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GOVERNING TEXAS

THIRD EDITION

ANTHONY CHAMPAGNE

EDWARD J. HARPHAM

JASON P. CASELLAS

Chapter 2

The Texas Constitution

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The Texas Constitution

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.

Why the Texas Constitution Matters

The Texas Constitution is the legal framework within which the government works.

Rights guaranteed in the Texas Constitution go beyond those of the U.S. Constitution.

The length and detail of the Texas Constitution make the amendment process central to the political process.

Examples of matters detailed in the Texas Constitution:

Article 1, Section 7, stipulates that money will not be appropriated to the benefit of a sect, religious society, or religious seminary.

Section 7 lists conditions that must be met by the state if it wants to take, damage, or destroy the private property of individuals.

Section 30 lists the rights of victims of crime.

Section 31 defines 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.

The Role of a State Constitution

State constitutions perform a number of important functions:

Establish political institutions and explain the source of their power and authority

Delegate powers to particular institutions and individuals and define how those powers are to be used

Protect against the concentration of political power in one institution or individual

Define the limits of political power

After so much discussion about how and why Texas is different, it’s important to point out that the state is like all others in this respect: all states have a constitution.

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

Prompt students to examine how a constitution is different from mere laws.

What belongs in a constitution, and what should merely be a law?

Must a constitution always be followed?

What measures should be taken to ensure the constitution remains a living document, applicable to contemporary society?

The Role of a State Constitution: Influence of U.S. Constitution

Texas’s constitution is heavily influenced by the U.S. Constitution.

Political power is derived from the people

Both constitutions feature a separation of powers

Legislative, executive, and judicial branches

A system of checks and balances limits the powers of each branch, as a way to protect against tyranny

Certain individual rights must not be violated

These essential features are common to most state constitutions.

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 Federalist Papers

The Role of a State Constitution: How U.S. Constitution Is Different

The idea of federalism is also embodied in the constitutions of the U.S. and Texas.

Important differences distinguish the two:

Supremacy clause: the U.S. Constitution and federal laws are the supreme law of the land

Necessary and proper clause: the federal government has all the authority it needs to carry out its powers

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

A key point is that the Texas state government is more constrained than is the federal government. The voters of Texas have been far less willing to allow the state all the necessary and proper powers compared to the U.S. government. Thus, the state government is constrained from above, as it were, by the supremacy clause and constrained from below by the people in what it can do.

The First Texas Constitutions: Their Role in Texas Politics

Texas has many myths surrounding its origins, and separating these myths from historical fact is important in understanding the development of Texas as a state.

Six different constitutions governed the state prior to the current constitution.

Each reflects different national priorities, different issues of the time, and the different values of the writers.

Myths surrounding early Texas trumpet its unique origins as an independent republic that fought to attain its own independence and suggest that Texas has a privileged position given the way it entered the Union, or that it reserved for itself a right to break up into separate states or even to leave the Union.

The Texas Founding

Texas had a founding period that was much longer than the United States.

period of discontent, independence declaration

differences and similarities in terms of the characteristics of the Founding Period in comparison with that of the U.S.

The Texas Founding: Independence from Spain

After challenges to Spanish rule by Spanish Texans, Texas gained independence from Spain with Mexico in 1821.

The first federal constitution that Texas operated under was the Mexican Constitution.

Spanish Texas remained part of New Spain until the Mexican War of Independence, which grew out of a series of revolts during the Napoleonic Wars. Mexico was formally granted independence on August 24, 1821.

The Texas Founding: The Constitution of Coahuila y Tejas

Texas gained independence from Spain with Mexico in 1821.

The Constitution of Coahuila y Tejas, 1827

The Mexican Constitution combined the state of Coahuila and province of Texas: “Coahuila y Tejas”

The State Constitution of 1827 made Texas the District of Bexar, defined a unicameral legislature, and guaranteed liberty, security, property, and equality

Catholicism was the established state religion

The Mexican Constitution was similar in many ways to the U.S. Constitution.

Bexar is pronounced “bear.”

Language in the Constitution of 1827 supported efforts to curtail the spread of slavery.

Unicameral: comprising of one body or house, as in a one-house legislature

The Texas Founding: Annexation of Texas Cartoon

This 1844 cartoon satirized congressional opposition to the annexation of Texas. Personified 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, horse-racers, and licentious profligates?”

The Texas Founding: Texas Constitution of 1836

The Constitution of the Republic of Texas, 1836

Texas’s break with Mexico was in part a constitutional crisis.

Among Texas residents’ demands:

A more liberal immigration policy for people from the United States

The establishment of English- and Spanish- speaking primary schools

Separate statehood for Texas, apart from Coahuila

Students may find great irony in some of these demands, given the politics of immigration and language in the United States today.

The Texas Founding: Texas Declaration of Independence

The Texas Declaration of Independence

Adopted in 1836 at Washington-on-the-Brazos

39 of the 59 delegates were from southern slave states; only 10 of 59 had lived in Mexico prior to 1830

The declaration drew on the ideas of John Locke, who argued the purpose of government is to protect rights; and Thomas Jefferson, in cataloguing a list of grievances

The declaration’s “melancholy conclusion” centered on the idea that any government that stripped a people of their liberty was unacceptable, and that self-preservation demanded “eternal political separation” from Mexico.

The Texas Founding: Copy of Texas Declaration of Independence

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.

Figure 2.1: The Republic of Texas, 1836–45

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

The Texas Founding: Texas Constitution of 1836, Continued

The Constitution of the Republic of Texas, 1836

Resembled the U.S. Constitution

Established a bicameral legislature

Guaranteed White male suffrage

Defended slavery as an institution

Under this constitution, the Texas population skyrocketed

Although the constitution called for annexation by the U.S., Texas remained an independent republic

The 1836 Constitution was brief and flexible; established an elected executive, a bicameral legislature, and a four-tiered judicial system consisting of justice, county, district, and supreme courts; put into place a system of checks and balances; defined procedures for amending the constitution; and elaborated a bill of rights.

Bicameral: having a legislative assembly composed of two chambers or houses

The Republic of Texas outlawed the importation of slaves from Africa but guaranteed that slaveholders could keep their property and that new slaveholding immigrants could bring their slaves into Texas.

Annexation by the U.S. was delayed due to concerns that:

admitting Texas as a slave state would upset the balance between slave and free states.

annexation would lead to war with Mexico.

The Texas Founding: Lowering of Republic Flag

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.

The Texas Founding: Texas Constitution of 1845

The Texas State Constitution of 1845

Annexed as a state in 1845, it ceded defense-related property to the U.S. but retained vacant land.

The state could break up into four additional states when population proved adequate.

The new and longer constitution provided for:

Two legislative houses

An elected governor and lieutenant governor

A judicial branch

A process for amending the constitution

Texas claimed land extending far beyond its present state boundaries.

The Texas Founding: Texas State Capitol

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.

The Texas Founding: Texas Constitution of 1861

The Constitution of 1861: Texas Joins the Confederacy

The secession convention in 1861 proclaimed the laws and constitution of the Union trampled on the rights of Texans, especially with regard to slavery.

Texas voters approved secession, and the state entered the Confederacy.

The new constitution declared the freeing of slaves illegal, but there were few changes otherwise.

Slavery had made it difficult for Texas to get into the Union in 1848; but by 1860 slavery had become vital to the Texas economy, and so it was slavery that drove Texas from the Union.

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

The Texas Founding: Texas Constitution of 1866

The Constitution of 1866: Texas Rejoins the Union

Ratified by slim majority, the new constitution following defeat in the Civil War accepted the abolition of slavery.

Black Codes: Freed men were allowed own property and to sue but were banned from voting or holding office

Salaries for officeholders were increased, as was the size of the state supreme court.

Congressional apportionment would be based only on the number of white male citizens.

The close vote on the ratification of the new constitution was attributed to unhappiness with the increase in salaries of state officers. Ask students what other issues might have contributed to a close vote.

The Texas Founding: Reconstruction Constitution of 1869

The Reconstruction Constitution of 1869

The Confederate states required new state constitutions to comply with federal laws.

Congressional Reconstruction Acts of 1867

Radical Republicans won the vote for a convention

The new constitution, published under military orders, extended the vote and political equality to black men.

Thirteenth and Fourteenth Amendments

The governor, Edmund Davis, was given vastly expanded powers.

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

There were additional changes to the legislature’s size, terms, and election cycles.

The 1866 Constitution, though drafted after the Civil War, remained in violation of federal law. This was true for many southern states.

Consequently, a new constitution would again be required to remain in the Union, only three years after the postwar constitution had been adopted.

Along with other changes, the new constitution gave the governor new and undemocratic powers, which he exercised, although the degree to which these were exercised is debated.

The Constitution of 1876

The constitutional convention called in 1875 generated a new constitution.

Forty of the delegates were members of the Grange

This is still the basis for Texas government today.

The four goals of this constitution:

Strong popular control of the government (voters)

Limits to powers

Restraints to spending

Promotion of agricultural interests

Governor Davis had been able to abuse power because the prior constitution allowed so much, and there were very few checks by other institutions or the public.

Of the delegates to the convention, 75 were white Democrats and 15 were Republicans, 6 of whom were black. Forty were farmers. Forty were members of the Grange.

Grange: a militant farmers’ movement of the late nineteenth century that fought for improved conditions for farmers

Discuss how the plight of farmers was impacted by the 1876 Constitution.

The Constitution of 1876: Copy of Constitution

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.

The Constitution of 1876: New Limits on Government

The new limits on government were in many ways in reaction to the state’s experience with Governor Davis.

Judges to be elected

Governor’s powers diffused (plural executive)

Part-time legislature

Limits to taxes and debt

Schools—segregated—not to be compulsory

Regulation of railroads and banks

Davis’s legacy is Texas’s resistance to strong executive powers, which has lasted into modern politics.

With local control over education, white landowners could avoid paying taxes for the education of black students.

The Texas Constitution of 1876 was lengthy, rigid, and detailed.

The Constitution of Texas Today

Today’s Texas Constitution is a notoriously poor document.

Outdated and over-amended

483 amendments

The focus is the principle of limited government

Written to prevent the expansion of governmental authority

The Preamble

Surprisingly short, in contrast with what follows

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

Criticisms of the Texas Constitution are not ideological or partisan; there is widespread agreement among academics, policy makers, and lawmakers on this point.

The Constitution of Texas Today: Table 2.3: The Texas Constitution: An Overview

The Constitution of Texas Today: Articles 1 and 2

Article 1: Bill of Rights

Rights are listed up front, in order to stress limits upon the state’s powers

The right to republican government is powerfully articulated

It is much more detailed and specific than the U.S. Bill of Rights

Article 2: The Powers of Government

Three branches: legislative, executive, and judicial

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

The U.S. Constitution is a “living document” in that what specific rights mean changes over time as the Supreme Court of the United States comes to interpret it differently.

In the Texas case, the document itself has to be altered for the meaning to change, which means either the constitution gets amended more frequently or that it ends up “lagging” behind society.

One is not necessarily better than the other, but it is something the students should understand.

The Constitution of Texas Today: Article 3

Article 3: Legislative Department

The Texas House of Representatives (two-year terms) and the Texas Senate (four-year terms)

Limits on salaries

The Texas Ethics Commission

The comptroller of public accounts

The largest portion of Article 3 is dedicated to addressing a variety of policy issues

It may be worth noting that most states of comparable size have full-time state legislatures, whereas Texas’s legislature is part-time.

The idea of limiting Texas to a part-time legislature effectively limits what it can do by curtailing the amount of time the legislature has to devote to issues.

Some prefer this system, where legislators cannot become wealthy from taxpayer dollars doing legislative work.

Short terms and biennial sessions also force the legislature to focus on a small set of priority issues, which suits many voters just fine.

Some are concerned that only people with another source of income can devote this much time to being a legislator.

The Constitution of Texas Today: Article 4

Article 4: Executive Department

Creates a plural executive: the executive department consists of six offices, five of which are elected

Not just the governor

Secretary of state is appointed by the governor with Senate approval

Independently elected offices limit governor power

Different parties may hold (and have held) executive power

Plural executive: an executive branch in which power is fragmented because the election of statewide officeholders is independent of the election of the governor

You may want to ask the students if they think so many offices being elected is a good thing.

On the one hand, the more offices that are appointed, the more coherent the executive branch can be about policy.

On the other hand, the more independent they are, the more consensus must be reached across potentially differing opinions.

See Table 2.2 for an outline of major constitutional officers in Texas.

The Constitution of Texas Today: Articles 5 and 6

Article 5: Judicial Department

Texas effectively has two supreme courts

Criminal cases: Texas Court of Criminal Appeals

Civil cases: Texas Supreme Court

All justices and judges are elected

Article 6: Suffrage

Who votes in Texas and the legislative roles in elections

Another great opportunity to get students talking and thinking is to ask them the strengths and weaknesses of electing judges versus appointing them.

Consider having them list the benefits and weaknesses of each in small groups.

Consider asking about alternatives that allow for more flexibility than appointing for life and electing all positions. Many states have retention elections, for example.

The Constitution of Texas Today: Articles 7–9

Article 7: Education

Public schools promote a republican form of government

Requires Texas to support, maintain, and fund an efficient system of public schools; and to create of a Board of Education

Article 8: Taxation and Revenue

Articles 9 and 11: Local Government

Education public policy is one of the most contentious issues in Texas. This is a good opportunity to engage students in a discussion regarding funding and its uses, and the role of the federal government in education.

The Constitution of Texas Today: Articles 10, 12–16

Articles 10, 12, 13, and 14

Railroads, private corporations, Spanish and Mexican land titles, and public lands

Article 15: Impeachment

Impeachment is a formal charge by which a state official may be removed from office

The House and Senate (and the courts) decide what constitutes an impeachable offense

Article 16: General Provisions

Impeachment: under the Texas Constitution, the formal charge by the House of Representatives that leads to trial in the Senate and possible removal of a state official

The Constitution of Texas Today: Article 17

Article 17: Amending the Constitution

A four-stage process

The legislature proposes amendments

They must be approved by a two-thirds majority vote

Explanations of amendments must be published twice in recognized newspapers

A majority of state voters must approve

Two-thirds of both chambers must approve the amendment. That sounds like a high bar, but it is very easy when one party dominates the legislature, as has been the case for most of the state’s history.

Legislators know voters tend to be ill-informed about amendments, and Texas has very low voter turnout. Thus, public approval is not the most difficult part of the process (for the time being, at least).

Recent Attempts to Rewrite the Texas Constitution

The Constitution of Texas has been amended 483 times since its inception in 1876.

SOURCE: Texas Legislative Council and Texas Secretary of State.

Recent Attempts to Rewrite the Constitution: Sharpstown

In 1979, there was a drive to rewrite the Texas Constitution.

It grew out of stock fraud involving the Sharpstown State Bank and the National Bankers Life Insurance Company.

Resulting convictions created a “throw the rascals out” mentality in the 1972 election.

However, special interest groups mobilized and derailed efforts to rewrite the constitution.

Sharpstown represents in many ways the intense conflictual nature of Texas politics.

Recent Attempts to Rewrite the Texas Constitution: Ratliff-Junell Proposal

2015’s 9 constitutional amendments

There were 9 amendments proposed, and all passed

Voter turnout was low at about 11.34 percent, but up from 2013’s turnout of about 8.55 percent

There are two possible reasons for low turnout:

Amendment votes are held in off-years

Many amendments are relatively insignificant to voters

Consider discussing the low voter turnout—a major issue in democracy in terms of majority rule and the development of public policy.

Recent Attempts to Rewrite the Texas Constitution: Proposition 2 and Obergefell v. Hodges

In 2005, social conservatives urged Texans to vote in favor of Proposition 2, which defined marriage in Texas as the union of one man and one woman. This Appeal to traditional values contributed to relatively high turnout, and Proposition 2 passed by more than a 3-to-1 margin. In Obergefell v. Hodges in 2015, the Supreme Court ruled that marriage was a fundamental right guaranteed to same-sex couples. Some public officials have sought to undercut the full effect of the ruling. Attorney General Ken Paxton advised county clerks in Texas that they could refuse marriage license to same-sex couples on religious grounds.

The Constitution and the Future of Texas

No effort to change the Constitution of Texas has taken place in recent years.

This is likely to continue, with amendments being the only source of change to the constitution.

Amendments do reflect the values and goals of the people of Texas and the political system that was put in place by Texans.

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.

Table 2.2: A Constitutional Timeline, 1836–1876

Table 2.4: Major Constitutional Officers in Texas

Table 2.6: Passed Constitutional Amendments, 2015

Table 2.7: Some Important Constitutional Amendments

The Sharpstown Scandal

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.

State Constitutional Amendments

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.

Obergefell v. Hodges

Protesters gather outside the Hood County Court in support of County Clerk Katie Lang, who denied marriage licenses to same-sex 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.