

NE

WY

CO

AZ

MS AL

SD

IA

WI

MN

IL

NDMT

ID

KY

IN

MI

TN

VA

FL

ME

NY

WV

LA

AR

MO

SC

GA

NC

PA

OH

OK

VT

RI CT

MA NH

TEXAS 484 amendments Fourth most

ALABAMA 892 amendments Most

RHODE ISLAND 13 amendments Fewest

MD DE NJ

Amendments Added to Constitution

AK

HI

WA

OR

CA

NV UT

NM

TX

KS

NE

WY

CO

AZ

MS AL

SD

IA

WI

MN

IL

NDMT

ID

KY

IN

MI

TN

VA

FL

ME

NY

WV

LA

AR

MO

SC

GA

NC

PA

OH

OK

TEXAS 86,936 words Second longest

ALABAMA 388,882 words Longest

MD DE NJ

VT

RI CT

MA NH

VERMONT 8,565 words Shortest

SOURCE: Book of the States, 2015. Council of State Governments. Data for 2015 compiled by the authors.

•

•

CRITICAL THINKING

Which State Has the Longest Constitution?

TEXAS AND THE NATION

After examining the two maps, do you see any relationship between the length of a state constitution and the number of amendments to the constitution? Why do you think that there might be such a relationship in some states?

Do different regions in the country seem to favor short rather than long state constitutions? What factors might account for such similarities?

74 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

constitutional amendment elections. Despite the increase, one thing that is clear about elections that deal with constitutional amendments is that voting participation is invariably low. “Who Are Texans?” compares the percentage turnout of registered voters in November special elections on constitutional amendments with the per­ centage turnout in presidential elections (which tend to produce the highest turnout). There are two likely reasons for the low voter turnout in constitutional amendment elections: (1) Constitutional amendment elections are usually held in “off ” years when there are no elections with candidates on the ballot. Because of this, the politi­ cal parties take a less active role in getting out the vote, and there are no candidates to generate voter turnout. As a result, advertising campaigns to get out the vote are frequently limited only to the activities of interest groups that support or oppose the issues on the ballot. (2) Many of the amendments are relatively insignificant to most voters.

Most of the 2015 proposed constitutional amendments listed in Table 2.6 were uncontroversial. Such was not the case in 2011 when 3 of the 10 amendments pre­ sented to the voters were turned down. The controversial ones were those that the Tea Party and other antitax groups saw as increasing the financial burden on Texans. For example, Proposition 4 was defeated because it would have expanded the ability of counties to issue bonds to finance the development of unproductive areas where those bonds were to be repaid with property tax revenues. Critics of the proposal ar­ gued that it would clear the way for new toll roads. Proposition 7 was defeated because it would have given El Paso new borrowing authority. Proposition 8 passed the legis­ lature with bipartisan support. It would have given property owners the opportunity to opt out of agricultural or wildlife conservation property tax exemptions in favor of 

Amendments to the state constitution affect many areas of  Texans’ lives. The amendments passed in 2015 included one providing additional funds available for transportation projects throughout the state.

Turnout of Registered Voters in Texas Constitutional Amendment Elections Compared with Presidential Elections*

Since 1983, Texans have voted to amend the state's constitution dozens of times. Turnout in these elections is always low, even when well-publicized amendments are on the ballot. For example, in 2005, 17 percent of registered voters voted on Proposition 2, which banned same-sex marriage in the state.

20 15

20 13

20 16

20 12

20 11

20 09

20 08

20 07

20 05

20 04

20 03

20 01

20 00

19 99

19 97

19 96

19 95

19 93

19 92

19 91

Presidential election Constitutional amendment election

80% 80%

60% 60%

40% 40%

20% 20%

10% 10%

* 1997 elections in August and November; 2007 elections in May and November.

QUANTITATIVE REASONING

SOURCE: Texas Secretary of State, www.sos.state.tx.us/ (accessed 3/18/16).

Who Votes in Texas Elections Amending the Constitution?

WHO ARE TEXANS?

•

•

What is the difference between participation rates in presidential elections and constitutional amendment elections? What might account for this difference?

What could be done to increase turnout in constitutional amendment elections?

76 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

water conservation property tax exemptions. The Tea Party successfully opposed the proposition on the grounds that it would shift the tax burden to others.19 While the Tea Party and other antitax groups could not defeat all of the propositions they op­ posed, low voter turnout enabled them to exert a significant influence. Indeed, their defeat of three proposals broke the modern pattern in which amendments are rou­ tinely approved. For example, between 2001 and 2010, 77 of 79 proposed amendments were approved.

Participation in the 2005 constitutional amendment election may appear to be abnormally high (see “Who Are Texans?” p. 75). Most of the 2005 proposed constitu­ tional amendments were, like the previously discussed propositions, of significance only to a narrow group of people. For example, one of the nine proposed amend­ ments provided for clearing land titles in Upshur and Smith counties. Another authorized the legislature to pro vide for a six­year term for a board member of a regional mobility authority. Yet the turnout in this election was much higher than is typically seen in con­ stitutional amendment elections. The reason was Prop­ osition 2, which defined marriage in Texas as the union

PERSONAL RESPONSIBILITY: WHAT WOULD YOU DO?

• Do you think that more people should partici­ pate in constitutional amendment elections? Why or why not?

• What do you think groups or political parties should do to increase turnout for constitutional amendment elections?

Passed Constitutional Amendments, 2015

Proposition 1 The constitutional amendment increasing the amount of the residence homestead exemption from ad valorem taxation for public school purposes from $15,000 to $25,000, providing for a reduction of the limitation on the total amount of ad valorem taxes that may be imposed for those purposes on the homestead of an elderly or disabled person to reflect the increased exemption amount, authorizing the legislature to prohibit a political subdivision that has adopted an optional residence homestead exemption from ad valorem taxation from reducing the amount of or repealing the exemption, and prohibiting the enactment of a law that imposes a transfer tax on a transaction that conveys fee simple title to real proper ty. (Passed 86.4%)

Proposition 2 The constitutional amendment authorizing the legislature to provide for an exemption from ad valorem taxation of all or par t of the market value of the residence homestead of the surviving spouse of a 100 percent or totally disabled veteran who died before the law authorizing a residence homestead exemption for such a veteran took effect. (Passed 91.4%)

Proposition 3 The constitutional amendment repealing the requirement that state officers elected by voters statewide reside in the state capital. (Passed 66.1%)

Proposition 4 The constitutional amendment authorizing the legislature to permit professional spor ts team charitable foundations to conduct charitable raffles. (Passed 69.4%)

Proposition 5 The constitutional amendment to authorize counties with a population of 7,500 or less to perform private road construction and maintenance. (Passed 82.7%)

Proposition 6 The constitutional amendment recognizing the right of the people to hunt, fish, and harvest wildlife subject to laws that promote wildlife conservation. (Passed 81.1%)

Proposition 7 The constitutional amendment dedicating cer tain sales and use tax revenue and motor vehicle sales, use, and rental tax revenue to the state highway fund to provide funding for nontolled roads and the reduction of cer tain transpor tation­related debt. (Passed 83.2%)

TABLE 2.6

You Decide: Voices of Texas

Recent controversy over same­sex marriage highlights the tensions that emerge between the federal and the Texas constitutions.

In November 2005, Texans went to the polls to vote on Prop osition 2 to amend the Texas Constitution, a measure aimed at prohibiting same­sex marriages in the state. Supporters of Proposition 2 wanted the ban on such marriages enshrined in the state constitution in order to prevent any future legislation supporting gay and lesbian marriages. The measure passed with nearly 76 percent of Texans voting in support of the proposition.

In Obergefell v. Hodges (2015), the U.S. Supreme Court ruled 5–4 that marriage was a fundamental right guaranteed to same­sex couples by the due process clause and the equal protection clause of the Four­ teenth Amendment of the Constitution. Writing for the majority, Justice Kennedy explained the Supreme Court opinion clearly: “The Court now holds that same­sex couples may exercise the fundamental right to marry. No longer may this liberty be denied them.” Although Texas was not one of the states considered in the Obergefell case, the ruling clearly applied to Texas.

One would have thought that the Obergefell decisions would have ended debate over same­sex marriage in Texas, superseding the provisions put into the Texas Constitution. But a few public officials sought to under ­ cut the full effect of the U.S. Supreme Court ruling. In June, 2015, Hood County Clerk Katie Lang said that she would refuse to issue same­sex marriage licenses because of her religious faith. Backtracking after a pub lic furor broke out, she later agreed to allow staff members to issue the licenses. Attorney General Ken Paxton, a bitter opponent of same­sex marriage, advised county clerks in Texas that they could refuse marriage licenses to same­sex couples on religious grounds. According to Paxton, “Justices of the peace retain religious freedoms, and may claim that the government cannot force them to conduct same­sex wedding ceremonies over their religious objections.” Threatened with a contempt citation from a federal judge, Paxton backed off, maintaining that he himself was not enforcing the laws that impeded gay marriage rights, only advising others about what courses of action could be pursued by public officials in Texas.

Paxton’s “advisory” opinion and Metzger’s refusal to marry same­sex couples in his court raise interesting questions. Should the personal religious values of a

public official allow them to not enforce the law? Should lawmakers bring the Texas Constitution in line with the Windsor and Obergefell cases by deleting the Proposi­ tion 2 provisions? Should new provisions be added that protect the religious beliefs of state officials in the per­ formance of their duties while upholding the principles of the U.S. Constitution?

Proposition 2 and Same-Sex Marriage

COMMUNICATING EFFECTIVELY: YOUR VOICE

• Is Proposition 2 a violation of the equal protec­ tion clause of the U.S. Constitution? Should it be deleted from the Texas Constitution?

• If you were writing a letter to the editor about this issue, what arguments would you make either in support of Paxton or in disagreement with him? How would you answer, or support, those who ask that they be allowed to listen to their “religious consciences” and not perform the duties for which they were elected?

78 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

of one man and one woman. The proposition also prohibited the state or any political subdivision of the state from creating or recognizing any legal status identical to or similar to marriage. The propo sition generated a strongly favorable vote—1,723,782 in favor versus 536,913 against. Unlike Proposition 12 in 2003, this was not an economic battle involving interests concerned with tort law; rather, this was an issue pitting so­ cial conservatives against those more sympathetic to gay rights. The strength of the social conservative vote in the state was, of course, remarkable, since the amendment carried by more than a 3­to­1 margin. Many churches and religious organizations strongly supported the proposed amendment. Their activities probably generated the relatively high voter turnout. The proposition was unusual in that people felt it was important to their lives because it affected their value systems. Although it is doubt­ ful the amendment was necessary to support the traditional concept of marriage and although the ambiguity of the provision rejecting any legal status similar to marriage is disturbing, a significant part of the voting population apparently believed that it was important to vote their moral values, even if  the proposal was largely symbolic.

Although most constitutional amendments are not of great importance, there are some notable exceptions. Table 2.7 identifies some of those amendments that, like Proposition 12 in 2003 or Proposition 2 in 2005, have had great significance in the public policy of the state.

Protesters gather outside the Hood County Court in support of County Clerk Katie Lang, who denied marriage licenses to same­sex couples after the Supreme Court ruling in Obergefell v. Hodges (2016) on the grounds that being required to do so would abridge her freedom of religion.

79R E C E N T AT T E M P T S T O R E W R I T E T H E  T E X A S C O N S T I T U T I O N

TABLE 2.7

Some Important Constitutional Amendments

In 1894, Texans strongly suppor ted an amendment providing for the election of railroad commissioners. In later years, when Texas became a major oil producer, the railroad commission gained the authority to regulate oil production and be­ came the most powerful elected regulatory agency in the country.

In 1902, Texans by a huge majority backed an amendment “requiring all persons subject to a poll tax to have paid a poll tax and to hold a receipt for same before they offer to vote at any election in this state, and fixing the time of payment of said tax.” The poll tax required a payment of money prior to voting. The effect was to reduce the size of the electorate, limiting the oppor tunity of those with lower incomes to vote.

In 1919, the same year the national Prohibition Amendment was ratified, Texas ratified a state prohibition amendment.

In 1935, Texans repealed statewide prohibition. In its place was a local option whereby local communities chose whether alcohol would be sold in those communities. This was two years after repeal of national Prohibition.

In 1954, Texans passed an amendment requiring women to serve on juries. Previous to that, women were exempt on the grounds that they were needed at home as the center of home life.

In 1966, Texans repealed the poll tax as a voting requirement in the face of pressures from the U.S. Supreme Cour t and from a national constitutional amendment that eliminated the poll tax in national elections.

In 1972, Texans overwhelmingly passed a constitutional amendment “to provide that equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” This amendment was primarily seen as an equal rights amendment banning sex discrimination, since federal civil rights statutes largely dealt with discrimination on other grounds. It was the state version of a proposed sexual equal rights amendment that was never ratified and made par t of the U.S. Constitution.

In 2003 a constitutional amendment promoting the tor t reform agenda passed that placed limitations on lawsuits. In “civil lawsuits against doctors and health care providers, and other actions,” the legislature was authorized “to determine limitations on non­economic damages.”

In 2005 a constitutional amendment was passed “providing that marriage in this state consists only of the union of one man and one woman and prohibiting this state or a political subdivision of this state from creating or recognizing any legal status identical or similar to marriage.” The amendment was passed in response to the movement toward the recognition of civil unions and same­sex marriage in some states.

In 2009, Texans suppor ted an amendment establishing “the national research university fund to enable emerging research universities in this state to achieve national prominence as major research universities.” The amendment was a recog nition that the Texas economy would benefit by the development of nationally recognized research universities in the state.

In 2009, in reaction to a U.S. Supreme Court decision involving eminent domain— the taking of private proper ty for public use—that was seen as unsympathetic to proper ty rights, Texans passed an amendment “to prohibit the taking, damaging, or destroying of private proper ty for public use unless the action is for the owner­ ship, use, and enjoyment of the proper ty by the State, a political subdivision of the State, the public at large, or entities granted the power of eminent domain under law or for the elimination of urban blight on a par ticular parcel of proper ty, but not for cer tain economic development or enhancements of tax revenue purpose.”

80 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

The Constitution and the Future of Texas In this chapter, we explored the Texas Founding and the story of constitutional government in Texas. We analyzed the seven constitutions under which Texas has been governed and explained the similarities and differences between the U.S. Constitution and Texas’s current constitution (the Constitution of 1876). We also discussed attempts over the past 30 years to replace this constitution with a new one, and the many constitutional issues that face Texas today.

It has been decades since there was any serious effort to change the Texas Constitution in any way other than by adding to its numerous amendments. This pattern likely will continue: more and more amendments will be added to an already lengthy and cumbersome document. Many of these amendments will address technical problems often related to the operations of various state agencies and local governments. Some may create additional funding sources for major state initiatives as we have seen recently in water and transportation policy. Other amendments might be adopted in response to such controversial social issues as abortion or the free exercise of religion. As in the past, the constitution and its amendments will reflect the values and goals of the peo­ ple of Texas and the political system that the people have put into place through the constitution.

STUDYGUIDE

Use QIJK to help you study and master this material.

The Role of a State Constitution

• Identify the main functions of state constitutions (pp. 45–47)

The state constitution is the governing document of the state much in the same way the U.S. Constitution sets up the framework for the nation as a whole. Many of the ideas found in the U.S. Constitution are also found in Texas’s constitutions, including republican govern­ ment, separation of powers, checks and balances, and individual rights.

Key Terms constitution (p. 45) separation of powers (p. 45) checks and balances (p. 45) tyranny (p. 45) federalism (p. 46) supremacy clause (p. 46) necessary and proper clause (p. 46)

Practice Quiz 1. Which idea is contained in both the U.S. and Texas

constitutions? a) separation of powers b) Keynesianism c) laissez­faire economics d) Rebus sic stantibus e) none of the above

2. Which of the following is not an important function of a state constitution? a) prevents the concentration of political power b) delegates power to individuals and institutions c) prevents government from intruding in the lives

of businesses and individuals d) legitimizes political institutions e) limits application of the U.S. Constitution

3. Which part of the U.S. Constitution reserves power to the states? a) Article I b) Article VI c) First Amendment d) Tenth Amendment e) Nineteenth Amendment

4. Under the U.S. Constitution, the government of Texas is most limited by a) Article IV of the U.S. Constitution. b) the implied­powers clause and the Tenth Amend­

ment of the U.S. Constitution. c) the Fourteenth Amendment of the U.S.

Constitution. d) all of the above equally e) none of the above

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82 C H A P T E R 2 T H E T E X A S C O N S T I T U T I O N

The Texas Constitutions: 1836–1876

• Describe the six Texas constitutions and their role in Texas political life (pp. 47–62)

Texas has had six constitutions reflecting the concerns of the historical periods in which they were written. The Civil War and Reconstruction played a major role in shaping Texans’ attitudes toward the dangers of strong state government. The Constitution of 1876 sought to limit the powers that had been wielded under the previ­ ous constitution by Republican governor Edmund Davis. It remains, though much amended, the existing state constitution of Texas.

Key Terms unicameral (p. 49) bicameral (p. 52) Confederacy (p. 56) Presidential Reconstruction (p. 57) Radical Republicans (p. 58) Grange (p. 60)

Practice Quiz 5. The Constitution of 1861

a) generally accepted the existing constitutional framework.

b) guided Texas’s entry into the Confederate States of America.

c) supported slavery. d) defended states’ rights. e) all of the above

6. A unique feature of the Constitution of 1869 was that a) it explicitly rejected the power of the federal

government in Texas. b) fewer than 1 percent of voters opposed it. c) it was less than four pages long. d) it was published before being submitted to

the voters. e) it is considered the best of Texas’s

constitutions.

7. A new Texas Constitution was written a) during the Reconstruction period. b) when the Compromise of 1850 was adopted. c) at the start of World War I. d) in 1999. e) none of the above

8. The present Texas Constitution a) is well organized and well written. b) is considered to be one of the best of the 50

state constitutions. c) delegates a great deal of power to the governor. d) severely limits the power of the governor and

other state officials. e) all of the above

9. The Constitution of 1876 was a reaction to the Reconstruction Constitution of 1869 because a) the 1869 Constitution was too short. b) the 1869 Constitution forbade slavery. c) the 1869 Constitution increased state officials’

salaries. d) the 1869 Constitution was seen as giving the

governor too much power. e) none of the above

10. When the framers of the Constitution of 1876 wrote of “the people,” they meant a) all adult citizens of Texas. b) all adult male citizens of Texas. c) all men and women over the age of 21. d) all citizens except carpetbaggers and

scalawags. e) none of the above

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The Constitution of Texas Today

• Analyze the major provisions of the Texas Constitution today (pp. 62–71)

Today’s Texas Constitution is lengthy and includes over 400 amendments. It limits the power of state govern­ ment and tries to prevent the concentration of power in the hands of one person.

Key Terms limited government (p. 63) republican government (p. 65) plural executive (p. 68) impeachment (p. 69)

Practice Quiz 11. Article 1 of the Texas Constitution

a) contains the Texas Bill of Rights. b) renounces the use of the death penalty. c) rejects the U.S. Constitution’s Bill of Rights.

d) recognizes the supremacy of the national government.

e) accepts the principle of rapprochement.

12. The Texas Bill of Rights a) guarantees some rights not found in the U.S.

Bill of Rights. b) duplicates the U.S. Bill of Rights. c) is unusual, since state constitutions generally

do not have Bills of Rights. d) guarantees gay marriage. e) outlaws abortion.

13. The Texas Constitution requires that Texas judges a) be appointed by the governor. b) be a member of the Republican Party. c) be senior lawyers. d) be elected by the people. e) cannot receive campaign contributions.

Recent Attempts to Rewrite the Texas Constitution

• Describe modern efforts to change the Texas Constitution (pp. 71–79)

Recent attempts to rewrite the Texas Constitution have been unsuccessful. Amendments continue to be the easiest way to modify the document.

Practice Quiz 14. A new constitution for Texas

a) is likely to be ratified in 2018. b) is scheduled for a vote in 2020. c) has a 50–50 chance of being ratified in 2018. d) has a very small chance of being written and

ratified in the near future. e) none of the above

15. Voter turnout for constitutional amendment elec­ tions could be improved if a) they were held at the same time as presidential

elections. b) there were more voter awareness of the pro­

posed amendments. c) the amendments involved significant issues for

voters. d) all of the above e) none of the above