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Chapter 5. The Bill of Rights and Civil Liberties
Enrichment Resources
Enrichment Essays :
“Texas’s State Constitution”
Enrichment Activity
1. Create and annotate a diagram that illustrates the three branches of Texas’s government and the
divisions within each branch.
2. Give three examples of ways in which the Texas constitution resembles the U.S. constitution and
three examples of ways they differ.
This essay addresses the history, principles, and structure of the Texas constitution, especially as they
compare to those of the federal constitution.
Historical Background
Texas has had seven constitutions in its history. Each of these has shared fundamental principles with
the United States Constitution: separation of powers into three branches of government, a system of
federalism, and democratic governance. Yet each constitution also reflected its times—which were often
tumultuous—and the political culture of Texas.
Coahuila y Tejas Texas’s constitutional tradition began under the Mexican constitution of 1824.
Patterned after the U.S. Constitution, Mexico’s constitution included three branches of government. But it
also shared elements of the Spanish constitution of 1812, notably the establishment of Catholicism as the
official religion.
Under the Mexican constitution, the Spanish province of Texas was combined with the state of Coahuila
to form the state of Coahuila y Tejas. The Mexican government required that each state adopt a
constitution and that this constitution establish a legislative, executive, and judicial branch. The legislature
of Coahuila y Tejas approved its constitution in 1827.
While the structure of the government of Coahuila y Tejas was similar to that of the U.S. government, it
had a unicameral rather than bicameral legislature. It also established Catholicism as the official religion,
made members of the church and military subject to the rules of those institutions, and stated that the
judiciary could try cases but not interpret the law.
Republic of Texas: Constitution of 1836 Though the constitution of 1827 combined elements of
Spanish and Anglo constitutional traditions and addressed needs of the day, discontent in Texas as well
as political unrest in Mexico soon led to change. A convention in 1833 drew up a constitution that
established Texas as a state separate from Coahuila. When Stephen Austin delivered it to Mexico City,
Mexican officials threw him in prison. After he was released in 1835, Texans were ready for revolution.
Texas won its independence as the Republic of Texas in 1836.
During the battle for the Alamo in March 1836, a convention of 59 delegates met for 15 days and hastily
drafted independent Texas’s first constitution. Because of the urgency of the times, delegates adopted
whole portions of the U.S. Constitution and several state constitutions. The resulting document included
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a brief preamble.
separation of government power into three branches: legislative, executive, and judicial.
a bicameral legislature, including senate and house of representatives.
a system of checks and balances on the powers of each branch.
a bill of rights.
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Enrichment Essays :
“Texas’s State Constitution”
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democratic election of government office-holders (restricted to free, nonaboriginal males).
Like the federal constitution, this constitution was relatively brief (under 6,500 words) and contained few
details. It established a strong executive, patterned after the American president. It reflected the
Jacksonian ideas of the time by abolishing imprisonment for debt and prohibiting monopolies. Terms of
office were short (one to four years) and yearly elections required.
This constitution also included elements of Spanish and Mexican law, especially in the areas of
community property rights and debtor relief. The former protected property ownership by married women.
The latter reflected the populist, anti-bank attitudes of many settlers.
Constitution of 1845 Texas adopted its next constitution when it became the 28th state of the United
States in 1845. Almost twice as long as the constitution of the Republic, this document drew heavily on
the Louisiana constitution and the constitution that Texans had proposed in 1833. It included the same
basic elements listed above for the 1836 constitution and preserved the homestead and community
property provisions of that document.
Much of this constitution’s additional length came from its General Provisions article, which placed
restrictions on legislative power. Some of these changes were necessary to comply with the U.S.
Constitution, while others reflected frontier suspicions of government and concern for the working person.
The constitution of 1845 gave the governor appointment rights similar to the president’s. The Texas
governor could appoint the attorney general and secretary of state, as well as supreme and district court
judges, subject to the approval of the state senate. The comptroller of public accounts and the treasurer,
however, would be elected by the legislature.
Confederate constitution of 1861 Texas’s next constitution came about as a part of secession, as the
state transitioned from being part of the United States of America to being a member of the Confederate
States of America. Like the constitution of 1836, the Confederate constitution was drafted hastily during
tumultuous times. The Texas Secession Convention adapted the constitution of 1845 to the new situation,
replacing references to the United States of America, emphasizing the constitutionality of slavery, and
asserting states’ rights. Conventioneers eliminated a clause providing for the freeing of slaves and
declared emancipation illegal.
Constitution of 1866 Once again, history made a constitutional convention necessary. With the Civil War
over, the state’s Confederate constitution now needed to conform once again to the Constitution and laws
of the United States. After heated debate about the legitimacy of laws enacted under the Confederacy,
the convention settled on a series of amendments to the constitution of 1861, making changes such as
the following:
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increasing the governor’s term from two years to four years, raising his salary, and imposing term
limits
popular election of the comptroller and treasurer
new eligibility requirements for legislators (white men with at least five years of residence in
Texas)
an increase in the size of the supreme court (from three justices to five) and a detailed description
of the various jurisdictions in the state
a new method of constitutional revision, including approval by the governor
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“Texas’s State Constitution”
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detailed plans for public improvement
plans for a system of public education directed by a state superintendent of public instruction
Constitution of 1869 In 1868 Texas convened yet another constitutional convention, this time to comply
with the federal Congressional Reconstruction Acts of 1867. The convention failed to produce a complete
constitution, and many Texans criticized the length and unwieldiness of the unfinished document. Some
people were also dissatisfied with the way it reflected the ideals of the new Republican Party, including
giving African Americans economic power and the vote, centralizing the government, and investing in
infrastructure by raising taxes and increasing government deficits. This new plan of government further
stirred discontent by barring many leaders from political office because of their involvement in the
Confederacy.
Constitution of 1876 When the period of Reconstruction ended, hostility toward the 1869 constitution
reached a boiling point. In 1873 the Democratic party regained control of the state government, and
leaders sought to replace the constitution. After conflict over how to go about the revisions, the state held
a constitutional convention in 1875. Seventy-six of the delegates were Democrats and only 14 (including
five African American men) were Republicans. None had participated in the convention of 1868–1869.
Unsurprisingly, the conventioneers sought to undo much of what the previous convention had done. They
decentralized the government; cut government programs; reduced taxes; placed stern restrictions on
spending, taxes, and debt; reduced government salaries; and imposed term limits. The Democrats also
weakened the state education system, which they viewed as part of the Republican agenda.
Whereas business and development interests had been strong at the 1868–1869 convention, agricultural
interests prevailed in 1875. Delegates abolished state banks and placed limits on railroads and
corporations. Their distrust of government in the wake of the past turbulent years was clear in the short
terms of office, low salaries, and limited powers of public officials. Voters responded to the new
constitution by ratifying it by a large majority in February of 1876.
The Constitution Today: Overview
The Texas constitution of 1876 remains the basic framework of state government. At around 63,000
words, it is the second longest state constitution in the nation. (By contrast, the United States Constitution
has around 7,400 words—including its amendments.) The Texas constitution is very detailed, making it
seem more like a code of laws than a constitution. Since some of its provisions relating to the same
subject are scattered throughout the document, it includes a detailed index.
Need for revision This complicated organization and level of detail are two of the reasons that the Texas
constitution has been amended so many times. It includes the fourth highest number of amendments of
all the states. By 2005, some 615 amendments had been proposed, and 439 had been ratified by popular
vote. Another reason for revision lies in the constitution of 1876 itself, which came as a reaction to
Reconstruction and Radical Republican rule. It created a weak, decentralized, and underfunded plan of
government. As the state has grown in population and economic power, so, too, has the need to
strengthen state government.
Organization Like the federal Constitution, the Texas constitution begins with a preamble, followed by
various articles. (Texas has 17.) Unlike the U.S. Constitution, Texas puts its bill of rights first, as Article I.
This bill of rights reflects the framers’ fear of the abuses of government far more than the federal Bill of
Rights does. Next comes the powers and organization of government (Articles II through V). Again, given
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Enrichment Essays :
“Texas’s State Constitution”
their distrust of government, Texas framers established—more explicitly than the U.S. framers—the
separation of powers.
Article VI covers voting and elections, while Articles VII and VIII cover education, taxation, and revenue.
Article VII both limits the revenue that can be spent on education as well as dedicates certain funds for
that purpose. Article VIII describes a detailed and restrictive tax code that reaches down into the county
and municipal levels of government.
Articles IX through XVI cover a wide variety of topics, including property rights, land use, local
governance, corporations, railroads, and even such things as fences, sea walls, and personal debt. Some
provisions on the same topic (county government, for example) are scattered among several articles.
Finally, Article XVII covers the mode of amendment for the constitution.
Structure: Three Branches of Government
Like the U.S. Constitution and all state constitutions, Texas’s constitution separates government into
three branches: legislative, executive, and judicial. It also devotes an entire article, Article II, to an
explanation of the separation of powers, explicitly prohibiting individuals and groups from exercising
powers in more than one branch. It then devotes an article to each of the branches.
Legislative Branch As is true of the U.S. Constitution, the longest of the three articles describes the
legislative branch—the branch that makes the laws for the state—and addresses this branch’s three main
aspects: organization, proceedings, and powers.
The section on organization sets up a bicameral legislature with a senate composed of 31 members and
a house of representatives composed of 150 members. It describes how districts are apportioned and
specifies legislators’ qualifications and terms (four years for senators and two years for representatives).
Regular sessions begin on the second Tuesday in January of every other year, though the governor may
call a special session to address urgent business. The legislature meets less frequently and for much
shorter duration (about five months) than the U.S. Congress.
The proceedings section in this article describes how a bill becomes a law, specifying the processes for
proposal, deliberation, and approval. The federal Constitution leaves most of the details of proceedings
up to the individual houses to determine. The Texas state constitution, however, gives detailed
procedures and rules. For example, it states that a bill’s title must clearly indicate its content and that a bill
must be referred to committee before being considered by the general membership.
This article of the Texas constitution also describes in detail the legislature’s powers and limitations and
includes many sections about the purposes for which the legislature can levy taxes. It also lists the
legislature’s limitations in making laws that affect local governments. For example, the constitution
prohibits the legislature from creating offices and assigning duties for counties, cities, and other local
governments.
Executive Branch Article IV establishes the executive branch. It carefully outlines the duties of the seven
executive officers: governor, lieutenant governor, secretary of state, comptroller, treasurer, commissioner
of the general land office, and attorney general. By making five of these offices elected (the secretary of
state is appointed by the governor), the framers divided and dispersed the power of the executive office.
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Chapter 5. The Bill of Rights and Civil Liberties
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Enrichment Essays :
“Texas’s State Constitution”
This system of dividing power, referred to as the plural executive, results in a weak governor, as
compared with the U.S. president or the governors of other states. Broad powers over the legal system,
the state budget and finances, education, transportation, agriculture, public utilities, and land
development are spread among officials who do not necessarily share the views of the governor or those
of his or her political party.
Though the governor does not appoint most senior executive authorities, he or she does make several
hundred appointments to the 200 or so state boards, commissions, and agencies that oversee the daily
operation of government. Yet even this appointment power is limited, for the senate must confirm the
governor’s appointments by a two-thirds majority. Also, because appointees serve staggered terms, many
carry over from one governor (elected to a four-year term) to the next.
The Texas governor also has less power over the budget than the president or most governors of other
states. The legislature takes the lead in the budget process, so although the governor may speak publicly
of priorities, he or she has little influence over the formal process. At the end of the process, however, the
governor has the power of the line-item veto.
Finally, the governor has veto power over legislative bills. The state constitution gives the governor ten
days after receiving a bill to veto it or sign it into law. If the legislature is in session at the time of the veto,
it can reverse the veto by a two-thirds vote in each house. If the governor neither signs nor vetoes the bill,
it becomes law. This process is in contrast to the federal process, in which the president can use the
pocket veto—not acting either way—to kill a bill.
Judicial Branch Article V, Section 1 sets up a system of six levels or types of courts: a supreme court,
the court of appeals, district courts, county courts, commissioners’ courts, and courts of justices of the
peace. These courts are known as the constitutional courts. The constitution also allows that other courts,
referred to as statutory courts, may be created by law.
Unlike the federal judicial system, which has one Supreme Court, the Texas system has two high courts.
The Texas supreme court rules only on civil cases, while the Texas court of criminal appeals rules on
criminal cases.
Sections 2 through 28 of Article V specify in detail the qualifications of judges, the jurisdictions of the
courts, and even the courts’ operations. Unlike in the federal system, almost all justices are elected. The
constitution charges the attorney general—the state’s top lawyer and law enforcement official—with
defending the constitution and laws of Texas, representing the state in litigation, and approving public
bond issues.
Elections
Texas’s constitution requires direct elections for a large number of state and local offices. In addition,
many legislative initiatives involve amending the constitution, which requires special constitutional
amendment elections. Finally, some state and local policy proposals require voters to pass a referendum.
These constitutional requirements for broad electoral involvement reflect Texas’s deep-seated populist
political culture. At the same time, some people feel that Texas’s frequent elections and long ballots, filled
with measures and candidates, provide a disincentive for voters to vote.
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Chapter 5. The Bill of Rights and Civil Liberties
Enrichment Resources
Enrichment Essays :
“Texas’s State Constitution”
The office of the secretary of state oversees all federal and state elections in Texas. It ensures uniform
application of election laws throughout the state, and it reports election results. The elections division
provides assistance and advice to election officials on the proper conduct of elections.
Types and Frequency of Elections In Texas, elections are frequent. The legislature has established
dates (the first Saturday in February, first Saturday in May, second Saturday in September, and first
Tuesday after the first Monday in November) for general and special elections, but elections can also
happen at other times.
General elections are held in even-numbered years in November. Depending on the year, voters elect
national and state executive officers and legislators. They also choose a variety of other state
officeholders in general elections. The governor and other statewide elected executive officials who serve
four-year terms are elected in non-presidential election years.
Texas holds special elections to fill vacancies in state and federal legislative offices, to approve local
bond proposals, and to approve amendments to the Texas constitution. The dates of these elections are
set by the governor for filling vacancies, the local government for bonds, and the legislature for
constitutional amendments.
Parties hold primary elections to nominate candidates for governor. Primaries are supposed to be closed
elections, though voters can still choose to participate in the opposing party’s primary, making them more
like open primaries. Because primary elections are party elections, the party is responsible for
administering its own election.
Local elections are held to elect city councils, mayors, school board members, and special-district board
members. County elections are part of the state electoral system. Cities and special districts may hold
their elections in odd-numbered years. These elections are non-partisan and usually occur in May.
Voter Qualifications To register to vote in Texas, a person must be a United States citizen, a resident of
Texas, and at least 18 years old on election day. In addition, a person wishing to register to vote must not
be a convicted felon (unless sentence, probation, or parole is completed) or declared mentally
incapacitated by a court of law.
Changing the Constitution
There are two methods for changing the Texas constitution. The first is through the amendment
process—updating, removing, clarifying, or adding sections. The second method is to rewrite the
document, fundamentally overhauling and restructuring it.
Constitutional amendment Article XVII outlines the two-step process for amending the constitution. The
first step is proposal. To be proposed, the amendment must receive the support of two-thirds of both
houses of the legislature. The second step is ratification. The legislature sets a date for a special election,
and the proposed amendment must be approved by a simple majority of the voters. As mentioned earlier,
by 2005, some 615 amendments had been proposed, and 439 had been ratified.
This amendment process is simpler than that of amending the federal Constitution, which requires both a
two-thirds majority approval in both houses and ratification by three-quarters of state legislatures. Yet in
spite of the relative simplicity and frequency of amending the Texas constitution, the burden of delay in
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Chapter 5. The Bill of Rights and Civil Liberties
Enrichment Resources
Enrichment Essays :
“Texas’s State Constitution”
the process means that sometimes important public policy issues get stalled. Also, piling amendments on
top of an already overly long document sometimes leads to further amendments, which are necessary to
correct earlier amendments.
Constitutional revision The legislature’s first attempt to call a constitutional convention for a full revision
occurred in 1877. Since then, there have been many attempts to call a convention, but none succeeded
until 1971, almost a century after the creation of the long and complex document. That year, a group of
representatives proposed a constitutional amendment that called for the Texas legislature to sit as a
constitutional convention in 1974. The voters approved the amendment by a wide margin, and in 1973 the
legislature created the constitutional revision commission.
In 1974 the commission made its recommendations to the legislature, which was the convention. But
struggles among special interests and over controversial issues, as well as the distraction of the May
primary election, slowed the convention’s progress. In the end, the convention failed by only three votes
to approve a new constitution to submit to voters for ratification. Critics say that having the legislature—
rather than having elected delegates, as most other states do—serve as the constitutional convention
brought too much legislative politics into the process.
After this failed attempt at revision, Governor Bill Hobby declared that constitutional revision in Texas was
“dead for the foreseeable future.” Yet constitutional revision efforts did not end in 1975. Continuing
dissatisfaction with the constitution led to two other attempts at revision in the 1990s. Both efforts died in
the legislature.
Whether the Texas constitution will ever be rewritten as a more flexible, coherent document remains to be
seen. As Texas’s population, economy, and diversity continue to grow, constitutional revision might
become a necessity. In the meantime, Texas will continue to rely on the incremental change of the
amendment process.