Texas Government Chapter 2

Federalism and the Texas Constitution

• Learning Objectives

  • Analyze federalism and the powers of the state in a constitutional context.
  • Explain the origins and development of the state constitution.
  • Analyze the amendment process, focusing on recent constitutional amendment elections as well as attempts to revise the Texas Constitution.
  • Identify and differentiate the basic sections of the Texas Constitution.

• Introduction

  • The Texas Constitution, adopted in 1876, serves as the Lone Star State’s fundamental law.
  • This document outlines the structure of Texas’s state government, authorizes the creation of counties and cities, and establishes basic rules for governing.
  • It has been amended frequently over the course of more than 15 decades.
  • Lawyers, newspaper editors, political scientists, government officials, and others who consult this state constitution tend to criticize it for being too long and for lacking organization.
  • Yet despite criticism, Texans have expressed strong opposition to, or complete lack of interest in, proposals for wholesale constitutional revision.
  • The Texas Constitution is the primary source of the state government’s policymaking power.
  • The other major source of its power is membership in the federal Union.
  • Sometimes, tensions between the federal government and Texas may erupt, as illustrated by the state’s ongoing challenges to the passage and implementation of the Affordable Health Care Act during the Obama Administration.
  • Within the federal system, state constitutions are subject to the U.S. Constitution.

The American Federal Structure

• LO 2.1 Analyze federalism and the powers of the state in a constitutional context.

  • Federalism can be defined as a structure of government characterized by the division of powers between a national government and associated regional governments.
  • The heart of the American federal system lies in the relationship between the U.S. government (with Washington, D.C., as the national capital) and the governments of the 50 states.
  • Since 1789, the U.S. Constitution has prescribed a federal system of government for the nation; and since 1846, the state of Texas has been a part of that system.
  • Political scientist David Walker emphasizes the important role that states play in federalism:
    • “The states’ strategically crucial role in the administration, financing, and planning of intergovernmental programs and regulations—both federal and their own—and their perennial key position in practically all areas of local governance have made them the pivotal middlemen in the realm of functional federalism.”
  • At the same time, the distribution of governmental power between national and state governments remains a constant tension within federalism.
    • In his book, Fed Up!, in a chapter titled “Why States Matter,” Rick Perry (the longest-serving governor in Texas history) asserts: “the very essence of America stems from a limited, decentralized government.”
    • Yet, federal laws and court decisions often grant substantial power to the national government.
  • American federalism has survived more than two centuries of stresses and strains.
    • Among the most serious threats were the Civil War from 1861 to 1865, which almost destroyed the Union, and economic crises, such as the Great Depression, which followed the stock market crash of 1929.
    • More recently, American federalism was tested again during the COVID-19 pandemic in addressing public health and the economic impact in the country and among the states.

• Distribution of Constitutional Powers

  • Division of powers and functions between the national government and the state governments was originally accomplished by listing the powers of the national government in the U.S. Constitution and by adding the Tenth Amendment.
  • The latter asserts that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the People.”
  • Although the Tenth Amendment may seem to endow the states with powers comparable to those delegated to the national government, Article VI of the U.S. Constitution contains the following clarification:
    • “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
    • Referred to as the national supremacy clause, this article emphasizes that the U.S. Constitution and acts of Congress, as well as U.S. treaties, must prevail over state constitutions and laws enacted by state legislatures.
  • Article I, Section 8, of the U.S. Constitution lists powers that are specifically delegated to the national government.
    • Included are powers to regulate interstate and foreign commerce, borrow and coin money, establish post offices and post roads, declare war, raise and support armies, provide and maintain a navy, levy and collect taxes, and establish uniform rules of naturalization.
    • Added to these delegated powers is a clause that gives the national government the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
    • Since 1789, Congress and the federal courts have used the “necessary and proper” clause as a grant of implied powers to expand the national government’s authority.
    • Another way in which the federal government has expanded its powers is through the commerce clause in Article I, Section 8, of the U.S. Constitution.
      • For instance, the U.S. Supreme Court, in a case originating in Texas, gave significant leeway to Congress under the commerce clause to legislate in matters traditionally reserved for the states.
      • In this case, the Court allowed Congress to set a minimum wage for employees of local governments.

• Guarantees to the States

  • The U.S. Constitution provides all states with an imposing list of constitutional guarantees, which include the following:
    • A state may be neither divided nor combined with another state without consent of the U.S. Congress and the state legislatures involved.
      • (Texas, however, did retain power to divide itself into as many as five states under the terms of its annexation to the United States.)
    • Each state is guaranteed a representative government with elected lawmakers, also known as a republican form of government.
    • Each state is guaranteed two senators in the U.S. Senate and at least one member in the U.S. House of Representatives.
    • All states participate in presidential elections through the electoral college.
      • Each state has a number of electoral college votes equal to the total number of U.S. senators and U.S. representatives from that state.
      • (As of the start of 2021, Texas holds 38 electoral college votes and is expected to gain as many as three seats after reapportionment takes place.)
    • All states participate equally in approving or rejecting proposed amendments to the U.S. Constitution.
      • Approval requires ratification either by three-fourths of the state legislatures or by conventions called in three-fourths of the states (only the Twenty-First Amendment, which repealed Prohibition and the Eighteenth Amendment, was not ratified in this way).
    • Each state is entitled to protection by the U.S. government against invasion and domestic violence, although Texas has its own Army National Guard, Air National Guard, and State Guard units.
      • For more information on the state’s military forces, see Chapter 9, “The Executive Branch.”
    • Texas is assured that trials by federal courts for crimes committed in Texas will be conducted in Texas.
      • Another constitutional guarantee provided to the states is the authority to propose constitutional amendments to the U.S. Constitution.
      • Such action requires two-thirds of the state legislatures (34 states) to call a national constitutional convention.
        • Specifically, state legislatures must submit an application to Congress to call for a national convention of the states.
      • This procedure, which has never been used, received considerable attention in 2016 when Texas Governor Greg Abbott called on states to convene a constitutional convention to propose several amendments as a means to restore states’ rights.
      • In May 2017, the Texas Legislature became the 11th state in the country to pass a resolution calling for a national convention. As of 2020, another four states had passed similar resolutions, totaling 15 states.

• Limitations on the States

  • As members of the federal Union, Texas and other states are constrained by limitations imposed by Article I, Section 10, of the U.S. Constitution.
    • For example, they may not enter into treaties, alliances, or confederations or, without the consent of Congress, make compacts or agreements with other states or foreign governments. Furthermore, states are forbidden to levy import duties (taxes) on another state’s products.
    • From the outcome of the Civil War and the U.S. Supreme Court’s landmark ruling in Texas v. White, $74 U.S. 700$ (1869), Texans learned that states cannot secede from the Union.
      • In the White case, the Court ruled that the national Constitution “looks to an indestructible union, composed of indestructible states.”
    • In subsequent cases, the U.S. Supreme Court further restricted state power.
      • For instance, a state legislature cannot limit the number of terms for members of the state’s congressional delegation.
      • The U.S. Supreme Court held that term limits for members of Congress could be constitutionally imposed only if authorized by an amendment to the U.S. Constitution.
    • Other provisions in the U.S. Constitution prohibit states from denying anyone the right to vote because of race, gender, failure to pay a poll tax (a tax paid for the privilege of voting), or age (if the person is 18 years of age or older).
    • The Fourteenth Amendment forbids states from denying to any persons the equal protection of the laws.
      • For example, in a 1950 Supreme Court case (prior to the Thelma White case highlighted in the “Students in Action” segment), segregation on the basis of race at the University of Texas Law School was held to be in violation of the Fourteenth Amendment’s equal protection clause.
        • Although the state had established “a separate but equal law school” for African Americans, the Court held that it was grossly unequal to the University of Texas Law School.
        • Therefore, the equal protection clause required Heman Sweatt’s (the plaintiff in the case) admission to the University of Texas. This ruling opened the door to other qualified African Americans’ admission to the law school.
    • The Fourteenth Amendment also provides that no state may deprive persons of life, liberty, or property without due process of law.
      • These protections include those rights covered in the U.S. Constitution’s Bill of Rights.
      • This expansion to the states has occurred primarily through a series of cases heard by the U.S. Supreme Court.
      • Using a principle known as incorporation, the U.S. Supreme Court through a series of cases has selectively applied portions of the Bill of Rights to the states by virtue of the Fourteenth Amendment’s due process clause.
      • In effect, states are obligated to provide most of the protections covered in the Bill of Rights.
        • For example, state and local law enforcement officers are required to inform anyone taken into custody of his or her right to remain silent (Fifth Amendment’s right against self-incrimination) and the right to an attorney (Sixth Amendment’s right to assistance of counsel).
      • To ensure these protections, Congress has enforcement powers under the Fourteenth Amendment.

• Students in Action: Thelma White Case Forced College Integration

  • “In his court order no. 1616 issued July 25, 1955, Judge Robert E. Thomason prohibited Texas Western College from denying Thelma White ‘or any member of the class of persons she represents, the right or privilege of matriculating or registering … because of their race or color.’” — Veronica Herrera and Alan A. Johnson

  • How It All Began

    • On March 30, 1955, Thelma White filed suit in a U.S. District Court challenging the denial of her admission to Texas Western College (TWC; now University of Texas at El Paso [UTEP]).
    • When she applied to TWC, officials rejected her application because of her race.
    • The college was forced to obey the state’s segregation law.
    • Black students could attend only two public colleges in Texas: Prairie View A&M or Texas Southern University, both in the Houston area and a considerable distance from El Paso.

  • Winning Her Case

    • While waiting for her lawsuit to go to court, White enrolled at New Mexico A&M (later New Mexico State University), where she continued her education.
    • Before the case went to judgment, the University of Texas System decided that TWC could admit black students.
    • [U.S. District] Judge R. E. Thomason [for the Western District of Texas] ruled that the state laws requiring segregation violated the U.S. Constitution, that White must be admitted, and that the entire University of Texas System, along with all other public universities, must admit black students to their undergraduate programs.
      • Before this case, law and medical schools, as well as several graduate programs, had been opened to blacks, but all undergraduate schools had remained closed.

  • Fighting for Educational Rights

    • White felt that she and other black students were being denied their educational rights.
    • TWC admitted White and 12 other black students for the 1955 fall semester.
    • White’s victory opened the door for the students, although she remained at New Mexico A&M.
    • The next year several more black students came to TWC.

  • Leaving a Legacy

    • White’s legacy lives on at UTEP to this day.
    • In her memory, UTEP founded the Thelma White Network for Community and Academic Development.
    • The network’s single purpose is to assist black students with social and academic development at UTEP.
    • Today, African American students are enrolled in virtually every academic program at UTEP, a fact made possible by White and her pioneering efforts to change the educational system in El Paso.
    • White’s victory opened the door for African American students to attend what would ultimately become UT El Paso.

• Interstate Relations and State Immunities

  • Two provisions of the U.S. Constitution specifically affect relations between the states and between citizens of one state and another state. These provisions are Article IV and the Eleventh Amendment.
    • Article IV of the U.S. Constitution provides that “citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”
      • This means that citizens of Texas who visit another state are entitled to all the privileges and immunities of citizens of that state.
      • It does not mean, however, that such visiting Texans are entitled to all the privileges and immunities to which they are entitled in their home state.
      • More than 200 years ago, the U.S. Supreme Court broadly defined “privileges and immunities” as follows: protection by government, enjoyment of life and liberty, right to acquire and possess property, right to leave and enter any state, and right to the use of courts.
      • For some advocates of gun rights, this clause should extend to the right to keep and bear arms.
    • Article IV also states that “full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.”
      • The full faith and credit clause means that any legislative enactment, state constitution, deed, will, marriage, divorce, or civil court judgment of one state must be officially recognized and honored in every other state.
      • This clause does not apply to criminal cases.
      • For example, a person convicted in Texas for a crime committed in Texas is not punished in another state to which he or she has fled.
      • Instead, such cases are handled through extradition, whereby the fugitive would be returned to the Lone Star State at the request of the governor of Texas.
      • Furthermore, for some felonies, the U.S. Congress has made it a federal offense to flee from one state to another for the purpose of avoiding arrest.
    • A controversy regarding the full faith and credit clause revolved around whether states must recognize same-sex marriages.
      • In 1996, during President Bill Clinton’s administration, Congress passed the Defense of Marriage Act (DOMA), prohibiting the national government from recognizing same-sex marriages and allowing states or political subdivisions (such as cities) to deny any marriage between persons of the same sex recognized in another state.
      • In 2003, the Texas legislature passed a law prohibiting the state or any agency or political subdivision (such as a county or city) from recognizing a same-sex marriage or civil union formed in Texas or elsewhere.
      • Then, in November 2005, Texas joined 15 other states in adopting a state constitutional amendment that banned same-sex marriage and defined marriage as “only the union of one man and one woman.”
      • According to the National Conference of State Legislatures, 33 states had similar bans, either in their constitutions or by statutory law by 2015.
      • Although several challenges to the constitutionality of these state laws were presented to the U.S. Supreme Court, the Court was reluctant to review any such cases until 2012.
      • Then in the 2013 case, United States v. Windsor, the U.S. Supreme Court struck down a provision of the Defense of Marriage Act that denied more than 1,000 federal benefits for same-sex married couples.
        • The Court concluded that this provision deprived same-sex couples of rights and responsibilities protected by the due process clause of the Fifth Amendment and treated them differently in violation of equal protection principles.
      • Although the decision applied to federal laws and directives affecting legally recognized same-sex marriages performed in 17 states at the time, it left unclear whether states, like Texas, had to recognize legally sanctioned same-sex marriages performed in other states.
      • In exercising its state’s rights, Texas chose to refuse national directives in this area of law.
        • For instance, the Texas National Guard initially refused to provide federal spousal benefits for same-sex couples despite a mandate by the U.S. Department of Defense.
      • At least three federal lawsuits were filed as challenges to Texas’s ban on same-sex marriage, claiming that the law subjected gay couples to unequal treatment in violation of the due process and equal protection clauses of the Fourteenth Amendment of the U.S. Constitution.
      • In February 2014, U.S. District Judge Orlando L. García of the Western District in San Antonio struck down the Texas ban, ruling it did not have a “legitimate government purpose.”
      • Then the U.S. Supreme Court agreed to hear a case which directly challenged the marriage restrictions in Kentucky, Michigan, Tennessee, and Ohio. Kentucky’s law was similar to the Texas law in declaring marriage to involve “one man and one woman.”
      • The U.S. Supreme Court ultimately ruled in 2014 in a 5–4 decision that the Fourteenth Amendment guarantees all couples the right to marry, regardless of sexual orientation, and that states must recognize same-sex marriages performed in other states.
      • Same-sex marriage bans in Texas and 12 other states were effectively struck down. Thus, same-sex marriages are now legal in all 50 states.
      • However, the Texas Supreme Court, in 2017, held in a separate case that, while the nation’s highest court ruled in favor of same-sex marriages, it did not require that Texas municipalities extend spousal benefits, such as health insurance, to the spouses of municipal employees. For many advocates of same-sex marriages, this ruling opened the door to further challenges.
    • The Eleventh Amendment also affects relations between citizens of one state and the government of another state.
      • It provides, in part, that “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state.”
      • U.S. Supreme Court rulings have ensured that a state may not be sued by its own citizens, or those of another state, without the defendant state’s consent, nor can state employees sue the state for violating federal law. This law, otherwise known as sovereign immunity, gives a tremendous shield to state governments.
      • Yet this power is not absolute.
        • For example, in 1993, several families whose children were eligible for Medicaid sued the state of Texas for its failure to provide these programs.
        • A federal district court ordered the state to correct this problem. A consent decree was issued (an agreement of both parties to avoid further litigation).
        • When the District Court ordered enforcement of the decree, the state appealed to the Fifth Circuit Court of Appeals arguing that the decree had many more requirements than the Medicaid law.
        • Plaintiffs appealed to the U.S. Supreme Court, which held that the decree should be enforced even if it went beyond federal law.
        • The Supreme Court ultimately held that this was not a sovereign immunity case, because the suit was not against the state but against state officials who had acted in violation of federal law.
        • The Eleventh Amendment does not prohibit enforcement of a consent decree; enforcement by the federal courts is permitted to ensure observance of federal law.

The Texas Constitution: Politics of Policymaking

• LO 2.2 Explain the origins and development of the state constitution.
  • As already mentioned, the current Texas Constitution is the main source of power for the Texas state government.
  • Surviving for more than 140 years, this constitution establishes the state’s government, defines governing powers, imposes limitations, and identifies Texans’ civil liberties and civil rights.
  • Political scientists and legal scholars generally believe that a constitution should indicate the process by which problems will be solved, both in the present and in the future, and should not attempt to solve specific problems.
    • Presumably, if this principle is followed, later generations will not need to adopt numerous amendments.
  • In many areas, however, the Texas Constitution mandates specific policies in great detail, which has required frequent amendments.
  • The preamble to the Texas Constitution states, “Humbly invoking the blessings of Almighty God, the people of the state of Texas do ordain and establish this Constitution.”
    • These words begin the 28,600-word document that became Texas’s seventh constitution in 1876.
    • By the start of 2021, that same document had been changed by no fewer than 507 amendments and contained about 92,000 words.
  • Framers of the Constitution spelled out policymaking powers and limitations in minute detail. This specificity, in turn, made frequent amendments inevitable as constitutional provisions were altered to fit changing times and conditions.
  • For more than a century, the length of the Texas Constitution has increased through an accumulation of amendments, most of which are essentially statutory (resembling laws made by the legislature).
  • The resulting document more closely resembles a code of laws than a fundamental instrument of government.
  • To fully understand the present-day Texas Constitution, we will examine the historical factors surrounding its adoption, as well as previous historical periods and constitutions.

Historical Developments

• The Texas Constitution provides the legal basis on which the state functions as an integral part of the federal Union.

• In addition, the document is a product of history and an expression of the dominant political philosophy of Texans living at the time of its adoption.

• In general, constitution drafters have been pragmatic people performing an important task.

• Despite the idealistic sentiment commonly attached to constitutions in the United States, the art of drafting and amending them is essentially political in nature.

• In other words, these documents reflect the drafters’ views and political interests, as well as the political environment of their time.

• With the passing of years, the Texas Constitution reflects the political ideas of new generations of people who amend or change it.

• The constitutional history of Texas began with promulgation of the Constitution of Coahuila y Tejas within the Mexican federal system in 1827 and the Constitution of the Texas Republic in 1836.

• Texas has since been governed under its state constitutions of 1845, 1861, 1866, 1869, and 1876. Each of these seven constitutions has reflected the political situation that existed when the specific document was drafted.

• In this section, we will see the political process at work as we examine the origins of these constitutions and note the efforts to revise and amend the current Texas Constitution.

• The First Six Texas Constitutions

  • In 1824, three years after Mexico gained independence from Spain, Mexican liberals established a republic with a federal constitution. Within that federal system, the former Spanish provinces of Coahuila and Tejas became a single Mexican state that adopted its own constitution.
  • Thus, the Constitution of Coahuila y Tejas, promulgated in 1827, marked Texas’s first experience with a state constitution.
  • Political unrest among Anglo Texans, who had settled in Mexico’s northeastern area, arose almost immediately.
    • Factors that led Texians (as Anglo Texans called themselves at the time) to declare independence from Mexico included, among others, their desire for unrestricted trade with the United States, Anglo attitudes of racial superiority, anger over Mexico’s abolition of slavery, increasing numbers of immigrant settlers, insufficient Anglo representation in the 12-member Coahuila y Tejas legislature, and Mexico’s failure to provide greater access to government in the English language.
  • On March 2, 1836, at Washington-on-the-Brazos (between present-day Brenham and Navasota), a delegate convention of 59 Texians and Tejanos issued a declaration of independence from Mexico. Mexicans in Texas who also wanted independence and who fought for a free Texas state referred to themselves as Tejanos.
    • Three Tejanos in particular served as delegates at the convention: Lorenzo de Zavala (representing Harrisburg [now a part of Houston]), Francisco Ruiz, and José Antonio Navarro (both representing Béxar).
    • The delegates drafted the Constitution of the Republic of Texas, modeled largely after the U.S. Constitution.
  • During this same period, in an effort to retain Mexican sovereignty, General Antonio López de Santa Anna defeated the Texians (many of whom were not even from Texas) and some Tejanos in San Antonio in the siege of the Alamo, which ended on March 6, 1836.
    • Shortly afterward, Sam Houston’s troops, including a company of Tejanos who were recruited by Captain Juan N. Seguín, crushed the Mexican forces in the Battle of San Jacinto on April 21, 1836.
  • Part of Texas’s unique history in the United States is its existence as an independent nation for close to 10 years.
    • After Houston’s victory over Santa Anna, Texas voters elected Houston as president of their new republic; they also voted to seek admission to the Union.
    • Not until 1845, however, was annexation authorized by a joint resolution of the U.S. Congress. Earlier attempts to become part of the United States by treaty had failed.
    • Texas’s status as a slave state, as well as concerns that annexation would lead to war with Mexico, stalled the earlier efforts.
    • Texas president Anson Jones ultimately called a constitutional convention. Its delegates drew up a new state constitution and agreed to accept the invitation to join the Union.
    • In October 1845, after Texas voters ratified both actions of the constitutional convention, Texas obtained its third constitution. Then on December 29, it became the 28th member of the United States. These events, however, set the stage for war between Mexico and the United States (1846–1848), especially with regard to where the boundary lines between the two countries would be drawn.
      • Some historians suggest that U.S. expansionist politicians and business interests actively sought this war.
      • When the Treaty of Guadalupe Hidalgo between Mexico and the United States was signed in 1848, Mexico lost more than half its territory and recognized the Rio Grande as Texas’s southern boundary.
        • Negotiations also addressed the rights of Mexicans left behind in Texas, many of whom owned land in the region.
        • Under the treaty, Mexicans had one year to choose to return to Mexico or to remain in the newly annexed part of the United States.
        • It also guaranteed Mexicans all the rights of citizenship. For all intents and purposes, these residents became the first Mexican Americans of Texas and the United States.
        • Many Mexican Americans, however, were soon deprived of most of their rights, especially their property rights.
    • The Texas Constitution of 1845 lasted until the Civil War began in 1861.
      • When Texas voted to secede from the Union in that year, it joined with other southern states to form the Confederate States of America.
      • At the time, secessionists argued that the U.S. Constitution created a compact (or agreement) among the states, and that each state had a right to secede.
      • During this period, Texas adopted its Constitution of 1861, with the aim of making as few changes as possible in government structure and powers. The new constitution included changes necessary to equip the government for separation from the United States, as well as the maintenance of slavery.
  • After the Confederacy’s defeat, however, the Constitution of 1866 was drafted amid a different set of conditions during Reconstruction. For this constitution, the framers sought to restore Texas to the Union with minimal changes in existing social, economic, and political institutions.
    • Although the Constitution of 1866 was based on the Constitution of 1845, as a necessary condition to rejoin the Union, it abolished slavery and recognized the rights of former slaves to sue in the state’s courts, to enter into contracts, to obtain and transfer property, and to testify in court actions involving black citizens (but not in court actions involving white citizens).
    • Although the Constitution of 1866 protected the personal property of African American Texans, it did not permit them to vote, hold public office, or serve as jurors.
    • The relatively uncomplicated reinstatement of Texas into the Union ended abruptly when the Radical Republicans gained control of the U.S. Congress after the election of November 1866.
      • Refusing to seat Texas’s two senators and three representatives, Congress set aside the state’s reconstructed government, enfranchised (granted voting rights to) former slaves, disenfranchised anyone who had participated in or supported the Confederacy, and imposed military rule across the state. U.S. Army officers replaced civil authorities. As in other southern states, Texas functioned under a military government.
    • Under these conditions, delegates to a constitutional convention met in intermittent sessions from June 1868 to February 1869 and drafted yet another state constitution. Among other provisions, the new constitution centralized more power in state government, provided for compulsory school attendance, and guaranteed a full range of rights for former slaves. This document was ratified in 1869.
      • The Fifteenth Amendment of the U.S. Constitution, granting voting rights to African American men, was also ratified in 1869. Then, with elections supervised by federal soldiers, Radical Republicans gained control of the Texas legislature.
      • At the same time, Edmund Jackson Davis (commonly identified as E. J. Davis), a former Union army general, was elected as the first Republican governor of Texas.
        • Some historians (such as Charles William Ramsdell and T. R. Fehrenbach) described the Davis administration (January 1870–January 1874) as one of the most corrupt in Texas’s history. In recent years, however, revisionist historians (such as Patrick G. Williams, Carl H. Moneyhon, and Barry A. Crouch) have made more positive assessments of Davis and his administration.
        • White Texans during the Davis administration tended to react negatively and with hostility to the freedom of former black slaves and to the political influence, albeit quite limited, that these freedmen exercised when they became voters.
        • Violence and lawlessness were serious problems at the time; thus, Governor Davis imposed martial law in some places and used police methods to enforce his decrees.
        • Opponents of the Davis administration claimed that it was characterized by extravagant public spending, property tax increases to the point of confiscation, gifts of public funds to private interests, intimidation of newspaper editors, and control of voter registration by the military. In addition, hundreds of appointments to various state and local offices were filled with Davis’s supporters.
      • Although the Constitution of 1869 is associated with the Reconstruction era and the unpopular (with most whites) administration of Governor Davis, the machinery of government created by this document was quite modern. The new fundamental law called for annual sessions of the legislature, a four-year term for the governor and other executive officers, and gubernatorial appointment (rather than popular election) of judges. It abolished county courts and raised the salaries of government officials. These changes centralized more governmental power in Austin and weakened local government.
      • During the Davis administration, Democrats gained control of the legislature in 1872. In December 1873, Governor Davis (with 42,633 votes) was badly defeated by Democrat Richard Coke from Waco (with 85,549 votes).
        • When Davis refused to leave his office on the ground floor of the Capitol, Democratic lawmakers and Governor-elect Coke are reported to have climbed ladders to the Capitol’s second story where the legislature convened.
        • When President Ulysses S. Grant refused to send troops to protect him, Davis left the Capitol under protest in January 1874. In that same year, Democrats wrested control of the state courts from Republicans.
        • The next step was to rewrite the Texas Constitution.

• Drafting the Constitution of 1876

  • In their zeal to undo policies of the Davis administration, delegates on occasion overreacted.
    • Striking at Reconstruction measures that had given Governor Davis control over voter registration, the overwrought delegates inserted a statement providing that “no law shall ever be enacted requiring a registration of voters of this state.”
    • Within two decades, however, the statement had been amended to permit voter registration laws.
  • In the summer of 1875, Texans elected 75 Democrats and 15 Republicans (six of whom were African Americans) as delegates to a constitutional convention; however, only 83 attended the gathering in Austin.
    • The majority of the delegates were not native Texans.
    • More than 40 percent of the delegates were members of the Texas Grange (the Patrons of Husbandry), a farmers’ organization committed to strict economy in government (reduced spending) and limited governmental powers. Its slogan of “retrenchment and reform” became a major goal of the convention.
    • So strong was the spirit of strict economy among delegates that they refused to hire a stenographer or to allow publication of the convention proceedings. As a result, no official record was ever made of the convention that gave Texas its most enduring constitution.
  • As they continued to dismantle the machinery of the Davis administration, delegates restricted powers of the three branches of state government.
    • They reduced the governor’s salary, powers, and term (from four years to two); made all executive offices (except that of secretary of state) elective for two-year terms; and tied the hands of legislators with biennial (once every two years) sessions, low salaries, and limited legislative powers.
    • All judgeships became popularly elected for relatively short terms of office. Justice of the peace courts, county courts, and district courts—all with popularly elected judges—were established.
    • In addition, public