TO THE PROPOSED NEW
[including the complete
George D. Braden
INSTITUTE FOR URBAN STUDIES UNIVERSITY OF
STERLING SWIFT PUBLISHING CO. P.O. BOX 1352 -
AUSTIN, TEXAS 78767
UNIVERSITY OF HOUSTON INSTITUTE FOR URBAN
Braden, George D. — "Citizens' Guide to the
Proposed New Texas Constitution," 1975
May, Janice C. — "The Texas Constitutional
Revision Experience in the '70's," 1975
Braden, George D. — "Citizens' Guide to the
Texas Constitution," 1972
This is a citizens' guide to what may be the Texas Constitution of 1976.
Thanks to a remarkable sequence of events beginning in 1971, Texans will be
doing in 1975 what they have not had the opportunity to do in 100 years —
vote on a new constitution for their state. Thus, they can complete the job
they undertook in 1972 when they adopted the unique amendment submitted by the
1971 Legislature to enable the voters to authorize the members of the 63rd
Legislature to act as a constitutional convention. This is a fitting exercise
for the nation's bicentennial years.
The author of the Guide is George Braden, who wrote the
Citizens' Guide to the Texas Constitution under the auspices of the
Institute for Urban Studies, published by the Texas Advisory Commission on
Intergovernmental Relations in 1972. The new Guide takes the reader
through the proposed constitution article by article, describes its essential
features with particular attention to the important similarities and
differences between the present and the new documents and explains the
principal reasons for the content and shape of the revision. In doing this, he
compares, and to a degree, evaluates, the roles of the three bodies that have
produced the "Constitution of 1976": The Constitutional Revision Commission of
1973, the Constitutional Convention of 1974, and the 64th Legislature in
In 1970, the Institute for Urban Studies began intensive planning to
develop a base of information for public and official decision-making on what
seemed likely to be a fairly long term effort to modernize the Texas
Constitution. In planning and carrying out the program, the Institute had the
cooperation of its sister Institute of Urban Studies at The University of Texas
in Arlington, the Lyndon Baines Johnson School of Public Affairs, the Texas
Advisory Commission on Intergovernmental Relations, and a number of the leading
students of the Texas constitution and government in other universities. Very
early, George Braden, nationally recognized as one of the leading authorities
on state constitutions and constitution writing, figured in the planning Before
the end of 1971, he had been engaged to write the Citizens' Guide and to
proceed from that to write an historical, comparative and analytical annotation
of the constitution. With the help of a number of other authors, a draft of the
annotation was completed in time for use by the Commission and the Convention.
A series of impact papers by various scholars was also prepared for the
information of the public and of the Commission and Convention. These papers
dealt with major issues relating to the several articles of the Constitution.
The Institute also produced a half-hour documentary film on the historical
background of the Texas constitution and the revision process through the
opening of the convention.
These and other reports and studies were variously financed from funds
from the Institute, the LBJ School, the Texas Advisory Commission on
Intergovernmental Relations, the Hobby Foundation, the Hogg Foundation, the
Constitutional Revision Commission, and Title I of the Higher Education Act of
1965 through the Coordinating Board of Texas Colleges and Universities. The new
Guide has been financed in part by a grant from Title I of the Higher
Mr. Braden has devoted almost the last three and a half years to the
Texas Constitution. In addition to his work under the auspices of the
Institute, he served as a consultant to the Constitutional Revision Commission
and was the principal consultant to the committee on style and drafting of the
Constitutional Convention. Before coming to Texas, Braden, a former Professor
of Law at Yale University, had worked intensively on the constitutions of
Connecticut, New York, and Illinois. He was a full time consultant to the
recent New York and Illinois constitutional conventions. He was the designer
and principal author of The Illinois Constitution: An Annotated and
Comparative Analysis, which became known as the "Bible of the Illinois
convention" and was the prototype for the annotation of the Texas Constitution.
While serving at the Illinois convention, he devised a new way to handle the
problems of adoption and transition so that a constitution would not be
permanently lumbered up with material that has only temporary significance.
This involved an adoption schedule that did not become a part of the
constitution and a transition schedule with a built-in device to remove
sections from the constitution as they became obsolete. This approach was
adopted by the Texas Convention and, as far as is applicable, by the 64th
The opinions and judgments expressed in this Guide are, of
course, those of the author and do not represent any policy or position of the
John E. Bebout, Program Director
Institute for Urban Studies
University of Houston
TABLE OF CONTENTS
FORWARD .............................................. .iii
TABLE OF CONTENTS ..................................... v
PREFACE ............................................... vii
CHAPTER I Introduction ................................. 1
II Basic Limitations: Bill of Rights .............. .5
III The Mechanics of Government ............... .9
IV Local Government.......................... 27
V Finance ...................................35
VI Special Limitations and Affirmations ......... 45
VII The Amending Process. .................... .57
VIII The Mechanics of Adoption ..................63
IX Conclusion. ................................69
APPENDIX — Reprint of Bill of Rights Chapter, Citizens'
Guide to the Texas Constitution, 1972 ......... .71
PROPOSED 1976 REVISION OF THE TEXAS
ARTICLE I Bill of Rights. .......... ...................79
II Separation of Powers ....................... 82
III The Legislature ............................ 82
ARTICLE IV The Executive ............................ .87
V The Judiciary ........................ 91
VI Voter Qualifications and Elections ......... .94
VII Education ...................... 94
VIII Finance ............................ 97
IX Local Government ...................... 100
X General Provisions ...................... 102
XI Mode of Amending the Constitution of the State
TRANSITION SCHEDULE................................ 108
CITIZENS' GUIDE TO THE PROPOSED CONSTITUTION
In 1972 I wrote the Citizens' Guide to the Texas
The purpose of the Guide was to assist the citizen in
understanding his constitution. Assistance was necessary because the
Constitution of 1876 with its then 212 amendments was so badly organized, so
poorly written, and so overblown with statutory detail that the ordinary
citizen was hard put to understand it.
Since publication of the Guide, the voters by a handsome majority
approved the calling of a constitutional convention composed of the members of
the legislature; a Constitutional Revision Commission prepared and transmitted
to the constitutional convention a draft of a new constitution; and the
convention, using that draft as a starter, drafted a new constitution for
submission to the voters.
Unfortunately, the convention adjourned without adopting the proposed
constitution by the required two-thirds vote, thus apparently depriving voters
of an opportunity to vote for or against the new document. To the delight of
most and the amazement of some, the 64th Legislature, composed mostly of the
same people who had failed to adopt the convention's document, went to work
upon convening in 1975 and soon approved eight proposed amendments that, taken
together, constitute substantially the convention's constitution. On November
4, 1975, the voters will have the opportunity to express their views on a new
constitution for Texas.
This guide is designed to acquaint the citizen with what is in the
proposed constitution. This is considerably different from the purpose of the
earlier Citizens' Guide. The proposed new constitution is, I devoutly
hope, intelligible to the layman. Indeed, the contrast between the words of the
old and the new is so great that one might argue that a guide would be needed
to demonstrate that the change is really not all that significant. In any
event, this guide highlights what is in the proposed constitution, how it
squares with the purposes and principles of a constitution, how the proposed
constitution is to be viewed in historical perspective, and shows the
relationship between the changes in the proposed constitution and the changes
in Texas government that would flow from adoption of the new constitution. In
the course of highlighting the changes from old to new, significant differences
between the convention's product and the revision commission's document are
This guide can be read without a copy of the old constitution or the
Citizens' Guide at hand even though references to both are made
throughout. Fortunately, it has been possible to include the text of the
proposed constitution as part of this publication. A goodly number of people,
including me, will be disappointed if the reader does not take the time to read
the proposed constitution — not as avidly as in reading a novel, but at
least with an air of "say, I can understand this." (This does not apply to the
Transition Schedule: it is written in technical language. In any event, the
schedule is of temporary significance and not really part of the people's
document, the constitution proper.)
In the writing of the Citizens' Guide I was dealing primarily
with the settled words of an established document and could be relatively free
in my comments about why this or that was so. In the case of this guide, I am
aware that more than 200 people are around who participated directly in the
revision process and can second-guess me whenever I venture to set out a "why."
Fortunately, I was able to corral a number of manuscript readers to keep me on
I wish especially to thank John Bebout, Steve Bickerstaff, Janice May,
James McGrew, Glen Provost, Jay Stanford, Louise Winecup and Richard Yahr who
read all or parts of the manuscript and offered many excellent suggestions.
Obviously, only I am responsible for the final product, but I take comfort in
the knowledge that the second-guessers will find many fewer things to question
than would have been the case without the changes suggested by those who read
the original draft.
Finally, I must give thanks to my long-suffering typist, Janet
Hulsopple, who observes somewhat plaintively that she knows more about the
Constitution of the State of Texas, where she has never been, than she does
about the Constitution of the State of New York, where she has always
George D. Braden
P.S. I have never seen a postscript to a preface, but then I have never
come across a situation where an author wished to thank someone for something
not part of the author's undertaking. As I note in Chapter VIII, many people
thought an article-by-article submission would be almost impossible. Based on
my knowledge of the present constitution and my past efforts at drafting
schedules, I once said that it would be impossible but hastily corrected myself
and said "almost impossible." (Lawyers are trained to beware of absolutes) I am
glad that I corrected myself. The what if schedule (see Chapter VIII) is a
magnificent exercise in ingenious drafting. Congratulations to those who
brought off this tour de force in record time: Steve Bickerstaff, David
Frederick Liz Levatino, Robert Strauser, Louise Winecup, and Richard
CITIZENS' GUIDE TO PROPOSED CONSTITUTION CHAPTER
On November 7, 1972, the voters of Texas by a margin of over half a
million votes approved the calling of a constitutional convention, the first in
almost a century. Since that day there has been a concentrated effort to draft
a new constitution for submission to the voters.
The revision process was not easy. The constitution of 1876 with its 218
amendments contained almost 64,000 words. Three-fourths of the states have
constitutions less than half this length and two of those contain only about
8,000 words. Obviously, there is a great deal of something or other in the
present constitution that does not have to be there. A first task, therefore,
was to figure out what was excess baggage that could safely be discarded. A
second task was to figure out how to revise the constitution so that constant
amendment would not be necessary. An average of two amendments a year is bad
enough; the average for the most recent decade is six a year, an accelerating
trend that bodes ill for the future.
These two tasks are peculiar to an overblown constitution. The principal
task in constitutional revision is to decide what changes are warranted by
virtue of changes in the society, changes in the needs of government, and
changes in the attitudes of the public toward their government and their
In the light of these three tasks, it is fortunate that the legislature
created a Constitutional Revision Commission and in effect authorized it to
draft a new constitution. After holding public hearings across the state, this
broadly-based group of citizens did draft a proposed new constitution and
submitted as its report the text of that constitution with appropriate
explanations. This draft represented a giant step forward, for the 64,000 word
monster had been slimmed down to a graceful 14,500 or so words.
When the legislature met as the constitutional convention in January
1974, it wisely accepted the commission's proposal as the working draft on
which to build. Thus, the convention was spared one of the three tasks —
most of the excess baggage was gone. This made it possible for the convention
to concentrate on the real problems of revision. The fruit of that
concentration was the document that almost passed. It is a little fatter than
the commission's proposal but still a respectable 17,500 or so words.
(Ironically, 20 percent of this addition is in the one section that the
convention's Committee on Style and Drafting apologized for, noting that the
section was drafted under different rules from those used in all other
sections. For the reason for this "sport," see pp. 52-53.)
The convention's final document is essentially the same as the eight
amendments to be voted upon in November 1975. That is, if the voters approve
all eight amendments Texas will have a new, relatively short constitution. If
the voters accept some of the amendments and reject others, Texas will have a
skewed constitution. The degree of "skewing" will depend upon the number of
amendments rejected by the voters. (There is one exception. See Chapter VII.)
Since this is a guide to the proposed constitution, the discussion that
follows assumes that all amendments pass. (See Chapter VIII for a discussion of
the intricacies of partial acceptance of the proposed package.)
Overall the proposed constitution is an admirable document. The
arrangement is logical. With almost no exceptions, each of the eleven articles
contain only what belongs in the article and nothing that belongs elsewhere.
There is still some statutory detail, but it is just about the minimum that one
could reasonably expect, given the amount that is in the present constitution.
Except for this detail, the proposed constitution is concise. It is concise in
the sense that care was taken not to use more words than necessary to express
an idea clearly. The document is also concise in the sense that care was taken
not to say things that do not need to be said in a constitution. For example,
the present constitution has many provisions that permit the legislature to do
something or other. The proposed constitution omits these unnecessary grants of
power because, in American constitutional theory, a state legislature may do
what is not prohibited.
Above all, the new document is readable. Many people have said many
times that a constitution is the people's document and that it, more than any
other legal writing, should be drafted so that the lay citizen can understand
it. The proposed constitution should receive high marks for readability.
In the Citizens' Guide to the Texas Constitution it was noted
that there are several reasons for having a written constitution, several
principles involved in drafting the document, and several factors influencing
the making of a constitution. There is no need to repeat in detail what was
said there, but it is useful to point out that, in the light of these
considerations, the proposed constitution is a vast improvement over the
There are three fundamental reasons for having a written constitution:
to limit the power of government, to set forth the basic rules by which the
government is organized and operates, and to distribute power between the
central and local governments. The present constitution does all this.
Likewise, the proposed constitution limits government, sets forth basic rules
of government, and distributes power. There are changes, but the fundamentals
of a written constitution remain the same.
Perhaps the greatest contrast between the old and the new document is in
the degree to which the new more nearly adheres to the principle that a
constitution should be a document for all seasons, a statement of who is to
solve the problems of the future rather than a detailed attempt today to solve
tomorrow's problems. The proposed constitution is in no way a "pure"
constitution, the term used for a constitution that leaves the solution of all
problems up to the legislature. Rather, the new document avoids detailed
attempts at problem solving, especially in a formulation that breeds
constitutional amendments. (There is one major exception to this
generalization. See the discussion of education in Chapter VI.)
Two important factors in the making of a constitution are that it is
both a political process and a historical process. No matter what the experts
say should be in a constitution, the makers of a constitution must pay heed to
what people want. What people want will be controlled to some extent by what
they have had, what they are used to, and what is familiar to them. These two
factors were at work in both the commission and the convention. The result is
that, startling though the contrast between the words of the old and the new
may be, the real changes are not all that startling.
What follows in this guide is a description of what is in the proposed
constitution. No particular effort is made to spell out which provisions in the
present constitution are left out of the proposed constitution. Obviously, if
the proposed constitution is less than a third the length of the present
document, a great deal was dropped. By and large this was verbiage that is
usually called "statutory detail." In the course of the following discussion,
the reasons for dropping the detail and the way in which it was done are
pointed out. In the essentials of the constitution, however, it will be seen
that the new is much like the old. From this it will be clear that the
convention's constitution is in the Texas tradition.
Basic Limitations: Bill of Rights
The most important constitutional limitation on the power of government
is the Bill of Rights. It is here that people protect themselves as individuals
against themselves as a group. Or, to put it another way, here society agrees
that certain rights of minorities are to be protected from interference by the
majority. Thus, the Bill of Rights is principally designed to protect the
individual or a group of individuals from oppressive government even if the
government is responding to the desires of a majority. (Separation of powers is
designed to protect people as a whole from tyrannical government; special
limitations protect people as a whole from themselves as a whole. These types
of limitation are discussed later. See pp. 11 and 45-46.)
The Bill of Rights tradition is unusually strong in Texas. In 1962 a
"nuclear war" amendment was added to the present constitution. (See Article
III, Section 62.) The amendment was designed to permit the legislature to
provide for temporary succession in offices in the event of an enemy attack. In
the Cold War climate of the period most states adopted the amendment but only
Texas carefully provided that the "'Bill of Rights' shall not be in any manner
affected, amended, impaired, suspended, repealed or suspended [sic] hereby."
(The proposed constitution omits the amendment as unnecessary.)
Proposition 4, which authorized the constitutional convention, provided:
"The Bill of Rights of the present Texas Constitution shall be retained in
full." Respect for this stern command was so great that neither the
Constitutional Revision Commission nor the convention was willing to change a
comma or anything else. In keeping with this decision, the eight amendments to
be voted upon cover all of the present constitution except Article I. Thus, if
all amendments are adopted, the new constitution will continue to be the 1876
constitution as amended. (Actually, there are three technical changes in the
wording of three sections of the Bill of Rights, but these simply change
references to courts in order to be consistent with the new unified judicial
system. Compare the old and new Sections 11a, 15, and 15-a.) If the
convention's document had been submitted to the voters and adopted, Texas would
have had a wholly new constitution because Article I would have been readopted.
In a way this respect for the old is too bad, for much of the Bill of Rights is
as poorly drafted as is much of the rest of the present constitution. Judicious
redrafting could have made the article shorter, neater, and more readable, all
without changing it in any way. (For the benefit of the reader who does not
have available a copy of the original Citizens' Guide, an edited version
of the chapter on the Bill of Rights is reprinted as an Appendix to this
The proposed constitution does make some changes, not in the Bill of
Rights but in the basic limitations that belong in a Bill of Rights. Most of
these are minor changes concerning jury trials. These could be made because the
provisions are in the judiciary article, not the Bill of Rights. The present
judiciary article also contains a prohibition against appeals by the state in a
criminal case. The proposed constitution changes this but not in a manner that
represents any loss of civil rights.
The Bill of Rights provides that "no person, for the same offense, shall
be twice put in jeopardy of life or liberty." (Section 14. The section goes on
to express the same idea all over again in slightly different words.) This
means that the state can never appeal if a person has been found not guilty in
a criminal trial, no matter how many errors may have been committed in the
course of the trial. The rule goes further in that the state cannot take any
steps to stop a trial and start over after jeopardy "attaches," which normally
means after the jury has been selected and sworn in. A prohibition against
appeals by the state goes still further. A lot of things can happen before
jeopardy attaches, many of which may be errors that ought to be corrected. Two
in particular justify a right of appeal by the state. One is a case where the
judge dismisses an indictment or other criminal complaint because the statute
involved is unconstitutional. The other is a case of dismissal because the
offense charged is held not to be an offense covered by the words of the
In neither case is the accused jeopardized if the state is permitted to
appeal to find out if the higher court agrees that the statute is
unconstitutional or means what the lower court said that it meant. Indeed, the
end result of no appeal could be simply that guilty people go free until
another judge rules otherwise, a trial is held, a person is convicted, appeals,
and the higher court upholds the statute. Notwithstanding the justification for
permitting the state to appeal in these two situations, the proposed
constitution makes an exception only in the case where a judge declares the
statute unconstitutional. (Section 14, Article V. Actually, the provision
allows an appeal under another circumstance but that relates to a change in the
judicial system. See pp. 21-22.)
Proposition 4 provided that the Bill of Rights be "retained in full."
This did not prevent the convention from making additions to the Bill of
Rights, but under the accepted ground rules they could not be added to Article
I. They are found in Article X, General Provisions. Section 23 of that proposed
article calls for equal treatment of the mentally and physically handicapped.
The right is comparable to the equal rights provided for in Sections 3 and 3a
of the Bill of Rights but differs from those rights in two significant
respects. The equality called for in Sections 3 and 3a is equality under the
law. That is, the government may not directly or indirectly discriminate among
people. The equal protection in the case of the mentally and physically
handicapped runs against everybody, not just the government. Because of this
universality of coverage and because these handicaps are complex whereas sex,
race, color, creed, and national origin are relatively simple, Section 23
provides for exceptions from equal treatment. For example, Section 23
recognizes that the proposed constitution itself discriminates against one
class of mentally handicapped by denying the right to vote to those determined
to be mentally incompetent. The section also permits the legislature to define
physical and mental handicaps. What this means is a little obscure. Presumably,
the legislature would be permitted to define which handicaps are not protected
in certain situations. For example, one would hardly expect the state to issue
a driver's license to a sightless person. But one would expect the government
to provide special educational opportunities for. deaf, mute, and sightless
The section also permits the legislature to prescribe the way in which
the handicapped are to be protected from discrimination in the world of
commerce. Again, this is a little obscure, but the need for flexibility is
obvious. For example, no one would expect a movie theater to be required to
provide someone to translate dialog into sign language for the benefit of deaf
patrons, but most people would expect business establishments to permit
seeing-eye dogs on the premises. Finally, the section makes an exception for a
handicap that is incompatible with employment. Thus, a radio station would not
have to hire a mute person as an announcer or a deaf person as a sound
Section 9 of proposed Article X requires the state to preserve the
coastal natural resources of Texas and guarantees the public's right to the use
of beaches. In some respects this section guarantees a right not unlike other
rights in the Bill of Rights. In other respects the section is simply a
limitation on the power of government to dispose of public lands. Even if
Article I had not been closed to the convention, it is likely that Section 9
would have been placed in Article X.
At this point it is appropriate to mention "right to work." The reader
will remember that this highly-charged emotional issue contributed to the
failure of the convention to adopt the proposed constitution. To the
everlasting credit of the 64th Legislature, the error of playing around with
this issue was avoided. Since the issue is dead constitutionally there is no
need to say anything more here except to note that a "right to work" provision
or its opposite, an unlimited right to bargain collectively, is a Bill of
Rights type of limitation on the power of government to regulate labor
The Mechanics of Government
(Articles II, III, IV, V, and VI)
Introduction. This chapter concerns those parts of the proposed
constitution that deal with the structure of state government. The five
articles discussed here deal with how the state government is to be put
together and how it is to operate. (Technically, the suffrage article is
broader, for it also covers suffrage on the local level.) In general, these
articles are not concerned with what policies the state has to, can, or cannot
It should come as no surprise to find that there are relatively few
significant changes in these articles. The general structure of American state
government was established at the end of the 18th century. Changes since then
have been limited. The significant trends in state constitutions over the
decades have dealt with the extent to which the people have denied substantive
power to their government.
It should be obvious, however, that a general revision of a document
almost a century old will include changes. These are principally of two kinds.
One consists of changes that flow from the changes in the society that is
governed. For example, the proposed constitution provides for annual sessions
of the legislature. This is nothing more than a recognition of the tempo of
change in a complex society.
The other kind of change represents a concerted effort to reshape the
structure of government to meet a particular problem that has arisen over the
years. The major example of this in the proposed constitution is a complex set
of provisions designed to end the incredible proliferation of state agencies.
(See pp. 17-19.) Obviously, not all changes neatly fit into one of these
categories, but those that do not tend to be of minor significance.
Suffrage (Article VI). The proposed article on voter
qualifications and elections is simplicity itself. Except for Section 1 (c), no
explanation can tell anyone anything that he cannot find easily by reading the
article. It should be noted, however, that a great deal of the simplicity is
achieved by leaving details to be spelled out by statute. Thus, a person knows
that if he is only 17 years old or if he has been convicted of a felony and is
on parole, he cannot vote. But the proposed constitution does not tell a person
who is 18 or older whether he can vote, for registration and residence
requirements are to be statutory.
Section l(c) is a carefully tailored provision designed to permit the
legislature to impose property restrictions on voting in certain local
elections. Under the present constitution only property owners may vote in
local elections concerning spending or borrowing money. The United States
Supreme Court has invalidated state restrictions of this kind. (On May 12,
1975, the Court struck down the present Texas restriction. Hill v.
Stone, 43 U.S. Law Week 4576.) On the theory that the Supreme Court may
change its mind, Section l(c) would permit the legislature thereafter to impose
the property restriction for voting in bond elections or elections imposing
Section l(c) also permits the legislature to restrict voting in any
election held by certain special districts. This permission is also in response
to a recent United States Supreme Court decision permitting voting restrictions
if the special district engages in limited activities the costs of which are
principally paid for by the owners of property in the district.
In short, Section l(c) is designed to let the legislature follow the
Supreme Court returns, so to speak. The subsection is essential as a permissive
device because the only restrictions on voting that may be imposed are those
that a suffrage article permits. (The revision commission decided against any
property restrictions on voting. That is, their draft had no Section l(c).)
Separation of Powers (Article II). The proposed separation of
powers article is shorter and simpler in wording than the present
constitution's article, but the general opinion in the convention was that no
change had been made. This is not true technically. Both the old and the new
articles distribute the powers of government among the three traditional
branches — legislative, executive, and judicial — and prohibit one
branch from exercising a power belonging to another branch. Each constitution
has an exception to this prohibition, but with a difference. The present
constitution says "except in the instances herein expressly permitted" whereas
the proposed document says "except as otherwise authorized by this
constitution." In constitution drafting, "expressly" is a crucial word. In
effect, "expressly" means that if the exception cannot be found in so many
words, it does not exist. In the absence of "expressly," an exception can be
found more easily. One can rely on "intent," on vague language, on general
principles, and the like. (Interestingly enough, the delegate who got
"expressly" removed also saw to it that there was an "express" exception
elsewhere to meet the separation of powers problem that he was particularly
worried about. See Section 16 of Article V.)
The doctrine of separation of powers is a key limitation on government.
"It is obvious that arbitrary or tyrannical government is more likely if the
power to make, enforce, and interpret laws is lodged in one person than if the
power is distributed among three people who are independent of each other."
(Citizens' Guide, p. 28.) This limitation is reinforced by the system of
checks and balances whereby one branch is given a piece of the action of
another branch. Examples are the gubernatorial veto, the requirement for
obtaining the advice and consent of the senate for gubernatorial appointments,
and the most newsworthy of them all these days — impeachment. The
"exception" discussed above is a recognition that the system of checks and
balances is an exception to strict separation of powers.
There is, however, a more important need for the exception than the
recognition of checks and balances. The doctrine of separation of powers is a
general principle, not a rigid standard by which to allocate each governmental
action to one of the three branches. The day-to-day administration of
government requires more flexibility than rigid allocation would allow. Thus,
administrators and regulatory agencies are given "quasi-legislative"
rule-making power and "quasi-judicial" decision-making power.
An effort was made to get the convention to redraft the article so that
it would be clear that the article was not to be construed rigidly. (The
proponents of that effort used the revision commission's version, which was
specifically drafted to loosen things up. Instead of "prohibiting" one branch
from exercising the power of another, the revision draft simply provided that
each branch should exercise the powers appropriate to that branch.) Although
the attempted redraft failed, the failure is probably harmless. The argument
against any change seemed to be more a fear that change might destroy the
principle of separation of powers than a desire to make separation of powers
The Legislature (Article III). The convention made a great many
changes affecting the legislature but most of these are not in the proposed
constitution at all. The principal changes were in the deletion of many
restrictions on what the legislature can do, many of which are in the
legislative article of the present constitution. Most of those restrictions
concern money and taxes. (The significance of this is discussed at length in
Chapter V.) A correlative change was the deletion of substantially all
provisions that tell the legislature what it may do. As noted in the
Introduction, the legislature, as the principal policy-making body, has
whatever power is not denied it. Although this was accepted constitutional
theory in 1875, the drafters of the 1876 document were not consistent in
adhering to the theory. The 1974 convention made a valiant effort to follow the
theory and by and large succeeded.
Lest the reader who also reads the proposed constitution be misled, it
must be noted that there is a technical difference in the case of a provision
that commands the legislature to do something. There the people have imposed a
duty on the legislature to exercise a power that it has. As a practical matter,
this frequently makes no difference because there is no way to force the
legislature to pass a bill. Nevertheless, there is value in imposing the duty.
For one thing, it strengthens the hand of those who want the legislature to
act. For another thing, it prevents the legislature from acting in a manner
inconsistent with the imposed duty. By the same token, however, a command to
act does not prevent the legislature from taking other action not inconsistent
with the imposed duty. Thus, although a "pure" constitution would omit both
commands and permissions to make policy, the inclusion of commands is not
nearly so dangerous as the inclusion of permissions, for the latter give the
impression that maybe the legislature really does not have all power not denied
The Citizens' Guide contains a brief description of the
significance of each section dealing with the legislative process. This
approach was appropriate in the case of the present constitution, partly
because of its wordiness but principally because the arrangement of sections is
not logical. In the proposed Article III the reader progresses logically,
section by section, through the establishment of the legislature, the
determination of its membership, the rights of members, the procedures
governing sessions, the process for enacting laws, and ends with two
nonlegislative duties — impeachment and senate confirmation of appointed
The proposed article is so easy to read that there is no need to explain
what most of the sections mean. It is important, however, to point out the
significant changes in the new article. Three of these deal with membership.
The senate is left at 31 members and the house at 150 members, but both houses
are to be elected from single-member districts. This represents a change in the
case of the house, which has multi-member districts. (These are under judicial
attack, principally on the ground that they discriminate against ethnic
The revision commission also opted for single-member districts but
recommended two significant changes not accepted by the convention. One change
was to permit each house to vary in size but to require that the house have two
to five times as many members as the senate. (The senate range was 31 to 50;
the house 93 to 155.) To this was added the "pod" concept; each senate district
was to be divided into the requisite number of house districts. Thus, with 31-
and 93-member houses, each senate district would be divided into three house
districts. If the sizes were 31 and 155, there would be five house districts in
each senate district.
The second change concerning membership is in the ground rules for
drawing districts. Here the proposed constitution follows the latest trend in
United States Supreme Court decisions concerning one man-one vote. The
traditional words are used: "districts must be composed of compact and
contiguous territory and contain, ..., as nearly as practicable an equal number
of inhabitants." But in following this general rule, the county is to be the
building block. (See Section 5(c).) Since the Supreme Court has recently
retreated from requiring mathematical equality to the exclusion of other
factors, the proposed section takes advantage of this by stating that "a county
is not to be divided unless necessary to prevent a significant population
variance among districts." (See Section 5(b).) This could mean, for example,
that if a county has a population almost large enough to qualify mathematically
for a representative, the county can constitute a representative district
without taking population from another county. (The revision commission's
formulation was less clear, but seemed more or less to add up to the same
The third change cuts down the power of the Legislative Redistricting
Board. Under the present constitution the board is convened if the legislature
fails to act. The proposed section preserves the legislature's control over
redistricting for a longer period of time. After a decennial census, the
legislature is commanded to enact a redistricting plan. If the legislature
acts, that ends the matter unless a court invalidates the plan. (If the
legislature fails to act, someone would undoubtedly start a lawsuit because the
existing districts, based on a census ten years old, would probably violate the
population requirements.) If a court invalidates a plan, the legislature has a
second chance to come up with a plan. If it fails to act, the Legislative
Redistricting Board is convened to draw up a plan. (The revision commission
preserved the old system and made it explicit that if a redistricting plan was
invalidated, only the redistricting board had a second chance, no matter who
acted first, the legislature or the board.)
It should also be noted that the proposed redistricting section includes
congressional redistricting. Under the present Supreme Court rules, the
"significant population variance" exception discussed above is unconstitutional
in the case of congressional districts, but then Supreme Court rules are
subject to change without notice. Moreover, even if the Supreme Court loosens
up on one man-one vote, Congress can tighten it back up. In short,
congressional redistricting is controlled by the United States. What Texas puts
into its constitution cannot be definitive. (Incidentally, the new rules
concerning districting do not take effect until after the 1980 census.)
The most important change concerning the rights of members deals with
the prickly subject of compensation. In deference to the general principle that
a person should not set his own salary, the convention proposed a citizens'
salary commission to make annual recommendations on compensation and
allowances. Under Section 6, the legislature cannot exceed the commission's
recommendation and cannot put a salary change into effect until after a general
election. Thus, except for the holdover half of the senate, a member would have
to get re-elected in order to benefit from a recommended increase. (The salary
of legislators was set at $4,800 a year at the end of 1960. On April 22, 1975,
the voters approved an amendment increasing the salary to $7,200 a year. Even
this increase is less than the increase in the cost of living since 1960. From
the end of 1960 to the end of 1974 the cost of living went up by 74%. Thus, a
salary of $8,352 a year today would represent no increase in real pay over
1961.) The revision commission likewise recommended a salary commission but
provided that the commission also was to recommend maximum compensation for
executive officers and for judges in the unified judicial system.
The proposed constitution contains three major changes in the law-making
process. One is Section 7(a) providing for annual sessions. In odd-numbered
years the session is to be limited to 140 days as at present and in
even-numbered years to 90 days. (The revision commission's recommendation was
more flexible. The legislature was to provide by law how often and for how long
it would meet, but it had to meet at least once every two years.) The reason
for this change is obvious. Things happen too fast these days to justify
two-year intervals between major policy-making deliberations. Moreover, no
organization spending over five billion dollars a year can accurately budget
for a two-year period. Indeed, the trend to annual sessions in the United
States has been phenomenal. In 1941, only four states had annual sessions, by
1950 the number had reached ten, by 1960 was up to 18, and today has reached at
The second major change is Section 7(f), permitting three-fifths of the
membership to call itself into a veto session to consider overriding vetoes
that were not considered either because the bills were vetoed too near the end
of the session or because they were vetoed after adjournment. The same number
of votes is required to override a veto. This is a reduction from two-thirds in
the present constitution. It should be noted that the shift from two-thirds to
three-fifths represents a strange convention compromise arising out of a
mysterious error in the present constitution. Section 14 of Article IV of the
present constitution provides that the first house to consider a vetoed bill
may pass it by a vote of "two-thirds of the members present," but the second
house has to have a vote of "two-thirds of the members." In correcting this
error, a committee of the convention made the vote two-thirds of those present
in each house. This was objected to as decreasing the governor's power. The
compromise was to make the requirement three-fifths of the membership.
(Incidentally, the veto section has been moved from the executive article to
The third major change in law-making is a comprehensive revision of the
prohibition on local and special laws. Although the present constitution
prohibits local laws, the courts have not effectively enforced the provision
and the legislature has taken advantage of the lack of enforcement. ("Local"
laws apply to a specific local government; "special" laws apply to a specific
person, corporation, or anything else not geographic. Special laws are not a
serious problem.) The typical device is known as a "bracket bill," a bill
applying to all counties or cities or other political subdivisions with a
population not less than so many nor more than so many. A bracket bill purports
to be a general law, but usually only one county or city or town happens by a
strange coincidence to fall within the population brackets.
The proposed Section 13 contains four changes that, taken together, go
about as far as anybody can go in killing off local laws.
First, a local law is prohibited if a general law will do. The old
section says this much, but the new one goes on to state that whether a general
law will do "is a question subject to judicial determination." This is a signal
to the courts to change and start enforcing the prohibition. Second, the
section exempts only local laws expressly authorized by the
constitution. (See p. 10 concerning "expressly." For examples of express
authorizations, see Section 5, Article V; Section 7(a), Article IX; and Section
10, Article X.) Third, the section requires a local law to designate the area
by name or other official designation. Finally, the section prohibits the use
of population figures except in "general laws that have statewide application
and classify all of one or more types of political subdivisions on the basis of
population." (The revision commission was content with the first of these
changes. Normally, this should be enough. The convention, consisting of
legislators, took no chances. They tried to nail it all down.)
In a way this business of local laws is technical and the reader may
wonder why the convention's changes are considered major. The principal reason
is that an effective prohibition on local laws is essential if local
governments are to be protected from legislative meddling in their affairs.
Home rule loses some of its strength if local citizens who are unable to get
what they want from their local government can make an end run and get the
legislature to enact a local law. (See also the discussion of the local
government article, pp. 32.) Moreover, the legislature's main job is to set
state policy, including state policy concerning local government, but not to
set policy for individual local governments. If state problems are now so
pressing and complex that annual sessions are justified, it follows that the
legislature should not be burdened with hundreds of local bills.
There are a few minor changes from the present constitution, such as the
deletion of the requirement that revenue bills originate in the house, but they
are not sufficiently important to justify discussion.
The Executive (Article IV). The proposed executive article has
one major change involving five of the 24 sections. It will be discussed at
some length. For the balance of the executive article, it is sufficient to note
briefly the significant minor changes from the present constitution. The
commissioner of agriculture is given constitutional status. (The railroad
commission is too, but it is an Indian gift, for the legislature is permitted
to abolish the commission. See Section 22.) The governor is to be limited to
two consecutive four-year terms. (See Section 4(a). Note Section 4(b), which is
designed to help a new governor learn the ropes before taking office.) A
section has been added spelling out the method of handling the disability of
executive department officers, a new provision common to recently revised
constitutions. (President Eisenhower's heart attack in 1955 probably had more
to do with constitutional coverage of disability than any other recent
The most important technical change is in Section 5 on gubernatorial
succession. Under the present constitution the lieutenant governor becomes
governor when there is a vacancy. The office of lieutenant governor then
remains vacant until the end of the term. (The president pro tempore of the
senate presides there once the lieutenant governor has moved into the
governor's office.) This was not much of a problem when the governor was
elected for only two years. With four-year terms, gubernatorial succession
becomes particularly important in terms of who chooses the person who becomes
Section 5 arranges gubernatorial succession so that under most
circumstances the person occupying the governor's mansion will have been
elected by the voters of the state. The most likely event is for the lieutenant
governor to take over and serve out the governor's term. If the lieutenant
governor takes over he appoints a lieutenant governor. (The governor does the
same in case of a vacancy in the office of lieutenant governor.) An appointed
lieutenant governor serves only until the next statewide general election.
This, in effect, puts the offices of governor and lieutenant governor back to
two-year terms so far as filling vacancies are concerned. Thus, in the unlikely
event that an appointed lieutenant governor becomes governor, the period of
service will be less than two years. (Under the present constitution a senator,
the president pro tempore, could become governor and serve for almost four
In the Citizen's Guide it was pointed out that Texas has a weak
executive. This is partly a result of constitutional provisions, principally
the long ballot calling for the election of so many executive officers and the
restrictions on the governor's power to remove appointed officers; and partly
legislative practices that have preserved executive weakness, principally
legislative control over budgeting and the practice of creating innumerable
multimember agencies, boards, and commissions. (See Citizens' Guide, pp.
37-40, 45-46, and 62.)
Although the proposed executive article is as clearly and simply written
as other articles in the proposed constitution, the manner in which the
weakness of the executive was attacked is not immediately apparent. The first
step is in Section 1, which establishes an executive department within the
executive branch. The executive department is to consist of the governor, who
is the "chief executive officer of the state," the other elected state
officers, the appointed secretary of state, and any other offices later added
by law. Section 2(b) provides that appointed officers of the executive
department serve at the pleasure of the governor. Thus, the framework exists
for legislative action to fold independent agencies into departments with
appointed heads fully accountable to the governor.
Section 2 is the second step in strengthening the governor's hand. Here
it is important to remember that there are more than 200 separate state
agencies. (It is literally true that nobody has an exact count.) In an effort
to enhance the governor's power over these agencies, the convention provided
that the terms of multimember agencies have to be staggered and that the terms
of members appointed by the governor have to expire between February 1 and May
1 of odd-numbered years (Section 2(e)). The purpose is to permit a new governor
to appoint new people shortly after inauguration and more new people early in
the third year of the governor's term. If, as is frequently the case, agency
terms are for six years, a governor can name a majority of the members within
not much more than the first half of his term. (Section 2(f) provides that, in
most instances, the governor is to designate the chairman every two years.)
Section 2(d) adds removal power to the governor's arsenal of weapons of
control over agencies. In the case of gubernatorial appointees serving for
fixed terms rather than at the pleasure of the governor, the governor may
propose to remove an appointee for stated reasons. Unless the senate by
majority vote "vetoes" the stated reasons, removal can take place. (On removal
power in general, see pp. 25-26.)
In addition to having new control over agencies, the governor is
encouraged to reorganize the executive branch. Section 16 requires biennial
reports on the organization and efficiency of the executive branch and permits
the governor to "introduce" reorganization bills, which have to be acted upon.
To prevent a live-and-let-live attitude on the part of the governor or the
legislature, the convention added Section 24. This section turns most state
agencies into temporary agencies by providing that they have a life of not more
than ten years and can be renewed but not for more than ten years at a time. In
short, the convention gave everybody power to remodel the executive house and
then put a self-renewing time bomb in the house to force remodeling.
The third step in strengthening the governor's hand is in the area of
budgeting. Section 14 requires the governor to submit an executive budget.
Unfortunately, the convention failed to require the legislature to use the
executive budget and it may be that legislative supremacy over budgeting will
continue. On the other hand, the long-run effect may be that the governor will
build up a strong, professional budget department and that the Legislative
Budget Board, which really controls budgeting today, will eventually become
more of a reviewing agency.
This long run development will be enhanced by Section 15, which requires
the governor to oversee the expenditure of money. An expansion of the budget
department will be required for this purpose.
It should be noted, however, that these various steps designed to
enhance the governor's power in no way turns Texas into a "strong governor"
state. The election of an attorney general, comptroller of public accounts,
treasurer, commissioner of the general land office, and commissioner of
agriculture assure considerable diffusion of executive power. Beyond that,
affirmative legislative action is required to place state agencies under the
direct control of the governor.
At this point it is appropriate for several reasons to review in some
detail the revision commission's approach to the problem of executive
disorganization in Texas. In the first place, the fact that there were two
different approaches reinforces the observation that, so far as structure of
Texas state government is concerned, the weak executive is the major problem.
In the second place, the commission's approach demonstrates that there is more
than one way constitutionally to attack a major problem. Finally, the
differences in approach show the importance of who makes the approach —
here, a citizens group and a legislature acting as a constitutional
The revision commission used a logical approach based, it would appear,
upon the assumption that all that is needed to get the executive house in order
is to give the governor the power to act. The commission's document gave the
governor plenary power to reorganize the executive branch, including
"reassigning functions among or consolidating or abolishing any State
governmental agencies." The only limitation on reorganization power was that a
plan be submitted to the legislature following which either house within a
limited period could reject the plan. The convention permitted the governor to
submit plans but the legislature could amend them and, in any event, nothing
happened unless both houses passed a bill. Thus, the commission gave the
initiative to the governor and a veto power to the legislature; the convention
kept all real power in the legislature's hands.
The commission did not include a "self-destruct" section designed to end
the life of agencies every ten years unless the legislature affirmatively acted
to renew the agencies. This is understandable, for the commission undoubtedly
assumed that the governor would work away at reorganization. The convention, as
legislators, obviously knew that failure-to-act is an occupational hazard of
In the budgeting area the commission logically gave the governor the
major power over budgeting by providing that he was to submit a budget
accompanied by a budget bill covering all expenditures. This bill would have
had to be introduced and would have become the general appropriations bill.
This should have reduced the Legislative Budget Board's control over the
budgeting process. It is no surprise that the convention ignored this budget
The commission enhanced the governor's power over appointments in much
the same manner as provided for in the convention's document. In the case of
removal power, the commission did not go so far as the convention. Both
documents made all appointed officers of the executive department removable at
will but whereas the convention gave the governor constitutional power to
remove other executive officers for cause, the commission left their method of
removal to be determined by law. This difference in approach is probably a
matter of different assumptions. The commission may have assumed that the
governor would use his reorganization power to consolidate the myriad agencies
into a number of executive departments whose heads he could remove at will. The
convention may have assumed that many of the agencies, boards, and commissions
will go on forever and that only by a constitutional grant of removal power can
there be some control over their independence.
It is not the purpose of this guide to analyze the significance of
having the legislature serve as a constitutional convention. It is appropriate,
however, to note that the convention's methods of strengthening the governor's
control over the executive branch were novel as state constitutions go. The
commission's methods were more nearly the standard devices used elsewhere. The
novelty is undoubtedly the result of legislators trying to cope with a
disorganized executive while trying to avoid giving up power to the
The Judiciary (Article V). The convention's proposed judiciary
article would appear at first blush to be a radical departure from the article
in the present constitution. There are actually only two major changes of
significance in the sense that the changes will take place immediately if the
proposed constitution is adopted. There is a third major constitutional change
that actually is of no immediate significance. (The present Article V also
contains several provisions concerning county government. These are now covered
in the article on local government.)
The two major changes are summed up in the term "unified judicial
system." Section 1 of Article V vests the judicial power in the judicial
branch, but within the judicial branch is the unified judicial system,
consisting of the supreme court, courts of appeals, district courts, and
circuit courts. (The other courts in the judicial branch are discussed
The first major consequence of having a unified judicial system is the
elimination of the court of criminal appeals. Under the new system, appeals,
both civil and criminal, go to one of the several courts of appeals. (Right now
there are 14 courts of civil appeals across the state.) The supreme court will
sit as a second reviewing court for the normal purposes for which a top court
exists — to produce uniformity in the law and to correct major errors
committed by the lower appellate courts. Under the present constitution the
supreme court reviews only civil cases. There are no intermediate courts for
criminal appeals; all appeals go from the trial court to the court of criminal
appeals. This has resulted in an overburdened appellate court. The proposed
two-tier appellate system provides the flexibility needed to avoid congestion.
(It is argued by some that an appellate court limited to criminal cases is
ill-advised. Others argue the opposite.)
The elimination of the court of criminal appeals creates a side effect.
In addition to giving the state the right to appeal from a decision
invalidating a criminal statute (see pp. 6-7), Section 14 gives the state the
right to appeal from the court of appeals to the Supreme Court. This is not a
matter of civil rights. The only time that the state can appeal will be in a
case where a convicted defendant has appealed and the court of appeals
reverses. Unless the state can appeal in that situation, the supreme court
cannot carry out its supervisory function over the administration of justice.
Otherwise, there could be extended periods of time when the criminal laws was
interpreted one way in East Texas, another way in West Texas, and a third way
in Harris County, for example.
The other major attribute of the unified judicial system is a
prohibition in Section 1 on creating any courts not created or authorized by
Article V. Under the current constitution, Section 1 of Article V vests the
judicial power in named courts "and in such other courts as may be provided by
law." Over the years, statutory courts have proliferated. If the new
constitution is adopted, these statutory courts die. There will be only the
courts listed earlier and the courts discussed below.
Outside the unified judicial system there can be only three courts:
county courts, justice courts, and municipal courts. Of these, only the justice
courts have permanent constitutional status. Municipal courts have to be
authorized directly by statute or indirectly by statutory authorization to
home-rule cities to provide for the courts in their charters.
The county courts continue until changed by law. This provision, Section
6(a), represented one of those inevitable compromises necessary to placate a
powerful political group. (The same can be said about the justice courts manned
by justices of the peace. But there is a significant difference. There is need
for minor local courts outside cities having municipal courts. The political
power of justices of the peace preserved their courts as the ones to
meet the need. There is no real need to preserve county courts in addition to
circuit courts.) If the proposed constitution is adopted, the legislature will
probably chip away slowly at the county courts' jurisdiction until there is
nothing left except minor judicial duties.
The third major change in the proposed Article V is the sensible
provision in Section 1 that "all courts have jurisdiction as provided by law."
The present constitution spells out the jurisdiction of most of the courts.
Most of these provisions have been amended, the latest being a 1973 amendment
concerning the jurisdiction of the district court. Since only lawyers and
judges have an interest in the jurisdiction of the several courts, it is
sensible to leave the matter up to the legislature and not to burden the poor
voter with technical constitutional amendments. The proposed constitution ends
this burden. But as noted earlier, this shift in power from the people to the
legislature does not automatically change anything.
In the Citizen's Guide, it was stated that the citizen's
principal concerns with the judicial system should be, first, "the judges
— their qualifications, the method of their selection, and the degree of
their independence, that is, the length of their terms of office"; and, second,
"the efficient administration of the judicial system" (p. 43).
The proposed constitution makes no changes in the method of selecting
judges — they are to be elected; makes no changes in length of terms
— six years for appellate judges, four years for trial judges; but makes
two changes in qualifications — there is no longer either a minimum age or
a minimum length of time that a judge must have been a member of the bar.
The efficient administration of justice will be greatly enhanced by
adoption of the proposed constitution. In part this flows from the very concept
of a unified judicial system. Section 7 of Article V puts teeth into the
concept. (Perhaps "teeth" cannot be put into a concept; Section 7 puts teeth
into something, however.) The section directs the supreme court to "provide for
the efficient administration of the judicial system" and goes on to spell out
several powers of administration and rule-making, some of which are subject to
overriding by the legislature and some of which are not.
All in all, the proposed judiciary article is an example of good
constitutional revision. The article simplifies a complex predecessor, creates
a well-structured judicial system, and includes a maximum constitutional effort
to secure efficient judicial administration. The article is a model of change
for the better without changing the essence of a familiar system.
With one major and a few minor exceptions, the revision commission's
judicial article was much the same as the convention's proposal. The minor
exceptions were that the commission preserved county courts rather than provide
for circuit courts; did nothing about letting the state appeal in criminal
cases; and did not go into a lot of detail about the administration of the
judicial system. The difference between the commission's short section on
administration and the convention's somewhat more detailed section is that the
latter leaves more power in the legislature.
The major exception is that the revision commission opted for what is
called "merit selection" of appellate judges. Under this system, also known as
the "Missouri Plan," a nominating commission submits names to the governor, the
governor chooses one to fill a judicial vacancy, the appointee serves for a
short period and then runs on his record for retention for a full term and
subsequent full terms. The system is a compromise between a judiciary appointed
in theory on the basis of competence and a judiciary democratically chosen in
an ordinary political campaign. Under the system the voters do not choose a
judge initially in a popularity contest, but they retain the power to reject a
judge they do not like.
"Merit selection" is a political hot potato. The revision commission
recognized this by recommending that the voters be given the opportunity to
vote separately on an alternative system of election of appellate judges. Even
so, the commission recommended that those elections be nonpartisan. The
convention recognized that there is an alternative to election of judges but
did not seriously consider merit selection. (The convention's proposal permits
but does not require nonpartisan elections (Section 9 (d)). Indeed, some
delegates were so suspicious of merit selection that they worried whether the
statement that judges' are to be "elected in the manner prescribed by law" is a
Trojan horse. Other delegates pointed out that "elected" cannot be read to mean
Removal from Office. The Citizens' Guide opens this subject thus:
"The subject of removal from office is treated here separately in part because
there is a separate article on Impeachment (XV) — which, however, is not
limited to impeachment — and in part because there is a bewildering
collection of removal powers scattered all over the Constitution" (p. 44). With
reference to the proposed constitution, this sentence is still accurate except
that there is no longer a separate article on impeachment. Ironically, the
contents of that article are now "scattered all over the Constitution." It is
easy to see how this happened. Except for a section in the general provisions
article, removal provisions deal with the officers covered in the appropriate
article — legislative, executive, judicial, and local government. Thus,
each convention committee solved its own problem.
The present constitution has one particularly unfortunate provision in
the impeachment article. The drafters in 1875 gave the legislature power to
provide for means of removal other than impeachment, but used the words "trial
and removal." This greatly restricted the legislature's power. (See the
Citizens' Guide, pp. 45-46.) The convention's constitution took
care of this for all officers except one, thus perpetuating an anomaly. (The
Citizens' Guide mentions several anomalies in the present constitution.
See pp. 45-46.) The "trial and removal" restriction remains for the clerk of
the district court. He is removable only on "a jury finding of incompetence,
official misconduct, or other cause defined by law." (Article V, Section
The simplest way to set forth the removal provisions is by a table,
Each house may expel a member by two-thirds vote of the membership.
(Art. III, Sec. 9(h))
Constitutional elected state executive officers
Of the executive department
Impeachment (Art. III, Sec. 14)
of the executive branch (Railroad Commission)
As provided by law (Art. X, Sec. 6)
Constitutional appointed state executive officers of the executive
department (Secretary of State)
By the governor* (Art. IV, Sec. 2(b))
of the executive branch (Board of Pardons and Parole)
As provided by law (Art. X, Sec. 6)
Statutory elected state executive officers
No constitutional provision; therefore, as provided by law
Statutory appointed state executive officers of the executive
of the executive branch
By the governor* (Art. IV, Sec. 2(b))
(1) By the governor for cause, subject to senate rejection of the cause
(Art. IV, Sec. 2(d))
(2) As otherwise provided by law (Art. IV, Sec. 2(d))
Justices and judges Supreme Court
(1) Impeachment (Art. III, Sec. 14)
(2) By address (i.e., two-thirds of the members of each house) (Art. V,
Sec. 10 (a))
(3) As provided by law (Art. V, Section 10(b))
All other judges** and justices of the peace District attorneys
As provided by law (Art. V,
As provided by law (Art. V, Sec.
On a jury finding (Art. V, Sec. 12(c))
As provided by law (Art. IX, Sec. 3(d))
*It is unclear whether the legislature is able to provide a method of
removing an officer who serves "at the pleasure of the governor." These
officers are subject to impeachment, however.
**The county judge is to be a county officer. Until otherwise provided
by law, he is also to be a judge under Article V. Presumably, there can be
different methods of removal applicable to a county judge.
The proposed article on local government is perhaps potentially the most
far-reaching of the proposed constitution. There are several reasons for this.
It was pointed out earlier that changes in the structure of the state
government are perforce limited because the basic structure created at the end
of the 18th century has proved to be satisfactory. On the other hand, as noted
in the Citizens' Guide (p. 49), constitutional conventions traditionally
did not give much attention to local government. Indeed, the most important
section on local government in the present constitution, home rule for cities,
was added by amendment in 1912. Since the constitution was adopted, Texas has
changed from a primarily agricultural state to a major urban state. It should
come as no surprise to find that both the revision commission and the
convention made major changes in local government.
Interestingly enough, the present constitution has no single article on
local government. The article on counties, as of today, mostly concerns special
districts; the article on municipal corporations has something for everybody;
the essence of county government is found in the judiciary article; and
miscellaneous tidbits are scattered about in other articles. Both the
commission and the convention took care of this by gathering everything
together in one article called "Local Government."
Apart from bringing order out of confusion, a reviser was faced with
three much needed changes. One was to open the door to local self-government
for counties, something cities have had for 60 years. A second was to remove
the constitutional financial strait-jacket imposed on local governments,
particularly counties but also on cities and towns. The third was to find a way
to stop legislative meddling in local matters by the local law route. The
revision commission went all out in making the first two needed changes. As
noted earlier (p. 16), the convention went further than the commission in
trying to solve the problem of local laws. On county home rule and financial
freedom the convention backtracked. The differences in handling these three
problems are good examples of the effect of differences in the make-up of the
two bodies and of the influence of political pressure.
The obvious way to provide for self-government for counties is by a
home-rule provision like that for cities. But there are two difficulties, one
theoretical, the other practical. Cities are municipal corporations operating
under charters. It is no great change to provide that the voters in a city may
write their own charter under constitutional and statutory guidelines instead
of having the legislature write the charter. Counties, however, have
traditionally been viewed as agencies of the state carrying out state policy.
To give them home-rule charter power seems somewhat inconsistent with their
status as agents of the state. This theoretical point created no great problem
for the commission, but the convention, consisting of the legislature, seemed
to find this point something of a stumbling block. It may be that the
theoretical argument was something of a make-weight in opposing home rule, but
make-weight or not, the argument was made.
One suspects that the argument was make-weight because of the practical
politics of county government. There are a great many officeholders whose jobs
are frozen in the constitution. This means that only the people of the state as
a whole plus two-thirds of each house of the legislature can make any change in
those offices. A true home-rule provision would permit the people of a single
county to create a form of government that could abolish some or all of the
constitutional offices in that county. It is difficult to argue that the voters
of a county should be denied the opportunity to choose their own form of local
government. Hence the make-weight argument that the state must keep control
over its agents, the counties.
The revision commission preserved the present county structure but
provided that any county of 25,000 or more could adopt a home-rule charter. The
commission also provided that any county by referendum could freely make
changes in the government structure otherwise mandated by the constitution. The
convention, presumably as a result of the political pressure from county
governments, ditched home rule and limited the power to make changes in the
government structure. The limitations prevent any change in the county
commission — the new name for the commissioners court — except
increasing or decreasing the number of commissioners, and require the continued
election of any county officer who takes over the duties of an abolished
constitutional elective office — sheriff, treasurer, assessor-collector,
county clerk, county attorney, and constable. (See Section 3(e).) An effort was
made to permit the voters to decide by a separate vote whether to add a true
home-rule section. The effort failed. As a compromise, the convention proposed
to permit the voters to decide whether to add a section "permitting the voters
of a county to adopt a limited home rule charter." A charter would have been
"limited" because it could not be inconsistent with the constitution. The
constitution, of course, would have contained the very limitations just
discussed. (In the case of home rule cities, the only limitation on structure
in the present constitution is a maximum term of four years for officeholders.)
This home-rule compromise is not part of the proposed constitution.
Section 3 of the local government article governs the structure of
county government. Within the limitations mentioned earlier, Section 3(f) gives
the voters of a county considerable power to rearrange the structure of county
government. The county commission, presided over by the county judge, must be
preserved, of course, but the voters may increase its size. (A decrease is also
permitted, but it seems unlikely that many counties would opt for fewer than
four commissioners.) Thus, a populous county may decide that it would like its
county commission to be a county legislature with 15 or 25 or more members.
Likewise, a county could decide that it wants a county executive or county
manager, either elected or appointed. Thus, it will be possible to move in the
direction of efficient, modern county government. (There is a minor hooker in
all this. Section 3(d) states that the duties and functions of county officers
"are as provided by general law." Thus, the legislature might decree that the
county judge is the chief executive officer of the county. One would hope that
the legislature would not try this, for it would subvert the purpose of Section
There is more to home rule than letting the voters choose the structure
of their government. The important power is the ability to enact ordinances
without first getting authorization by statute. Under the present constitution,
home-rule cities can enact ordinances on any matter upon which the legislature
can legislate. The only limitations are that an ordinance cannot be
inconsistent with the constitution or laws of the state. A county, however, can
act only to the extent that the legislature grants it the power to act. Both
the revision commission and the convention permitted the voters of counties to
grant ordinance-making power to the county commission. Thus, Section 4 grants
counties almost the same home-rule law-making power that cities have. (The
section carefully provides that in the case of a conflict between a county
ordinance and a city or town ordinance, the latter prevails within the
Some people have argued that the powers contained in Sections 3(e) and 4
are adequate to give the voters significant home-rule power and that the
"limited home-rule" section now abandoned was not worth all the fuss. The
question is a close one, but there appear to be two lost advantages that would
have gone with limited home rule. It would be advantageous to have a charter as
such. As it is, a county desiring to change the structure of government may end
up with a confusion of separate changes in a series of referendums. A second
advantage that is lost is the power to force the county commission to act.
Section 4 permits voters to limit the law-making power of the commission but
gives the voters no power to act if the commission fails to enact a desired
ordinance. (Except by "throwing the rascals out.") With limited home rule, the
voters could provide for initiative and referendum. (Note that Section 4(a)
permits repeal of ordinances by initiative and referendum. The negative
implication is that the legislature cannot grant the power "to enact ordinances
by initiative and referendum.) It may be, however, that if there is a spate of
experimentation by voters exercising their powers under Section 3(e), the
legislature may become convinced that county voters would like to have the same
home-rule powers that cities have. This could lead eventually to the submission
of an amendment providing for complete home rule.
The second major revision concerning local government was the removal of
the financial strait-jacket imposed on local governments by the present
constitution. The principal limitation is a maximum ad valorem property tax
that counties, cities, and towns can levy. This maximum also serves as a limit
on the amount of debt that can be incurred since the debt must be retired out
of these limited tax revenues. Over the years the present constitution has been
amended to permit more money to be raised by property taxes, but the relief has
usually been in the nature of a grant of power to a special district —
road, conservation, water, hospital, fire protection, and the like. The long
and short of it is that the present constitution is absolutely chaotic in this
The revision commission swept away all of the constitutional chaos and
inserted only one significant constitutional limitation on local finances:
political subdivisions were to be permitted to issue general obligation bonds
only if the voters approved the bond issue. This would not have meant that
there would be no other limitations on taxing and borrowing powers of local
governments. The legislature would have had the power to set property tax
limits, to deny the power to levy particular taxes, to set debt limits, to
require voter approval of other types of bond issues, and the like.
It seems paradoxical that the convention delegates, legislators all,
backed way away from the commission's decision to leave the legislature with
full control over local taxes and debt. The convention's solution was to put
back into the constitution a fistful of limitations but to arrange the
limitations so ingeniously that, by one means or another, local governments
with the assistance of the legislature can do everything that would have been
permitted under the commission's proposal. It is not clear why the convention
followed this route; a good guess is that some delegates recognized the
political danger in proposing a new constitution with no restrictions on local
taxation and debt to replace one loaded down with restrictions. The danger
would be that a demagogic argument could, and surely would, be made: "There are
no tax limits in the proposed constitution; therefore, if it is adopted, your
taxes will go sky high."
In any event, the proposed constitution restores property tax limits of
$2.00 on the $100 of assessed value for cities and towns and $1.25 for
counties. (The present constitution sets maximums of $2.50 for home rule
cities, $1.50 for general law cities and towns, and $.80 for counties to which
can be added up to $.45 for special purposes. Counties can also levy an
additional property tax to retire road bonds.) Section 10 provides, however,
that this limitation does not apply to taxes levied to service debt and also
provides that any political subdivision can levy whatever additional property
tax is necessary to pay off debt. Finally, the section commands the legislature
to establish a maximum amount of debt payable from property taxes that each
class of political subdivision can incur. In one sense this is unnecessary, for
the legislature can do this without a mandate; in another sense the provision
has teeth in it, for a schedule provision sets maximum limits applicable until
changed by law. (See Section 40 of the Transition Schedule.)
Under the present constitution, as mentioned earlier, the special
district has been the device used for getting around rigid constitutional
property tax limits. Unfortunately, this has had to be done by constitutional
amendment. The proposed constitution preserves the special district device as
authorized by statute. Thus, the legislature willing, counties, cities, or
towns that reach their tax limit can enhance their taxing power by creating a
special district to levy an additional tax for a service that ordinarily would
be paid for out of regular revenues.
The third major revision problem in local government was to scuttle the
Texas tradition of enacting local laws. Since this is a matter of procedure in
the legislative process, the solution appears in the legislative article. The
manner in which the revision commission and the convention dealt with the
problem has already been described (pp. 15-16). The discussion is renewed here
because the focus should be on the relationship between prohibiting local laws
and the integrity of local self-government. The principal reason for a local
government article is to provide constitutional status for local governments.
Constitutional status is needed only to protect those governments from the
central government. Yet the central government must have the power to set
policy for the state as a whole. The point at which these competing needs clash
is in the enactment of general legislation affecting local governments. The
problem at this point is to find a way to be sure that the legislation is truly
"general," a matter of state policy, and not "local," a matter for the local
government to decide. Although this problem can be described in abstract blacks
and whites, the reality is fuzzy.
Both the revision commission and the convention tackled the problem
resolutely. In addition to the strengthening of the prohibition on local laws
in the legislative article, both bodies endeavored to reinforce the prohibition
by specifying in the local government article what could be done only by
general law and what could be done by general or local law. (The convention did
a better job of spelling this out.)
Apart from these three major areas of revision, some minor changes have
been made in the local government picture. By taking the county commissioners
court out of the judiciary article and putting it into the local government
article as the county commission, the revision commission and the convention
have ended the confusion that flows from giving an administrative/legislative
body attributes of a court. (Nobody was willing to deny the title "county
judge" to the presiding officer of this nonjudicial body.) Both the revision
commission and the convention lowered the minimum population for home-rule
cities from 5,000 to 1,500.
Both the commission and the convention tackled the problem of special
districts. (A "special district" is any political subdivision with a limited
purpose except that school districts are traditionally excluded from the
definition.) Everybody knows that Texas is saturated with special districts but
may not know that they crept into the constitution only as a means of getting
around its severe property tax restrictions. (Not all current special districts
have constitutional status; those that do not have no power to tax, however.)
The revision commission provided that special districts could be created only
under general law whereas the proposed constitution permits them under either
general or local law.
The revision commission forbade a special district if the service to be
performed could be provided by an existing political subdivision. This would
have greatly restricted the use of special districts. These districts are
obviously necessary where, as in the case of a river authority, their area of
service covers several political subdivisions; where the district is
co-extensive with or within part of an existing subdivision, there is no
necessity for the district except as a taxing device. The convention, having
preserved special districts as an exception to tax limits, could hardly follow
the commission route. Instead, Section 7 provides that counties, cities, and
towns can create special districts if authorized by general law and that under
these circumstances no local law can create a comparable special district
within the political subdivision. This serves much the same purpose as the
commission's prohibition — no special districts forced on a political
subdivision against its will.
Finally, both the revision commission and the convention provided for
intergovernmental cooperation. The commission had a self-operative section
confirming the power of a political subdivision to cooperate or contract with
other political subdivisions. The convention's version differs only in
retaining for the legislature a power to prescribe the manner of cooperation.
(Actually, the "power" is stated as a "duty"; since there is an existing
intergovernmental cooperation act, Section 11 is self-operative in effect.) The
convention also provided for consolidation of offices and transfer of functions
among political subdivisions within a geographical county. The commission
presumably omitted the provision because it is not necessary. This was a better
approach. Section 12 limits consolidations and transfers to a single county.
The commission's silence would have permitted the legislature to authorize
consolidations and transfers across county lines, thus providing more
All in all, the proposed local government article alone is almost worth
the entire revision effort. Texas is one of the many states that have long
decried the growth of power in Washington at the expense of the power of the
states. The main thrust of the revision effort in this area is to enhance the
power of local governments to run their own affairs and to decrease the need to
rely on Austin. Except for the convention's unwillingness to accept unlimited
county home rule, the revision effort to strengthen local government can be
called an almost total success.
CHAPTER V. Finance
"Slightly less than one-third of the total number of sections in the
present constitution are partially or wholly concerned with some aspect of
governmental finance, and out of this number no less than forty-eight relate
specifically to the subject of revenue and taxation." So wrote Professor Lynn
Anderson in 1957. Since then over 50 of the 90 amendments adopted have dealt
with financial matters. Both the revision commission and the convention
recognized the necessity for ending this obsession with severe constitutional
control over the power of government to raise and spend money. In the case of
local governments, as already discussed, the whole business was wrapped up in a
single section of the local government article. The proposed Article VIII on
finance wraps up most of the other problems. (Five of the nine sections in the
proposed education article deal with financial matters. A section on pensions
has been put into the article on general provisions.)
Much of the financial clutter in the present constitution has grown out
of the 1875 convention's prohibition against granting money or lending credit
to any person or corporation. It is axiomatic that a government may spend or
lend only for a public purpose. On the theory that constitution drafters do not
idly spin out meaningless provisions, one would suppose that a prohibition
against grants and loans means something different from spending or lending
only for a public purpose. If so, the meaning has to be that grants and loans
cannot be made even for public purposes. Certainly many people have accepted
this meaning, for there are provisions in the present constitution that call
for grants and loans for what almost everyone would concede to be a public
purpose. One example demonstrates this. Few people would argue that the
government cannot operate poor houses and orphanages. Welfare payments differ
only in that cash is provided instead of room and board. Yet somebody thought
it necessary to amend the constitution to permit welfare payments.
About 25 years ago the Texas courts began to equate grants and loans
with public purpose in the sense that if the grant or loan is for a public
purpose it is not a grant or loan. (If this sounds illogical, it is because it
is illogical.) For a long time this was all a bit tentative but in the last few
years the attorney general has consistently relied on the reasoning of these
cases in his upholding of grants or loans. The argument was made both to the
revision commission and to the convention that a constitutional requirement
that public money and credit could be used only for public purposes was
sufficient and that the grants and loans prohibition was redundant. The
argument was accepted, the prohibition was dropped, and all amendments related
to grants and loans were dropped. Apart from permitting the dropping of more
than 25 sections, silence concerning grants and loans will greatly decrease the
occasions for amending the new constitution.
Both the revision commission and the convention made another decision
that will decrease the occasion for amendments. Under the present constitution
the state may not incur debt. Therefore, water development bonds, veteran land
bonds, student loan bonds, and what have you require a constitutional amendment
to authorize them and further amendment to increase the maximum amount. ("What
have you" is not quite right. There are "gimmick" bonds that are not
technically state debt. They are discussed below.) There is a simple way to
solve this problem: provide that state debt may be incurred only if passed by a
two-thirds vote of each house and approved by the voters. This is what it takes
to amend the constitution. Thus, the limitation on incurring debt is just as
strong and a lot of unnecessary detail is kept out of the constitution. This is
the route taken by both the revision commission and the convention. (See
The commission and the convention also tackled the problem of "gimmick"
bonds. These are bonds which are not based on the state's credit but which, in
one way or another, end up being paid for by the taxpayers. Tuition bonds are a
good example. They are secured by the tuition paid by students at a state
college or university. If the state has to appropriate from tax revenues to
provide some of the operating costs of a college or university, the taxpayer is
in effect paying off the bonds because more money has to be appropriated than
would be the case if all tuition receipts could be used for operating costs.
Dormitory bonds are different. They are "revenue" bonds secured by the rent
charged for living in the dormitory. (If the dormitory operates at a loss and
the college subsidizes the dormitory, the bonds become revenue/gimmick bonds.)
The significance of all this is that the interest rate on state bonds is lower
than on either revenue or gimmick bonds. Moreover, in the case of gimmick bonds
the taxpayer is in effect paying the highest interest. In the case of revenue
bonds the people who use the service and pay the charges are the ones who pay
the higher interest.
The method used to kill off gimmick bonds is to define state debt so
that only revenue bonds are excluded. This means than any state bonds issued
will be general obligation bonds carrying the lower rate of interest. This also
means that the requirement for voter approval before going into debt cannot be
evaded. The revision commission said that state debt included debt "to be
repaid, directly or indirectly, from tax revenue." The convention rejected this
definition as too vague. Instead, the convention excluded revenue bonds from
state debt and tried hard to produce an airtight definition of a revenue bond
so that no one can slip a gimmick bond under the definition. (See Section 8(b).
See also Section 33(c) of the Transition Schedule. This provision temporarily
permits continued issuance of building use fee bonds, a gimmick bond used to
finance construction of college and university buildings.)
The major revision problem in finance was the property tax. In the case
of local governments, the principal users of that tax, a major problem was the
severe limits on permissible tax rates. The way in which this was solved was
discussed in the chapter on local government (pp. 31-32). The important
statewide problem under the present constitution is that the administration of
the property tax in Texas is a shambles. There are a number of reasons for
this, mostly flowing from provisions in the 1876 constitution. Both the
revision commission and the convention took the steps necessary to end the
present mess, but the differences in the steps taken are more pronounced than
in any other area of the two draft constitutions.
The major obstacle to a rational and fair property tax system is the
provision that all private property must be taxed in proportion to its
value. (The present constitution also states that taxation must be "equal and
uniform." Although there has been a lot of confused talk, particularly by
judges, the better view is that "equal and uniform" means the same as equal
protection of the laws — that is, no unreasonable classification for tax
purposes. In any event, "equal and uniform" can have no significance if
all property must be taxed in proportion to its value. But
note below how the convention ended up combining the two ideas.) What
automatically flows from this rigid rule is that the property tax system will
be administered unconstitutionally from day one. First, all property includes
real estate, which the assessor-collector can easily find; tangible personal
property, some of which, like automobiles and boats, is easy to find because it
is registered, and some of which, such as jewelry, furs, golf clubs, paintings,
and stamp collections, is not so easy to find; and intangible personal
property, most of which, such as stocks, bonds, mortgages, and bank accounts,
is invisible, moves around like mad, and can be made almost impossible to find.
Obviously, not all property is taxed. Second, all property is to be taxed in
proportion to its value. ("Value" here means "market value.") This is
not likely to happen in Texas because there are hundreds of assessors, all of
whom have their own appraisal rules, and hundreds of boards of equalization,
all of which have their own rules for equalizing appraisals.
Third, all property is to be taxed in proportion to its value.
This permits a taxing jurisdiction to assess property at some percentage of
appraised value. If each jurisdiction uses the same percentage, or assessment
ratio, of appraised value for all property within the jurisdiction, there is no
problem of inequality. (There is a problem of comparing tax burdens among
jurisdictions unless one knows the ratio used.) But if various tax rolls are
used to levy a statewide tax and the assessment ratios are different, the
statewide tax will not be levied equally in proportion to value. (The proposed
education article preserves a statewide property tax. Section 9(b) of Article
VII carefully provides: For purposes of this tax, the legislature shall
establish by law an assessment ratio that must be applied uniformly throughout
the state.) Finally, the present constitution states that "value shall be
ascertained as may be provided by law." It is not clear how far the legislature
can go in imposing statewide rules on assessors and equalization boards,
assuming that this would be politically feasible. In any event, the legislature
has never imposed statewide rules.
And so, everything rattles along unconstitutionally. But what about the
courts? They are no fools; they long ago devised various stumbling blocks that
make it extremely difficult to obtain relief from failure within a taxing
jurisdiction to tax all property or to appraise property consistently. The
courts may have done this partly to keep from getting mired down in a hopeless
mess. They probably also recognized that judicial relief could result in an
inability of governments to meet their payrolls because their tax rolls were
tied up in court.
The revision commission "solved" the constitutional property tax problem
by simply taking out the offending provision. (They also dropped "equal and
uniform.") This would have meant that the legislature could take any and all
steps necessary for a reasonable and rational tax system. Taxation of
intangibles could have been dropped. Taxation of tangible personal property
could have been dropped. Or taxation of all tangible property except
automobiles could have been dropped. Tangible property used in business could
have been taxed and other personal property dropped. All these classifications
are used one place or another in the United States. (Unfortunately, the
commission preserved restrictions on tax exemptions (see p. ), which would have
permitted an argument that failure to tax a class of property would be granting
The convention, paradoxically one might say, was not happy with leaving
all this up to the legislature. Instead, the convention took the opportunity to
make some legislative decisions and freeze them in the proposed new
constitution. The first decision was to go back almost to 1876. "Except as
otherwise permitted in this article, all real property and tangible personal
property must be taxed equally and uniformly in proportion to market value."
(Section 2(a). Note the omission of intangible property.) Having thus
threatened to restore some of the shambles, the convention took a number of
steps to undo the damage. First, they commanded the legislature to provide for
standards and procedures for property appraisal. Second, they provided that
these standards and procedures, when adopted, are to be uniform throughout the
state. Third, they gave any taxing authority the power to go into court to
obtain uniform countywide enforcement of these standards and procedures. (See
Fourth, the convention decreed that one agency would appraise all
property within a single county. This provision, Section 2(c), has been changed
slightly to specify that the manner of countywide appraisal is to be prescribed
by law. This will allow tailoring to fit the need. For example, in a rural
county the county assessor might do the appraising; in a county with most of
the population in one city, the city assessor might be given the job. Note,
however, that this single operation relates only to appraisal. Each city,
school district, special district, and the county itself can take the roll,
assess the property at some percentage (not over 100) of the appraised value,
and apply the tax rate to the assessed value. Thus, the difficulty of comparing
taxes from one taxing authority to another will remain, but within a single
county comparison will be much easier than it is today, for at least the
appraisals will tend to be consistent across the county; and if the statewide
standards are adhered to, statewide comparisons will be easier. (This will be
particularly important in evolving a formula for state aid to education. See p.
Fifth, the convention presumably recognized that their command to tax
all tangible property in proportion to market value would not necessarily end
the present administrative shambles, for they inserted an ingenious provision
designed to encourage — there is no known way to "compel" — courts to
enforce the constitutional command of equal taxation. Section 6 directly grants
a right of action to a property owner to sue for a refund of a property tax
paid under protest. The provision instructs the judge to issue any orders
necessary to ensure equal treatment under the law both for that taxpayer and
"for all property owners within the taxing authority." The convention was
careful, however, to reserve to the legislature the power to place restrictions
on the judicial duty to ensure equal treatment for all property owners. It
would not be appropriate to command a judge to go so far as to foul up the tax
system so that no taxes can be collected for an extended period.
Actually, even the 1876 constitution does not require all property to be
taxed. There are both constitutional exemptions of certain property and
constitutional permission to exempt certain other property. It would have been
logical for the revision commission to drop all exemptions, or at least those
that are only permissive, since the commission was proposing legislative power
to classify property. Instead, the commission preserved almost intact the
exemptions of the present document. (Naturally, good grammar was used; the
grammar of the exemption sections is among the most abominable in the present
document.) Apparently, this was for fear that anyone who has an exemption today
would be worried if he did not see it in the proposed document. Why the
commission prohibited any other exemptions is not so clear. The commission
generally did not exhibit the distrust of the legislature that the convention
did. Moreover, as noted earlier, this prohibition might have been stretched to
prohibit classification of property, which certainly was not intended.
The convention, of course, had to retain the exemptions because it had
gone back to the magic "all" property had to be taxed. By and large the
convention followed the commission's pattern, which in turn followed the
current pattern. The only major change is the tax exemption for the elderly.
Under both the present constitution and the commission's draft, the exemption
is optional with each taxing authority. The convention first made it mandatory
then later modified the exemption to limit it to those elderly whose income did
not exceed $7,500 a year or such larger income as subsequently set by law. The
64th Legislature in turn removed the income limitation. Thus, the proposed
Section 4(c) grants a mandatory exemption regardless of income.
The magic "all" also required the convention to mention special
treatment for certain property which would not be taxed "in proportion to
market value." One is an old chestnut that has been around since 1876. This one
permits railroad rolling stock to be assessed by the county where the home
office is located and the assessed value apportioned on the basis of trackage.
It is a minor matter from every point of view but the railroads were quite
excited about it and the delegates apparently did not feel particularly
strongly about it. (See Section 3(b).) A second one is the special treatment to
be accorded farm land in danger of being gobbled up by developers. A
self-executing provision added in 1966 to the present constitution requires a
lower appraisal than market value to encourage the farmer to continue in
business, something he might not be able to do if the assessor had to use the
high market value of land suitable for subdividing. The convention preserved
this concept in a more flexible form and added permission for the legislature
to do much the same thing for timber land. (See Section 3(a).) Two new items
were added. One permits property tax relief for property owners in need
(Section 5(a)); the other permits property tax relief to encourage historic
preservation (Section 5(b)).
Notwithstanding the wordiness of the present constitution, there is
little in it that inhibits the state from levying any non-property tax it
pleases. Both the revision commission and the convention, after removing
unnecessary words, left their documents pure so far as nonproperty taxes are
There is, of course, the problem of the dedicated highway tax.
Technically, the present Section 7-a of Article VIII does not restrict the
state's taxing power; rather the section restricts the appropriation power.
Thus, there is no requirement that there be a gasoline tax and no limit on its
size. But since three-fourths of the proceeds can be spent only for highways
and one-fourth for education, there is a significant practical restriction on
the state's taxing power. It makes little sense to utilize a taxing power to
raise money only to be spent contrary to the current needs of government.
(Texas has the lowest gasoline tax in the United States.)
The revision commission decided not to tamper with this sacred cow. Only
one substantive change was made; constructing and maintaining highways was to
be limited to a "State highway system." Initially, the convention also decided
not to tamper with the sacred cow. Indeed, the convention went back to Section
7-a's broader term "public roadways." There was, however, continuing agitation
over the dedicated tax in relation to the problem of mass transportation. The
proponents of mass transportation succeeded in getting a separate ballot item
on whether three-fourths of any increase in the gasoline tax should go
into the general fund rather than the highway fund. (One-fourth of any increase
would go into the Available School Fund.) Late in the convention a proposal was
offered to exclude a tax at the refinery from the definition of the dedicated
highway tax. This was accepted in return for dropping the separate submission
on proceeds from an increase in the gasoline tax. (See Section 7.) If the
proposed constitution is adopted, a small manufacturers' excise tax could be
levied that would produce a great deal more revenue than an increase in the
gasoline tax for the simple reason that most refinery products are consumed
outside of Texas. The proceeds from a refinery tax would, of course, go into
the general fund. (Some believe that this would be the case under the present
constitution; others disagree.)
There are three other tax provisions worth mentioning if only because of
the strange story surrounding each. One is Section l(b), which prohibits any
statewide property tax except (1) a tax of not more than 10 cents on the $100
assessed valuation for higher education (see p. 50) and (2) a tax of not more
than two cents for the State Building Fund. The interesting thing about this
prohibition is that it showed up suddenly in the waning days of the convention
after the finance article was supposed to have been put to bed. This is
particularly interesting because the present constitution prohibits the two
cent tax after December 31, 1976, and all other state property taxes after
December 31, 1978, except the 10 cent tax for higher education. This
phasing-out amendment was adopted as recently as 1968. One can only conclude
that the people who had originally pushed the phasing-out amendment did not
wake up to what was going on until late in the convention and had to make their
pitch to the Committee on Submission and Transition, which was charged with
trying to put together a final package that could command enough votes to get
Section 12 of the proposed article is an even stranger last minute
addition. It was first added on the last day of the convention as part of the
final package to be voted upon. This section constitutionally exempts from the
sales tax groceries, medicines, and agricultural supplies. (These are all
exempt today by statute.) The inclusion of this particular exemption appears to
have been part of the frantic end-of-convention compromising between the
"conservatives" and the "liberals." In the subsequent legislative effort to
rescue the work of the convention there was a strong inclination to avoid
fighting the convention battles all over again. Presumably, this explains the
preservation of this relatively unimportant limitation on taxing power.
Section 13 is a new section added by the 64th Legislature. The section
is both unimportant and a little bit silly. Moreover, it is the sort of obscure
provision that turns off the ordinary citizen who tries reading the
constitution. Indeed, in order to make the section intelligible to the reader
it is necessary to spin a long, almost a tall, tale.
Article 55c of the Revised Statutes permits the producers of most
agricultural commodities to agree by referendum that they are to be assessed a
certain percentage of the price at which they sell their commodity to a
processor. The processor collects the assessment by deducting the appropriate
amount from the amount due each producer for the commodities purchased. The
processor remits the assessment to a board elected by the producers. The board
spends the money for "programs of research, disease and insect control,
predator control, education, and promotion, designed to encourage the
production, marketing, and use of " the particular commodity. Once all this
machinery is set up, all producers of the commodity within a defined
geographical area are assessed, but any producer for whatever reason can demand
a refund of his assessment within two months after it is collected. So far so
good. This seems an eminently democratic self-help program under the aegis of
the state with a built-in "right to work" equivalent.
Unfortunately, a processor of sorghum refused to collect the assessment
authorized by the sorghum producers in 29 counties of West Texas. A lawsuit
ensued, culminating on January 15, 1975, in a 5-4 decision of the Texas Supreme
Court holding the assessment unconstitutional. (Conlen Grain and Mercantile,
Inc. v. Texas Grain Sorghum Producers Board, 519 S.W. 2d 620.) The majority
held that the assessment is really a tax, that the tax is an occupation tax,
and that it is unconstitutional because Section 1 of Article VIII of the
present constitution prohibits an occupation tax on agricultural pursuits. This
is not the place to analyze the majority opinion. The principal dissenting
opinion admirably demonstrates the wooden, legalistic nature of the majority's
What is important is the legislature's reaction to this decision.
Section 13 was added to the proposed finance article. (Incidentally, Section 13
includes "marine food" producers. Article 55c of the revised statutes does
not.) But the proposed constitution does not prohibit an occupation tax on
agricultural pursuits. Indeed, there is only one remaining reference to
occupation taxes in the proposed constitution. Section 7(c) provides that
one-fourth of net revenue "from state occupation taxes is dedicated to the
Available School Fund." Thus, the only conceivable purpose served by Section 13
is to be sure that no one ever argues that one-fourth of the assessments under
Article 55c have to go to the school fund.
"If the judges hand down a bad decision, lawyers should try some new
theories that might get the judges to change their minds. In short, back to the
courts rather than back to the constitutional drawing board." (Citizens'
Guide, p. 10). Here, it is not necessary to go that far. One need go back
only to the legislative drawing board. There are a number of ways to revise
Article 55c to get around the Sorghum case, assuming that the Supreme
Court's mind cannot be changed. The sad thing about this tale is that the
legislature opted for Section 13 instead of thinking through the problem. One
can only hope that this "quickie" is not an augury of legislative practice
under a new constitution. If it is, the new constitution will soon be burdened
down with insignificant amendments.
Except for these minor aberrations, the proposed finance article is a
great step forward. Indeed, one may say that this article, like the local
government article, is alone almost worth the revision effort. Unless future
legislatures react hastily and propose aberrations like Section 13, Professor
Anderson will have no occasion to repeat his 1957 characterization of the Texas
Special Limitations and Affirmations
(Articles VII and X)
This chapter deals with the grab-bag part of the proposed constitution.
Put another way, this chapter discusses the impurities that keep the proposed
constitution from being "pure." (Actually, most of the finance article is
"impure" in this sense. See the pure constitutions of Connecticut and Vermont.
Neither has a finance article or any substantive provisions concerning taxation
or debt.) The "pure" constitution sets up a limited government, but the
limitations are principally those that are traditionally in the Bill of Rights.
Put another way, a "pure" limited government is one that has a particular
limiting structure — separation of powers — and other general
limitations — a Bill of Rights — both designed to prevent arbitrary
and tyrannical government. A pure constitution does not limit the government's
policy-making power. The original state constitutions were pure.
The impure constitutions were those adopted from about the middle of the
19th Century to the Second World War. They came into being for two principal
reasons. One was that people were unhappy, not so much with the theory and
structure of their government as with what their governments had done. The
other reason was that state governments in the last half of the 19th Century
were notoriously corrupt. Thus, a constitutional convention in that period was
likely to have two mandates: change those terrible things the corrupt
government did and fix it so that they cannot be done again.
One can usually tell from reading one of these impure constitutions what
the problems of the day were. A prohibition on incurring debt means that the
legislature was borrowing too much; limitations on taxes mean that taxes had
gotten too high; prohibitions on grants and loans mean that legislatures had
been giving things or lending state credit to private groups; a long article on
railroads means that they had been taking advantage of the people; and so on.
Constitutions adopted since World War II represent a new trend. There is a
tendency to head back toward a pure constitution but a reluctance to go all the
way. The reasons for this are somewhat complex. For one thing, there is a
reluctance to make too great a change. For another, there is frequently a group
with a vested interest in some substantive item and that group's lobbying is
frequently stronger than any lobbying by the general public. Finally, and
probably most important, government is undoubtedly not so corrupt as it used to
be but it is still not trusted. Illogical as it may be, the voters do not trust
the people they choose to govern them. Which is to say that they do not trust
The impurities in a constitution are, therefore, limitations but with a
difference. They are not limitations to prevent arbitrary and tyrannical
government; they are limitations to protect the people from themselves in the
sense that the people do not trust themselves to choose representatives to do
what the majority wants. To distinguish these limitations from those in the
Bill of Rights, the term "special" is used.
There is a second new trend in recent constitutional revision. Except
for a general statement in a preamble, a pure constitution says nothing about
what the government should or must do. The newer constitutions tend to contain
affirmative commands to the government to do this or that. Again, the reasons
are somewhat complex. For one thing, government is accepted as a more important
factor in our day-to-day living than was the case at the end of the 18th
century. For another thing, familiarity with special limitations to prevent
evil things breeds a desire to put into the constitution some good things that
are to be done. Finally, if a constitutional convention can be unhappy about
what the government has done, it can be unhappy about what the government has
not done. (Consider equal treatment for the handicapped, discussed earlier (p.
).) It was not enough to prohibit discriminatory treatment by the government,
the traditional purpose of a bill of rights provision; also prohibited was
discrimination by private business. Traditionally, this is a policy choice to
be made by the legislature, not by a constitutional convention.) Both the
revision commission and the convention opted for affirmative provisions.
Education (Article VII). A requirement that the government
provide free education has always been an exception to the basic assumption
that a constitution should be silent about the affirmative duties of
government. Even the original pure state constitutions suggested that the
government ought to support education. Almost all subsequent constitutions
transformed the suggestion into a duty. The Texas constitution of 1876 is no
exception. What is somewhat exceptional is the amount of detail, principally
concerning higher education.
Actually, the detail is all about money. Seventeen of the 22 sections in
the education article of the present constitution are concerned wholly or
partly with financing education. (An 18th section deals with money but not
education. This concerns the minuscule dedicated capital funds for asylums.
Both the revision commission and the convention dropped it.) Moreover, the
convention's fierce battle over what the constitution should say about the
state's duty to provide free education was essentially a matter of money.
Paradoxically, the discussion that follows is less a matter of what affirmative
duty should be imposed on the state than a matter of who is to pay for
elementary and secondary education and who is to control the allocation of
money for higher education. Everybody apparently agrees that education is an
affirmative duty of the state.
On the elementary and secondary level the word is "Rodriguez." In the
Rodriguez case the United States Supreme Court held that the Equal
Protection Clause of the Fourteenth Amendment does not invalidate the Texas
system of financing education, but the decision was by a vote of five to four.
One of the five, Mr. Justice Stewart, in a separate concurring opinion observed
succinctly that the Texas system "can fairly be described as chaotic and
unjust." Mr. Justice Powell, speaking for the majority, contented himself with
a wordy disclaimer that anything he said implied that he and his colleagues
approved the Texas system.
The essence of the problem is that school districts have to finance
their share of the cost of education from the property tax, a source of revenue
that, even if the inequities discussed earlier (pp. 37-38) did not exist,
produces wide income disparities among school districts. The state contributes
to the cost of education but the distribution formula does not erase the
inequities. The revision commission, which began work just after
Rodriguez came down, took note of that opinion's criticism and by direct
constitutional language tried to meet the problem of financial inequity. The
first section of its education article repeated the present duty to "establish
and make suitable provision for the equitable support and maintenance of an
efficient system of free public schools" and added a duty "to provide equal
educational opportunity for each person in this State." The commission then
"In distributing State resources in support of the free public schools,
the Legislature shall ensure that the quality of education made available shall
not be based on wealth other than the wealth of the State as a whole and that
State supported educational programs shall recognize variations in the
backgrounds, needs, and abilities of all students. In distributing State
resources, the Legislature may take into account the variations in local tax
burden to support other local government services."
The convention was unable to reach a true consensus on this crucial
issue. The result was a confused command the meaning of which will have to
await many judicial interpretations. (This is not to imply that there would
have been no litigation over what the revision commission meant.) The first
section of Article VII repeats the substance of the present duty of the state
to provide for an "efficient system of free public schools" and adds this: "The
system must furnish each individual an equal educational opportunity, but a
school district may provide local enrichment of educational programs exceeding
the level provided by the state consistent with general law." This compromise
between the desire for equal educational opportunity and the unwillingness to
forego the opportunity for local communities to provide themselves with
something better than the state average defies logic and altogether satisfies
no one. Nevertheless, the norm of equal opportunity is stated and will
undoubtedly have weight with the legislature and the courts. On the other hand,
the exception means that a community will not be barred from spending some
extra money in an effort to improve educational quality. In a pluralistic,
still competitive society that thrives on innovation, such illogic has its
Both the revision commission and the convention retained the state board
of education but the convention specified that the board is to be elected
rather than continue the current option of election or appointment as
determined by law. (See Section 4. One keeps wondering whether the legislature
sitting as a convention was simply using the occasion to enact permanent laws.
The board is elected today, but why assume that people will never want an
appointed board.) Both the commission and the convention continued the system
of local control of schools and community junior colleges (Section 5). Both the
commission and the convention retained the permanent school fund and the
available school fund and provided that the latter is to consist of the income
from the permanent school fund and one-fourth of the state motor fuel tax and
one-fourth of state occupation taxes (Section 2).
On two school fund issues the commission and the convention diverged.
The present constitution requires the distribution of the available school fund
to counties according to the scholastic population. The commission removed this
requirement, presumably because it is an inflexible element potentially
inconsistent with equal educational opportunity. The convention put the
requirement back in (Section 2(d)). The present constitution provides for
county permanent school funds but a 1972 amendment permits the distribution of
a county's fund to the school districts within the county but to be used only
for capital purposes. The commission dropped the county fund on the theory that
the 1972 amendment made the whole business essentially statutory. The
convention put everything back in (Section 3).
Higher education also has constitutional status. The 1876 constitution
called for the establishment of a university "of the first class" to be called
the "University of Texas" and to include an "Agricultural, and Mechanical
Department" and created a permanent fund to provide income for that university.
Today Texas has a system of higher education of which the university "of the
first class" is only a part. Not surprisingly there was a lot of pulling and
hauling in both the revision commission and the convention over how far to go
in preserving the elite position of the university of the first class.
Both the commission and the convention found an easy solution to the
first-class problem. The commission's draft stated that the legislature "shall
provide for a system of higher education of the first class which shall include
The University of Texas System, the Texas A&M University System,
universities, colleges, community colleges, and other first class institutions
or systems as may be provided by law." Thus, by constitutional fiat everything
became "first class." (Whether the legislature would have been able to create
an additional system of higher education of the second class is not clear.) The
convention went along with this statement only up to the "which" clause
(Section 6), thereby leaving ambiguous whether there can be a mandated system
of the first class and another lesser system or whether every part of the
higher education system has to be first class.
Whether to share the permanent university fund with all other
institutions of the first class was a controversial issue. Actually, an effort
was made over 25 years ago to let all institutions share in the fund. This was
defeated, but the University of Texas and Texas A&M quickly got behind a
proposal to create an equivalent source of capital money for the other
institutions. (Until relatively recently, income from the permanent fund was
restricted to buildings and other capital items.) Thus, the present
constitution has a dedicated state property tax of 10c on $100 assessed
valuation for the other institutions. This means that they can float bonds for
capital construction and equipment since the dedicated tax guarantees them an
annual income to retire the bonds just as the income from the permanent
university fund can be pledged for bonds for capital construction and
Under the present arrangements, the University of Texas and Texas
A&M Systems receive more income from the permanent fund than the amount
available to the other institutions from the 10c tax. The revision commission
undertook to redress this imbalance by requiring the legislature to levy a
property tax sufficient to enable the other institutions to become first class
but in no event was the tax to be less than 10c. The convention initially
tackled the imbalance by providing for a mandatory annual appropriation equal
to the permanent-fund income the first year under the new constitution. Late in
the convention the formula was changed back to the 10c tax now in the
constitution but with two differences. The tax could be "reduced by law,"
something not permitted today; and the state was to establish an assessment
ratio to be applied statewide. (Today the ratio is the ratio used by each
county, which means that a taxpayer in County A pays twice as much state tax as
a taxpayer in County B if A has an assessment ratio of 40 percent and B of 20
percent, assuming that the two counties are consistent in their appraisals, a
relatively ridiculous assumption.) The 64th Legislature substituted "changed"
for "reduced," but went on to provide that the tax may not exceed 10c. (See
Section 9(b). A court will have an interesting time figuring out the purpose of
It is not all clear who was seeking to get what with this new
arrangement. The present tax yields considerably less than the permanent fund's
income and under Section 9(b) the tax can never exceed 10c, but can be
decreased. Under the initial convention proposal the other institutions would
never receive less than an amount equal to the current income from the
permanent fund. Under the final proposal, the legislature can set a high
assessment ratio and make the yield jump dramatically, leave things as are, or
reduce the tax rate. In the end, the other institutions are at the mercy of the
legislature to a greater extent than they are today.
The most fascinating thing about the entire revision effort is that the
attempt to eliminate unnecessary statutory detail failed in two areas, one
wholly concerned with higher education and the other, pensions, concerned
significantly with education (see pp. 52-53). In the case of higher education
neither the revision commission nor the convention could bring itself simply to
provide that the permanent university fund be preserved, that the other
institutions receive a dedicated appropriation, and that the respective income
and appropriation be pledged or spent as provided by law. Instead, there is a
great amount of detail concerning the investment of the permanent fund, the
allocation of the income between the UT and A&M systems, and the use of the
income within each system (Sections 7 and 8). As for the other higher
educational institutions, there is much less unnecessary detail in the section
concerning their dedicated fund (Section 9). The lessons, ironies, and
paradoxes of all this are too numerous to mention.
The Environment (Article X, Sections 7, 8, and 9). The
environment has become a source for affirmative constitutional commands. All
new constitutions adopted in this decade contain them; as time goes on,
environment provisions will probably be as ubiquitous as education provisions.
Both the revision commission and the convention provided that the environment
should be protected and commanded the legislature to enforce the policy. The
only difference between the two versions is that the commission used a lot of
environmental gobblydegook to express a simple principle. The convention's
version is Section 7 of Article X. Both the commission and the convention took
a conservative position and avoided making the policy self-enforcing by giving
citizens a right of action to protect the environment. (Some of the new
constitutional provisions in other states are self-enforcing.)
The present constitution contains a commitment to the conservation and
development of natural resources. This provision really serves only as a
preamble to a grant of power that authorized the creation of conservation
districts to get around tax limitations. Presumably the revision commission
dropped the commitment as well as the grant of power because the tax
limitations were also dropped. The convention put the commitment back in,
presumably at the instance of bond attorneys who, conservative as usual, want
to be perfectly sure that bond issues concerning water development are
constitutional. (See Section 8 of Article X.)
In 1962 a totally redundant amendment was adopted authorizing the
legislature to authorize coastal counties to regulate beaches. The revision
commission quite properly dropped the section but not without some flack from
people who mistakenly think that the amendment gives the people some rights to
use of the beaches. (Under traditional law beaches and submerged lands belong
to the state.) The battle was renewed in the convention with the result that a
wordy section was adopted saying a great deal about the public's right to
beaches but really having only one constitutionally operative provision —
a limitation on the power of the legislature to convey away the state's beaches
and submerged lands. (See Section 9 of Article X.)
Health Care (Article X, Section 24). As noted earlier, there may
be a developing trend to put more and more affirmative provisions into
constitutions. The convention came up with a surprise: "A goal of this state is
to provide every resident access to adequate, comprehensive health care as may
be provided by law." Note, however, that this section differs from the article
on education and the section on the environment; there is no command that the
legislature act. This is not to say that the section will be without value. It
will be a useful arguing point in support of health-care legislation.
Pensions (Article X, Section 21). Prior to April 22, 1975, the
present constitution had more than 3,000 words concerning pensions for
government employees. (The constitutions of Connecticut and Vermont are each
about 8,000 words in length.) None of these words was constitutionally
necessary in the first place, most of them were of no real constitutional
significance, and almost nothing would be lost if they were all repealed. The
revision commission recognized this and came up with 44 words that said it all
and more — more in the sense of more pension protection than the present
constitution then afforded. The commission's section read: "Any pension or
retirement system of this State, or of any political subdivision thereof, or of
any governmental agency of either, now in effect shall be continued. No funds
held pursuant to any such system shall be used for any purposes inconsistent
therewith." The words "shall be continued" went beyond the pre-April 22
constitution, for under it there were no words that clearly required the
continuation of a pension plan so far as future contributions were
The revision commission's short form did not fly. Instead, the
convention accepted a muddled, wordy section that violates rules of good
constitution-drafting. For example, the section begins: "The legislature may
enact...." There is no need to tell the legislature what it may do. A
sub-subsection states that the laws creating pension systems are to remain in
effect, substantially what the revision commission said. But two following
subsections command the legislature to create the very state and local pension
systems that the sub-subsection keeps in effect. (Section 21 also continues the
judicial retirement system.) The convention's section does represent a
significant 80 percent reduction in words from the detail in the pre-April 22
constitution. But the convention's 654 words really do nothing more than the
commission's 44 words. The only explanation offered for the insistence on so
much unnecessary detail was that it constitutes a necessary security blanket
for nervous public employees and teachers.
To compound the confusion over verbose statutory detail in the pension
section, the amendment adopted on April 22, 1975, repealed the more than 3,000
words mentioned above and substituted a section that is almost but not quite
the same as the section to be voted on in November 1975. The newly adopted
amendment states in part that the legislature shall establish the amount
employees contribute but that this must be at least six percent of current
compensation and that the state's contribution may not be less than six nor
more than 10 percent of current compensation. The amendment also states that
the legislature may appropriate additional necessary sums but only in "an
emergency, as determined by the governor." The proposed Section 21(b)(3)
provides that the legislature shall determine the amount to be contributed by
employees and the amount to be contributed by the state but that the state's
amount must be at least six percent of current compensation. The sub-subsection
also authorizes the legislature to appropriate additional necessary sums but
says nothing at all about an "emergency." If the proposed Article X is adopted,
Section 21 will supersede the current amendment on September 1, 1976.
Here is a beautiful example of what happens when people start putting
statutes in the constitution. All this detail about how much is to be
contributed and by whom is obviously a policy matter that is subject to change
from year to year. Indeed, the legislature as a convention made the policy
decision embodied in Sub-subsection (b)(3). Substantially the same people made
the policy decision embodied in Sub-subsection (b)(3) of the amendment of April
22. And those same people subsequently reaffirmed the convention's
Sub-subsection (b)(3) by proposing Section 21. A constitutional provision
worthy of the name ought to be good for at least a decade or two and preferably
for several decades. A constitutional provision with this amount of waffling
within the space of one year is not worthy of the name.
Special Limitations (Article X). In one sense the pension
provision is really a limitation, not an affirmative command. Although Section
21 commands the creation of pension systems, the systems exist and the net
effect of the proposal is to limit the legislature's power to repeal the
systems. There are other limitations in the present constitution that are
affirmative government policies preserved by a limitation on the legislature's
power to meddle with them. They differ from the special affirmations previously
discussed in that the latter are directions to the legislature to carry out a
general policy and the former are specific policies embodied in the
constitution and thereby removed from the legislature's policy-making
Both the revision commission and the convention retained most of these
special limitations unchanged in significant substance. These include community
property (Section 11); the protection of homesteads and personal property from
forced sale (Sections 12 and 13); the prohibition of wage garnishment (Section
14); the guarantee of mechanics' liens (Section 20); the preservation of local
option (Section 17); and the prohibition on granting preferences to schools of
medicine (Section 18). Retention of this last limitation is an example of the
power of a special-interest lobby. By all the rules of constitution-drafting,
this is a weird and ridiculous provision. (See Citizens' Guide, p. 72.)
No other state has anything like it. The first half of the present section
states that the "legislature may," which is totally unnecessary. The only
operative part is the prohibition on granting preferences to schools of
medicine. If this means anything it means that the legislature is prohibited
from giving sensible, reasonable preferences since unreasonable preferences are
prohibited by the Bill of Rights. (It is argued that Texas has higher
requirements for medical practice than many other states. This may be true, but
to give this section credit would require asserting that Texas has higher
requirements than any other state because no other state has a section like
this. Moreover, the implication is that the legislature calls for higher
requirements only because of the constitution.)
The revision commission retained the section unchanged and offered the
foregoing argument in support of the retention. The convention initially made
no change but the Style and Drafting Committee created a problem by proposing
to word the section correctly by simply providing that no law regulating the
practice of medicine could give a preference to any school of medicine. A royal
battle ensued. The physicians took the position that the section was as sacred
as the laws of the Medes and the Persians and that not a comma was to be
disturbed. The committee threatened to report the section unchanged but with a
note disclaiming any responsibility for the violation of the committee's
drafting rules. At the last minute a compromise was reached. By a bit of
semantic fakery — changing the improper "the legislature may" to the
proper "the legislature shall" — the committee's drafting conscience was
salved. In return the physicians permitted the committee to redraft the section
There were three provisions which the revision commission and the
convention treated differently. The revision commission dropped the usury
provision as unnecessary. (This is true; a provision does not mean a great deal
if it makes contracts usurious where the interest rate exceeds 10% unless the
legislature provides otherwise.) The convention retained the section (Section
22). The commission dropped the prohibition against lotteries and gift
enterprises and substituted a prohibition against the government running
lotteries or any other form of gambling. The convention retained the old
section but authorized the legislature to permit bingo and raffles by
charitable organizations (Section 19). The commission dropped the prohibition
on branch banking; the convention retained it and added a rather Quixotic
subsection: The legislature by law shall provide for the regulation of bank
holding companies. (See Section 16.) This represents a typical legislative
compromise over policy. The argument for dropping a prohibition on branch
banking is that banks get around the prohibition by creating holding companies.
The opponents of branch banking would like to prohibit bank holding companies,
but this is a little difficult because they are already here. Thus, the
compromise is to toss the holding company problem in the legislature's lap.
Having gone this far, the convention might as well have done what the revision
commission did — toss the whole banking problem in the legislature's laps
by deleting the constitutional prohibition.
The purist will deplore the retention of all these special limitations;
the political realist will recognize that once provisions like this get into a
constitution it is devilishly difficult to get them out. Neither the revision
commission nor the convention should be faulted for leaving in so many
limitations. They are among the familiar items that preserve the link with the
past and reassure people that changes are not too great. Both the commission
and the convention are to be praised for not adding a lot of new ones.
The Amending Process
Most state constitutions provide two methods for amending the document.
One is the process of submitting individual amendments for voter approval; the
other is the convention process. The present constitution provides only for
individual amendments. (The recent convention was a one-shot deal provided for
by a constitutional amendment that is now dead.)
Except for excessive detail the present section on individual amendments
is satisfactory. The revision commission retained the essence of the present
system but without the unnecessary detail. Under the system an amendment must
pass each house by a two-thirds vote and be approved by a majority of the
voters voting on the amendment. In addition to dropping the unnecessary detail
the commission inserted a minor requirement that, before voting on a proposed
amendment, the legislature was to obtain an opinion of the attorney general
concerning the significance of the amendment and particularly whether the
amendment would be necessary. It is well-known that the legislature on occasion
has proposed an unnecessary amendment simply to get a referendum approval by
the voters. The commission hoped that the attorney general might be able to
discourage this habit of unnecessarily amending the constitution.
Although the commission retained the essence of the present provision,
one change was made: amendments could be voted upon only at general elections.
The convention went back to the present option of submission at either a
general or a special election. The convention also rejected the idea of getting
the attorney general's opinion. The convention in turn made a change of its
own. A sentence was inserted limiting an amendment to the revision of a single
article "except that the amendment may revise parts of other articles that are
germane to the revision of the principal article." This was an interesting
example of the failure of the technical experts to convince the delegates that
they were probably making a mistake. The purpose of the sentence was to permit
a single amendment to cover more than one article. The technicians pointed out
that this can be done under the present constitution and that the new sentence,
if anything, would restrict the freedom of amendment because of the addition of
a requirement of germaneness.
The revision commission naturally added a section providing for
constitutional conventions. The proposal was close to the generally accepted
"good government" theory for constitutional revision by convention. First, it
was provided that, by majority vote of each house, the legislature could put on
the ballot the question whether to call a convention. Second, in any event the
question was to go on the ballot at least once every 20 years. Third, a
delegate was to be elected from each representative district. Fourth, justices,
judges, legislators, and elected state executive officers could not serve as
delegates. (This was a tactical error, obviously, since the commission's report
went to a convention consisting solely of legislators. Error or no, it was
"good government" theory.) Fifth, all housekeeping details were to be provided
for by the legislature. Sixth, the convention was to act by a majority vote of
its membership. Finally, the voters had the usual say on approving whatever the
In all honesty one can only say that the convention so mangled the
revision commission's proposal as to produce one of the worst constitutional
convention sections ever proposed. First, the convention required a two-thirds
vote in each house simply to put on the ballot the question whether to call a
convention. Second, the maximum interval between submitting the question for a
vote was increased from 20 to 30 years. Third, the legislature was to have the
privilege of specifying in the call whether the convention was to be unlimited
or restricted to revision of certain articles. This, of course, would permit
the legislature to control the convention process. An extreme example could be
a call permitting revision of every article except the article on the
legislature. Compare this with the 1970 Illinois constitution which permits the
voters to initiate constitutional amendments but only to amend the legislative
article. Illinois recognized that you cannot depend on an institution to reform
itself. The Texas convention of legislators seemed to be trying to prove this
by its proposed control over the revision process.
Fourth, the convention made two changes in the provisions concerning the
details of a convention. The legislature was to provide for the election of
delegates. This meant that the legislature would have been able to call for one
delegate from each representative district as the revision commission required
or any other arrangement. Indeed, some suspicious soul raised the question
whether the legislature could name itself as was the case with the 1974
convention. The experts were of the opinion that providing for the "election of
delegates" precluded naming the legislature as the convention. The other change
was to drop the restriction on who could be a delegate. Instead, this obscure
sentence went in: No public officer is prohibited from serving as a delegate by
virtue of any provision in this constitution. The only purpose of this sentence
is to be sure that Section 3(e) of proposed Article III, the dual
office-holding provision, does not prevent a legislator from serving as a
delegate to a constitutional convention. The sentence covers other public
officers, of course, but the wording is this broad in order to obscure the true
purpose. (Note, however, that under the proposal the legislature has the power
to prohibit certain public officers, including legislators, from serving as
Finally, the convention's proposal provided that a two-thirds vote of
the delegates would be required to submit anything to the voters. One may
assume that the failure of the 1974 convention is enough to convince people
that this is a bad provision. It perhaps is significant that no other state has
a two-thirds requirement; indeed, only a handful of states even specify that a
majority of all the delegates is required. But the argument is made that if it
takes a two-thirds vote to submit an amendment, a standard and generally
accepted rule, it should take a two-thirds vote to submit a constitution. There
are two answers to this, one practical, one theoretical. The theory is that the
two-thirds vote is to increase the difficulty of amending the constitution. A
convention is called, however, because change is wanted. It is illogical to
call for change and then make change difficult. (The Connecticut convention of
1965 is cited as one that required a two-thirds vote. The situation was
different. There was only one thing seriously wrong with the 1818 constitution
— it violated the one man-one vote rule. This absolutely had to be
changed; nothing else did. A two-thirds rule made it difficult to spoil a pure
constitution. Actually, the vote requirement was a rule of the Connecticut
convention adopted for wholly different reasons. By design the convention
consisted of an equal number of Republicans and Democrats. The rule was to
assure a general consensus of both parties. The resulting obstacle to change
was partly a fortunate by-product.)
The practical answer is demonstrated by the events of the final weeks of
the 1974 convention. It is one thing to work away to gather a two-thirds vote
on a single amendment; it is wholly different to gather a two-thirds vote on 10
or 20 or 30 items held together by only a weak common thread. In the former
situation the votes can normally be picked up by minor compromises of detail
because a substantial majority is sold on the main point. In the latter
situation there are many main points; compromises may have to be major, in the
course of which the substantial majority may melt away. Because of the
significance of the right-to-work issue, the compromising process in the 1974
convention is obscured. There is no way to prove it, but it seems likely that
the convention would have behaved much the same way if nobody had ever
mentioned right to work. There would have been one difference, however; the
convention would probably have adopted a constitution.
In the light of this criticism of the two-thirds vote requirement, it is
no surprise that Article XI as proposed by the Committee on Constitutional
Revision of the House of Representatives changed the requirement to a majority
of the delegates. This was accepted by the House, but when the proposal reached
the floor of the Senate an amendment was offered to restore the two-thirds
requirement. The floor leader for Article XI indicated that the change was not
significant and the amendment sailed through. When the package returned to the
House for concurrence in the Senate amendments, the House concurred. Although
there was some strong feeling on this in the House, the problem was presumably
not important enough to risk sending the package to a conference committee.
Thus, the proposal to be voted upon in November is the same article that the
In view of all this, the voter may wonder whether it is important to
vote for the proposed Article XI. As noted in Chapter I, a favorable vote for
only some of the separate items in the revision package will result in a skewed
constitution. (See Chapter VIII.) But, as also noted in Chapter I, there is an
exception. If proposed Article XI is turned down, nothing will be skewed. The
present Article XVII — less Section 2, which is fully executed and
obsolete — contains nothing that either has to be changed or that creates
inconsistencies with other articles. Thus, the voter can weigh the present
Article against the proposed article without worrying about ending up with a
What, then, are the factors to be weighed? First, it should be noted
that there is no absolute necessity for a section dealing with constitutional
conventions, particularly in a state that has what is sometimes called a "right
of revolution" provision. (Section 2 of Article I states that 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.") A study recently
made by the Texas Legislative Council demonstrates convincingly that under
Article XVII the legislature by statute can call for a vote on whether to hold
a constitutional convention and probably can call for a convention without a
referendum. Thus, approval of Article XI is not necessary in order to have a
convention sometime in the future. Second, if Article XI is adopted, Section 2
will govern many details of a convention including, of course, the two-thirds
vote requirement whereas under Article XVII, the legislature can do as it likes
including, of course, the two-thirds requirement. Thus, under Article XI
everyone knows what many of the requirements will be whereas under Article XVII
no one will know until the legislature acts. Third, if Article XI is adopted
and the legislature does not sooner submit a convention call, the question will
go on the ballot in the year 2006. If Article XVII is retained and the voters
cannot sooner induce the legislature to submit a convention call, the voters in
2006 and thereafter will still have to convince the legislature to submit a
call. On the basis of these factors, voters can make their choice.
The Mechanics of Adoption
There are many ways to revise a constitution and many ways to get the
revision adopted. The Texas story of Proposition 4, the Constitution Revision
Commission, the unsuccessful convention, and the successful legislative passage
of a package of amendments constituting a new constitution is unique in the
annals of state constitutional revision. Several states have, however, offered
the voters a new constitution to be voted upon more or less article by article.
Pennsylvania, for example, adopted a number of article-by-article amendments in
1966 and 1967 and then called a constitutional convention limited to the
remaining articles, which were those needing the most revision. The
convention's product was submitted in effect on an article-by-article basis and
adopted in 1968. In Florida a constitutional revision commission prepared a new
constitution and submitted it to the legislature. The legislature made changes
in the commission's proposals and in 1968 sent on to the voters a new
constitution less a judiciary article. (The legislature could not agree on a
new one; several years later they did and the revision process is now
complete.) The voters voted on the suffrage and local government articles
separately and the rest of the constitution, less a judiciary article, as a
Many knowledgeable people have argued for sometime that an
article-by-article submission of a new Texas constitution would be an almost
impossible task. The reason is that many of the articles contain matter that
properly belongs in another article. Moreover, in the process of revision
decisions are made to move things about purely as a matter of choice. For
example, a veto section can appropriately be placed in either the legislative
or the executive article. In the 1876 constitution the veto sections are in the
executive article, but in the proposed constitution the veto section is in the
Notwithstanding this inherent difficulty, the decision was made to try
to arrange for a series of amendments to the present constitution. This is no
problem in a case like the amending article, which is wholly self-contained and
unaffected by any other part of the constitution. Nor is there any significant
problem with the suffrage and education articles. The difficult problems are
with the three state-structure articles — legislative, executive, and
judicial — and the local government, finance, and general provisions
articles. If any one of these is not adopted, the existing article remains. If
inconsistencies are to be avoided, as they must, the proposed amendment must
contain what may be called a "what if" adoption schedule. (There is also a
Transition Schedule which will be part of the new constitution. This is
discussed later. If the convention's original package had passed, there would
have been an Adoption Schedule which would not have been a part of the new
constitution. An adoption schedule is limited to the mechanics of adoption and
is fully executed as soon as the adoption process is completed.)
The "what if " schedule is exceedingly complicated. Fortunately, the
voter need not worry about it. The whole business is technical and without
significant policy-implications. Consequently, the wording is cryptic and
relatively unintelligible to the layman. Nevertheless, the voter ought to know
what is involved in working all this out. First is the problem of what happens
if, say, the judiciary article is not adopted but the local government article
is. The "what if" schedule amends Sections 18, 20, 21, and 24 of the present
Article V by removing what is covered by the new local government article but
preserving what would have been covered by the proposed judiciary article had
it been adopted. Second, it is necessary to provide not only for the repeal of
the article or articles that are replaced by the new article but for the repeal
of germane sections in other articles. For example, adoption of the local
government article requires repeal of all or parts of six sections in the
present legislative article, seven in the present general provisions article,
and five in the present taxation and revenue article. All of this occurs
whether or not those articles are replaced by new legislative, general
provisions, and finance articles. In some instances simple repeal is not
possible; the section must be reworded and preserved. In other instances, the
preserved section must be transferred to another article. Finally, there will
be a prodigious task of rearranging and renumbering if some of the proposed
amendments are not adopted. Obviously, this cannot be done ahead of time.
Section 7 of the Transition Schedule gives the secretary of state and the
attorney general the duty to put everything together in an orderly way. The
section also gives them the power to make any other necessary nonsubstantive
changes. This will permit correction of any inadvertent errors that have crept
into the "what if " schedule. For example, Section 6 of the present Article XI
is obsolete, but it is repealed only if the local govenment article is adopted.
Even if that article is not adopted,
Section 6 should be dropped. (Section 6 authorizes local governments to
levy additional taxes to pay off any debts in existence on April 18, 1876. One
may safely assume that those debts have long since been paid off.)
Beyond the mechanics of adoption is the problem of transition from the
old constitution to the new. If most of the proposed amendments are adopted,
Texas will have a new constitution but not a new government. Most everything
will go on as before. It is traditional to make this clear somewhere in the new
constitution. A common practice is to put it in a schedule that appears at the
end of the main body of the constitution but is a part of it. Traditionally,
there was only a single schedule containing both transitional provisions and
provisions relating only to the mechanics of adoption. The result was
publication for decades of obsolete material. The 1970 Illinois convention came
up with the bright idea of having two schedules: an adoption schedule covering
the mechanics of adoption and a transition schedule covering everything else.
The convention further provided that the adoption schedule was not to be part
of the new constitution and that the various sections of the transition
schedule were to be dropped as they became obsolete. This approach was adopted
by the Texas convention and has been followed by the 64th Legislature. (As the
earlier discussion shows, there is no adoption schedule as such. This follows
because the submission is in the form of eight separate amendments to the
present constitution. For this reason each amendment sets forth the transition
schedule sections that are common to all articles so that whatever the
combination of successful amendments, there is a complete transition schedule.
(Note that, as in Illinois, the transition schedule opens with instructions for
deleting obsolete sections.)
The alert reader will note that there is no schedule to the 1876
constitution. The 1875 convention followed a different practice. The convention
adopted an ordinance — the term traditionally used for enactments by
conventions claiming sovereign power — concerning the adoption of the
constitution. The transitional provisions were scattered about in the
constitution. Section 6 of Article XI, discussed above, is an example. Another
example is the concluding part of Section 6 of Article VIII, which authorized
the first legislature under the 1876 constitution to appropriate money for a
period longer than two years. The most all-inclusive transition provision in a
constitution is the one that preserves general continuity from the old to the
new. This is Section 1 of the proposed Transition Schedule. In the typical
overwritten manner of the present constitution, general continuity is covered
by three sections: 18, 48, and 53 of Article XVI.
In a "pure" constitution, a general continuity section is almost the
only transition provision that is necessary. If the transition is from an old
constitution filled with statutory detail to a new constitution without the
same detail, there may be need for temporarily continuing the detail until the
legislature can enact laws replacing the repealed constitutional detail.
Section 4 of the proposed Transition Schedule temporarily continues all or part
of 25 sections of the present constitution. Other sections of the schedule
serve a similar purpose but are separated from Section 4 for one or another
technical reason. See, for example, Sections 8, 11, 32, and 35. Somewhat
analogous to the temporary continuation of a "statutory" constitutional
provision is the "enactment" of a temporary statute to get things going without
waiting for the first legislature to act under the new constitution. For
examples see Sections 13, 14, 15, and 40.
An unusual feature of the Transition Schedule is the large number of
sections dealing with the judiciary. See Sections 16 through 30. This is
principally necessary because the present constitution contains an inordinate
amount of detail concerning a judicial system that is considerably changed by
the proposed judiciary article. Some of these provisions are in the same
category as the temporary continuation of detail discussed above. But some of
the sections are of the utmost political significance. County judges and other
local judicial personnel worried about their status under the new constitution.
In order to reassure them, the Transition Schedule includes specific language
of continuation until otherwise changed by law. Much of this would be covered
by the general continuity section, but obviously the generalities of that
section are not so reassuring as a specific provision.
Another group that worries are the bond attorneys. They are never happy
with generalities, even those that say "all." For their benefit there are
several sections preserving everything that any bond attorney could conceivably
argue might be necessary. See Sections 2, 33, and 34.
In the drafting of a constitution, care should be taken to make it
easily intelligible to the layman whose document it is. The rule does not apply
to the Transition Schedule. This is the technical part of the constitution,
drafted for the use and benefit of the technicians who have real (or imagined)
technical problems. Once the decision is made to provide a method for dropping
these technical provisions after they have served their purpose, there is
little reason to resist the inclusion of unnecessary transition sections. The
proposed Transition Schedule is probably twice as long as is absolutely
essential, but why worry? The layman's document is the constitution itself. He
can leave the intricacies of a transition schedule to others. In any event, as
the years go by the Transition Schedule will get shorter and shorter until only
a section or two remain.
At this moment in the story of constitutional revision in Texas the
appropriate word is "miraculous." Many people doubted that Proposition 4 would
pass so handily in 1972. Many people doubted that the convention would accept
most of what the Constitutional Revision Commission recommended. And, surely,
almost nobody outside the legislature believed that it would pick up the pieces
from the shattered convention, put them back together essentially unchanged,
and send on to the voters the constitution that the commission and the
convention had wrought.
But it happened. Those who deserve medals as miracle workers are many
— the voters, who staunchly supported revision; the commission, which
produced an excellent draft constitution; the convention delegates who, though
unable to muster a two-thirds vote for final passage, in the main did accept
the new constitution; those concerned citizens who spoke up angrily after the
convention failed; and, above all, the 64th Legislature, which rescued the
product of much hard work.
The final chapter in the miracle story is up to the voters of Texas.
They can give themselves a new basic document of which they can be proud, but
only if they approve most of the eight propositions. To be specific, it is
necessary to adopt five of the propositions if the revision process is to be
considered either a success or substantially completed. These are the two
propositions (#1 and 2) covering the structure of state government, local
government (#6), finance (#5), and general provisions (#7). Defeat of any of
these will not only preserve some of the worst elements of the present
constitution, it will also preserve certain badly written details in the
present constitution. Proposition #3, suffrage, creates no problem if defeated,
but voting against it seems relatively fruitless since much of the present
article is unconstitutional and the proposed article covers just about
everything that is constitutionally permissible.
Education, Proposition #4, is a different matter. The proposed article
is shorter and much better written than the present article, but there is no
earthshaking change from the old to the new except for the recognition of the
Rodriguez case problem. This is enough to justify adoption, for if the
article is defeated, litigation will continue and the courts will eventually
force some element of equality on the "chaotic and unjust" Texas system unless
the legislature gets there first by doing what the proposed article calls for.
As noted in Chapter VII, Proposition #8 is the one proposition that can be
voted up or down without in the least preserving a skewed constitution with
something new accompanied by something old.
If the voters adopt the five crucial propositions and some or all of the
rest of them, the voters will have done three things. They will have expressed
their confidence in and thanks to the many dedicated Texans who have worked so
hard to draft a modern constitution. They will have acknowledged that Texas is
now an important urban state that needs a 20th century constitution. And they
will have moved Texas from the column of states with poor constitutions to the
column of states with good constitutions.
Basic Limitations: The Bill of Rights
[This is essentially Chapter II of the Citizens' Guide to the Texas
Constitution, published in 1972. The references to other articles of the
1876 constitution have been changed to conform to the proposed
There are three types of limitations on the power of a limited
government, which can be called basic, special, and derivative. Basic
limitations are aimed at controlling the power of government as such; special
limitations control the exercise of power in some substantive area; and
derivative limitations are those that flow from the manner in which the
government is set up and in which power is distributed between central and
local government. For example, a prohibition against taking property without
compensation is a basic limitation because the power to confiscate is totally
denied. A prohibition against a personal income tax is a special limitation
because it simply restricts the manner in which the government exercises its
power to raise money. A provision stating that the legislature may override a
governor's veto by a two-thirds vote is a derivative limitation both on
legislative power and gubernatorial power. This sort of characterization of
limitations is an oversimplification but is useful for purposes of
understanding a constitution.
Most of the basic limitations are found in the Bill of Rights. For
purposes of discussion it is useful to divide them into groups: those that
protect the public, those that protect property, those that protect people
accused of crimes and convicted of crimes, and those that are more
philosophical statements than specific limitations on the power of government.
It must be noted that these are rough groupings for discussion purposes
The sections in the Texas Bill of Rights designed to protect the general
public include Sections 3, 19, and 16, discussed below; Sections 8 and 27
covering the political freedoms of speech, press, assembly, and petition;
Sections 4 through 7 covering religion; and Sections 23 through 25, designed to
thwart tyranny, principally tyranny by military force. To some extent Section
12, Habeas Corpus, and Section 28, Suspension of Laws, are aimed at tyranny in
this sense, but are also general protections against any kind of arbitrary
government. The two principal provisions protecting the public are Section 3,*
the Texas equivalent of the Equal Protection Clause of the Fourteenth Amendment
of the United States
Constitution, and Section 19, the Texas equivalent of the Due Process
Clause of that amendment and of the Fifth Amendment. Finally, there is Section
16, which protects the public against arbitrary retroactive acts by the
government. The section provides, in part, that no "retroactive law...shall be
There are several general comments to be made about this group of
provisions protecting the public. First, they are relatively straightforward
and intelligible to the general reader. (The religious liberty sections are a
little wordy but still intelligible.) Second, paradoxically, these relatively
straightforward and simple statements of fundamental rights generate great
quantities of constitutional litigation. It is not possible in a few sentences
to elucidate the limits of protected speech, of freedom to practice religion,
of what is or is not a denial of equal protection or due process of law. A
great many judicial decisions have to be digested in order to spell out such
limits. Third, these great protections are so fundamental to the American
system of government that variations in wording from state to state are of
little significance. Indeed, the omission of one of them is usually not
significant, for the courts are likely to find some other provision that will
serve the purpose.
Fourth, many of these rights are binding on the State of Texas by virtue
of the Fourteenth Amendment of the United States Constitution, but it does not
follow that Texas should drop them from its Constitution. With both sets of
constitutional rights the citizen has two chances to win against the
government. The Texas courts may construe a Texas constitutional provision
against the Texas government when the United States Supreme Court would read
the Fourteenth Amendment in favor of the Texas government. The Texas government
cannot, however, appeal to the United States Supreme Court when a Texas court
construes the Texas Constitution against the Texas government. But if the Texas
courts rule against the citizen under similar provisions under the two
constitutions, the citizen can seek review by the United States Supreme Court,
and if it takes the case and rules in favor of the citizen, this is binding on
the Texas courts and the Texas government. Finally, it should be noted that the
right of suffrage belongs in this group of fundamental rights of the public.
But the details of suffrage are part of the mechanism of government and will be
discussed in that context.
In the preceding discussion, several sections, 3 (equal protection), 19
(due process), 28 (suspension of laws), and 16 (retroactive laws) were singled
out as protection against arbitrary government. These four are equally
applicable for the protection of property against arbitrary treatment. In
addition, there are two provisions specifically directed at property. One is
Section 16, forbidding laws impairing the obligation of contracts, and the
other Section 17, requiring the government to compensate for the taking of
property. Section 18 prohibiting imprisonment for debt is more a matter of
property protection — or lack of property, perhaps — than a criminal
Section 26 is a property provision but it is arbitrariness in reverse,
so to speak. That is, it is a constitutional prohibition against permitting the
citizen to handle his property as he may arbitrarily desire. The section
prohibits monopolies, perpetuities, primogeniture, and entailments. Everybody
knows what a monopoly is, but the other three terms are technical and normally
known only to lawyers and historians. A perpetuity is a device whereby a person
ties up his property so that his heirs and their heirs and on and on could use
the property but could never "own" it and therefore never sell it.
Primogeniture was an ancient rule that land descended to the oldest son.
Entailing an estate was, in effect, a perpetuity as described above but limited
to the owner's children and their children and so on. These devices were all
designed to preserve intact large estates. All three have long since died out
in this country, normally by statute or through the development of the common
law, but rarely by a constitutional provision. These tying-up-of-estate
prohibitions are historical anachronisms, unnecessary but harmless in a
In addition to the monopoly prohibition in Section 26, there are
prohibitions against exclusive privileges in Sections 3 and 17. The exclusive
privileges prohibition in Section 3 appears to be another way of saying all men
are equal; the exclusive privileges prohibition in Section 17 appears to be, in
part, another way of saying that no monopolies are to be handed out, and, in
part, a way to forestall a claim that a corporate charter is a contract that
cannot be impaired.
Thirteen of the 29 sections of the Bill of Rights are concerned, in
whole or in part, with the rights of those accused of crimes and those
convicted of crimes. Four of the thirteen, Sections 12, 16, 19, and 28, have
already been referred to. Section 12 guarantees the availability of the writ of
habeas corpus, an order issued by a judge to the official holding a person in
custody directing the official to establish that the person is held lawfully.
As noted earlier, the writ is one of the arsenal of weapons against arbitrary
government in general. It is also a weapon against unlawful or unconstitutional
incarceration of persons accused of crimes and persons alleged to have been
wrongfully convicted. The writ is frequently the means by which to establish
failure to obey other sections of the Bill of Rights.
Section 16, prohibiting retroactivity, includes two criminal forms of
retroactivity — bills of attainder and "ex post facto" laws. A bill of
attainder purports to punish a person without trial; an "ex post facto" law
makes something a crime which was not unlawful when done. Section 28 is the
prohibition against selective suspension of the laws. Section 19 is the Due
Process Clause. It serves as a catch-all weapon against any arbitrary criminal
process that is not specifically covered by other sections of the Bill of
The other nine sections dealing with criminal matters (9-11, 13-15,
20-22) cover the waterfront — from looking for evidence to treatment after
conviction. Section 9 is the traditional prohibition against unreasonable
searches and seizures. Section 10 gathers in all of the traditional
requirements for a fair trial: (a) indictment by grand jury in serious cases;
(b) right to know what the accusation is; (c) right to counsel; (d) trial by
jury; (e) right to a speedy and public trial; (f) right to have the witnesses
against the accused appear in person at the trial; (g) right to have the
government's help in getting witnesses for the accused to the trial; and (h)
right of the accused not to be forced to incriminate himself. (In the middle of
Section 10, there is an insignificant exception concerning antitrust; it is the
sort of clutter that easy and frequent amendment produces. See also Section 13
of Article V for additional provisions concerning the grand and trial
Section 11 guarantees the right to be let out on bail. (Section 11a,
permitting denial of bail to an accused previously twice convicted, is an
exception added in 1956; it is another example of a spur-of-the-moment,
piecemeal effort to deal with a complicated problem.) Section 13 is the
traditional prohibition against excessive bail and fines and against cruel or
unusual punishment. (The second sentence of Section 13 has no relation to the
first sentence but the two have been in tandem since 1836. The second sentence,
giving a right to a remedy in court, really adds nothing to the protection
afforded by Section 19's due process clause.)
Section 20, prohibiting banishment as a punishment, is a relatively rare
provision in state constitutions. Section 21, prohibiting the visiting of the
sins of the father on his children, so to speak, is more common in state
constitutions, but, nevertheless, an anachronism left over from early English
law. Section 14 is the traditional prohibition against being tried twice for
the same crime. (This prohibition is reinforced by Section 14 of the proposed
Article V, which denies the state the right of appeal in most criminal cases.)
Section 22 is a traditional requirement that especially good evidence be
presented to establish treason. This is another throwback to ancient days in
England when the crown trumped up treason charges to railroad political enemies
to prison or the scaffold.
One section of the group of criminal protections has been held until the
end because it covers a noncriminal matter. This is Section 15 which says that
the "right to trial by jury shall remain inviolate." Since Section 10
guarantees a right to a jury trial in criminal matters, one might conclude that
Section 15 is limited to noncriminal matters. The courts, however, have read
both sections together, a reading that helps to define "jury," since the words
"remain inviolate" in Section 15 preserve the criminal jury as it was at common
law. That is, twelve people who must agree in order to render a verdict. In
civil cases, Section 15 means that if a particular type of lawsuit at common
law was by jury, the right continues, but if, as was true of many kinds of
lawsuit, there was no jury, there still is no right to a jury. Section 13 of
Article V, however, permits the legislature to relax the rule of unanimity in
Section 15 has had a curious history, curious because it is rather rare
for a traditional Bill of Rights provision to be tinkered with and end up in a
statutory format. Section 15 originally said nothing about mentally ill
persons. At the time of the Constitutional Convention in 1875, there was a
statute on the books guaranteeing a right to jury trial before commitment to a
mental institution. A Supreme Court decision in 1917 declared invalid a new
statute substituting a commission of doctors for a jury in commitment
proceedings. (White v. White, Civ. App., 183 S.W. 369 (1916), affirmed
108 Tex. 570, 196 S.W. 508 (1917).) This decision can be criticized on three
grounds: (1) It seems unlikely that the delegates in 1875 meant to preserve
"inviolate" every statute on the books at the moment, even assuming that they
were aware of a right to jury trial in commitment proceedings; (2) the "remain
inviolate" language goes back to 1845 and it seems reasonable to construe the
words as referring to the common law
tradition, which does not appear to have included this particular type
of jury trial guarantee; and (3) it would have been reasonable to hold that the
power granted to the legislature to "regulate the same" included the power to
substitute a professional judgment for a layman's judgment as to mental
illness. Be that as it may, the solution to the problem was to put in an
exception limited to temporary commitments on the order of a county judge
without a jury. This simply compounded the error, for temporary commitments
could be made willy-nilly by a judge, but long-term commitments still required
a jury of laymen. Section 15-a, adopted in 1956, finally brought order out of
chaos. In retrospect it would seem that an effort should have been made to get
the White case overruled. Failing that, a better approach would have
been to make commitment proceedings subject to regulation by the
The fourth group of Bill of Rights provisions is the trio of
philosophical statements (Sections 1, 2 and 29). Although courts have
occasionally relied on one or more of these sections as a limitation on some
specific exercise of power by the government, in almost all cases the same
result could be obtained under another section of the Bill of Rights and in the
rare case where this would not be true, the decision should be read
skeptically. Nevertheless, philosophical statements are common in state
constitutions, but they should be read for what they are — philosophical
statements. If the people wish to limit their government, the limitations
should be more specific than the generalizations in these three sections.
All in all, the Texas Bill of Rights fairly tracks the traditional Bills
of Rights as they appear across the country. In any comprehensive revision of
the Constitution, some of the wordiness could be eliminated, things could be
arranged a little more logically, and some additions might be considered.
PROPOSED 1976 REVISION
OF THE TEXAS
*Section 3a, the Texas Equal Rights Amendment, was adopted in
November 1972 after this Guide had been published.
The proposed 1976 revision of the Texas Constitution presupposes that
all eight amendments on the November 4, 1975 ballot are adopted by the voters.
If fewer than all the amendments are adopted by the voters, the resulting
constitution would be a combination of those amendments which were adopted by
the voters, and the portions of the Constitution of 1876, as amended and as it
existed on November 4, 1975 which are not repealed or amended by the provisions
Humbly invoking the blessings of Almighty God, the people of the State
of Texas, do ordain and establish this Constitution.
BILL OF RIGHTS
That the general, great and essential principles of liberty and free
government may be recognized and established, we declare:
Section 1. Freedom and Sovereignty of State. 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 the right of local self-government, unimpaired to all
Sec. 2. Inherent Political Power; Republican Form of Government.
All political power is inherent in the people, and all free governments are
founded on their authority, and instituted for their benefit. The faith of the
people of Texas stands pledged to the preservation of a republican form of
government, and, subject to this limitation only, they have at all times the
inalienable right to alter, reform or abolish their government in such manner
as they may think expedient.
Sec. 3. Equal Rights. All free men, when they form a social
compact, have equal rights, and no man, or set of men, is entitled to exclusive
separate public emoluments, or privileges, but in consideration of public
Sec. 3a. Equality Under the Law. Equality under the law shall not
be denied or abridged because of sex, race, color, creed, or national origin.
This amendment is self-operative.
Sec. 4. Religious Tests. No religious test shall ever be required
as a qualification to any office, or public trust, in this State; nor shall any
one be excluded from holding office on account of his religious sentiments,
provided he acknowledge the existence of a Supreme Being.
Sec. 5. Witnesses Not Disqualified By Religious Beliefs; Oaths and
Affirmations. No person shall be disqualified to give evidence in any of
the Courts of this State on account of his religious opinions, or for the want
of any religious belief, but all oaths or affirmations shall be administered in
the mode most binding upon the conscience, and shall be taken subject to the
pains and penalties of perjury.
Sec. 6. Freedom of Worship. All men have a natural and
indefeasible right to worship Almighty God according to the dictates of their
own consciences. No man shall be compelled to attend, erect or support any
place of worship, or to maintain any ministry against his consent. No human
authority ought, in any case whatever, to control or interfere with the rights
of conscience in matters of religion, and no preference shall ever be given by
law to any religious society or mode of worship. But it shall be the duty of
the Legislature to pass such laws as may be necessary to protect equally every
religious denomination in the peaceable enjoyment of its own mode of public
Sec. 7. Appropriations For Sectarian Purposes. No money shall be
appropriated, or drawn from the Treasury for the benefit of any sect, or
religious society, theological or religious seminary; nor shall property
belonging to the State be appropriated for any such purposes.
Sec. 8. Freedom of Speech and Press; Libel. Every person shall be
at liberty to speak, write or publish his opinions on any subject, being
responsible for the abuse of that privilege; and no law shall ever be passed
curtailing the liberty of speech or of the press. In prosecutions for the
publication of papers, investigating the conduct of officers, or men in public
capacity, or when the matter published is proper for public information, the
truth thereof may be given in evidence. And in all indictments for libels, the
jury shall have the
right to determine the law and the facts, under the direction of the
court, as in other cases.
Sec. 9. Searches and Seizures. The people shall be secure in
their persons, houses, papers and possessions, from all unreasonable seizures
or searches, and no warrant to search any place, or to seize any person or
thing, shall issue without describing them as near as may be, nor without
probable cause, supported by oath or affirmation.
Sec. 10. Rights of Accused in Criminal Prosecutions. In all
criminal prosecutions the accused shall have a speedy public trial by an
impartial jury. He shall have the right to demand the nature and cause of the
accusation against him, and to have a copy thereof. He shall not be compelled
to give evidence against himself, and shall have the right of being heard by
himself or counsel, or both, shall be confronted by the witnesses against him
and shall have compulsory process for obtaining witnesses in his favor, except
that when the witness resides out of the State and the offense charged is a
violation of any of the anti-trust laws of this State, the defendant and the
State shall have the right to produce and have the evidence admitted by
deposition, under such rules and laws as the Legislature may hereafter provide;
and no person shall be held to answer for a criminal offense, unless on an
indictment of a grand jury, except in cases in which the punishment is by fine
or imprisonment, otherwise than in the penitentiary, in cases of impeachment,
and in cases arising in the army or navy, or in the militia, when in actual
service in time of war or public danger.
Sec. 11. Bail. All prisoners shall be bailable by sufficient
sureties, unless for capital offenses, when the proof is evident; but this
provision shall not be so construed as to prevent bail after indictment found
upon examination of the evidence, in such manner as may be prescribed by
Sec. 11a. Multiple Convictions; Denial of Bail. Any person
accused of a felony less than capital in this State, who has been theretofore
twice convicted of a felony, the second conviction being subsequent to the
first, both in point of time of commission of the offense and conviction
therefor may, after a hearing, and upon evidence substantially showing the
guilt of the accused, be denied bail pending trial, by any judge of a court of
record or magistrate in this State; provided, however, that if the accused is
not accorded a trial upon the accusation within sixty (60) days from the time
of his incarceration upon such charge, the order denying bail shall be
automatically set aside, unless a continuance is obtained upon the motion or
request of the accused; provided, further, that the right of appeal to a court
of appeals of this State is expressly accorded the accused for a review of any
judgment or order made hereunder.
Sec. 12. Habeas Corpus. The writ of habeas corpus is a writ of
right, and shall never be suspended. The Legislature shall enact laws to render
the remedy speedy and effectual.
Sec. 13. Excessive Bail or Fines; Cruel and Unusual Punishment;
Remedy By Due Course of Law. Excessive bail shall not be required, nor
excessive fines imposed, nor cruel or unusual punishment inflicted. All courts
shall be open, and every person for an injury done him, in his lands, goods,
person or reputation, shall have remedy by due course of law.
Sec. 14. Double Jeopardy. No person, for the same offense, shall
be twice put in jeopardy of life or liberty, nor shall a person be again put
upon trial for the same offense, after a verdict of not guilty in a court of
Sec. 15. Right of Trial By Jury. The right of trial by jury shall
remain inviolate. The Legislature shall pass such laws as may be needed to
regulate the same, and to maintain its purity and efficiency. Provided, that
the Legislature may provide for the temporary commitment, for observation
and/or treatment, of mentally ill persons not charged with a criminal offense,
for a period of time not to exceed ninety (90) days, by order of the
appropriate court without the necessity of a trial by jury.
Sec. 15-a. Commitment of Persons of Unsound Mind. No person shall
be committed as a person of unsound mind except on competent medical or
psychiatric testimony. The Legislature may enact all laws necessary to provide
for the trial, adjudication of insanity and commitment of persons of unsound
mind and to provide for a method of appeal from judgments rendered in such
cases. Such laws may provide for a waiver of trial by jury, in cases where the
person under inquiry has not been charged with the commission of a criminal
offense, by the concurrence of the person under inquiry, or his next of kin,
and an attorney ad litem appointed by a judge of the court where the trial is
being held, and shall provide for a method of service of notice of such trial
upon the person under inquiry and of his right to demand a trial by jury.
Sec. 16. Bills of Attainder; Ex Post Facto or Retroactive Laws;
Impairing Obligation of Contracts. No bill of attainder, ex post facto law,
retroactive law, or any law impairing the obligation of contracts, shall be
Sec. 17. Taking, Damaging or Destroying Property For Public Use;
Special Privileges and Immunities; Control of Privileges and Franchises. No
person's property shall be taken, damaged or destroyed for or applied to public
use without adequate compensation being made, unless by the consent of such
person; and, when taken, except for the use of the State, such compensation
shall be first made, or secured by a deposit of money; and no irrevocable or
uncontrollable grant of special privileges or immunities, shall be made; but
all privileges and franchises granted by the Legislature, or created under its
authority shall be subject to the control thereof.
Sec. 18. Imprisonment For Debt. No person shall ever be
imprisoned for debt.
Sec. 19. Deprivation of Life, Liberty, Etc.; Due Course of Law.
No citizen of this State shall be deprived of life, liberty, property,
privileges or immunities, or in any manner disfranchised, except by the due
course of the law of the land.
Sec. 20. Outlawry or Transportation For Offense. No citizen shall
be outlawed, nor shall any person be transported out of the State for any
offense committed within the same.
Sec. 21. Corruption of Blood; Forfeiture; Suicides. No conviction
shall work corruption of blood, or forfeiture of estate, and the estates of
those who destroy their own lives shall descend or vest as in case of natural
Sec. 22. Treason. Treason against the State shall consist only in
levying war against it, or adhering to its enemies, giving them aid and
comfort; and no person shall be convicted of treason except on the testimony of
two witnesses to the same overt act, or on confession in open court.
Sec. 23. Right To Keep and Bear Arms. Every citizen shall have
the right to keep and bear arms in the lawful defense of himself or the State;
but the Legislature shall have power, by law, to regulate the wearing of arms,
with a view to prevent crime.
Sec. 24. Military Subordinate To Civil Authority. The military
shall at all times be subordinate to the civil authority.
Sec. 25. Quartering Soldiers In Houses. No soldier shall in time
of peace be quartered in the house of any citizen without the consent of the
owner, nor in time of war but in a manner prescribed by law.
Sec. 26. Perpetuities and Monopolies; Primogeniture or
Entailments. Perpetuities and monopolies are contrary to the genius of a
free government, and shall never be allowed, nor shall the law of primogeniture
or entailments ever be in force in this State.
Sec. 27. Right of Assembly; Petition For Redress of Grievances.
The citizens shall have the right, in a peaceable manner, to assemble together
for their common good; and apply to those invested with the powers of
government for redress of grievances or other purposes, by petition, address or
Sec. 28. Suspension of Laws. No power of suspending laws in this
State shall be exercised except by the Legislature.
Sec. 29. Provisions of Bill of Rights Excepted From Powers of
Government; To Forever Remain Inviolate. To guard against transgressions of
the high powers herein delegated, we declare that everything in this "Bill of
Rights" is excepted out of the general powers of government, and shall forever
remain inviolate, and all laws contrary thereto, or to the following
provisions, shall be void.
SEPARATION OF POWERS
Section 1. Separation of Powers. The powers of government of the
State of Texas are divided among three distinct branches: legislative,
executive, and judicial. Except as otherwise authorized by this constitution,
members of one branch may not exercise any power properly attached to either of
Section 1. The Legislative Power. The legislative power of the
State of Texas is vested in a senate and a house of representatives, together
styled "The Legislature of Texas."
Sec. 2. Composition. The senate consists of 31 members. The house
of representatives consists of 150 members.
Sec. 3. Qualification of Members. (a) To be eligible to serve in
the senate, a person must be a qualified voter at least 25 years old and
immediately preceding election have been a resident of this state for five
years and of the senatorial district for one year.
(b) To be eligible to serve in the house, a person must be a qualified
voter at least 21 years old and immediately preceding election have been a
resident of this state for two years and of the representative district for one
(c) In the general election following a redistricting, a person is
eligible to the legislature from any new district that contains a part of the
district in which that person was eligible for election immediately preceding
the redistricting, but only if within 60 days after election that person
becomes a resident of the new district.
(d) The office of a member of the legislature becomes vacant if the
member changes residence from the district from which the member was elected
unless the change is to comply with Subsection (c) of this section.
(e) A member of the legislature may not hold any other office or
position of profit or trust under this state, the United States, or a foreign
government, except as a member of the National Guard, National Guard Reserve,
or any of the armed forces reserves of the United States, as a retired member
of the armed forces or of the armed forces reserves of the United States, or as
a notary public.
(f) A person holding a lucrative office under this state, the United
States, or a foreign government, is not eligible to serve in the legislature
during the term of that lucrative office.
Sec. 4. Election and Terms of Members. (a) Senators and
representatives are elected by the qualified voters of their respective
districts at a statewide general election.
(b) Each senator serves a term of four years beginning on the date
prescribed by law for convening the legislature in regular session following
election. The qualified voters elect a new senate after each statewide
senatorial redistricting. The senators shall decide by lot which serve
four-year terms and which serve two-year terms, so that one-half will be
elected every two years thereafter.
(c) Each representative serves a term of two years beginning on the date
prescribed by law for convening the legislature in regular session following
(d) Vacancies in the senate and house of representatives are filled by
special election in the manner prescribed by law.
Sec. 5. Redistricting. (a) Before December 15 following
publication of each federal decennial census, the legislature by law shall
divide the state into single-member senatorial, single-member representative,
and single-member congressional districts.
(b) Senatorial, representative, and congressional districts must be
composed of compact and contiguous territory and contain, respectively, as
nearly as practicable an equal number of inhabitants except that a county is
not to be divided unless necessary to prevent a significant population variance
(c) County lines are to be respected in drawing district lines. If the
population of a county is sufficient to provide for one or more districts, only
population in excess of that required for complete districts may be added to
population of other counties to form districts. If the excess population in a
county equals 50 percent or more of that required for a district, the excess
must be kept in a single district.
(d) If the Supreme Court of Texas or a federal court enters a final
decree concluding legal action that invalidates a redistricting plan or prior
to entry of the decree orders a redistricting plan into effect, the legislature
shall consider enacting a new redistricting plan. If the legislature is in
regular session on the day that the final decree is entered or the order takes
effect, a new redistricting bill may be passed only within 30 days thereafter.
If the final decree is entered or the order takes effect within 45 days prior
to the convening of a regular session, a new redistricting bill may be passed
only within the first 30 days after the convening of the session. If the decree
is entered or the order takes effect at any other time, the legislature
convenes in a redistricting special session within 14 days thereafter, either
on a date set by the secretary of state or on the 14th day.
(e) If the legislature fails to pass a new redistricting bill to replace
an invalidated plan or if a new redistricting bill does not become law, a
legislative redistricting board consisting of the lieutenant governor, speaker
of the house of representatives, attorney general, comptroller of public
accounts, and commissioner of the general land office shall convene. The board
shall convene within 10 days after the legislature fails to act or a new
redistricting bill fails to become law and within 30 days thereafter shall
redistrict the state. The legislature shall provide funds for the board's
clerical, technical, and other expenses.
Sec. 6. Compensation. (a) Compensation and allowances for members
of the legislature may not exceed the amounts recommended by the salary
commission established by this section. No change in compensation may take
effect prior to the first regular session following a statewide general
(b) The salary commission consists of nine members. The governor,
lieutenant governor, speaker of the house of representatives, attorney general,
and Chief Justice of Texas, acting together, appoint the members of the
commission and designate the chairman. Members must be selected on a
nonpartisan basis with due regard to representation of both sexes and of the
ethnic groups and geographical regions of the state. No person may be appointed
who is related by blood or marriage to, or who has or has had a business
association with, an appointing officer. No person may be appointed who has
served a full term on the commission.
(c) Members serve six-year terms. One-third of the members are appointed
every two years. The appointing officers fill vacancies for the unexpired
(d) No member while serving on the commission may hold any other public
office, be an employee of the state, or hold an office in a political
(e) The commission shall review legislative compensation and allowances
annually and at that time may recommend changes.
Sec. 7. Sessions. (a) The legislature shall convene in regular session
each year on a date prescribed by law. Sessions may not exceed 140 consecutive
days in odd-numbered years and 90 consecutive days in even-numbered years.
(b) Special sessions may not exceed 30 consecutive days. Veto sessions
may not exceed 15 consecutive days.
(c) Sessions of the legislature must be open to the public.
(d) Neither house may adjourn or recess for more than 10 days without
the consent of the other.
(e) The legislature shall meet at the seat of government unless
otherwise provided by law.
(f) The legislature by petition of three-fifths of the membership of
each house may convene in veto session on the first Monday following the 50th
day after adjournment solely to reconsider bills or resolutions for passage
over a veto. Bills or resolutions that may be reconsidered are (1) bills,
resolutions, or appropriation items that the governor vetoed within 10 days of
adjournment and that the legislature did not reconsider before adjournment and
(2) bills, resolutions, or appropriation items that, by virtue of action of the
governor after adjournment, did not become law.
Sec. 8. Organization and Procedure. (a) Each house is the judge
of the qualifications and election of its own members, but contested elections
are determined as provided by law.
(b) The legislature may provide by law for assembling and organizing
either or both houses prior to the convening of a regular session. If the
assembly precedes the regular session following a statewide general election,
the assembly is composed of the members of either or both houses of the next
(c) At an organizational assembly prior to or at the beginning of the
regular session in an odd-numbered year, each house by majority vote may adopt
or amend its rules of procedure. The legislature by majority vote of the
membership of each house shall adopt joint rules. Rules of procedure and joint
rules, once adopted, remain in effect until changed by the same or succeeding
(d) At an organizational assembly or on convening in regular session, at
the beginning of other sessions, and at the end of each session, the senate
shall elect from its members a president pro tempore who performs the duties of
lieutenant governor when the lieutenant governor is absent or disabled, or when
the office is temporarily vacant.
(e) At an organizational assembly prior to or at the beginning of the
regular session in an odd-numbered year, the house of representatives shall
elect a speaker from its members. The legislature may limit by law the number
of terms a person may serve as speaker.
(f) Two-thirds of the membership of each house constitutes a quorum for
transacting business, but fewer members may recess or adjourn from day to day
and may compel the attendance of absent members.
(g) Each house shall prepare and publish a journal of its proceedings
while in session. At the request of any three members present, the votes on any
question must be recorded in the journal.
(h) Each house may punish a member for disorderly conduct or other cause
deemed sufficient by that house and may expel a member by an affirmative
two-thirds vote of its membership, but not a second time for the same
Sec. 9. Legislative Immunity. (a) A member may not be questioned
in any other place for speech or debate during a legislative proceeding.
(b) Except for treason, felony, or breach of the peace, a member is
privileged from arrest while attending a session of the legislature and while
traveling to and from its meeting place for that purpose.
Sec. 10. Conflict or Interest. (a) No member may be appointed to
an office that is filled by the legislature.
(b) During the term for which elected, a member is ineligible for
appointment to (1) any civil office of profit under this state that is created
or the emoluments of which are substantially increased during that term, or (2)
any office or position the appointment to which is made by either house of the
legislature. The ineligibility terminates on the last day in December of the
last full calendar year of the member's term.
(c) A member privately interested in a bill, resolution, or other matter
before the legislature shall disclose that interest and not vote on the bill,
resolution, or other matter.
(d) No member may enter into a contract with the state during the term
for which the member is elected unless the contract is a renewal under an
existing state program.
Sec. 11. Bills and Resolutions. (a) A law may be enacted only by
(b) A bill may originate in either house. After a bill passes one house,
the other may amend or reject it, but neither house may so amend a bill as to
change its original purpose.
(c) A bill must be limited to a single subject. The subject must be
expressed in the title of the bill. If a bill that becomes law embraces a
subject that is not expressed in the title, only the portion of the law
concerning the subject not expressed in the title is void. A general
appropriations bill must be limited to the subject of appropriations. A
statutory revision bill must be limited to that subject.
(d) A bill, amendatory in form, must set out the complete section, as
amended, of the statute it amends.
(e) Before a house considers a bill, it must have been referred to a
committee of that house and reported at least five days before adjournment of
the session, but either house by a record affirmative four-fifths vote of the
members present and voting may suspend this five-day requirement.
(f) Before a bill becomes law, it must be read in each house on three
separate days. Either house by a record affirmative four-fifths vote of the
members present and voting may suspend this requirement.
(g) If a bill or resolution is defeated by a vote of either house, no
bill or resolution containing the same substance may be passed during the same
(h) The presiding officer of each house shall certify the final passage
of each bill and the final passage of each resolution that requires the
concurrence of both houses. The fact of certification must be recorded in the
(i) No law except general appropriations acts and redistricting acts may
take effect until 90 days after adjournment of the session at which it was
enacted. The legislature by a record affirmative two-thirds vote of the
membership of each house may authorize an earlier effective date.
Sec. 12. Action on Bills and Resolutions. (a) Each bill that
passes both houses of the legislature must be presented to the governor. The
governor may approve the bill by signing it, in which event it becomes a law.
The governor may veto the bill by returning it with objections to the house in
which it originated. That house shall enter the objections in its journal and
reconsider the bill for passage over the veto. If the bill passes that house by
a record affirmative three-fifths vote of the membership, it must be sent with
the governor's objections to the other house, which shall enter the objections
in its journal and reconsider the bill for passage over the veto. If the bill
likewise passes that house by a record affirmative three-fifths vote of the
membership, the bill becomes a law. If the governor fails to veto a bill within
10 days (Sundays excepted) after it is presented, the bill becomes a law. If
the legislature by its adjournment prevents a veto, a bill becomes a law unless
within 20 days after adjournment the governor files the bill and objections
with the secretary of state and gives public notice thereof by proclamation. If
the legislature meets in veto session, the secretary of state shall return the
bill with the governor's objections to the house in which the bill originated
for reconsideration in the manner provided above. Bills that become law are
filed with the secretary of state.
(b) The governor may veto any item of appropriation in a bill. Portions
of a bill not vetoed become law. An item vetoed, together with the governor's
objections, must be returned to the house in which the bill originated and may
become law in the same manner as a vetoed bill.
(c) Resolutions requiring the concurrence of both houses of the
legislature must be presented to the governor. The governor may approve a
resolution by signing it or permit it to become effective by filing it with the
secretary of state. The governor may disapprove a resolution by returning it to
the house in which it originated. In that case the resolution does not become
effective unless repassed by both houses in the same manner as a vetoed bill.
Presentation to the governor is not required if a resolution pertains to (1) an
amendment to the state or federal constitution, (2) a referendum, (3)
adjournment, (4) legislative rules, (5) an investigation or study, (6) internal
administration of the legislative branch, or (7) removal by address.
Sec. 13. Local and Special Laws. (a) Except as expressly
authorized by this constitution, the legislature may not enact a local or
special law if a general law is or can be made applicable. Whether a general
law is or can be made applicable is a question subject to judicial
(b) No local bill may be passed unless notice of the intention to
introduce the bill has been given in the affected locality in the manner
prescribed by law. Evidence that the notice was given must be exhibited in the
legislature before the bill is passed. Compliance with these notice
requirements is subject to judicial review.
(c) A local law must identify the area to which it applies by the name
or other official designation of the area.
(d) No bill may be considered and no law enacted that limits or defines
the area to which it applies by the use of population figures or other
statistical data except general laws that have statewide application and
classify all of one or more types of political subdivisions on the basis of
Sec. 14. Impeachment. (a) The house of representatives has the
sole power to conduct legislative investigations to determine the existence of
cause for impeachment and, by a record majority vote of its membership, to
impeach officers of the executive department, the Chief Justice of Texas, or
justices of the supreme court. The house of representatives by petition of a
majority of its members may convene and conduct impeachment proceedings.
(b) An officer against whom articles of impeachment have been preferred
is suspended from the exercise of the duties of the office during the pendency
of the impeachment. If the governor is suspended, the lieutenant governor acts
as governor. If the lieutenant governor is suspended, the president pro tempore
of the senate acts as lieutenant governor. In other cases the governor may make
a temporary appointment to fill the vacancy during suspension.
(c) Impeachments are tried by the senate. The senate shall convene for
this purpose upon presentation of articles of impeachment by the house of
representatives. Senators shall affirm or take an oath to try impartially the
party impeached. If the governor or lieutenant governor is tried, the Chief
Justice of Texas shall preside. A person may be convicted of impeachment
charges only by a record affirmative two-thirds vote of the membership of the
(d) On conviction by the senate, the office becomes vacant. A judgment
of conviction may not extend beyond removal from office and disqualification to
hold any office of honor, trust, or profit of this state. An impeached person,
whether convicted or acquitted, is amenable to prosecution, trial, judgment,
and punishment according to law.
Sec. 15. Advice and Consent of the Senate. An affirmative
two-thirds vote of the members present constitutes consent to any appointment
which this constitution requires to be with the advice and consent of the
senate. A person appointed to an office requiring the advice and consent of the
senate does not take office until confirmed by the senate unless the
appointment is made when the senate is not in session, in which case the person
ceases to serve on rejection by the senate or, if the appointment fails to be
voted on at the session to which the appointment is submitted, on adjournment
sine die. A person not confirmed by the senate may not be appointed again to
fill the same vacancy. An appointment made when the senate is not in session
must be submitted to the senate within 10 days after it convenes.
Section 1. Officers. The governor is the chief executive officer
of the state. Officers of the executive department of the executive branch are
the governor, lieutenant governor, attorney general, comptroller of public
accounts, treasurer, commissioner of the general land office, commissioner of
agriculture, secretary of state, and other officers as provided by law.
Sec. 2. Selection and Terms of Officers. (a) The governor,
lieutenant governor, attorney general, comptroller of public accounts,
treasurer, commissioner of the general land office, commissioner of
agriculture, and other elected officers of the executive department provided
for by law are elected by the qualified voters of the state for four-year
terms. Separate votes are cast for candidates for governor and lieutenant
governor. Quadrennial elections for officers of the executive department start
with the statewide general election in 1978.
(b) The secretary of state and other appointed officers of the executive
department are appointed by the governor with the advice and consent of the
senate and serve at the pleasure of the governor.
(c) The governor appoints officers to state agencies unless otherwise
provided by law. Officers appointed by the governor to state agencies are
appointed with the advice and consent of the senate.
(d) In addition to other procedures provided by law for the removal of
appointed officers, officers appointed by a governor with the advice and
consent of the senate and not serving at the pleasure of the governor may be
removed by the governor only for stated reasons. Prior to removal and not less
than 45 days prior to the required adjournment of a regular session or not more
than two days after the convening of a special session, the governor shall
advise the senate in writing of the reasons for the proposed removal. If within
45 days after receipt of the governor's statement of reasons the senate by
majority vote of the membership rejects the governor's proposed removal, the
governor may not remove the officer for those stated reasons.
(e) The term of an officer appointed by the governor to a statutory
state agency expires on a date prescribed by law, but the date must fall
between February 1 and May 1 of the odd-numbered year. The terms of officers of
multimember state agencies must be staggered.
(f) Only an appointed officer of a multimember statutory state agency
having appointed members may serve as its chairman, unless a law designates a
member of the executive department as chairman. The governor designates the
chairman in odd-numbered years to serve for a term of two years and in the
event of a vacancy designates a new chairman to serve for the remainder of the
term. If the governor designates a new appointee as chairman and the officer is
not confirmed by the senate, the governor designates a new chairman. If the
governor fails to designate the chairman prior to May 1, the appointed members
designate the chairman.
Sec. 4. Returns of Election. Election returns for executive
officers must be canvassed and certified in a public forum in the manner
prescribed by law.
Sec. 4. Governor's Eligibility and Installation. (a) To be
eligible to serve as governor, a person must be a citizen of the United States
at least 30 years old and have been a resident of the state for at least five
years immediately preceding election. A person serving as governor in the
second of two consecutive four-year terms is not eligible for a third
(b) The legislature shall provide an appropriation for assistance to a
governor-elect prior to inauguration. A governor-elect is entitled to receive
any information and reports that the incumbent governor is entitled to require
from officers and state agencies.
(c) The governor is inaugurated on the second Thursday in January or as
soon thereafter as practicable.
Sec. 5. Gubernatorial Succession. (a) If the governor-elect is
disqualified, dies, or refuses the office prior to inauguration, the lieutenant
governor-elect becomes governor for the full term. If the governor-elect fails
to assume office for any other reason, the lieutenant governor-elect acts as
governor. If the governor-elect does not assume office by the end of the first
year of the term, the lieutenant governor becomes governor and serves for the
remainder of the term.
(b) If after inauguration the office of governor becomes vacant, the
lieutenant governor becomes governor. An elected lieutenant governor who
becomes governor serves for the remainder of the term. An appointed lieutenant
governor who becomes governor serves until the next statewide general
(c) If the offices of both governor and lieutenant governor become
vacant, the speaker of the house of representatives, if eligible, becomes
governor and serves for the remainder of the term.
(d) The office of governor or lieutenant governor becomes vacant if the
person holding the office dies, resigns, becomes permanently disabled, is
removed from office, or comes to the end of a period of appointment.
(e) If the governor is absent from the state or temporarily disabled,
the lieutenant governor acts as governor until the governor returns or is no
longer disabled. If the lieutenant governor is also absent from the state or
temporarily disabled, the president pro tempore of the senate acts as governor
until either the governor or lieutenant governor returns or is no longer
(f) While serving or acting as governor a person receives only the
compensation payable to a governor.
(g) The legislature shall provide by law for further succession to the
office of governor.
Sec. 6. Disability of Elected Officers of Executive Department.
(a) The governor may notify the Chief Justice of Texas in writing of the
governor's temporary disability. If, because of the disability, the governor
fails to send notification to the chief justice, a majority of the following
officers may jointly send the notification: the lieutenant governor, attorney
general, comptroller of public accounts, treasurer, commissioner of the general
land office, commissioner of agriculture, speaker of the house of
representatives, and president pro tempore of the senate. A temporary
disability ends on the delivery to the chief justice of the governor's sworn
statement to that effect. The governor's sworn statement may not be denied by
another notification to the chief justice. The same procedure applies in the
case of the temporary disability of the lieutenant governor except that the
governor and not the lieutenant governor is one of the eight officers voting on
a notification. At the end of one year a temporary disability becomes a
permanent disability without a determination by the Supreme Court of Texas.
(b) Whether an elected officer of the executive department is
permanently disabled and unable to discharge the duties of office is to be
determined only by the Supreme Court of Texas in a proceeding conducted under
rules of procedure prescribed by that court. The proceeding may be initiated
only by a majority vote of the governor, lieutenant governor, attorney general,
comptroller of public accounts, treasurer, commissioner of the general land
office, commissioner of agriculture, speaker of the house of representatives,
and president pro tempore of the senate. If the supreme court determines that
the officer is permanently disabled and unable to discharge the duties of
office, it shall declare the office vacant.
Sec. 7. Compensation of Officers of Executive Department. The
compensation of the officers of the executive department may not be diminished
during their term of office. The governor has the use of the Governor's
Sec. 8. Dual Office Holding and Employment. An officer of the
executive department may not hold any other civil or corporate office and, for
compensation or the promise of compensation, may not practice any other
profession or hold any other employment.
Sec. 9. Commander-in-chief; Calling Forth Militia. The governor
is commander-in-chief of the military forces of the state except when they are
called into actual service of the United States. The governor may call forth
the militia to execute the laws of the state, suppress insurrections, repel
invasions, and protect life and property in cases of disasters.
Sec. 10. Execution of Laws; Conduct of Business With Other States,
The United States, and Foreign Nations. The governor shall cause the laws
to be faithfully executed and shall conduct, in person or in the manner
prescribed by law, all intercourse and business of the state with other states,
the United States, and foreign nations.
Sec. 11. Convening the Legislature in Special Session. The
governor, on extraordinary occasions, may convene the legislature in special
session, stating specifically the purpose of the session. The legislature may
consider only those matters that the governor specifies in the call or
subsequently presents to the legislature.
Sec. 12. Governor's Message. At the beginning of each legislative
session the governor shall, and at other times may, give the legislature
information on the condition of the state and may recommend legislative
Sec. 13. Chief Planning Officer. The governor is the chief
planning officer of the state and may require written information or written
reports from all state agencies and executive branch officers on any subject
relating to their duties, conditions, management, and expenditures.
Sec. 14. Budget Preparation. At the beginning of each session at
which appropriations are to be made for the general operation of the
government, the governor shall submit to the legislature a budget for all
proposed state expenditures for the applicable fiscal period.
Sec. 15. Budget Executive. (a) The legislature by law may
authorize or direct the governor to exercise fiscal control over the
expenditure of appropriated money.
(b) The governor shall ensure that items of appropriation for the
executive branch, except items for the other elective offices of the executive
department, are expended only as directed by the legislature. The legislature
by law may remove the exception.
Sec. 16. Administrative Reorganization. (a) At the regular
session held in odd-numbered years, the governor shall submit to the
legislature a report on the organization and efficiency of the executive
(b) In recommending plans for reorganization of the executive branch,
the governor may submit to the legislature one or more reorganization bills
limited to consolidating, abolishing, or transferring functions among statutory
state agencies in the executive branch. The legislature must consider those
bills but may amend them. A submitted reorganization bill, whether amended or
not, must be brought to a vote of each house during the session at which the
bill is submitted.
Sec. 17. Reprieves, Commutations, and Pardons; Remission of Fines and
Forfeitures. (a) The legislature shall prescribe by law the number of
members and the terms of office of the Board of Pardons and Paroles. The
governor, the Chief Justice of Texas, and the attorney general each appoint an
equal number of members of the board. Appointments are made with the advice and
consent of the senate. A vacancy is filled by the officer who made the original
(b) The governor may grant one reprieve in a capital case for a period
not to exceed 30 days. The governor, on the written signed recommendation and
advice of a majority of the Board of Pardons and Paroles, may grant pardons,
reprieves, and commutations of punishment; remit fines and forfeitures; and
revoke paroles and conditional pardons.
Sec. 18. Lieutenant Governor. The lieutenant governor must be
eligible to serve as governor. The lieutenant governor, by virtue of the
office, is president of the senate but may vote only to cast a deciding vote
when the senate is equally divided.
Sec. 19. Attorney General. The attorney general represents the
state in those civil actions before the Supreme Court of Texas in which the
state may be a party and, except as otherwise provided by law, represents the
state in all other civil actions in which the state may be a party. The
attorney general shall especially inquire into the charter rights of private
corporations and shall take such action in the courts as may be proper and
necessary to prevent a private corporation from exercising a power not
authorized by law. When sufficient cause exists and unless otherwise expressly
directed by law, the attorney general shall seek a judicial forfeiture of a
corporate charter. The attorney general shall give legal advice in writing to
the governor and other executive officers when requested by them and perform
such other duties as may be required by law. The attorney general has the
powers of the office as at common law except as expressly provided by law to
the contrary. The attorney general must be qualified to practice before the
Supreme Court of Texas.
Sec. 20. Commissioner of the General Land Office. The
commissioner of the general land office shall administer at the seat of
government a general land office in which all land titles that emanate from the
state must be registered and shall perform other duties as provided by law.
Sec. 21. Other Officers of the Executive Department. The
comptroller of public accounts, the treasurer, the commissioner of agriculture,
and the secretary of state shall perform the duties required by this
constitution and other duties as provided by law.
Sec. 22. Railroad Commission. The railroad commission consists of
three commissioners elected at a statewide general election for six-year terms.
One commissioner is elected every two years. The legislature by law may
prescribe qualifications for the office of commissioner. The commission has the
authority and performs the duties prescribed by law. The legislature by law may
abolish the commission.
Sec. 23. Vacancies in Statewide Elective Offices. Unless
otherwise provided by this constitution, vacancies in elective statewide
offices are filled by appointment of the governor with the advice and consent
of the senate. If the office of lieutenant governor becomes vacant, the
governor shall call the senate into session within 20 days to confirm the
appointment of a lieutenant governor. If the senate rejects the appointee, the
governor shall continue to submit appointments until a lieutenant governor is
confirmed. The senate shall then adjourn sine die. The term of an officer
appointed to a vacancy in an elective statewide office ends at the next
statewide general election.
Sec. 24. State Agencies. (a) State agencies include all boards,
commissions, departments, institutions, and other executive or administrative
agencies of state government. State agencies are a part of the executive branch
unless otherwise provided by law.
(b) Statutory state agencies with statewide jurisdiction having
appointed officers, except institutions related to higher education, have a
life of not more than 10 years unless renewed by law for not more than 10 years
at a time. Unless otherwise provided by law, appointed officers serving on the
effective date of a renewal continue to hold office for the terms for which
they were appointed. A bill to renew an agency or agencies, the life of any one
of which expires in less than two years from the beginning of the session in
which the bill was introduced, must be reported from committee in the house and
senate and brought to a vote in each house not less than 20 days before
(c) Subsection (b) of this section does not end the life of a state
agency with outstanding bonds unless the legislature by law first provides for
the administration of property under the control of the agency and makes
adequate provision for servicing the outstanding debt to ensure that the bond
obligations are not impaired.
Sec. 25. Seal of State. The seal of the state is a star of five
points encircled by olive and live oak branches and the words "The State of
Texas." The seal of the state is kept by the secretary of state and used by
that officer officially under the direction of the governor.
Section 1. Judicial Power. (a) The judicial power of the state is
vested in the judicial branch. The state unified judicial system is composed of
a supreme court, courts of appeals, district courts, and circuit courts. All
courts have jurisdiction as provided by law, but jurisdiction of courts of the
same level within the unified judicial system must be uniform throughout the
state. No courts may be created except those authorized by this article.
(b) The legislature by law may grant the supreme court the power to
answer questions of state law certified from a federal court.
(c) Courts that have original jurisdiction of criminal cases may (1)
subject to regulation by law, suspend imposition or execution of sentence and
place a defendant on probation, or (2) if authorized by law, modify, set aside,
or reimpose sentence.
Sec. 2. Supreme Court. The supreme court is the highest court of
the state and consists of the Chief Justice of Texas and at least eight other
justices. The court may sit en banc or in sections of not fewer than five
justices. The concurrence of a majority of the justices sitting is necessary to
decide a case.
Sec. 3. Courts of Appeals. The legislature by law shall establish
one or more districts and in each provide for a court of appeals consisting of
a chief judge and at least two other judges. The court may sit in sections if
authorized by law. The concurrence of a majority of the judges sitting is
necessary to decide a case.
Sec. 4. District Courts. The state is divided into judicial
districts, each with one district court having one or more judges. The
legislature from time to time may determine by law the number and location of
districts and the number of judges in each district.
Sec. 5. Circuit Courts. The legislature by general or local law
may provide for circuit courts, each with one or more judges, and from time to
time shall determine the number and location of circuit courts. A circuit court
may serve one or more counties, but no county may be served by more than one
Sec. 6. Other Courts. (a) The county courts in existence on
August 31, 1976, are continued unless otherwise provided by general or local
law. The county courts have jurisdiction as provided by general law. The county
judge is the presiding officer of the county court and has judicial functions
as provided by general law.
(b) The governing body of each county shall (1) divide the county from
time to time into not fewer than four nor more than eight justice precincts and
(2) establish and maintain one or more justice courts, each serving one or more
precincts in the manner prescribed by general law.
(c) Municipal courts may be established by general law or by charter as
authorized by general law.
Sec. 7. Court Administration and Rulemaking Authority. (a) The
supreme court shall provide for the efficient administration of the judicial
branch. The supreme court may delegate administrative authority to the chief
justice and the administrative judges.
(b) The supreme court may direct the transfer of cases between courts of
the same level. The supreme court may temporarily assign justices or judges
within or between levels.
(c) Each court of appeals district constitutes an administrative
district for the management of trial courts. The Chief Justice of Texas with
the advice and consent of the senate shall designate a judge to serve as the
administrative judge of each district.
(d) The legislature by law may provide for an agency of the judicial
branch to propose rules for administration of the unified judicial system and
to perform other duties as provided by law. Members of this agency are not
subject to the provisions of Article II of this constitution.
(e) A rule of administration may not be inconsistent with general law or
rules of procedure and does not take effect until approved by the supreme
(f) The supreme court may promulgate rules of civil procedure for all
courts but may not promulgate other procedural rules except as provided by law.
A rule of civil procedure promulgated by the court may not be inconsistent with
general law and has no effect if expressly disapproved by the legislature.
Sec. 8. Qualifications of Judges. To be eligible to serve as a
justice, judge, or justice of the peace, a person must be a citizen of the
United States, a resident of this state, and otherwise qualified as prescribed
by law. No person may serve as a justice or judge in the unified judicial
system unless licensed to practice law in this state.
Sec. 9. Selection and Terms of Judges. (a) The justices of the
supreme court are elected for six-year terms by the qualified voters of the
state. The judges of each court of appeals are elected for six-year terms by
the qualified voters of the court-of-appeals district. A district judge is
elected for a four-year term by the qualified voters of the judicial district.
A circuit judge is elected for a four-year term by the qualified voters within
the geographical area served by the circuit court. The legislature may
prescribe by law a mandatory retirement age for justices and judges of these
(b) A justice of the peace is elected for a four-year term by the
qualified voters of the precinct or precincts. A municipal court judge is
selected in the manner prescribed by law or by charter as authorized by
(c) A vacancy in the office of justice of the supreme court or judge of
a court of appeals, district court, or circuit court is filled by appointment
of the governor with the advice and consent of the senate. A vacancy in the
office of justice of the peace is filled by appointment of the governing body
of the county. A justice, judge, or justice of the peace appointed to a vacancy
serves until the next statewide general election.
(d) Justices, judges, and justices of the peace are elected in the
manner prescribed by law.
Sec. 10. Removal and Discipline of Judges. (a) The governor shall
remove a justice of the supreme court on the address of two-thirds of the
members of each house of the legislature for willful neglect of duty,
incompetency, oppression in office, or other reasonable cause not a sufficient
ground for impeachment.
(b) The legislature by law (1) shall provide for a judicial
qualifications commission and (2) may provide for the removal, suspension, or
censure of justices of the supreme court, judges, and justices of the
Sec. 11. District Attorneys. (a) In each district as defined by
law, the qualified voters elect a district attorney for a four-year term.
(b) Each county may be served by a district attorney. The district
attorney shall represent the state in all criminal cases in courts below the
level of court of appeals, except municipal courts or justice courts, but in
counties in which there is a county attorney, the duties and functions of the
district and county attorneys are as provided by law. The district attorney
performs other duties and functions provided by law.
(c) A district attorney must be licensed to practice law in this state.
Other qualifications of district attorneys, the grounds and procedure for
disqualification, suspension, and removal, and the filling of vacancies in
office are as provided by law.
Sec. 12. District Clerks. (a) The qualified voters of each county
elect a district clerk for a four-year term. The legislature may provide by law
for the election of a single clerk to perform the duties of both a county clerk
and a district clerk.
(b) The district clerk is the clerk of the district and circuit courts
of the county and performs such duties as provided by law.
(c) A clerk holding office under this section may be removed on a jury
finding of incompetence, official misconduct, or other cause defined by law. A
vacancy in the office is filled by appointment by the judges of the district
and circuit courts of the county in the manner prescribed by law. A clerk
appointed to a vacancy serves until the next statewide general election.
Sec. 13. Juries. (a) The grand jury is impaneled only in the
district court and consists of 12 persons. Nine members of a grand jury
constitute a quorum. At least nine members must concur in a bill of
(b) A party has a right to a trial by jury on demand made in the manner
prescribed by law. The legislature by law shall provide for trial juries.
(c) A jury verdict must be unanimous except that in civil cases the
legislature by law, or the supreme court by procedural rule promulgated under
this article, may authorize a jury verdict to be rendered by not less than
three-fourths of the jurors sitting in the case. Alternate jurors are not
permitted unless authorized by law.
Sec. 14. Appeal By State. Subject to the guarantees of the Bill
of Rights of this constitution, the state may appeal in a criminal case only
(1) from a trial court ruling that a law is unconstitutional or (2) from a
court of appeals decision to the supreme court, which appeal is at the
discretion of the supreme court unless otherwise provided by law.
Sec. 15. Appeal By Accused. (a) A person convicted of a criminal
offense in a trial court has a right to an appeal to the court having
(b) An appeal to the supreme court in a criminal case is at the
discretion of the supreme court unless otherwise provided by law.
Sec. 16. Appeals From Administrative Action. Notwithstanding any
provision of this constitution, the legislature may provide by law for
the method of appeal to the courts from rulings, decisions, or other actions of
state agencies or political subdivisions of the state.
Sec. 17. Financing. The state shall pay the basic compensation of
justices and judges of the unified judicial system and district attorneys and
shall pay such other expenses of the system as provided by law.
VOTER QUALIFICATIONS AND ELECTIONS
Section 1. Qualifications For Voting. (a) A citizen of the United
States who is at least 18 years old and who meets the registration and
residence requirements provided by law is a qualified voter unless the person
has been convicted of a felony and for that felony is incarcerated, on parole,
or on probation or unless the person is mentally incompetent as determined by a
(b) The legislature may provide by law for additional limitations on
voting by persons convicted of a felony.
(c) The legislature by law may require property ownership as an
additional qualification for voting (1) in an election held by a political
subdivision for the purpose of authorizing property taxes or issuing bonds that
are payable from property taxes or (2) in an election held by a special
district or authority that principally engages in special or limited activities
that have a disproportionate effect on property owners.
Sec. 2. Elections. (a) Voting by the people in all elections must
be by secret ballot.
(b) The legislature shall provide by law for residence, registration,
and absentee voting requirements, for the administration of elections, and for
the protection of the integrity of the electoral process.
(c) The general election for state and county officers is to be held in
even-numbered years on a date prescribed by law.
ARTICLE VII EDUCATION
Section 1. Equitable Support of Free Public Schools. A general
diffusion of knowledge being essential to the preservation of the liberties and
rights of the people, the legislature has the duty to establish and provide by
law for the equitable support and maintenance of an efficient system of free
public schools below the college level. The system must furnish each individual
an equal educational opportunity, but a school district may provide local
enrichment of educational programs exceeding the level provided by the state
consistent with general law.
Sec. 2. Permanent and Available School Funds. (a) The Permanent
School Fund consists of the property set apart, before or after this article
takes effect, for the support of free public schools; the proceeds from sale
and mineral development of the property; and the property purchased with the
(b) The Permanent School Fund is held in perpetual trust for the free
public schools. The principal of the fund may not be spent. The land of the
permanent fund may be sold, leased, or exchanged as provided by law. The State
Board of Education shall direct the investment of all Permanent School Fund
money in the manner prescribed by law.
(c) The Available School Fund consists of the income from the Permanent
School Fund and the state taxes dedicated to the Available School Fund.
(d) The State Board of Education shall set aside from the Available
School Fund an amount sufficient to provide the free textbooks, and other
instructional materials authorized by law, that are required in educational
programs in the free public schools. The remainder of the Available School Fund
must be distributed among the counties according to their respective scholastic
populations and must be spent for the support of free public schools in the
manner prescribed by law.
Sec. 3. County Public School Fund. (a) The County Public School
Fund of each county consists of the property transferred to the county for the
support of free public schools in that county, the proceeds from sale and
mineral development of the property, and the property purchased with the
(b) Title to the property is in the county and may not be divested by
limitation. A county may sell, lease, or exchange the property and invest the
proceeds in the manner prescribed by law. A county may annually spend the
income from the fund for the support of its free public schools in the manner
prescribed by law.
(c) The governing body of a county may transfer in the manner prescribed
by law all or part of the property in its County Public School Fund to the
school districts of the county for use by them to reduce their bonded
indebtedness or to make permanent improvements. State financial aid to a school
district may not be reduced because of a transfer under this subsection.
Sec. 4. State Board of Education. The legislature shall provide
by law for a State Board of Education composed of elected members.
Sec. 5. School and Community Junior College Districts. The
legislature shall provide by general law for school districts and community
junior college districts.
Sec. 6. First Class Colleges and Universities. The legislature
shall provide by law for a system of higher education of the first class.
Sec. 7. Permanent and Available University Funds. (a) The
Permanent University Fund consists of the land set apart for The University of
Texas by Article VII, Section 15, of the Constitution of 1876, as amended and
as it existed on November 4, 1975, and the Legislative Act of April 10, 1883;
the proceeds from sale and mineral development of the land; and the property
purchased with the proceeds.
(b) The Permanent University Fund is held in perpetual trust for the
people of Texas and for the use and benefit of The Texas A&M University
System and The University of Texas System. The principal of the fund may not be
spent. The board of regents of The University of Texas System may sell, lease,
exchange, or otherwise manage the assets of the fund in the manner prescribed
by law and shall invest all proceeds.
(c) The board of regents of The University of Texas System shall make
full disclosure of all investments as provided by law. The board of regents
shall invest the Permanent University Fund in accordance with generally
accepted fiduciary standards but may invest only in stocks or bonds,
debentures, or other obligations and may not:
(1) invest in the stock of a corporation that is not incorporated in the
(2) invest in the stock of a corporation unless:
(A) the corporation or its predecessors have paid dividends on common
stock for at least five years preceding investment; and
(B) the stock is either:
(i) listed on an exchange registered with the Securities and Exchange
Commission or its successor; or
(ii) issued by a bank or insurance company with capital and surplus of
not less than $5 million and admitted assets of not less than $50 million;
(3) invest more than one percent of the fund in the securities of any
(4) permit the fund to own more than five percent of the voting stock of
any one corporation; or
(5) invest in the obligations of any state or its political subdivisions
other than the State of Texas or its political subdivisions.
(d) The Available University Fund consists of the income from the
Permanent University Fund less administrative expense and less the net income
from grazing leases of permanent-fund land. Out of one-third of the Available
University Fund the legislature shall appropriate an annual sum sufficient to
service Permanent University Fund bonds or notes issued by the governing board
of The Texas A&M University System under authority of this article. The
legislature shall appropriate the remainder of that one-third for the support
and maintenance of Texas A&M University in the County of Brazos. Out of
two-thirds of the Available University Fund the legislature shall appropriate
an annual sum sufficient to service Permanent University Fund bonds or notes
issued by the board of regents of The University of Texas System under
authority of this article. The legislature shall appropriate the remainder of
that two-thirds and the net income from grazing leases of permanent-fund land
for the support and maintenance of The University of Texas at Austin.
Sec. 8. Permanent University Fund Bonds and Notes. (a) The
governing boards of The Texas A&M University System and The University of
Texas System each may issue negotiable bonds or notes for the benefit of the
institutions included in their respective systems on the date this article is
adopted. The aggregate principal amount of bonds and notes issued for The Texas
A&M University System may not exceed 10 percent, and for The University of
Texas System may not exceed 20 percent, of the value of the Permanent
University Fund exclusive of real estate at the time of any issuance. The bonds
or notes may be issued to acquire real property, construct permanent
improvements, repair or rehabilitate existing permanent improvements, acquire
library books or library materials, acquire capital equipment, or refund
(b) Bonds and notes issued under this section are payable only out of
the Available University Fund and must mature not more than 30 years from the
date of issuance.
(c) The governing boards of The Texas A&M University System and The
University of Texas System each may pledge in whole or in part their respective
interests in the Available University Fund to secure payment of bonds or notes
issued under this section. No bonds or notes may be issued under this section
without the prior approval of the attorney general. After approval the bonds
and notes are incontestable.
Sec. 9. Higher Education Fund For Texas and Bonds and Notes. (a)
There is hereby established the Higher Education Fund for Texas.
(b) A state ad valorem tax is hereby levied on real property and
tangible personal property of 10 cents on the $100 assessed valuation for the
Higher Education Fund for Texas. The rate of the tax may be changed by law, but
not to exceed 10 cents on the $100 assessed valuation. For purposes of this
tax, the legislature shall establish by law an assessment ratio that must be
applied uniformly throughout the state.
(c) The legislature shall provide by law for an annual assessment of
needs, according to which the fund is to be allocated among the state systems
of higher education (except institutions in The University of Texas System and
The Texas A&M University System) and the state senior institutions not
included in a system. The fund must be allocated under equitable formulas based
on statewide higher education needs. If in any year the total allocations
are less than the revenue generated by the tax levied in this section,
the surplus revenue accumulates in the fund and is to be invested as provided
by law. Income from the fund is allocated as provided in this subsection.
(d) The fund, income from the fund, or proceeds from bonds or notes
issued under this section may be used to acquire real property, construct
permanent improvements, repair or rehabilitate existing permanent improvements,
acquire library books or library materials, acquire capital equipment, or
service debt incurred under this section.
(e) The governing boards of the state systems of higher education
(except institutions in The University of Texas System and The Texas A&M
University System) and the governing boards of the state senior institutions
not included in a system may issue negotiable bonds or notes for the benefit of
their systems or institutions based on allocations to their systems or
institutions under Subsection (c). Bonds or notes issued under this subsection
are secured by and payable only from the fund. Bonds or notes may be issued to
refund bonds issued under this section. No bonds or notes may be issued under
this section without the prior approval of the attorney general. After approval
the bonds and notes are incontestable.
(f) The Legislature may provide by law for allocation of a portion of
the fund to state-owned vocational and technical institutes that do not grant
ARTICLE VIII. FINANCE
Section 1. State Taxation. (a) State taxes may be levied and
by general law.
(b) No state ad valorem tax on real property or tangible personal
property may be levied for state purposes except (1) the tax of 10 cents on the
$100 assessed valuation levied under Article VII of this constitution and (2) a
tax of two cents on the $100 assessed valuation that is hereby levied to
provide funds for the State Building Fund. This two-cent tax may be reduced by
Sec. 2. Ad Valorem Taxation. (a) Except as otherwise permitted in
this article, all real property and tangible personal property must be taxed
equally and uniformly in proportion to market value.
(b) The legislature by general law shall provide for the establishment
and enforcement of standards and procedures for appraisal of property for ad
valorem tax purposes. These standards and procedures must be applied uniformly
throughout the state. Except as limited by general law, a taxing authority
levying a tax on property within a county may seek countywide enforcement of
these standards and procedures.
(c) Each county shall provide for appraisal of all taxable property
within its boundaries in the manner prescribed by law. Each taxing authority
imposing a tax on property within the county shall tax in proportion to, but
not in excess of, this appraisal. The costs and expenses of appraisals are to
be allocated among the taxing authorities in the manner prescribed by general
(d) Ad valorem taxes delinquent less than 10 years may not be
Sec. 3. Ad Valorem Tax Exceptions. (a) The legislature by general
law shall establish separate formulas for appraising land to promote the
preservation of open-space land devoted to farm or ranch purposes and by
general law may establish separate formulas for appraising land to promote the
preservation of forest land devoted to timber production. The legislature by
general law may provide limitations and impose sanctions in furtherance of the
appraisal policy of this subsection.
(b) The legislature by general law may permit the rolling stock of
railroads to be assessed for ad valorem tax purposes by the county in which the
principal office of the railroad is located and require the comptroller of
public accounts to apportion on the basis of track mileage the assessed value
of the rolling stock among the counties through which the railroad runs.
Sec. 4. Ad Valorem Tax Exemptions. (a) The following property is
exempt from ad valorem taxation:
(1) property of the state except as otherwise provided by law;
(2) property of political subdivisions of the state used for public
(3) household goods not used for the production of income;
(4) personal effects not used for the production of income; and
(5) farm products in the hands of the producer and family supplies for
home and farm use.
(b) Each residential homestead is exempt from state ad valorem taxation
in the amount of $3,000 of appraised value. The legislature by law may increase
(c) The residential homestead of persons at least 65 years old is exempt
from ad valorem taxation in the amount of $3,000 of assessed value in each
taxing political subdivision except that a person may elect in writing to be
excluded from the exemption. A political subdivision may increase this amount
within its jurisdiction. In a political subdivision that has pledged its ad
valorem tax for the payment of debt, a residential homestead exemption does not
become effective if the exemption would impair the obligation of the contract
under which the tax was pledged.
(d) Subject to such limitations, classifications, or exclusions as it
may prescribe, the legislature by law may exempt from ad valorem taxation:
(1) property used exclusively for educational or charitable
(2) nonresidential property owned and used exclusively by organizations
chartered by both the State of Texas and the United States and whose membership
is composed solely of former members of the armed services of the United
(3) places of burial not held for profit;
(4) property owned by a disabled veteran of the armed services of the
United States, by the surviving spouse or minor children of a disabled veteran
of the armed services of the United States, or by the surviving spouse or minor
children of a member of the armed services of the United States whose life was
lost while on active duty;
(5) actual places of religious worship;
(6) property owned by a church or a strictly religious society for
exclusive use as a dwelling place for the ministry of the church or religious
society if the property yields no revenue to the church or religious society,
but the exemption may not extend to more property than is reasonably necessary
for a dwelling place and in no event to more than one acre of land; or
(7) property that is owned by a nonprofit water supply corporation whose
board of directors is elected by the members it serves, that is not held for
profit, and that is reasonably necessary for and is used in the acquisition,
storage, transportation, or distribution of water or in providing sewage or
waste water treatment service.
Sec. 5 Ad Valorem Tax Relief. (a) The legislature by law may
grant relief from residential ad valorem taxes payable by persons determined to
be in need of relief because of economic circumstance and either age or
disability. A law granting relief must provide either (1) that political
subdivisions are reimbursed for revenue losses caused by the relief or (2) that
relief applies to the ad valorem taxes of a political subdivision only if the
political subdivision approves.
(b) The legislature by law may provide for the preservation of cultural,
historical, or natural history resources by:
(1) granting relief from state ad valorem taxes on appropriate property
so designated in the manner prescribed by law; or
(2) authorizing political subdivisions to grant relief from ad valorem
taxes on appropriate property so designated by the political subdivision in the
manner prescribed by general law.
Sec. 6. Ad Valorem Tax Actions. (a) Notwithstanding other
remedies provided by law, an owner of property may pay under protest ad valorem
taxes due on that property and sue for a refund in a district court.
(b) In a suit for a refund of taxes, a court has the duty of entering
those orders necessary to ensure equal treatment under the law for the
complaining property owner, including refund of taxes and equalization of
property appraisal and assessment.
(c) Subject to limitations provided by law, the court has the additional
duty of entering all other orders necessary to ensure equal treatment under the
law for all property owners within the taxing authority, including refunds of
taxes and equalization of property appraisals and assessments.
Sec. 7 Allocations and Uses of Certain Revenues. (a) Each county
receives from the net revenue derived annually from motor vehicle registration
fees attributable to the county an amount prescribed by general law but that
amount must be at least equal to all fees collected up to $50,000 and 50
percent of the next $250,000 of fees collected.
(b) All net revenue from motor vehicle registration fees not retained by
the counties and three-fourths of all net revenue derived from taxes on motor
fuels and lubricants used to propel motor vehicles over public roadways, except
gross production, petroleum products manufacturing, and ad valorem taxes, may
be appropriated only for the following purposes:
(1) acquiring rights-of-way for public roadways;
(2) constructing or maintaining public roadways;
(3) Administering laws pertaining to the supervision of traffic or
safety on public roadways; or
(4) policing public roadways.
(c) One-fourth of all net revenue from the motor fuel tax and from state
occupation taxes is dedicated to the Available School Fund.
(d) No revenue from taxes on motor fuels and lubricants or from motor
vehicle registration fees not retained by counties may be appropriated for
payment of principal or interest on bonds or warrants issued by political
Sec. 8 State Debt. (a) State debt may not be incurred except as
authorized by this constitution.
(b) "State debt" means bonds or other evidences of indebtedness that are
secured by the general credit of the state or are to be repaid from taxes,
fees, tuition, or other charges of the state, a state senior college or
university, or a state agency or institution having statewide jurisdiction.
"State debt" does not include bonds or other evidences of indebtedness issued
to finance a project if the debt is authorized by law and is payable solely
from revenues generated by the project to be financed.
(c) State debt may be authorized by law if approved by a record
affirmative two-thirds vote of the membership of each house of the legislature
and submitted to and approved by a majority of the qualified voters of the
state voting on the question.
(d) State debt may be authorized by law to refund outstanding state
Sec. 9 Appropriations. (a) No money may be drawn from the state
treasury except in accordance with specific appropriation made by law. No law
may appropriate money from the state treasury for a purpose not previously
authorized by law.
(b) No appropriation of money from the state treasury may be made for a
period longer than two years.
(c) On the convening of the legislature in regular session, the
comptroller of public accounts shall submit to the governor and the legislature
a report that shows (1) the condition of the treasury at the end of the
preceding fiscal period. (2) an estimate of the probable receipts and
disbursements for the current fiscal year. (3) an itemized estimate of
anticipated revenues for the next applicable fiscal period, and (4) other
information required by law. On the convening of a special session of the
legislature, the comptroller of public accounts shall submit a report showing
changes from the regular report previously submitted. In the event of changes
at other times, the comptroller of public accounts shall report the changes to
the governor and to the members of the legislature.
(d) No bill containing an appropriation may be considered as passed or
be presented to the governor unless the comptroller of public accounts has
certified that the amount appropriated is within the estimated revenue for the
applicable fiscal year or unless the appropriation is made in response to
imperative public necessity and approved by a record affirmative four-fifths
vote of the membership of each house of the legislature.
Sec. 10. Public Funds. Public funds and public credit may be used
only for public purposes. No public funds or public credit may be used to
influence the election of a public officer.
Sec. 11. Report of Dedicated Funds. The legislature shall provide
by law for an annual report of the receipts and expenditures of
constitutionally dedicated funds.
Sec. 12. Exemption From Retail Sales Tax. No retail sales tax may
be imposed on (1) agricultural machinery or parts, fertilizer, feed or seeds.
(2) prescription drugs or medicine, or (3) food for human consumption except
food sold by restaurants or comparable establishments for immediate
Sec. 13. Refundable Marine Food or Agricultural Assessments. An
assessment voted by marine food or agricultural producers on their product
sales is not a tax if provision is made for the individual producer to receive
a refund of the assessment when the producer does not desire to be
ARTICLE IX LOCAL GOVERNMENT
Section 1. Counties. (a) The counties of the state are those that
exist on the date of adoption of this article.
(b) Under procedures prescribed by general law, (1) county boundaries
may be changed if approved by a majority of the qualified voters in each
affected county who vote on the question, and (2) counties may be merged or
county seats relocated if approved by two-thirds of the qualified voters in
each affected county who vote on the question.
Sec. 2. Powers of County Government. Counties have only the
powers of government granted by the constitution and general laws of this
Sec. 3. County Officers. (a) The governing body of each county is
the county commission, consisting of a county judge elected by the qualified
voters of the county, and four county commissioners, each elected by the
qualified voters of separate and compact precincts containing as nearly as
practicable an equal number of inhabitants. The county judge is the presiding
officer of the county commission.
(b) The qualified voters of each county elect a sheriff, treasurer, tax
assessor-collector, and county clerk. The qualified voters elect a county
attorney in those counties designated by general or local law.
(c) The county commission shall provide for the election of one or more
(d) The qualifications, duties, and functions of county officers and the
grounds and procedure for disqualification, suspension, and removal are as
provided by general law except that (1) among other qualifications the county
attorney must be licensed to practice law in this state and (2) among the
duties and functions of the county clerk are those of county recorder and clerk
of the county commission.
(e) Under methods and procedures established by general law, the
qualified voters of a county by a majority vote of those voting on the question
may create additional offices, eliminate offices, or combine the duties and
functions of offices. In the case of a county commission this power is limited
to reducing or increasing the number of county commissioners. If the duties and
functions of an office named in Subsection (b) and (c) of this section are
combined with another office, the holder of the combined offices must be
elected. The county commission shall designate the officer to perform the
duties required by law to be performed by an officer whose office is
(f) Vacancies in county offices are filled as provided by general
Sec. 4 County Ordinances. (a) Under procedures prescribed by
general law, the qualified voters of a county, by a majority of those voting on
the question, may grant to or withdraw from the county commission a general or
limited power to enact ordinances. If this power is granted, the county
commission may enact ordinances that are not inconsistent with the constitution
or laws of this state. The legislature by general law may provide procedures by
which the qualified voters of a county may repeal ordinances.
(b) If a county ordinance conflicts with an ordinance of an incorporated
city or town, the municipal ordinance prevails within its jurisdiction as
defined by law.
Sec. 5. General Law Cities. Cities and towns having a population
of 1,500 or less may be chartered only under general law.
Sec. 6. City Charters. Cities and towns having more than 1,500
inhabitants, by a majority vote of the qualified voters voting on the question,
may adopt, amend, or repeal their charters in the manner prescribed by law. No
charter or ordinance may be inconsistent with the constitution or laws of this
state. No tax may be levied unless authorized by law or charter. No city loses
the power to amend or repeal its charter because its population drops below
Sec. 7. Special Districts and Authorities. (a) The legislature
may provide by general or local law for special districts or authorities.
(b) Counties, cities, and towns may provide for special districts or
authorities within their boundaries but only if authorized by general law. No
local law may create a special district or authority wholly within a county,
city, or town if a general law authorizes the county, city, or town to create a
special district or authority for the same purpose.
(c) Special districts or authorities may be created only for public
(d) The provisions of this section are not applicable to school
districts or community junior college districts.
Sec. 8. Terms of Office. Constitutional county officers are
elected for four-year terms. Other elected county officers and elected officers
of other political subdivisions are elected for terms as provided by law or
Sec. 9. Compensation of Officers. Elected officers of political
subdivisions are not to be compensated on a fee basis.
Sec. 10. Tax Rates and Debt Limitations. (a) The maximum annual
tax rate established by law or charter for ad valorem taxes levied by a city or
town for purposes other than debt service may not exceed $2 on the $100 of
assessed valuation. The maximum annual tax rate established by law for ad
valorem taxes levied by a county for purposes other than debt service may not
exceed $1.25 on the $100 of assessed valuation.
(b) No school district, community junior college district, or special
district or authority may levy an annual ad valorem tax for purposes other than
debt service unless a maximum annual tax rate, not exceeding the maximum rate
permitted by law, has been approved by a majority of the qualified voters of
the district or authority voting on the question at an election held for that
(c) A political subdivision may levy an additional annual ad valorem tax
at a rate not greater than necessary to provide an annual amount sufficient to
service debt payable from ad valorem taxes.
(d) The legislature shall establish by general law the maximum amount of
interest-bearing obligations payable from ad valorem taxes that may be issued
by cities, towns, counties, school districts, and community junior college
(e) No interest-bearing obligations payable from ad valorem taxes, other
than refunding obligations, may be issued by school districts, community junior
college districts, or special districts or authorities unless authorized by a
majority of the qualified voters of the district or authority voting on the
question at an election held for that purpose.
(f) No interest-bearing obligations for mass transportation purposes and
payable from ad valorem taxes may be issued by a political subdivision unless
authorized by a majority of the qualified voters of the political subdivision
who vote on the question.
(g) The power of a political subdivision to levy taxes or issue
interest-bearing obligations previously voted is not lost by any change in its
boundaries. If boundaries are changed by annexation or by merger or
consolidation of two or more political subdivisions of the same type, the
surviving political subdivision may levy taxes at the highest rate previously
voted by any of the affected political subdivisions and may issue
interest-bearing obligations to the extent previously approved by each of the
affected political subdivisions. The legislature shall provide by general or
local law for the assumption of outstanding obligations of political
subdivisions whose boundaries are changed.
(h) No interest-bearing debt may be created by a political subdivision
unless at the same time provision is made for paying the interest and principal
(i) Ad valorem taxes levied by school districts, community junior
college districts, or special districts or authorities are not to be counted as
part of the ad valorem tax limits imposed on counties, cities, and towns.
Sec. 11. Intergovernmental Cooperation. The legislature shall
prescribe by law the manner in which a political subdivision, by act of its
governing body, may cooperate or contract with other political subdivisions,
the state, or the United States for the performance of functions required or
authorized by the constitution or laws of this state.
Sec. 12. Consolidation of Offices and Transfer of Functions.
Political subdivisions may be authorized only by general law to consolidate
offices, transfer functions of government, or cancel a consolidation or
transfer. A law may not authorize a consolidation or transfer among political
subdivisions of more than one geographical county. No consolidation or transfer
may take effect unless it is approved by a majority of the qualified voters in
each affected political subdivision who vote on the question except that the
legislature by general law may provide for the consolidation of the function of
collection of taxes in a county.
Section 1. Official Oath. State and local officers shall take the
following oath before entering on the duties of public office:
"I, , do solemnly swear (or affirm) that I will faithfully execute the
duties of the office of and will to the best of my ability, preserve, protect,
and defend the constitution and laws of the United States and of this state;
and I furthermore solemnly swear (or affirm) that I have not directly or
indirectly paid, offered, or promised to pay, contributed or promised to
contribute any money or valuable thing, or promised any public office or
employment, as a reward for the securing of this office, so help me God."
Sec. 2. Residence of Civil Officers. Public officers shall reside
within the state. Officers of a political subdivision or district shall reside
and shall keep their offices at the locations prescribed by law. An office
becomes vacant if the officer does not comply with this section.
Sec. 3. Forfeiture of Residence By Absence on Public Business. A
person's absence from the state, a political subdivision, or a district on
business of the United States, this state, or the political subdivision or
district does not forfeit a residence for purposes of suffrage or of election
or appointment to public office.
Sec. 4. Continuation In Office. An officer of this state
continues to perform the duties of office until a successor has assumed office,
but an officer appointed by the governor to a statutory state agency may not
perform those duties beyond December 31 of the year in which the term
Sec. 5. Vacancies Filled For Unexpired Term. A person elected to
fill a vacancy in office serves for the remainder of the term.
Sec. 6. Disqualification, Suspension, and Removal from Constitutional
Office. The legislature by law may provide grounds and procedures for the
disqualification, suspension, or removal of those constitutional officers whose
removal is not provided for elsewhere in this constitution and for the
temporary filling of vacancies.
Sec. 7. Protection of the Environment. The quality of the
environment of the State of Texas is to be protected. The legislature by law
shall implement and enforce this policy.
Sec. 8. Conservation and Development of Natural Resources. (a) It
is the policy of this state to promote the conservation and development of the
natural resources in the state. The legislature by law shall implement and
enforce this policy. In furtherance of this policy the legislature shall
provide by law for (1) the control, storage, preservation, and distribution for
useful purposes of storm, flood, river, and stream waters; (2) the reclamation,
irrigation, and drainage of land; (3) the abatement of subsidence; (4) the
conservation of the atmosphere; (5) the collection and disposal or recycling of
wastes; (6) the conservation and development of the energy resources and
forests; and (7) the navigability of the waters.
(b) No state fund established for purposes of water development,
transmission, transfer, or filtration may be used to finance a project that
contemplates or results in removing surface water from the river basin of
origin if the surface water is necessary to supply the reasonably foreseeable
water requirements of the basin for the ensuing 50 years. This subsection does
not apply to a removal of water (1) that is sufficiently replaced to the point
of removal from outside the state or (2) that is on a temporary, interim
Sec. 9. Coastal Natural Resources. (a) In order to preserve the
coastal natural resources of the state, the state holds in perpetual trust for
the use and benefit of the people of this state the beaches and those coastal
submerged lands belonging to the state and may not by sale transfer a fee
simple absolute title in these lands.
(b) Subject to such reasonable limitations as prescribed by law, the
public, individually and collectively, has the free and unrestricted right of
use and benefit of the beaches. The state and its political subdivisions shall
provide reasonable access avenues to the beaches and coastal public waters. An
illegal entry on private property to gain access to a beach is not permitted by
virtue of this section.
(c) In this section "beach" means the land on the seaward shore of the
open Gulf of Mexico, whether island or mainland, that extends inland from the
line of mean low tide to the natural line of vegetation or the larger
contiguous area to which the public has (1) acquired a right of use by
dedication, prescription, or estoppel or (2) retained a continuous right of use
recognized by law or custom since time immemorial.
Sec. 10. Protection of Wildlife Resources. The legislature may
enact local laws to regulate the taking of wildlife resources.
Sec. 11. Separate and Community Property of Spouses. (a) The
property owned or claimed by a spouse before marriage and that acquired by a
spouse during marriage by gift, devise, or descent is the separate property of
the spouse. The legislature by law may prescribe more precise rules within the
principles of this definition and may more clearly define the rights of each
spouse in relation to separate and community property.
(b) The definition in Subsection (a) of this section does not limit the
power of spouses to enter into written contracts or other written transactions
between themselves that affect their property rights. Spouses may enter into
written contracts or other written transactions (1) that change their community
property into separate property if the change does not prejudice the rights of
preexisting creditors or (2) that create between themselves a right of
survivorship in community property. The form, manner of execution, and
recordation requirements of the written contracts or other written transactions
are as prescribed by law.
Sec. 12. Homestead. (a) The homestead is the home of a family or
single adult. The place used for conducting the occupation of the claimant of
an urban homestead may also be a homestead.
(b) The rural homestead consists of not more than 200 acres of land in
one or more parcels, with improvements, located outside a city, town, or
village. Not more than 50 acres on which the home is located is a residential
homestead; the rest is a non-residential homestead. A rural homestead may not
be changed to an urban homestead without the claimant's consent so long as the
land is used for agricultural purposes.
(c) The urban homestead consists of land, with improvements, located in
a city, town, or village; but the value of the land, without improvements, at
the time of establishment as homestead may not exceed $10,000, or a larger sum
if prescribed by law. The urban homestead is a residential homestead if used as
a home and a nonresidential homestead if used as a place for conducting the
occupation of the claimant.
(d) The homestead is not subject to forced sale for the payment of debt
except for (1) purchase money for the homestead, (2) taxes due on the
homestead, and (3) the value of improvements made on the homestead under a
written contract (A) to which the claimant consents or (B) in the case of a
homestead of spouses, to which both spouses consent in the manner prescribed by
law for the conveyance of a homestead. A pretended sale of a homestead
involving a defeasance or a condition nullifying the sale is void.
(e) A mortgage, trust deed, or other lien on a residential homestead is
void except for (1) the purchase money for the homestead or (2) the value of
improvements as provided in Subsection (d) of this section. A lien on a
nonresidential homestead may be created but only in the manner prescribed by
law for the conveyance of a homestead.
(f) Except as otherwise provided by law, a homestead of spouses may not
be sold or abandoned without the consent of both spouses. A temporary renting
of a homestead does not change its character if no other homestead is
(g) A homestead of spouses descends and vests like other real property
but may not be partitioned so long as the homestead is used or occupied as a
home by either a surviving spouse or minor child if that use has been granted
the child by a proper court.
Sec. 13. Protection of Personal Property From Forced Sale. The
legislature shall provide by law for the protection from forced sale of certain
personal property belonging to each adult and each head of family.
Sec. 14. Protection of Wages From Garnishment. Current wages for
personal service are not subject to garnishment.
Sec. 15. Private Corporations. A private corporation may not be
chartered except under general law.
Sec. 16. Banking. (a) No bank may engage in business at more than
one place in this state. A bank shall designate in its charter the place at
which it will engage in business.
(b) The legislature by law shall provide for the regulation of bank
(c) No foreign corporation except a bank chartered by the United States
and domiciled in Texas may exercise banking or discounting privileges in this
Sec. 17. Alcoholic Beverages. (a) The legislature by law shall
provide for the regulation of the manufacture, packaging, sale, possession, and
transportation of alcoholic beverages and mixed alcoholic beverages.
(b) This regulation must preserve the right of local option by counties,
justice precincts, or incorporated cities or towns but may not provide for
local option by other political subdivisions. Local option is a determination
of whether to legalize or prohibit the sale of these beverages and a
determination of the various types and various alcoholic contents of these
beverages that may be sold.
(c) A local-option determination by a county, justice precinct, or
incorporated city or town may be made only by a majority of the qualified
voters who vote on the question at an election in that political
(d) The local-option status of a county, justice precinct, or
incorporated city or town on the effective date of this article, may be changed
only by a majority of the qualified voters who vote on the question at an
election in that political subdivision.
Sec. 18. Practitioners of Medicine. The legislature shall pass
laws to prescribe the qualifications of practitioners of medicine and to punish
persons for malpractice. No preference may be given by law to any schools of
Sec. 19. Lotteries and Gift Enterprises. The legislature by law
shall prohibit lotteries and gift enterprises except that the legislature by
law may authorize bingo or raffles conducted for the benefit of a nonprofit
charitable organization if (1) all proceeds are spent in this state for the
purposes of the organization and (2) the games are limited to one location as
defined by law.
Sec. 20. Liens of Mechanics, Artisans, and Materialmen.
Mechanics, artisans, and materialmen have a lien on the buildings or articles
made or repaired by them. The lien is for the value of labor or material
furnished. The legislature by law shall provide for the efficient enforcement
of the lien.
Sec. 21. Retirement Benefits For Public Employees. (a) General
Provisions. (1) The legislature may enact general laws establishing systems and
programs of retirement and related disability and death benefits for public
employees and officers. Financing of benefits must be based on sound actuarial
principles. The assets of a system are held in trust for the benefit of members
and may not be diverted.
(2) A person may not receive benefits from more than one system for the
same service, but the legislature may provide by law that a person with service
covered by more than one system or program is entitled to a fractional benefit
from each system or program based on service rendered under each system or
program calculated as to amount upon the benefit formula used in that system or
program. Transfer of service credit between the Employees Retirement System of
Texas and the Teacher Retirement System of Texas may also be authorized by
(3) Each statewide benefit system must have a board of trustees to
administer the system and to invest the funds of the system in such securities
as the board may consider prudent investments. In making investments, a board
shall exercise the judgment and care under the circumstances then prevailing
that persons of ordinary prudence, discretion, and intelligence exercise in the
management of their own affairs, not in regard to speculation, but in regard to
the permanent disposition of their funds, considering the probable income
therefrom as well as the probable safety of their capital. The legislature by
law may further restrict the investment discretion of a board.
(4) General laws establishing retirement systems and optional retirement
programs for public employees and officers in effect on the date of adoption of
this article, remain in effect, subject to the general powers of the
legislature established in this subsection.
(b) State Retirement Systems. (1) The legislature shall establish by law
a Teacher Retirement System of Texas to provide benefits for persons employed
in the public schools, colleges, and universities supported wholly or partly by
the state. Other employees may be included under the system by law.
(2) The legislature shall establish by law an Employees Retirement
System of Texas to provide benefits for officers and employees of the state and
such state-compensated officers and employees of the unified judicial system as
may be included under the system by law.
(3) The legislature shall establish by law the amount to be contributed
by persons participating in the Employees Retirement System of Texas and the
Teacher Retirement System of Texas. The amount contributed by the state must be
at least six percent of the aggregate compensation paid to individuals
participating in the system. The legislature may appropriate such additional
sums as are actuarially determined to be required to fund benefits authorized
(c) Local Retirement Systems. (1) The legislature shall provide by law
(A) the creation by any city or county of a system of benefits for its
officers and employees;
(B) a statewide system of benefits for the officers and employees of
counties or other political subdivisions of the state in which counties or
other political subdivisions may voluntarily participate; and
(C) a statewide system of benefits for officers and employees of cities
in which cities may voluntarily participate.
(2) Benefits under these systems must be reasonably related to
participant tenure and contributions.
(d) Judicial Retirement System. (1) Notwithstanding any other provision
of this section, the system of retirement, disability, and survivors' benefits
heretofore established in the constitution or by law for justices, judges, and
commissioners of the appellate courts and judges of the district and criminal
district courts is continued in effect. The legislature shall provide for
inclusion in the system of judges of all courts in the unified judicial system.
Contributions required and benefits payable are to be as provided by law.
(2) General administration of the Judicial Retirement System of Texas is
by the Board of Trustees of the Employees Retirement System of Texas under such
regulations as may be provided by law.
Sec. 22. Regulation of Interest and Lending. (a) Except as
otherwise provided by law, a contract providing for a rate of interest in
excess of 10 percent a year is usurious. If a contract does not specify a rate
of interest, the rate under the contract may not exceed six percent a year.
(b) The legislature may not delegate the power to classify loans or
lenders, define interest, or fix maximum interest rates.
Sec. 23. Equal Treatment of the Handicapped. A person may not be
denied a right, benefit, or opportunity because of a physical or mental
handicap as defined by law except (1) as otherwise provided in this
constitution, (2) as prescribed by law in the regulation of commerce, or (3) to
the extent a handicap prevents work performance in employment. This guarantee
Sec. 24. Access to Health Care. A goal of this state is to
provide every resident access to adequate, comprehensive health care as may be
provided by law.
ARTICLE XI. MODE OF AMENDING THE CONSTITUTION OF THE STATE
Section 1. Amendments to the Constitution. (a) The legislature
may propose amendments to this constitution by a record affirmative two-thirds
vote of the membership of each house. The legislature shall limit a proposed
amendment to the revision of all or part of one article except that the
amendment may revise parts of other articles that are germane to the revision
of the principal article.
(b) A proposed amendment must be submitted to the people at the next
statewide general election or at a special election held on a date specified by
the legislature. In no event is an election on a proposed amendment to take
place less than 90 days after the legislature proposes the amendment.
(c) Proposed amendments must be publicized in the English language and
any other language prescribed by law. The legislature shall prescribe by law
the procedure for publicizing proposed amendments.
(d) A proposed amendment is adopted if approved by a majority of the
qualified voters voting on the question and becomes a part of this constitution
on the date that the statewide returns of the election are canvassed.
Sec. 2. Constitutional Convention. (a) The legislature by a
record affirmative two-thirds vote of the membership of each house may submit
to the people the question of whether to call a constitutional convention and
may stipulate in the question the articles of the constitution that the
convention may consider. The question must be submitted at the first statewide
general election occurring at least six months after the legislature approves
the submission. A constitutional convention must be called if approved by a
majority of the qualified voters voting on the question.
(b) The question of whether to call a constitutional convention must be
submitted to the people at least once every 30 years.
(c) At the next legislative session following approval of a call, the
legislature shall provide by law for the election of delegates and the filling
of vacancies; for the convening of the convention on a date no later than three
months after the election of delegates; for the meeting place and duration of
the convention; for the pay, allowances, and expenses of delegates and
officers; and for the other expenses of the convention.
(d) No public officer is prohibited from serving as a delegate by virtue
of any provision in this constitution.
(e) The constitutional convention by a record affirmative two-thirds
vote of its membership, in the case of an unlimited call, may propose any
revision of or amendments to the constitution or, in the case of a limited
call, may propose any revision of or amendments to the articles stipulated in
the call. The convention shall determine the manner of submitting and
publicizing its proposals and fix the date of the election. Convention
proposals must be publicized in the English language and in any other language
specified by the convention.
(f) A revision or amendment proposed by the constitutional convention
becomes effective, as the convention provides, if approved by a majority of the
qualified voters voting on the question.
The following schedule provisions remain part of this constitution until
executed. Once each year the attorney general shall review the schedule and
certify to the secretary of state which remaining provisions have been
executed. A provision so certified is to be removed from and no longer
published as part of the constitution.