The Texas Constitution
Learning Objectives: Texas Constitution
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Reconstruction and the1876 Constitution
Executive Powers
Legislative Powers
Judicial Powers
Local Government Powers
Our Over-Amended Constitution
Key Terms: Texas Constitution
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1869 Constitution
1876 Constitution
Article I
Article II
Article III
Article IV
Article V
Municipal Home Rule
Fractured State Executive
Constitutional Reform
Constitutions Have Several Functions
Legitimacy
• This is the most abstract and ambiguous function
served by constitutions.
• A government has legitimacy when its citizens
accept its actions as lawful, fair, and just.
• The requirements for governmental legitimacy
vary according to what the citizens are willing to
accept.
Constitutions Have Several Functions
Organizing Government
• This purpose involves establishing the offices
responsible for basic governmental functions and
defining their relationship to each other.
• Although the organizational provisions of state
constitutions vary widely, they generally follow the
model provided by the US Constitution in establishing
an elected chief executive, a bicameral legislature
(except in Nebraska), and a judicial system with some
type of supreme court.
Constitutions Have Several Functions
Providing Power
• The Texas Constitution provides power for the
state government subject to the US Constitution's
division of powers between the national
government and state governments.
• Although states retain primary control over many
types of activity, the power of state officials has
been reduced with the expansion of the federal
government's role in various areas.
Constitutions Have Several Functions
Limiting Governmental Power
• Americans' history and national character support the
belief in limited government that has produced bills of
rights in both the US and Texas constitutions and other
constitutional protections against arbitrary governmental
action.
• Reflecting popular dissatisfaction with Reconstruction
rule, the Texas Constitution limits government by being
very specific and inclusive in its content.
Comparing the U.S. & Texas Constitutions
• Ideally, a constitution should include general and
fundamental principles, limitations and restrictions imposed
on governmental institutions.
• It should be brief, spelling out the general responsibility and
authority of governments.
• A constitution should also include provisions that permit
adaptation to changing conditions.
• The Texas Constitution is one of the longest state
constitutions with over 90,000 words and over 500
constitutional amendments.
• By contrast the 200-year-old U.S. Constitution has
approximately 7,000 words and has been amended 27 times.
Texas Constitution: Basic Principles
• The underlying principle of the constitution is
that it is a social compact based on popular
sovereignty.
• A second principle incorporated in its provisions
is limited government.
• Separation of powers constitutes the third grand
principle incorporated into the document.
The 1876 Texas Constitution – the Current Texas Constitution
In contrast to the 1869 Reconstruction Constitution, the
1876 Constitution:
1. Weakened the Governor:
– Shortened the term from 4 to 2 years
– Cut the salary
– Limited his/her appointment powers - state judges were no longer appointed
by the governor, but elected
– Limited his/her removal powers - governor can remove virtually none of his
appointments without the consent of the Senate
– Limited her/his budgetary powers
– Limited her/his directive powers (power to issue executive orders) - the
governor has no power to issue exec. orders except in the area of law
enforcement
– Limited her/his clemency powers - today, the Board of Pardons & Paroles
exercises most of this power
– Result: Texas governor is rather weak-- ranked as weakest state governor in
the U.S. in terms of his formal constitutional powers.
The 1876 Texas Constitution – the Current Texas Constitution
2. Weakened the Legislature:
– Reduced their salary and put it into the constitution.
– Limited the length of the legislative session from annual to
biennial ( once every 2 years) for a maximum of 140 days.
– Put operating rules into constitution to slow down the
legislature – e.g.: every bill must be read 3 separate times on 3
separate days in both the House & Senate and must pass 2
floor votes in each house.
– Put limits on the legislature’s taxing, spending, and borrowing
powers
– Texas Constitution requires a balanced budget -- no deficit
spending.
The 1876 Texas Constitution – the Current Texas Constitution
3. Weakened the Courts
– Created the dual structure of courts-- one set for criminal cases
and one for civil cases--result: Texas has 2 high courts -Texas Supreme Court for civil cases and Texas Court of
Criminal Appeals for criminal cases.
4. Strengthened Local Government
– Took power to run public schools away from state government
and gave it to local government.
– Created local judgeships
The 1876 Texas Constitution – the Current Texas Constitution
Good and Bad Points of the 1876
Constitution…
Positive Points:
– Weaker state government = less chance of abuse of power
– Limits on taxing, spending, & borrowing has helped to keep
spending under control, taxes lower, and no state deficit.
– Stronger local government makes it easier for citizens to
influence important decisions affecting their daily lives – it’s
generally easier to influence local government than state
government.
The 1876 Texas Constitution – the Current Texas Constitution
More Negatives Points:
– Constitution is inflexible and not forward looking
• It has to be amended frequently due to changing society -presently, there are more than 500 amendments.
– Constitution is too detailed -- it should contain a basic
framework for government, leaving the specifics to the
legislature.
• U.S. Constitution is short. Texas Constitution is very long.
• Because it is so specific, we have to constantly amend it
just to allow the legislature to pass new laws and programs
• Example: electronic banking, state lottery, tax breaks for
urban renewal zones in inner city areas.
The 1876 Texas Constitution – the Current Texas Constitution
– Constitution is too restrictive
• It puts too many restrictions on the governor and legislature (just as the
Articles of Confederation was too restrictive).
– Constitution is poorly written
• Typos, misspelled words, grammatical errors, sentences over 300 words long,
and disorganized
• Recent attempts at reforming the Texas Constitution failed–
attempts in 1957, 1966, 1971, and 1975.
• All failed because of:
– Public opposition
– Lack of information
– Public Apathy- Boredom and/or disinterest in the need for a new State
constitution
– Organized opposition by various interest groups
Texas Constitution: General Features
• The Texas Constitution is much like it was in 1876 in
spite of having over 500 amendments.
• The many details of policy and governmental
organization that are included make the document long
(only one state constitution, Alabama’s, is longer) and
poorly organized.
• The Texas Constitution reflects the time of its writing
and the state's traditionalistic political culture and
suffers from several defects:
1. It contains provisions that conflict with federal law.
2. It is overly restrictive and thus has required frequent
amendment.
3. It is difficult to read and interpret, even by the courts.
Texas Constitution: Specific Features
A Bill of Rights, Article I
• The Texas Bill of Rights provides for equality under the
law, religious freedom, due process, freedom of speech
and press, and other protections found in the US Bill of
Rights.
• The Texas Bill of Rights also contains protections for
the mentally incompetent and several guarantees such as
the one prohibiting the outlawing of an individual from
the state.
• The provisions of Article I are broadly supported by the
state's citizens and have been left intact during modern
constitutional revision efforts.
Texas Constitution: Specific Features
Separation of Powers, Article II
• Briefly spells out the 3 “departments” of government
• Separation of powers in the Texas Constitution is reinforced by
checks and balances, many of which are the same as those found
in the U.S. Constitution.
• The House may impeach and the Senate may try (a judicial
function) elected officials and judges at the district level and
• above.
• The governor has a veto over acts of the legislature and an item
veto over appropriations bills (a legislative proceeding).
• The Supreme Court may issue a writ of mandamus ordering an
executive official to act (an executive function).
Texas Constitution: Specific Features
The Legislative Branch, Article III
• Article III establishes the legislature as the dominant
institution in the state, but spells out a number of
limitations on its powers, including the following:
1. Regular legislative sessions occur only once every two years.
2. The number of days allotted to particular tasks (intro of bills,
committee work, and floor actions) is specified.
3. Legislators' salaries and per diem are set by the constitution
(amendment required to change these).
4. The legislature cannot authorize the state to borrow money.
Texas Constitution: Specific Features
A Fragmented Executive, Article IV
• The governor has little or no control over other
executive officials, several of which are independently
elected.
– This article is overly specific in its provisions
– The restrictions on the governor reflect the extreme reaction to the excesses
of Governor E.J. Davis
– The governor does, however, possess significant legislative power,
including:
• Control of special sessions and veto power.
• In recent years has been strengthened by amendments lengthening the
term of office to four years and allowing a governor to remove, with
the advice and consent of the Senate, individuals he or she has
appointed.
Texas Constitution: Specific Features
The Texas Judiciary, Article V
• Has Four Distinctive Features:
1. It creates a somewhat confusing system in which you have six
types of courts and two separate supreme courts, for civil and
criminal matters.
2. Different trial court levels are given concurrent (overlapping)
jurisdiction, while some courts at the same level have
different jurisdiction depending on whether they are
constitutional or statutory.
3. Judges are elected and not appointed.
4. The article is overly specific and includes such features as the
requirement that each county have an elected sheriff.
Texas Constitution: Specific Features
The constitution gives units of local government
(counties, municipalities, and special districts)
varying degrees of flexibility.
– Counties, as representatives of the state, are most restricted.
– Cities with populations over 5,000 may adopt home-rule
charters rather than being governed by general laws.
– Special districts (e.g., school districts), which continue to
proliferate, are provided taxing authority for limited purposes.
Texas Constitution: Specific Features
• Provisions on suffrage in the constitution contain much
"deadwood" which, because it conflicts with federal law,
cannot be enforced. Examples include:
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Minimum Voting Age
– US-18
– TX-21
Residency requirements for voting in state and local elections:
– US-Not established, although 50 days has been found to be
– excessive by the courts.
– TX-One year in state, six months in county
Voter registration
– US-Continuous
– TX-Annual
Property requirements for voting
– US-Not permitted
– TX-Mandatory in local bond elections
Amending the Texas Constitution
• Amendments to the constitution are proposed by
an absolute two-thirds majority vote in both
houses of the legislature and ratified by a simple
majority vote in a statewide election.
• Over 500 amendments have been made to the
Texas Constitution since its adoption in 1876.
A Critical Look at the Texas Constitution
• Governmental authority is fragmented at both the state
and local levels
– The governor shares executive powers with numerous other
elected officials (the plural executive).
– The executive function at the county level is also fragmented
with the election of numerous constitutionally defined local
administrative offices.
• Numerous limitations on the state legislature have
hampered its performance and its ability to adapt to the
increased demands of an urban, industrialized society.
A Critical Look at the Texas Constitution
• The state functions with a complex, highly decentralized court
system.
• Until federal intervention, the Texas Constitution permitted
official policies of discrimination against key segments of the
state's population.
• The constitution is excessively detailed with provisions that
should be statutory rather than constitutional.
• There are obsolete provisions in the constitution.
• Its restrictive nature has required numerous constitutional
amendments, and at the same time, the amendment process is
much too easy and permits groups to incorporate provisions in the
constitution to protect their interests.
Review Questions
• What the impact of Reconstruction on the 1876
Constitution and beyond?
• How are Executive Powers limited by the Constitution?
• How are Legislative Powers limited by the Constitution?
• How are Judicial Powers limited by the Constitution?
• What powers of Local Government are contained in the
Constitution?
• How many amendments are currently in the Texas
Constitution?
Discussion Questions
• Why doesn’t Texas reform the State Constitution?
• What areas in the State Constitution should be
reformed? Which areas should be eliminated? Why?
• Should Initiative, Referendum, and Recall be extended
beyond the local level within the State Constitution?