The Texas Constitution

 

Government = the process of decision-making, historically and culturally conditioned

 

Constitution 1) establishes and invests institutions with power, 2) promotes legitimacy of the government itself.

 

State Power vs. National Power: Federalism

 

State power is limited by federal power

Delegated powers—powers granted exclusively to the national government; may be either expressed/enumerated powers (in the Constitutional text) or implied powers (as “discovered” in the “Necessary and Proper” Clause)

            How “implied powers” are interpreted in the US Constitution determines to a large extent how state and national governments divide powers.  “Necessary and Proper” Clause gives broad power to the national government.

 

Concurrent powers—expressed or implied powers that are jointly shared by national and state governments (US Constitution, law, and treaties are supreme over state constitutions and laws)

 

Reserved powers—10^th Amendment powers belonging only to the states and the people. (“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.”) – Enables the states to exercise their police power (to preserve public safety, health, welfare, and morals). Implied powers of the national government are left intact, due to the absence of the word “expressly” or “explicitly”.

 

National government has expanded power by virtue of the “necessary and proper” clause and the “commerce clause”, and by use of national grants. 

 

Limits on the States

 

Full Faith and Credit (as per Congressional determination), Article IV, sec. 1 of the US Constitution. (“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.”)

 

14^th Amendment—increasing national standards for state governments to follow; “incorporated” Bill of Rights and made them applicable to the States, beginning with 1925, Gitlow v. New York, culminating in the late 1960s.

 

15^th Amendment—no denial of vote on basis of race, color, or former slave status

 

17^th Amendment—US Senators to be elected in direct elections by the people, statewide

19^th Amendment—women given suffrage rights

 

24^th Amendment—no poll taxes in national elections (note that state elections could technically be taxed, though no state today does this)

 

26^th Amendment—18-year-olds given the right to vote

 

US Judicial review of state action—state laws may be declared unconstitutional in US Federal Courts. 

 

State budgets have rapidly increased, along with the number of state employees, despite the parallel growth of the US government.  State administration of criminal law, highways, welfare, higher education, public elementary and secondary education, unemployment, workers’ comp., etc., places further burden on states.

 

States’ rights are currently being pushed in the US Courts, increasing the powers of the state governments to regulate their citizens’ lives.  However, even these grants to state power come with federal strings attached. 

 

Texas government is most severely restricted by its own constitution.

 

The Texas Constitution

 

1875 Constitution Highly restrictive of state government activity and frequently amended; long; detailed.

 

The Texas Constitution in History

1836—Republic of Texas Constitution

            --separation of church and state (to remove Mexican requirements of Roman Catholic allegiance)

            --prohibition of emancipation of slaves without legislative approval

            --limitation of executive office to one 3-year term

            --unitary government (no states created within the Republic of Texas)

            --nearly identical in other respects to the US Constitution and other state constitutions in the South

           

1845—First State Constitution

            --elements of Spanish culture are retained (e.g., protection of homesteads from foreclosure, protection of wife’s property rights, community property between husband and wife)

 

1861—Confederate State Constitution

            --prohibition of emancipation

            --high debt ceiling

 

1866—Constitution between periods of  martial law (brief civilian government, hoping to satisfy Andrew Johnson’s relaxed Reconstruction policies—once Radical Republicans gained control of Congress, military rule was restored)

            --nullified secession of 1861

            --constitutionally enacted emancipation and abolition

            --renunciation of Confederate war debts

 

1868-9—Constitutional convention elected mostly by blacks and Radical Republicans

            --centralized state government power in the governor’s office

            --reign of E.J. Davis; corruption and abuse (e.g., gifts of public $$ to railroads, corporations, other special interest; taxes increased dramatically to pay for wasteful public projects; enormous public debt, due to refusal of many to pay exorbitant taxes on property; desperados and Native American attacks on white settlers; state police forces used to manipulate political process rather than protecting citizens; arrest of political opponents, intimidation of voters and potential registrants and newspapers)

            --some progressive reforms may have taken place during the Davis administration , but Texas citizens usually look with disdain upon Davis’ years as governor.

 

1875-6—Current Texas State Constitution

            --Texas Grangers organized in 1873, with platform of campaigning for “retrenchment and reform”; managed to win significant number of seats to the new constitutional convention (40 out of 90); resentful of minority Republican rule, these were Democrats determined to limit government.

            --severely restricted government officials, salaries, state borrowing

            --created elected judiciary; biennial legislative sessions/140 days each

            --strengthened local government

            --local government control over public (segregated) schools

 

The Texas Constitution Today

 

-         No ideal state constitution exists, Texas’ no exception;

-         Government reflects the character of the people within its jurisdiction

-         The 1875-6 document was a reactionary document against a corrupt government

 

Bill of Rights and Fundamental Liberty

 

More protections of rights in the Texas constitution than in the American Constitution.

Broadening of basic rights through Texas courts’ interpretations of Texas constitutional standards

 

Legislative Branch

 

Article III of the Texas Constitution

            --Bicameral legislature (House of Representatives and Senate)

            --$7200/year, $125 per diem pay

            --140-day sessions; biennial (once each odd numbered year)

            --governor calls special sessions and sets agenda for each; no longer than 30 days each

            --low state debt due to restrictive balanced budget requirements

            --incredible detail on nitpicky items (e.g., gives legislature right to pass fence laws and regulate cattle brands)                  --such details could easily be handled by simple statutory law, but instead require constitutional amendments today to remove or change.

                        --large amounts of deadwood (inoperable provisions within the Constitution—e.g., the establishment of county poor houses)

 

Executive Branch

 

Article IV of the Texas Constitution

            --Plural Executive (each officer is independently elected)

            --Appointed Secretary of State (chief elections officer in Texas)

            --No formal cabinet (contrasted with the US govt, in which the cabinet is the president’s handpicked advisors who head individual bureaucratic agencies)— Indirect appointive powers: agency directors are appointed by gubernatorially-appointed supervisory boards, with 2/3 consent of the Senate.

            --Governor cannot fire agency directors without 2/3 consent of the Senate; nor can he fire appointees of a previous governor

            --Restricted directive authority to issue binding orders (contrasted with US President’s executive orders)

            --Budgetary power limited by competition with the Legislative Budget Board

            --Veto power to influence legislation (may be overridden with 2/3 vote of each chamber of legislature)—this is effective because after legislative session ends, governor still has 20 days to act—line item veto over appropriations—no pocket veto (ability to kill bill by doing nothing) or reductive veto (ability to reduce, but not eliminate appropriations).

 

Judicial Branch

 

Article V of the Texas Constitution

            --Two courts of final appeal (State Supreme Court for civil suits and State Court of Criminal Appeals)

            --Courts of Appeal

            --District Courts

            --Justice of the Peace Courts

            --Partisan elections for judgeships

 

Local Government

 

Counties:

            --no county home rule

            --organizational structure determined in the state Constitution

City Governments:

            --general-law charters for cities of <5000 people (organization and structure of city government determined and limited by state law)

            --home-rule charters for cities of >5000 people (organizational structures of city government must comply with state law but is not determined by state law)

 

Special Districts:

            --established by legislature or by constitution

            --“local government that provides one or more services to a jurisdiction that are not provided by general purpose governments,” e.g., municipal utility districts, hospital authorities, and transit authorities

            --perform functions that cities and counties cannot due to limits to ability to tax and to go into debt.

 

Suffrage

 

Article VI of the Texas Constitution

            --suffrage denied to those <18 years of age, convicted felons in certain cases still serving time, and mentally incompetent as determined by a court of law

            --no initiative (ability of voters to propose statutory or constitutional changes by way of petition)

            --no referendum (ability of voters to approve changes in law)

            --no  popular recall (ability of voters to call for special election to remove an official before his term expires)

 

Amending the State Constitution

 

2/3 of the total membership of the Legislature must vote to pass a constitutional amendment

Majority of the voters must vote for ratification in the general or special election held following legislative passage

**Most attempts to revise the constitution have FAILED

 

 

Texas Constitution Compared (to other state constitutions and the US Constitution)

 

State constitutions more concerned with details of structure and policy, unlike the US Constitution which leaves details and policy to the Congress and the other branches of government

            --perception in the states that constitutions are more than fundamental law (rather than establishing procedures, they go on to establish what ought to be)

            --protections for vested interests made more secure (special interests gain security this way)

            --vast possibility of state powers => belief severe restrictions should be imposed (especially since the states are presumed to have all powers not expressly delegated to the US govt.)

            --previous government corruption => longer, revised constitutuional documents with more restrictions

            --poorly written and arranged

 

Texas Constitution is one of longest and least concise in the entire country; numerous run-on sentences (e.g., several of near 300 words, one of 765 words); sloppy arrangement

            --very low voter turnout in constitutional amendment elections (especially if they are on a ballot not together with the governor or president).