Theory of the Texas Constitution

Restraining State Power

Influences on the Texas Constitution

• Political Culture– Traditionalism– Individualism

• Shared history with Mexico– Coahuila y Texas– Spanish Common Law tradition

• Texas Independence– Jacksonian Democracy– Independent Nation-State (1836-1846)

• Civil War & Reconstruction– Union Army Occupation– Radical Reconstruction Constitution– Distrust of Centralized executive power

The Constitution of 1876• Foundation for the Current Texas Constitution

– Reaction to Reconstruction• Efforts by the Texas Grange

– Resurrects prior constitutional forms • especially 1846 restrictions against the executive

• Substantially longer than the US Constitution– Over 80,000 words– Often verbose– Amended over 300 times

• Often confusing in structure– Contains numerous statutory provisions– Contains several obsolete or outdated provisions– Contains inconsistent numbering– contains numerous grammatical errors– Amendments incorporated into the text rather than attached to the end

Navigating the Texas Constitution

• Article I: 30 section Bill of Rights – Asserts state autonomy and popular sovereignty

• Article I section 1: “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 to local self-government, unimpaired to all the states

– Reiterates and refines general limits against government and the recognition of rights of the people

• Often unnecessarily verbose

• Article II: Division of Power– defines the division of power and the establishment of

departments

Suggests that the state of Texas is not subject to its own constitution!

Navigating the Texas Constitution

• Severe restrictions against state government– Article III: Legislative Departments

• Limited to biennial sessions of 140 days• No power to call special sessions• Balanced budget requirement

– Article IV: Executive Departments• Plural executive• Multiple independently elected executive offices• Governor chief executive in name only

– Article V: Judicial Department • All courts except municipal courts directly elected• Amended in the 1880s to split the Texas Supreme Court into

two Courts

Navigating the Texas Constitution

• Article VI: Suffrage• Article VII: Education• Article VIII: Taxation & Revenue• Article IX: Counties• Article X: Railroads• Article XI: Municipal Corporations• Article XII: Private Corporations• Article XIII: Spanish and Mexican Land Titles• Article XIV: Public Lands and Land Office• Article XV: Impeachment• Article XVI: General Provisions• Article XVII: Amending the Constitution of This State

Amending the Texas Constitution

• The Texas Two-Step:– A proposal must pass both houses of the Texas

Legislature with a 2/3 majority– A proposal must be approved by a simple majority of

voters– Efforts to “clean up” the Constitution through

amendment have been largely unsuccessful• Last major attempt at Constitutional change:

1974– Convention dissolved without a new draft – Two major issues

• Organized labor: Collective bargaining v. ‘right to work’• Education finance: Equalization v. Local control