2. The Texas Constitution
CHAPTER 17

3. Key Objectives The Constitutional Legacy
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The Constitutional Legacy
Assess how each Texas constitution was shaped by its historical circumstances.
General Principles and Structural Impact of the Texas Constitution
Analyze how aspects of the 1876 constitution impact Texas government today.
Constitutional Change and Adaptation
Explain why the Texas constitution has been amended so frequently.
17.1
17.2
17.3

4. The Constitutional Legacy
Scholars suggest that a Constitution should provide a framework for government, establishing and empowering the institutions that will govern but agree that they reflect fundamental political, economic, and power relationships as determined by the culture, values, and interests of the people who create them and the events of the period in which they were written.
Statutory law is that law enacted by legislatures to provide specific detail about the function of government and the relationship of both citizens to each other and to the government itself.
Assess how each Texas constitution was shaped by its historical circumstances
17.1
Texas has had seven Constitutions, the current one ratified in 1876 is long and detailed
It reflects the profound distrust the framers had of government

5. 17.1
The Seven Texas Constitutions
1827: Constitution of Coahuila y Tejas
The first Texas constitution, adopted in It recognized Texas as a single Mexican state with Coahuila.
• 1836: Constitution of the Republic
The constitution, adopted on March 16, 1836, by Texas colonists declaring an independent republic.
• 1845: Constitution of 1845
The constitution under which Texas was admitted to the United States.
• 1861: Civil War Constitution
The constitution adopted by Texans after the state seceded from the Union and joined the Confederacy in 1861.
• 1866: Constitution of 1866
The short-lived constitution under which Texas sought to be readmitted to the Union immediately after the Civil War.
• 1869: Reconstruction Constitution
The constitution centralizing power in the state government and weakening local governments, written by Radical Reconstructionists.
• 1876: Texas Constitution
The constitution adopted at the end of Reconstruction still in effect. It places strict limitations on the powers of the governor, the legislature, and other state officials.

6. The Constitutional Legacy
17.1
Texas’ first constitution, established a federal republican form of government divided between an executive, legislature and judiciary.
The unicameral legislature, would be made up of deputies elected by the people. The executive, made up of a governor and vice-governor, which were also directly elected. Finally, there would be a judiciary comprised of he tribunals and courts of justice.
The Constitution of Coahuila y Tejas (1827)
Unicameral legislature comprised of deputies directly elected by electors
Executive, comprised of a governor and his selected xecutive Council and a vice-governor, both directly elected by electors
Judiciary, comprised of the tribunals and courts of justice

7. The Constitutional Legacy
17.1
Roman Catholicism was designated as the state religion and supported the Church with revenue.
Civil liberties were guaranteed and included speech and press.
The Constitution of Coahuila y Tejas (1827) (cont’d)
A state religion was established
Citizenship was defined and rights to be enjoyed included life, security, liberty, property and equality
Slavery was prohibited
Public education system was to be created

8. The Constitutional Legacy
17.1
The result of the 1817s and 1830s Anglo immigration increases and the relationship between Texas and Santa Anna deteriorates until Mexico sends troops into Texas.
The document was hurriedly written as the battle at the Alamo was raging. Because of the time constraint, much of this constitution contains material from the US Constitution but provides for a republican form of government with a bicameral Congress, an elected President as well as a judiciary.
It removed the clause establishing a state religion as well as the prohibition against slavery.
The new constitution contained a Bill of Rights which included freedom of the press and speech, the right to keep and bear arms, and like the US Constitution, rights respecting search and seizures, arrests and protections at trial.
The Constitution of the Republic of Texas (1836)
Again, three branches of government were established
Bicameral legislature
Executive
Judiciary
Slavery was allowed
State religion was removed
Bill of Rights was included

9. The Constitutional Legacy
17.1
This Constitution was written as Texas joined the United States becoming the twenty-eighth state. Annexation was quite controversial and Texas’ entry into the Union, a political ‘football’ pitting the US government against the British and potentially Mexico.
The legislature was described in the General Provisions article, which like the US Constitution, is the longest and most detailed which largely limited powers afforded this branch. For example, only biennial meetings would be allowed, unless the Governor had some important reason to call a ‘special session’.
As for the office of the executive, there begins to be a division of power in this office. For example, while the governor could appoint the attorney general, secretary of state, and Supreme and District Court judges, subject to confirmation by the state Senate, the Comptroller of Public Accounts and the Treasurer were elected every two years by a joint session of the Legislature.
It serves as the foundation for the 1876 Constitution that Texas operates under today.
The Constitution of 1845
Became part of the U.S. after several attempts
Included a state government comprised of three branches
Bicameral legislature
Executive
Appointed judiciary
Continued to allow slavery
Annexation allowed Texas to divide into 5 states

10. The Constitutional Legacy
17.1
Following secession, the state Constitution needed to be rewritten. For the most part, the 1845 Constitution remained intact, but changes were made where reference to the US government existed and would be changed to the Confederate States of America.
A clause providing for emancipation of slaves was eliminated, and the freeing of slaves was declared illegal. All current state officials were required to take an oath of loyalty to the Confederacy, and all existing laws not in conflict with the constitutions of Texas or the Confederate States were declared valid. Amending the constitution was also made easier. 
The Civil War Constitution (1861)
Basically allowed the 1845 Constitution to remain intact
The emancipation of slaves was prohibited
Loyalty to the Confederacy was required
The rights of states were emphasized

11. The Constitutional Legacy
17.1
Largely, this Constitution represents amendments to the 1861 document. In accordance with the Congressional mandate that all Confederate states rewrite their Constitutions to incorporate those three amendments which were added during Reconstruction, Texas simply went back to the 1861 Constitution. A series of ordinances, the first of which repudiated Secession Ordinance of 1861 made up the bulk of the new Constitution. While most changes were minor, those respecting the salaries of state office holders would eventually anger many Texans.
One change, important only because of the hurdle it would create for the state to change its constitution; specifically now calling for three-fourths majority of each house of the legislature to convene in order to propose changes in the constitution, and only with the governor’s approval could this happen.
This constitution was quickly replaced by the Radical Reconstructionists in Congress who took over after the fall election. The civilian government initiated by the state constitution of 1866 was short-lived, and Texas functioned for two years under a reinstituted military government.
The Constitution of 1866
The 1861 Constitution provided the framework
Governor given the ‘line-item’ veto and term of office lengthened
State officials salaries were increased
Courts’ jurisdictions detailed

12. The Constitutional Legacy
17.1
The Congressional Reconstruction Acts of 1867 created five military districts across those former Confederate states, each to be governed by a military officer as its governor. These acts also required the former Confederate states to ratify and acknowledge in their respective state constitutions, the Fourteenth and Fifteenth Amendments to the U.S. Constitution; and only then could their state constitutions be submitted for Congress for consideration and approval; a condition of readmission to the Union.
Texas first governor under this constitution was E.J. Davis, and while charges of fraud were laid, Davis and the legislature began to work on a progressive social agenda including increased funding for public schools and instituting compulsory attendance laws. Many of these new programs were supported by higher taxes and increasing public debt. Further, actions taken by Davis were viewed as extreme, including the power to declare martial law, placing the police under the direct control of the governor, and the expansion of the governor’s appointment powers, coupled with the abuses of patronage. The radical changes, financed by what would become crushing public debt and the other perceived abuses by the governor angered what had been the political elite in the state.
By 1872, the Democrats would gain control of the legislature and begin work repealing many of the laws they considered oppressive. In 1873, Davis was defeated by Confederate War veteran Richard Coke marking the end of Reconstruction in Texas.
The Reconstruction Constitution (1869)
Congressional Reconstruction Acts of 1867
African Americans were allowed to vote and former Confederates disenfranchised
Election of E.J. Davis as Governor

13. The Constitutional Legacy
17.1
The Democratic majority in the Legislature, against the suggestions of Coke, convened to rewrite the Constitution, again. All the delegates were male, dominated by members of the Grange, bent on undoing much of the progressive policies enacted by 1869 document.
The Constitution of 1876: Retrenchment and Reform
Heavily influenced by members of the Grange
Sought to roll back costly programs enacted by the Republicans, reducing taxes, restricting spending and the debt
Decentralized government, reduced the terms of office and salaries of state officials

14. 17.1

15. Which Texas constitution was the first to prohibit slavery?
17.1
Which Texas constitution was the first to prohibit slavery?
The Constitution of Coahuila y Tejas (1827)
The Constitution of the Republic of Texas (1836)
1845 Constitution
1869 Constitution

16. Which Texas constitution was the first to prohibit slavery?
17.1
Which Texas constitution was the first to prohibit slavery?
The Constitution of Coahuila y Tejas (1827)
The Constitution of the Republic of Texas (1836)
1845 Constitution
1869 Constitution

17. General Principles and Structural Impact of the Texas Constitution
Contract theory refers to the social compact discussed by John Locke. Social compact theory is predicated on the assumption that governments are formed by free men and popular sovereignty refers to the origin of power, specifically that “all political power is inherent in the people...founded on their authority, and instituted for their benefit.”
Limited government is evident not only in the rights afforded all citizens in this state, but in the scope of authority and power afforded the government itself.
Separation of powers has been part of all of Texas‘Constitutions, but never more so than in the present one. Largely the result of overreaction to the abuses heaped upon Texas by Davis, this Constitution further compartmentalized the executive and ensured as many offices as were possible were the result of direct election by the people.
Analyze how aspects of the 1876 constitution impact Texas government today.
17.2
Four general principles dominate Texas’ 1876 Constitution
Popular sovereignty
Contract theory
Limited government
Separation of powers

18. General Principles and Structural Impact of the Texas Constitution
17.2
Executive Branch
Executive is fragmented, sharing authority over the executive branch with several other independently elected, statewide officeholders
Limited constitutional powers, though possessing a relatively strong veto, which includes line-item privilege
Expansive appointment power
Has the ability to call the legislature back for special sessions with control of the agenda

19. General Principles and Structural Impact of the Texas Constitution
17.2
Because of low pay and the lack of “professional” lawmaking, the legislature is subject to influence by special interests, particularly business and industry, and sometimes at the expense of citizens and consumers.
Legislative Branch
Lawmaking authority is vested in an elected legislature that includes a 150-member house of representatives and a 31-member senate.
Meets in regular sessions in odd-numbered years and in special sessions of limited scope and duration when called by the governor
Citizen legislature

20. General Principles and Structural Impact of the Texas Constitution
17.2
While electing judges would seem to ensure independence, it can at times, produce undesirable outcomes, as the electorate is the least informed about candidate’s qualifications and job performance.
Judicial Branch
Occupied by judges who are elected from local magistrates all the way up to the highest two state courts.
Judges possess a great deal of autonomy, power, and influence through their local constituencies

21. General Principles and Structural Impact of the Texas Constitution
17.2
Education
The public school system is another example of decentralization
Decentralization and wide disparities in local tax bases produced an inequitable public education system

22. General Principles and Structural Impact of the Texas Constitution
17.2
Because of the requirement that that state legislature spend no more than it collects in revenues and many items that are part of the budget are Constitutionally mandated, there are significant budget constraints placed upon a state
Planning for a two-year spending cycle can be difficult for a state as large and diverse as Texas and leaves little room for exigent circumstances, should they arise.
Budgeting and Finances
The Texas Constitution requires a balanced state budget
This requirement heavily restricts the legislature’s choices over state spending

23. General Principles and Structural Impact of the Texas Constitution
17.2
A poll tax reduced the voting of minorities and poor whites, from 1903 until 1966, when an amendment to the U.S. Constitution and a decision by the U.S. Supreme Court outlawed it.
Federal courts also struck down a Texas election system that excluded African Americans from voting in the Democratic primary, which was where officeholders were chosen when Texas was a one-party Democratic state
Individual Rights
Restrictive laws on voter participation.
Poll taxes until 1966
All-white primary

24. General Principles and Structural Impact of the Texas Constitution
17.2
Texas ranks fourth in the nation for the longest constitution. It has been amended 467 times from 1876 through The Constitution is so detailed that often the smallest changes must be accomplished through constitutional amendments.
Because of repeated amendments to both add and remove language, there are several places where single subjects are covered or there are huge gaps where whole sections have been repealed. What then emerges is a Constitution amended throughout the document itself as opposed to listing amendments at the end like the U.S. Constitution.
Consequences of Detail
Long and heavily amended document
Poorly organized and written

25. The Constitution limits the power of the governor by
17.2
The Constitution limits the power of the governor by
limiting the number of terms the governor can serve.
requiring the governor to select a lieutenant governor.
taking away the power to line item veto appropriations.
fragmenting the executive office.

26. The Constitution limits the power of the governor by
17.2
The Constitution limits the power of the governor by
limiting the number of terms the governor can serve.
requiring the governor to select a lieutenant governor.
taking away the power to line item veto appropriations.
fragmenting the executive office.

27. Constitutional Change and Adaptation
Explain why the Texas constitution has been amended so frequently.
17.3
Drafters provided a relatively easy method of amending the Constitution.
This piecemeal amendment has enabled state government to meet changing needs, but it also has added thousands of words to the document.

28. Constitutional Change and Adaptation
17.3
Approval by two-thirds of the legislature allows the measure to be put on the ballot, where adoption requires a majority vote by the citizens in the general election.
Unlike voters in many other states, Texas citizens cannot force the placement of constitutional amendments on the ballot, because Texas does not have the initiative or referendum on a statewide level.
Initiative: A procedure by which voters propose constitutional amendments or other laws through petitions subject to adoption by a popular vote.
Referendum: A vote by the general electorate on a public policy issue, such as a constitutional amendment or statute.
Amendment
Proposed constitutional amendments can be submitted only by the legislature
Initiative and referendum are not allowed at the state level

29. Amending State Constitutions
17.3
Southern and western states are likely to have the most amendments.
Why do you think that is?

30. Constitutional Change and Adaptation
17.3
The Constitution provides for revision by constitutional convention, which the legislature can call with the approval of the voters. Convention delegates have to be elected, and their terms are also subject to voter approval.
Connally’s efforts in resulted in the adoption of a “cleanup” amendment in 1969 that removed many obsolete provisions from the constitution, and they laid the groundwork for a constitutional convention in 1974.
Efforts to write a new document meet with resistance from those who benefit under the current one.
Constitutional Convention
Texas can revise the constitution by convention.
In 1919 and 1967 voters rejected proposals
“Clean-up” amendment was passed

31. Constitutional Change and Adaptation
17.3
The 66nd Legislature passed a resolution in May 1971 that called for the establishment of a constitutional revision commission and for the convening of the 63rd Legislature as a constitutional convention. After holding nineteen public hearings across the state, it presented its recommendations for a new constitution to the legislature in 1973.
The commission to write a new constitution was made up of 37 members of the legislature. Divisive politics proved too much of an obstacle to overcome as special interests pressured the Legislature over labor issues specifically, right to work language, supported by business but opposed by labor unions, but gambling provisions and judicial reform initiatives took their toll on the discussions as well.
Over $3 million was spent on the convention ending in failure, lacking 3 votes (118 for, 62 against with one abstention)
In 1975, the legislature did approve a new constitution in the form of eight amendments approved by the normal amendment process. The Bill of Rights remained unchanged, but the eight amendments went before the voters on November 4, 1975, in a special election. They were all defeated. 
Constitutional Reform Efforts of 1971–1975
1972: Voters approved amendment to name delegates to convention
1973: Public hearings were held across the state
The document failed because of battles between special interests
1975: Eight amendments were put before the voters, all failed

32. Constitutional Change and Adaptation
17.3
Besides the lottery, amendments winning approval included the 1993 amendment to ban a personal income tax without voter approval and a series of propositions authorizing $3 billion in tax-backed bonds for a huge prison expansion program.
During its 1999 session, the legislature rejected a proposal—the first of its kind in more than 17 years—to rewrite the constitution, but legislators approved an amendment, which voters also approved, to remove more obsolete language from the document. One of the most controversial amendments in recent years, Proposition 12, ratified new limits on some monetary damages in medical malpractice lawsuits. It was narrowly approved by voters in 1703.
In 1705, Texas voters approved an amendment formally defining marriage as between one man and one woman and prohibiting the state from recognizing “any legal status identical or similar to marriage.”
Additional Piecemeal Reforms
Lottery passed
Personal income tax banned
Prison expansion approved
Tort reform passed

33. Constitutional Change and Adaptation
17.3
Only a small percentage of registered voters—usually less than 10 percent—participate in elections when constitutional amendments are the only issues on the ballot
Constitutional Provisions, Interest Groups, and Elites
Interest groups work hard to protect their concerns and objectives
Interest groups are able to kill many proposed constitutional changes in the legislature, where the two-thirds vote requirement works to their advantage
Many recent constitutional changes have reflected a pro-industry and pro-economic development

34. Constitutional Change and Adaptation
17.3
Some evidence indicates that Texas courts are now prepared to play a more expansive role in the interpretation of the constitution and, in turn, affect major changes in state policy.
Change through court interpretation
Court appears to be playing a more active role in interpreting the constitution
Court interpretation does not alter the wording of the constitution, merely its application

35. 17.3
The failure of the last constitutional convention was largely the result of
extreme public opposition.
special interests dominating the convention.
urban versus rural disagreements.
conflict over proposed gubernatorial reforms.

36. 17.3
The failure of the last constitutional convention was largely the result of
extreme public opposition.
special interests dominating the convention.
urban versus rural disagreements.
conflict over proposed gubernatorial reforms.

37. What do you think? Texas is facing significant budget constraints, what should be cut?
Prison spending
Education spending
Transportation spending
Social services spending

38. What do you think? Should Texas repeal its Amendment prohibiting same-sex marriage?
Strongly support
Support
Oppose
Strongly oppose
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39. Credits
660 Ryan Hutson/Alamy; 667 Texas State Library and Archives Commission; 668 Texas State Library and Archives Commission; 672 AP Images/Harry Cabluck; 675 The Institute of Texan Cultures; 677 AP Images/Harry Cabluck; 681, top to bottom: Texas State Library and Archives Commission;Tarlton Law Library, University of Texas at Austin