Texas Government Chapter 2 (1)

Drafting the Constitution of 1876

In the summer of 1875, Texans elected 75 Democrats and 15 Republicans (six of whom were African Americans) as delegates to a constitutional convention.
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.
Delegates refused to hire a stenographer or to allow publication of the convention proceedings due to a spirit of strict economy.
As a result, no official record was ever made of the convention that gave Texas its most enduring constitution.
Delegates inserted a statement providing that “no law shall ever be enacted requiring a registration of voters of this state,” striking at Reconstruction measures that had given Governor Davis control over voter registration.
Within two decades, however, the statement had been amended to permit voter registration laws.
Delegates restricted powers of the three branches of state government.
They reduced the governor’s salary, powers, and term (from four years to two).
All executive offices (except that of secretary of state) made elective for two-year terms.
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.
Framers of the new constitution limited the public debt and severely curbed the legislature’s taxing and spending powers.
They also inserted specific policy provisions.
Reinstated racially segregated public education and repealed the compulsory school attendance law.
Restored precinct elections, and allowed only taxpayers to vote on local bond issues.
Texas’s proposed constitution was put to a popular vote in 1876 and was approved by a more than two-to-one majority.
Although Texans in the state’s largest cities—Houston, Dallas, San Antonio, and Galveston—voted against it, the much larger rural population voted for it.

Distrust of Government and Its Legacy Today

Framers of the Texas Constitution of 1876 sought to limit, and thus control, policymaking by placing many restrictions in the state’s fundamental law.
The general consensus of the time held that a state government could exercise only those powers listed in the state constitution.
Texas lawmakers are limited to powers spelled out in the state’s constitution instead of being permitted to exercise powers not denied by the U.S. Constitution.
The 19th-century Texas Constitution provides only limited powers for the governor’s office in the 21st century.
As established by the Texas Constitution, it is still considered one of the weakest gubernatorial offices in the nation.
By the 1880s, the constitutional rights guaranteed to African Americans under the U.S. Constitution had begun to be curtailed, and by the 1890s, Jim Crow laws, which fostered segregation, also contributed to the limitation of their rights.
The structural disarray and confusion of the Constitution of 1876 compound the disadvantages of its excessive length and detail.
The U.S. Constitution has only 4,400 words and merely 27 constitutional amendments, unlike the Texas Constitution.
The Texas Constitution of 1876 has lasted for more than 140 years.
In actuality, it is quite common that state constitutions are lengthy documents, given the nature of state and local responsibilities.
For one observer, the virtues of the Texas constitution are “its democratic impulses of restraining power and empowering voters.”
It is a “document of history as much as it is a charter of governance.”
Filling the Texas Constitution with many details and creating a state government with restricted powers would inevitably lead to constitutional amendments and frequent alterations.
Many substantive changes in Texas government require an amendment. For example, an amendment is needed to change the way the state pays bills, to abolish certain unneeded state and county offices, or to authorize a bond issue pledging state revenues.
Urbanization, industrialization, technological innovations, population growth, demands for programs and services, and countless social changes contribute to pressures for frequent constitutional change.
One underlying theme among constitutional amendment elections centers on the legislative process.
A notable example is the 2007 proposal that required state legislators to cast a recorded final vote on all substantive bills or constitutional amendment proposals and have it posted on the Internet for public review.
Most amendments apply to matters that should be resolved by statutes enacted by the Texas legislature.
Other states are able to handle most issues primarily through legislative action rather than through constitutional amendments.
An often uninformed and usually apathetic electorate must decide the fate of many complex policy issues. Special interests represented by well-financed lobbyists and the media often play influential roles in constitutional policymaking. They are also likely to influence the success or defeat of proposed amendments.
As the most visible policymaker in Texas, the governor can sway public support or nonsupport of key propositions.
Then-Governor Rick Perry, for instance, played a pivotal role in advocating specific constitutional amendment proposals.
Signifying potentially a new direction in the substantive nature of constitutional amendments at the time, Rick Perry supported Proposition 2 in 2005.
The controversial nature of this proposal, which sought to ban same-sex marriage, produced unprecedented media coverage and interest group activity.
The proposed amendment defined marriage as consisting only of the “union of one man and one woman.”
It also prohibited the state and all political subdivisions from “creating or recognizing any legal status identical or similar to marriage.”
The measure overwhelmingly passed with 76 percent of the voters (more than 1.7 million) supporting it and 24 percent (more than 500,000) opposing it.

Constitutional Amendment Elections

Often, Texas voters are expected to evaluate numerous constitutional amendments.
Of the 690 constitutional amendment proposals presented to voters, 507 have been approved and 180 have been defeated.
From 2003 to 2015, voters were presented with 86 constitutional amendment proposals, with as many as 22 in 2003, and voters approved 94 percent of these proposals.
Unless there is strong and vocal opposition, constitutional amendment proposals are increasingly likely to be approved.
Another major underlying theme relates to public finance. For instance, some constitutional amendments that have been approved provide property tax exemptions for different types of homeowners, such as surviving spouses of military personnel killed in action or deceased disabled veterans.
One amendment increased the residential homestead exemptions for taxes supporting public schools.
Voters have also approved temporary tax relief when property is damaged as a result from a natural disaster, such as Hurricane Harvey in 2019.
Another subject area of constitutional amendments involves dedicating a portion of sales tax revenue for certain projects, such as using the state highway fund to build roads.
In 2019, voters allowed revenue accumulated from the sale of sporting goods to be appropriated for support of the Texas Parks and Wildlife Department and the Texas Historical Commission.
In that same year, another constitutional amendment allocated 800 million of Texas’ Rainy Day Fund (the state’s savings account) for flood mitigation efforts in response to the devastating impact of Hurricane Harvey along the Texas coast.
Some of the more noteworthy constitutional amendments in recent years have had an impact on colleges and universities.
In 2009, a proposal allowed Texas’s public “emerging research universities” (including the University of Houston, University of Texas at El Paso, Texas Tech, and Texas State University at the time of the proposal) to compete for research money from the state’s National Research University Fund. The objective was to raise the status of these schools to what are referred to as “Tier One” research institutions.
As of 2020, there were eight designated emerging research universities; but only two of Texas’s public institutions (the University of Texas at Austin and Texas A&M University and one private institution (Rice University) were ranked as Tier One by all ranking authorities.
A 2009 proposal affected college students by authorizing the Texas Higher Education Coordinating Board to expand the state’s ability to issue bonds for financing the College Access Loan program. This program provides low-interest loans to college students, irrespective of financial need. Private colleges and universities, who typically charge higher tuition rates, strongly supported this proposal.
This amendment was proposed as lawmakers were making cuts in educational funding sources for students, specifically the Texas Grants Program and the Texas Equalization Program.
Few constitutional amendments have expanded constitutional rights of individuals. Most notable of these was a proposal establishing a constitutional right to hunt, fish, and harvest wildlife, which was strongly supported by Governor Abbott in 2015.
Some constitutional amendments impact elected officials. For instance, in 2015, a constitutional amendment repealed a requirement that statewide elected officials physically reside in Austin, with the governor as the only exception.
Given the reliance on technology, supporters argued that the law was outdated. Opponents, in contrast, argued that statewide officials are full-time elected officials, and their presence is essential and expected in the capitol.
Of the seven constitutional amendments proposed in 2017, the one that received the most attention concerned whether the number of professional sports teams should be expanded for allowing charitable raffles. Voters had already approved a constitutional amendment in 2015 allowing specific professional sports team charitable foundations to conduct charitable raffles at home games.
This amendment raised concerns among opponents that expanding the number of eligible teams would encourage gambling in Texas.
In 2019, of the 10 constitutional amendments that were presented to voters, the most visible was Proposition 4 prohibiting the legislature from imposing a state income tax on individuals. Rather than require a simple majority of both houses, the proposal would now require two-thirds of both houses (a supermajority vote) to impose a personal income tax. The measure would still be subject to voter approval in a statewide referendum.
This proposal also removed language from the 1993 constitutional amendment dedicating revenue from an income tax to property tax relief and school funding.
Despite concerns that the measure would create additional hurdles for viable sources of revenue in the future, seventy-four percent of the voters approved it.
With the exception of one 2019 proposal, which would have permitted elected municipal judges to serve multiple municipalities at the same time, all the other constitutional amendments were adopted, resulting in over 500 amendments to the state’s constitution.
By the end of the 2021 regular legislative session, 8 constitutional amendments passed both houses and will be presented to voters in November.

Constitutional Amendments and Revision

Each of the 50 American state constitutions provides the means for changing the powers and functions of government.
Without a provision for change, few constitutions would survive long.
A revision may produce a totally new constitution to replace an old one.
Also, courts may alter constitutions by interpreting the wording of these documents in new and different ways.
Finally, constitutions may be changed by formal amendment, which is the chief method by which the Texas Constitution has been altered.
Because Texas’s registered voters have an opportunity to vote on one or more proposed amendments every two years—and sometimes each year—an understanding of the steps in the constitutional amendment process is important.
Article XVII, Section 1, provides a relatively simple procedure for amending the Texas Constitution. The basic steps in that process follow:
- A joint resolution proposing an amendment is introduced in the House or in the Senate during a regular session or during a special session called by the governor.
- Two-thirds of the members in each chamber must adopt the resolution.
- The secretary of state prepares an explanatory statement that briefly describes the proposed amendment, and the attorney general approves this statement.
- The explanatory statement is published twice in Texas newspapers that print official state notices.
- A copy of the proposed amendment is posted in each county courthouse at least 30 days before the election.
- The voters must approve the proposed amendment by a simple majority vote in a regular or special election.
- The governor, who has no veto power in the process, issues a proclamation certifying the election results.
For a constitutional amendment to be considered by Texas voters, the legislature must adopt a joint resolution by a two-thirds vote in each chamber.
Hundreds of constitutional amendment resolutions are considered every legislative session.
The Texas legislature decides whether a proposed amendment will be submitted to the voters in a constitutional amendment election, typically in November of an odd-numbered year.
In some cases, a proposed amendment will be presented to voters in a special election scheduled for an earlier date. For instance, of the 17 amendments proposed in 2007, only one was presented to voters in May; the other proposals were presented in November of that same year.
Part of the problem with frequent constitutional amendment elections is the typically low voter turnout in odd-numbered years, when no statewide offices are up for election.
Generally, most constitutional amendment proposals are approved by a relatively small percentage of the voting population.
The complex subject matter of most amendments is one explanation why voter interest and turnout is low.
Constitutional amendment elections turnout is typically less than 10 percent. Turnout in 2011 was at an all-time low (less than 5 percent of the voting age population). In subsequent elections, voter turnout has remained below 10 percent, reaching 9 percent in 2019.
Markedly, the 2013 constitutional election was also the first statewide election for which the voter photo ID law was implemented.
Unlike voters in other states, Texans do not have the power of initiative at the state level; however, this power is exercised under some local governments.
If adopted, the initiative process would bypass the legislature and allow individual Texans or interest groups to gather the signatures required to submit proposed constitutional amendments and statutes (ordinary laws) for direct popular vote.
According to the Book of States, there are only 18 states with some form of constitutional amendment procedure by initiative.

Constitutional Revision

Attempts to revise Texas’s Constitution of 1876 began soon after its adoption.
A legislative resolution calling for a constitutional revision convention was introduced in 1887 and was followed by others.
Limited success came in 1969, when an amendment removed 56 obsolete constitutional provisions.
The only comprehensive movement to achieve wholesale constitutional revision began in 1971.
In that year, the 62nd Legislature adopted a joint resolution proposing an amendment authorizing the appointment of a study commission and naming the members of the 63rd Legislature as delegates to a constitutional convention. Except for the state Bill of Rights, any part of the Texas Constitution of 1876 could be changed or deleted.
Submitted to the voters in 1972 as a proposed constitutional amendment, the resolution was approved by a margin of more than half a million votes (1,549,982 in favor to 985,282 against).
A six-member committee selected 37 persons to serve as members of the Constitutional Revision Commission.
The commission prepared a draft constitution on the basis of opinions and information gathered at public hearings conducted throughout the state and from various authorities on constitutional revision.
One-fourth the length of the present constitution, the completed draft was submitted to the legislature on November 1, 1973.
On January 8, 1974, all 181 members of both chambers of the Texas legislature met in Austin at a constitutional revision convention.
Previous Texas constitutions had been drafted by convention delegates popularly elected for that purpose.
When the finished document was put to a vote, the result was 118 for and 62 against, three votes short of the two-thirds majority of the total membership needed for final approval. (Approval required a total of at least 121 votes.)
Attempts to reach compromises on controversial issues proved futile.
The Constitutional Convention of 1974 provided perhaps the best demonstration of the politics surrounding Texas’s constitution-making.
The primary reason that the convention failed to agree on a proposed constitution was the phantom “nonissue” of a right-to-work provision (which means people cannot be denied employment based on whether or not they are members of a labor union or labor organization).
A statutory ban on contracts that require employers to hire only members of a labor union, known as shop labor contracts, was already in effect. Adding this prohibition to the constitution would not have strengthened the legal hand of employers to any significant degree. Nevertheless, conservative, anti-labor forces insisted on this provision, and a prolabor minority vigorously opposed it.
The convention was hampered by a lack of positive political leadership. Then-Governor Dolph Briscoe maintained a hands-off policy throughout the convention. Former Lieutenant Governor Bill Hobby similarly failed to provide needed political leadership, and the retiring speaker of the House, Price Daniel Jr., pursued a noninterventionist course. Other members of the legislature were distracted by their need to campaign for reelection.
Stung by widespread public criticism of the 1974 convention’s failure to produce a proposed constitution for public approval or rejection, the 64th Legislature resolved to submit a proposal to Texas voters. In 1975, both houses of the legislature agreed on a constitutional revision resolution comprising 10 articles in eight sections to be submitted to the Texas electorate in November of that year.
The content of the articles was essentially the same as that of the final resolution of the unsuccessful 1974 convention.
The revision proposed in 1975 represented years of work by men and women well informed about constitution-making. Recognized constitutional authorities evaluated the concise and orderly document as one of the best drafted state constitutions ever submitted to American voters.
Although new and innovative in many respects, the proposal did not discard all of the old provisions. In addition to retaining the Bill of Rights, the proposed constitution incorporated such basic principles as limited government, separation of powers, and bicameralism (a two-house legislature).
Nevertheless, Texas voters demonstrated a strong preference for the status quo by rejecting each proposition. In the end, voters in 250 of the state’s 254 counties rejected all eight proposals.
A mere 23 percent of the estimated 5.9 million registered voters cast ballots, meaning that only about 10 percent of the state’s voting-age population participated in this important referendum.
When asked to explain the resounding defeat of the eight propositions, Bill Hobby, then lieutenant governor, responded, “There’s not enough of the body left for an autopsy.”

More Revision Attempts

After the revision debacle of 1975, two decades passed before the next attempt to revise the constitution.
In 1995, Senator John Montford (D-Lubbock) drafted a streamlined constitution that incorporated many of the concepts contained in the failed 1975 proposal. Montford’s plan also called for a voter referendum every 30 years (without requiring legislative approval) on the question of calling a constitutional revision convention.
But Montford resigned from the Texas Senate to become chancellor of the Texas Tech University System in 1996.
With such issues as tax changes, welfare reform, and educational finance pressing for attention, the 75th Legislature did not seriously consider constitutional revision in 1997.
In 1998, Senator Bill Ratliff (R-Mount Pleasant) and Representative Rob Junell (D-San Angelo) launched another attempt to revise the constitution. With assistance from Angelo State University students and others, they prepared a complete rewrite of the much-amended 1876 document.
Subsequently, they introduced a draft for consideration by the 76th Legislature in 1999. It failed to muster enough support for serious consideration in committee and never received a floor vote in either legislative chamber.
This proposal would have cut the then 80,000-word document to approximately 19,000 words. Significant changes included expanding the powers of the governor, repealing the current partisan election method of selecting state judges, and increasing salaries of the House speaker and the lieutenant governor.
Another proposal, created by a bipartisan group of private citizens, represented an attempt to make the constitution more accessible and readable. Led by Roy Walthall (a retired instructor at McLennan Community College in Waco) in 2010, the team set out to reorganize the constitution. Rather than make substantive changes, which would provoke political opposition, the team claimed that they did not change the content or legal meaning.
According to Walthall, the bulk of their work was rearranging many of the existing provisions into more logical sections. The governor would have to appoint a commission to study the reorganized constitution, and it could take several legislative sessions before the constitutional proposal would be presented to the state’s voters. If approved, a new state constitution would enable Texas to join the other 49 states that have updated their constitutions since the beginning of the 20th century.
During the 21st century, the legislature has ignored or delayed action on the issue of constitutional revision. A series of budget crises, redistricting issues, school funding demands, and natural disasters (to name a few reasons), has dominated the legislative agenda. As a result, large-scale constitutional reform remains an problem.
However, some individuals in the legislature have attempted to keep the subject on the agenda. In 2011 and again in 2013, Representative Charles Anderson (R-Waco), for instance, unsuccessfully introduced a resolution asking the leadership in the legislature to create a joint study committee to examine a nonsubstantive reorganization of the state constitution similar to Walthall’s proposal. Constitutional revision attempts have not gained momentum.
Today, the Texas Constitution, despite its flaws, remains the “supreme law of the State of Texas.”

Piecemeal Revision

Because extensive constitutional reform has proved futile, Texas legislators have sought to achieve some measure of government reform by other means, including legislative enactments and piecemeal constitutional amendments.
In 1977, for example, the 65th Legislature enacted into law two parts of the 1975 propositions defeated at the polls. One established a procedure for reviewing state administrative agencies; the other created a planning agency within the Office of the Governor.
In 1979, the 66th Legislature proposed six amendments designed to implement parts of the constitutional revision package rejected in 1975. Three were adopted by the voters and added to the Texas Constitution. They accomplished the following:
- Established a single property tax appraisal district in each county
- Allowed the governor restricted removal power over appointed statewide officials Gave criminal appellate jurisdiction to 14 courts of appeals that formerly had exercised civil jurisdiction only
Other proposals for important constritutional changes have been unsuccessful in the House and the Senate. Instead, for the last twenty years, the state legislature has been unwilling to make significant constitutional changes.
For example, during the regular session of the 77th Legislature in 2001, Representative Rob Junell (D-San Angelo) submitted a proposal that was considered and approved by the House Select Committee on Constitutional Revision. Among other items, the proposal would have changed the terms of office for state senators and House members. It also would have created a Texas Salary Commission to set salaries for elected and appointed officials of the executive, judicial, and legislative branches. This proposal, however, was never brought up for a floor vote in the legislature.
To modernize the Texas Constitution, one constitutional amendment (adopted in 1999) authorized elimination of certain “duplicative, executed, obsolete, archaic and ineffective provisions of the Texas Constitution.” Among resulting deletions were references to the abolished poll tax and the governor’s authority “to protect the frontier from hostile incursions by Indians.”
Another constitutional amendment in 2007 eliminated the constitutional county office of inspector of hides and animals, which had been created in the 1880s. Nevertheless, the Texas Constitution still has problems.

The Texas Constitution: A Summary

A widely accessible published text of the constitution has been unavailable for the past 20 years, chiefly because of its length (over 200 pages). The last major source of the printed text, the Texas Almanac, now refers readers to the Internet and websites, such as the Texas Legislature Online, to review the document.
Although Practicing Texas Politics does not include the entire text of the Texas Constitution, each chapter looks to Texas’s basic law for its content.

The Bill of Rights

We begin by examining Article I, the Texas Constitution’s Bill of Rights. The Texas Bill of Rights is similar to the one found in the U.S. Constitution. Composed of 30 sections, it guarantees protections for people and their property against arbitrary actions by state and local governments. Included among these rights are freedom of speech, press, religion, assembly, and petition; the rights of accused and convicted criminals and victims of crime; and equal rights for women. Article I also includes philosophical observations that have no direct force of law.

Constitutional Rights Against Arbitrary Governmental Actions

Eleven of Article I’s sections provide protections for people and property against arbitrary governmental actions. Guarantees, such as freedom of speech, press, religion, assembly, and petition, are included. The right to keep and bear arms, prohibitions against the taking of property by government action without just compensation, and protection of contracts are also incorporated. Most of these rights found in the Texas Constitution are also protected under the U.S. Constitution. Thus, with their basic rights guaranteed in both national and state constitutions, Texans, like people in other states, have a double safeguard against arbitrary governmental actions.
One of these constitutional rights, protected for Texans by both state and federal constitutions, centers on freedom of religion. A constitutional right to freedom of religion is essentially the same in both the Texas Constitution and the U.S. Constitution, yet when one examines the actual wording, it is different. The Texas Bill of Rights, Section 6, states, “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent … and no preference shall ever be given to any religious society or mode of worship.”
Under the U.S. Constitution, the First Amendment (as applied to the states under the Fourteenth Amendment) provides that states “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Cases on religious freedom stemming from the U.S. Constitution have gone from Texas all the way to the U.S. Supreme Court. Included among these are two cases that yielded different results: one centered on student-led prayer before a school football game; the other involved a Ten Commandments monument placed on the Texas state Capitol grounds.
The U.S. Supreme Court, interpreting the establishment clause of the U.S. Constitution to require a separation of church and state, struck down school prayer before public school football games, contending that the message conveyed amounted to an endorsement of religion on school grounds. In contrast, the U.S. Supreme Court upheld the Ten Commandments display, concluding that it is a historical monument among other historical monuments on state grounds.

Rights of Criminals and Victims

Thirteen sections of the Texas Constitution’s Bill of Rights relate to the rights of persons accused of crimes and to the rights of individuals who have been convicted of crimes. For example, one section concerns the right to release on bail; another prohibits unreasonable searches and seizures; and a third declares that “the right to trial by jury shall remain inviolate.” These provisions relate closely to similar language in the national Bill of Rights. The Texas Constitution is even more protective of certain rights than is the U.S. Constitution. An additional set of rights added by constitutional amendment in 1989 protects crime victims. This provision was developed in the early 1980s in response to findings of a presidential task force that explored the inequality of rights for crime victims. In general, the state constitution now gives victims rights to restitution, information about the accused (conviction, sentence, release, etc.), protection from the accused throughout the criminal justice process, and respect for the victim’s privacy.

Equal Rights for Women

Another example of the Texas Constitution’s providing more protection than the U.S. Constitution relates to equal rights for women.
Attempts nationwide to add a proposed Equal Rights Amendment (ERA) to the U.S. Constitution failed between 1972 and 1982 (even though the amendment was approved by the Texas legislature). Nevertheless, the Texas Equal Legal Rights Amendment (ELRA) was added to Article I , Section 3, of the Texas Constitution in 1972. It states: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.” This constitutional amendment was proposed and adopted after several unsuccessful attempts dating back to the 1950s. Interestingly, despite the ELRA, the Texas Constitution still has a provision that states, “All free men have equal rights.”

Additional Protections

Additional protections in the Texas Constitution include prohibitions against imprisonment for debt, outlawry (putting a convicted person outside the protection of the law), and the punishment of transportation (punishing a convicted citizen by banishment from the state). Monopolies are prohibited by a provision of the Texas Bill of Rights but not by the U.S. Constitution, although federal statutory law does prohibit monopolies. Some of these added gurantees have been achieved through constitutional amendments. For instance, in 1993, taxpayers were provided constitutional protection by prohibiting the establishment of a state income tax without voter approval. To ensure stricter guidelines, another constitutional amendment addressing a state income tax was adopted in 2019. In 2009, property homeowners were provided additional protection from the government’s taking of private property for the primary purpose of economic development. As mentioned earlier, since 2015, Texans have had constitutional protection to hunt, fish, and harvest wildlife; but this right is limited because of the state’s conservation laws.
Interpretation of the Texas Constitution by the Texas Supreme Court has also provided additional rights, such as the court’s interpretation of Article VII, Section 1 (titled Education), which requires the state legislature to provide support and maintenance for “an efficient system of free public schools.” In 1989, the high court first held that the state legislature had a constitutional requirement to create a more equitable public school finance system. The Texas Supreme Court revisited school finance in 2005 and declared the school finance system unconstitutional. Rather than focusing on the system’s continued and persistent inequities, however, the court focused on whether the state-imposed property tax cap amounted to a statewide property tax, which the Texas Constitution forbids. (Property taxes can be collected only at the local level.) Because more than 80 percent of all school districts had reached this cap and state funding had continued to decline, the court held that school boards had effectively lost control of tax rates. Equally important, the Court rejected the claim that more money in the system was necessary to comply with the Texas Constitution’s requirement to provide for the “general diffusion of knowledge.”
Challenges to school funding in the courts continued. In 2015, district court judge John Dietz considered more evidence in the case after the 84th Legislature restored 3.7 billion (out of the 5.4 billion) of the cuts made to school funding in 2011. He ruled that the school finance system was still unconstitutional. Then, the Texas Supreme Court heard oral arguments in an appeal in September 2015. This Court overturned the lower court’s decision in May 2016, when it held that the state’s funding system met “minimum constitutional standards” despite being “a Band-Aid on top of Band-Aid” reform effort. School funding was revisited during the 2019 legislative session, with nominal salary increases for school teachers and librarians.

Philosophical Observations

Three sections of the Texas Bill of Rights contain philosophical observations that have no direct force of law. Still stinging from what they saw as the “bondage” years of Reconstruction, the angry delegates to the constitutional convention of 1875 began their work by inserting this philosophical statement: “Texas is a free and independent state, subject only to the Constitution of the United States.” They also asserted philosophical theories that all political power resides with the people and is legitimately exercised only on their behalf and that the people may at any time “alter, reform, or abolish their government.” To guard against the possibility that any of the rights guaranteed in the other 28 sections would be eliminated or altered by the government, the framers also proclaimed in Section 29 that “everything in this ‘Bill of Rights’ is excepted out of the general powers of government, and shall forever remain inviolate.”

The Powers of Government and Separation of Powers

Holding fast to the principle of limited government and a balance of power, the framers of the Constitution of 1876 firmly embedded in the state’s fundamental law the familiar doctrine of separation of powers. In Article II, they assigned the lawmaking, law-enforcing, and law-adjudicating powers of government to three separate branches, identified as the legislative, executive, and judicial departments, respectively. Article III is titled “Legislative Department.” Legislative powers are vested in a bicameral legislature, composed of the House of Representatives with 150 members and the Senate with 31 members. A patchwork of more than 60 sections, this article provides vivid testimony of the many decades of amendments directly affecting the legislative branch. For example, in 1936, an amendment added a section granting the Texas legislature the authority to levy taxes to fund a retirement system for public school, college, and university teachers. Today, public school teachers and personnel employed by public universities and community colleges benefit from pension programs provided by the state.
Article IV, “Executive Department,” states unequivocally that the governor “shall be the Chief Executive Officer of the State” but then shares executive power with four other popularly elected officers independent of the governor: the lieutenant governor, the attorney general, the comptroller of public accounts, and the commissioner of the General Land Office. Originally, a state treasurer was included in this list, but a constitutional amendment abolished the office. Additionally, the state’s secretary of state is part of the Executive Department, but this official is appointed by the governor. With these and other provisions for division of executive power, some observers consider the Texas governor no more than first among equals in the executive branch of state government.
Through Article V, “Judicial Department,” Texas joins Oklahoma as one of only two states in the country with a bifurcated court system that includes two courts of final appeal: one for civil cases (the Supreme Court of Texas) and one for criminal cases (the Court of Criminal Appeals). Below these two supreme appellate courts are other courts authorized by the Texas Constitution: intermediate appellate courts (14 courts of appeal) and more than 1,500 courts of original jurisdiction (trial courts), including district courts, county courts, and justice of the peace courts. The legislature is allowed to create any other courts it deems necessary. Thus, by statute, it has created county courts-at-law and probate.

Suffrage

Article VI, titled “Suffrage” (the right to vote), is one of the shortest articles in the Texas Constitution. Before 1870, states had the definitive power to conduct elections. Since that time, amendments to the U.S. Constitution, acts of Congress such as the Voting Rights Act of 1965, and U.S. Supreme Court rulings have vastly diminished this power. In addition, amendments to the Voting Rights Act of 1975 require Texas to provide bilingual ballots. For more than 35 years, Texas had to receive federal preclearance for any changes to voting laws or district boundary lines for elected officials. In 2013, however, mandatory preclearance was eliminated when the U.S. Supreme Court found the requirement unconstitutional in a separate case originating in Alabama, Shelby County v. Holder (2013).
During this time, a lawsuit was filed against Texas under Section 2 of the Voting Rights Act. It challenged one of the strictest ever photo voter ID laws approved by the 82nd Legislature (2011) from going into effect, claiming that