Braden, George D. — "Citizens' Guide to the Proposed New Texas Constitution," 1975

May, Janice C. — "The Texas Constitutional Revision Experience in the '70's," 1975

Braden, George D. — "Citizens' Guide to the Texas Constitution," 1972

FOREWORD

This is a citizens' guide to what may be the Texas Constitution of 1976. Thanks to a remarkable sequence of events beginning in 1971, Texans will be doing in 1975 what they have not had the opportunity to do in 100 years — vote on a new constitution for their state. Thus, they can complete the job they undertook in 1972 when they adopted the unique amendment submitted by the 1971 Legislature to enable the voters to authorize the members of the 63rd Legislature to act as a constitutional convention. This is a fitting exercise for the nation's bicentennial years.

The author of the Guide is George Braden, who wrote the Citizens' Guide to the Texas Constitution under the auspices of the Institute for Urban Studies, published by the Texas Advisory Commission on Intergovernmental Relations in 1972. The new Guide takes the reader through the proposed constitution article by article, describes its essential features with particular attention to the important similarities and differences between the present and the new documents and explains the principal reasons for the content and shape of the revision. In doing this, he compares, and to a degree, evaluates, the roles of the three bodies that have produced the "Constitution of 1976": The Constitutional Revision Commission of 1973, the Constitutional Convention of 1974, and the 64th Legislature in 1975.

In 1970, the Institute for Urban Studies began intensive planning to develop a base of information for public and official decision-making on what seemed likely to be a fairly long term effort to modernize the Texas Constitution. In planning and carrying out the program, the Institute had the cooperation of its sister Institute of Urban Studies at The University of Texas in Arlington, the Lyndon Baines Johnson School of Public Affairs, the Texas Advisory Commission on Intergovernmental Relations, and a number of the leading students of the Texas constitution and government in other universities. Very early, George Braden, nationally recognized as one of the leading authorities on state constitutions and constitution writing, figured in the planning Before the end of 1971, he had been engaged to write the Citizens' Guide and to proceed from that to write an historical, comparative and analytical annotation of the constitution. With the help of a number of other authors, a draft of the annotation was completed in time for use by the Commission and the Convention. A series of impact papers by various scholars was also prepared for the information of the public and of the Commission and Convention. These papers dealt with major issues relating to the several articles of the Constitution. The Institute also produced a half-hour documentary film on the historical background of the Texas constitution and the revision process through the opening of the convention.

These and other reports and studies were variously financed from funds from the Institute, the LBJ School, the Texas Advisory Commission on Intergovernmental Relations, the Hobby Foundation, the Hogg Foundation, the Constitutional Revision Commission, and Title I of the Higher Education Act of 1965 through the Coordinating Board of Texas Colleges and Universities. The new Guide has been financed in part by a grant from Title I of the Higher Education Act.

Mr. Braden has devoted almost the last three and a half years to the Texas Constitution. In addition to his work under the auspices of the Institute, he served as a consultant to the Constitutional Revision Commission and was the principal consultant to the committee on style and drafting of the Constitutional Convention. Before coming to Texas, Braden, a former Professor of Law at Yale University, had worked intensively on the constitutions of Connecticut, New York, and Illinois. He was a full time consultant to the recent New York and Illinois constitutional conventions. He was the designer and principal author of The Illinois Constitution: An Annotated and Comparative Analysis, which became known as the "Bible of the Illinois convention" and was the prototype for the annotation of the Texas Constitution. While serving at the Illinois convention, he devised a new way to handle the problems of adoption and transition so that a constitution would not be permanently lumbered up with material that has only temporary significance. This involved an adoption schedule that did not become a part of the constitution and a transition schedule with a built-in device to remove sections from the constitution as they became obsolete. This approach was adopted by the Texas Convention and, as far as is applicable, by the 64th Legislature.

The opinions and judgments expressed in this Guide are, of course, those of the author and do not represent any policy or position of the Institute.

May 1975

John E. Bebout, Program Director

Institute for Urban Studies

University of Houston

TABLE OF CONTENTS

FORWARD .............................................. .iii

TABLE OF CONTENTS ..................................... v

PREFACE ............................................... vii

CHAPTER I Introduction ................................. 1

II Basic Limitations: Bill of Rights .............. .5

III The Mechanics of Government ............... .9

IV Local Government.......................... 27

V Finance ...................................35

VI Special Limitations and Affirmations ......... 45

VII The Amending Process. .................... .57

VIII The Mechanics of Adoption ..................63

IX Conclusion. ................................69

APPENDIX — Reprint of Bill of Rights Chapter, Citizens'

Guide to the Texas Constitution, 1972 ......... .71

PROPOSED 1976 REVISION OF THE TEXAS

CONSTITUTION ..........................77

ARTICLE I Bill of Rights. .......... ...................79

II Separation of Powers ....................... 82

III The Legislature ............................ 82

ARTICLE IV The Executive ............................ .87

V The Judiciary ........................ 91

VI Voter Qualifications and Elections ......... .94

VII Education ...................... 94

VIII Finance ............................ 97

IX Local Government ...................... 100

X General Provisions ...................... 102

XI Mode of Amending the Constitution of the State .............................. 107

TRANSITION SCHEDULE................................ 108

CITIZENS' GUIDE TO THE PROPOSED CONSTITUTION

PREFACE

In 1972 I wrote the Citizens' Guide to the Texas Constitution.

The purpose of the Guide was to assist the citizen in understanding his constitution. Assistance was necessary because the Constitution of 1876 with its then 212 amendments was so badly organized, so poorly written, and so overblown with statutory detail that the ordinary citizen was hard put to understand it.

Since publication of the Guide, the voters by a handsome majority approved the calling of a constitutional convention composed of the members of the legislature; a Constitutional Revision Commission prepared and transmitted to the constitutional convention a draft of a new constitution; and the convention, using that draft as a starter, drafted a new constitution for submission to the voters.

Unfortunately, the convention adjourned without adopting the proposed constitution by the required two-thirds vote, thus apparently depriving voters of an opportunity to vote for or against the new document. To the delight of most and the amazement of some, the 64th Legislature, composed mostly of the same people who had failed to adopt the convention's document, went to work upon convening in 1975 and soon approved eight proposed amendments that, taken together, constitute substantially the convention's constitution. On November 4, 1975, the voters will have the opportunity to express their views on a new constitution for Texas.

This guide is designed to acquaint the citizen with what is in the proposed constitution. This is considerably different from the purpose of the earlier Citizens' Guide. The proposed new constitution is, I devoutly hope, intelligible to the layman. Indeed, the contrast between the words of the old and the new is so great that one might argue that a guide would be needed to demonstrate that the change is really not all that significant. In any event, this guide highlights what is in the proposed constitution, how it squares with the purposes and principles of a constitution, how the proposed constitution is to be viewed in historical perspective, and shows the relationship between the changes in the proposed constitution and the changes in Texas government that would flow from adoption of the new constitution. In the course of highlighting the changes from old to new, significant differences between the convention's product and the revision commission's document are noted.

This guide can be read without a copy of the old constitution or the Citizens' Guide at hand even though references to both are made throughout. Fortunately, it has been possible to include the text of the proposed constitution as part of this publication. A goodly number of people, including me, will be disappointed if the reader does not take the time to read the proposed constitution — not as avidly as in reading a novel, but at least with an air of "say, I can understand this." (This does not apply to the Transition Schedule: it is written in technical language. In any event, the schedule is of temporary significance and not really part of the people's document, the constitution proper.)

In the writing of the Citizens' Guide I was dealing primarily with the settled words of an established document and could be relatively free in my comments about why this or that was so. In the case of this guide, I am aware that more than 200 people are around who participated directly in the revision process and can second-guess me whenever I venture to set out a "why." Fortunately, I was able to corral a number of manuscript readers to keep me on the reservation.

I wish especially to thank John Bebout, Steve Bickerstaff, Janice May, James McGrew, Glen Provost, Jay Stanford, Louise Winecup and Richard Yahr who read all or parts of the manuscript and offered many excellent suggestions. Obviously, only I am responsible for the final product, but I take comfort in the knowledge that the second-guessers will find many fewer things to question than would have been the case without the changes suggested by those who read the original draft.

Finally, I must give thanks to my long-suffering typist, Janet Hulsopple, who observes somewhat plaintively that she knows more about the Constitution of the State of Texas, where she has never been, than she does about the Constitution of the State of New York, where she has always lived.

George D. Braden
May 1975

P.S. I have never seen a postscript to a preface, but then I have never come across a situation where an author wished to thank someone for something not part of the author's undertaking. As I note in Chapter VIII, many people thought an article-by-article submission would be almost impossible. Based on my knowledge of the present constitution and my past efforts at drafting schedules, I once said that it would be impossible but hastily corrected myself and said "almost impossible." (Lawyers are trained to beware of absolutes) I am glad that I corrected myself. The what if schedule (see Chapter VIII) is a magnificent exercise in ingenious drafting. Congratulations to those who brought off this tour de force in record time: Steve Bickerstaff, David Frederick Liz Levatino, Robert Strauser, Louise Winecup, and Richard Yahr.

CITIZENS' GUIDE TO PROPOSED CONSTITUTION CHAPTER I

Introduction

On November 7, 1972, the voters of Texas by a margin of over half a million votes approved the calling of a constitutional convention, the first in almost a century. Since that day there has been a concentrated effort to draft a new constitution for submission to the voters.

The revision process was not easy. The constitution of 1876 with its 218 amendments contained almost 64,000 words. Three-fourths of the states have constitutions less than half this length and two of those contain only about 8,000 words. Obviously, there is a great deal of something or other in the present constitution that does not have to be there. A first task, therefore, was to figure out what was excess baggage that could safely be discarded. A second task was to figure out how to revise the constitution so that constant amendment would not be necessary. An average of two amendments a year is bad enough; the average for the most recent decade is six a year, an accelerating trend that bodes ill for the future.

These two tasks are peculiar to an overblown constitution. The principal task in constitutional revision is to decide what changes are warranted by virtue of changes in the society, changes in the needs of government, and changes in the attitudes of the public toward their government and their constitution.

In the light of these three tasks, it is fortunate that the legislature created a Constitutional Revision Commission and in effect authorized it to draft a new constitution. After holding public hearings across the state, this broadly-based group of citizens did draft a proposed new constitution and submitted as its report the text of that constitution with appropriate explanations. This draft represented a giant step forward, for the 64,000 word monster had been slimmed down to a graceful 14,500 or so words.

When the legislature met as the constitutional convention in January 1974, it wisely accepted the commission's proposal as the working draft on which to build. Thus, the convention was spared one of the three tasks — most of the excess baggage was gone. This made it possible for the convention to concentrate on the real problems of revision. The fruit of that concentration was the document that almost passed. It is a little fatter than the commission's proposal but still a respectable 17,500 or so words.

(Ironically, 20 percent of this addition is in the one section that the convention's Committee on Style and Drafting apologized for, noting that the section was drafted under different rules from those used in all other sections. For the reason for this "sport," see pp. 52-53.)

The convention's final document is essentially the same as the eight amendments to be voted upon in November 1975. That is, if the voters approve all eight amendments Texas will have a new, relatively short constitution. If the voters accept some of the amendments and reject others, Texas will have a skewed constitution. The degree of "skewing" will depend upon the number of amendments rejected by the voters. (There is one exception. See Chapter VII.) Since this is a guide to the proposed constitution, the discussion that follows assumes that all amendments pass. (See Chapter VIII for a discussion of the intricacies of partial acceptance of the proposed package.)

Overall the proposed constitution is an admirable document. The arrangement is logical. With almost no exceptions, each of the eleven articles contain only what belongs in the article and nothing that belongs elsewhere. There is still some statutory detail, but it is just about the minimum that one could reasonably expect, given the amount that is in the present constitution. Except for this detail, the proposed constitution is concise. It is concise in the sense that care was taken not to use more words than necessary to express an idea clearly. The document is also concise in the sense that care was taken not to say things that do not need to be said in a constitution. For example, the present constitution has many provisions that permit the legislature to do something or other. The proposed constitution omits these unnecessary grants of power because, in American constitutional theory, a state legislature may do what is not prohibited.

Above all, the new document is readable. Many people have said many times that a constitution is the people's document and that it, more than any other legal writing, should be drafted so that the lay citizen can understand it. The proposed constitution should receive high marks for readability.

In the Citizens' Guide to the Texas Constitution it was noted that there are several reasons for having a written constitution, several principles involved in drafting the document, and several factors influencing the making of a constitution. There is no need to repeat in detail what was said there, but it is useful to point out that, in the light of these considerations, the proposed constitution is a vast improvement over the present constitution.

There are three fundamental reasons for having a written constitution: to limit the power of government, to set forth the basic rules by which the government is organized and operates, and to distribute power between the central and local governments. The present constitution does all this. Likewise, the proposed constitution limits government, sets forth basic rules of government, and distributes power. There are changes, but the fundamentals of a written constitution remain the same.

Perhaps the greatest contrast between the old and the new document is in the degree to which the new more nearly adheres to the principle that a constitution should be a document for all seasons, a statement of who is to solve the problems of the future rather than a detailed attempt today to solve tomorrow's problems. The proposed constitution is in no way a "pure" constitution, the term used for a constitution that leaves the solution of all problems up to the legislature. Rather, the new document avoids detailed attempts at problem solving, especially in a formulation that breeds constitutional amendments. (There is one major exception to this generalization. See the discussion of education in Chapter VI.)

Two important factors in the making of a constitution are that it is both a political process and a historical process. No matter what the experts say should be in a constitution, the makers of a constitution must pay heed to what people want. What people want will be controlled to some extent by what they have had, what they are used to, and what is familiar to them. These two factors were at work in both the commission and the convention. The result is that, startling though the contrast between the words of the old and the new may be, the real changes are not all that startling.

What follows in this guide is a description of what is in the proposed constitution. No particular effort is made to spell out which provisions in the present constitution are left out of the proposed constitution. Obviously, if the proposed constitution is less than a third the length of the present document, a great deal was dropped. By and large this was verbiage that is usually called "statutory detail." In the course of the following discussion, the reasons for dropping the detail and the way in which it was done are pointed out. In the essentials of the constitution, however, it will be seen that the new is much like the old. From this it will be clear that the convention's constitution is in the Texas tradition.

CHAPTER II

Basic Limitations: Bill of Rights

(Article I)

The most important constitutional limitation on the power of government is the Bill of Rights. It is here that people protect themselves as individuals against themselves as a group. Or, to put it another way, here society agrees that certain rights of minorities are to be protected from interference by the majority. Thus, the Bill of Rights is principally designed to protect the individual or a group of individuals from oppressive government even if the government is responding to the desires of a majority. (Separation of powers is designed to protect people as a whole from tyrannical government; special limitations protect people as a whole from themselves as a whole. These types of limitation are discussed later. See pp. 11 and 45-46.)

The Bill of Rights tradition is unusually strong in Texas. In 1962 a "nuclear war" amendment was added to the present constitution. (See Article III, Section 62.) The amendment was designed to permit the legislature to provide for temporary succession in offices in the event of an enemy attack. In the Cold War climate of the period most states adopted the amendment but only Texas carefully provided that the "'Bill of Rights' shall not be in any manner affected, amended, impaired, suspended, repealed or suspended [sic] hereby." (The proposed constitution omits the amendment as unnecessary.)

Proposition 4, which authorized the constitutional convention, provided: "The Bill of Rights of the present Texas Constitution shall be retained in full." Respect for this stern command was so great that neither the Constitutional Revision Commission nor the convention was willing to change a comma or anything else. In keeping with this decision, the eight amendments to be voted upon cover all of the present constitution except Article I. Thus, if all amendments are adopted, the new constitution will continue to be the 1876 constitution as amended. (Actually, there are three technical changes in the wording of three sections of the Bill of Rights, but these simply change references to courts in order to be consistent with the new unified judicial system. Compare the old and new Sections 11a, 15, and 15-a.) If the convention's document had been submitted to the voters and adopted, Texas would have had a wholly new constitution because Article I would have been readopted. In a way this respect for the old is too bad, for much of the Bill of Rights is as poorly drafted as is much of the rest of the present constitution. Judicious redrafting could have made the article shorter, neater, and more readable, all without changing it in any way. (For the benefit of the reader who does not have available a copy of the original Citizens' Guide, an edited version of the chapter on the Bill of Rights is reprinted as an Appendix to this guide.)

The proposed constitution does make some changes, not in the Bill of Rights but in the basic limitations that belong in a Bill of Rights. Most of these are minor changes concerning jury trials. These could be made because the provisions are in the judiciary article, not the Bill of Rights. The present judiciary article also contains a prohibition against appeals by the state in a criminal case. The proposed constitution changes this but not in a manner that represents any loss of civil rights.

The Bill of Rights provides that "no person, for the same offense, shall be twice put in jeopardy of life or liberty." (Section 14. The section goes on to express the same idea all over again in slightly different words.) This means that the state can never appeal if a person has been found not guilty in a criminal trial, no matter how many errors may have been committed in the course of the trial. The rule goes further in that the state cannot take any steps to stop a trial and start over after jeopardy "attaches," which normally means after the jury has been selected and sworn in. A prohibition against appeals by the state goes still further. A lot of things can happen before jeopardy attaches, many of which may be errors that ought to be corrected. Two in particular justify a right of appeal by the state. One is a case where the judge dismisses an indictment or other criminal complaint because the statute involved is unconstitutional. The other is a case of dismissal because the offense charged is held not to be an offense covered by the words of the applicable statute.

In neither case is the accused jeopardized if the state is permitted to appeal to find out if the higher court agrees that the statute is unconstitutional or means what the lower court said that it meant. Indeed, the end result of no appeal could be simply that guilty people go free until another judge rules otherwise, a trial is held, a person is convicted, appeals, and the higher court upholds the statute. Notwithstanding the justification for permitting the state to appeal in these two situations, the proposed constitution makes an exception only in the case where a judge declares the statute unconstitutional. (Section 14, Article V. Actually, the provision allows an appeal under another circumstance but that relates to a change in the judicial system. See pp. 21-22.)

Proposition 4 provided that the Bill of Rights be "retained in full." This did not prevent the convention from making additions to the Bill of Rights, but under the accepted ground rules they could not be added to Article I. They are found in Article X, General Provisions. Section 23 of that proposed article calls for equal treatment of the mentally and physically handicapped. The right is comparable to the equal rights provided for in Sections 3 and 3a of the Bill of Rights but differs from those rights in two significant respects. The equality called for in Sections 3 and 3a is equality under the law. That is, the government may not directly or indirectly discriminate among people. The equal protection in the case of the mentally and physically handicapped runs against everybody, not just the government. Because of this universality of coverage and because these handicaps are complex whereas sex, race, color, creed, and national origin are relatively simple, Section 23 provides for exceptions from equal treatment. For example, Section 23 recognizes that the proposed constitution itself discriminates against one class of mentally handicapped by denying the right to vote to those determined to be mentally incompetent. The section also permits the legislature to define physical and mental handicaps. What this means is a little obscure. Presumably, the legislature would be permitted to define which handicaps are not protected in certain situations. For example, one would hardly expect the state to issue a driver's license to a sightless person. But one would expect the government to provide special educational opportunities for. deaf, mute, and sightless children.

The section also permits the legislature to prescribe the way in which the handicapped are to be protected from discrimination in the world of commerce. Again, this is a little obscure, but the need for flexibility is obvious. For example, no one would expect a movie theater to be required to provide someone to translate dialog into sign language for the benefit of deaf patrons, but most people would expect business establishments to permit seeing-eye dogs on the premises. Finally, the section makes an exception for a handicap that is incompatible with employment. Thus, a radio station would not have to hire a mute person as an announcer or a deaf person as a sound engineer.

Section 9 of proposed Article X requires the state to preserve the coastal natural resources of Texas and guarantees the public's right to the use of beaches. In some respects this section guarantees a right not unlike other rights in the Bill of Rights. In other respects the section is simply a limitation on the power of government to dispose of public lands. Even if Article I had not been closed to the convention, it is likely that Section 9 would have been placed in Article X.

At this point it is appropriate to mention "right to work." The reader will remember that this highly-charged emotional issue contributed to the failure of the convention to adopt the proposed constitution. To the everlasting credit of the 64th Legislature, the error of playing around with this issue was avoided. Since the issue is dead constitutionally there is no need to say anything more here except to note that a "right to work" provision or its opposite, an unlimited right to bargain collectively, is a Bill of Rights type of limitation on the power of government to regulate labor relations.

CHAPTER III

The Mechanics of Government

(Articles II, III, IV, V, and VI)

Introduction. This chapter concerns those parts of the proposed constitution that deal with the structure of state government. The five articles discussed here deal with how the state government is to be put together and how it is to operate. (Technically, the suffrage article is broader, for it also covers suffrage on the local level.) In general, these articles are not concerned with what policies the state has to, can, or cannot adopt.

It should come as no surprise to find that there are relatively few significant changes in these articles. The general structure of American state government was established at the end of the 18th century. Changes since then have been limited. The significant trends in state constitutions over the decades have dealt with the extent to which the people have denied substantive power to their government.

It should be obvious, however, that a general revision of a document almost a century old will include changes. These are principally of two kinds. One consists of changes that flow from the changes in the society that is governed. For example, the proposed constitution provides for annual sessions of the legislature. This is nothing more than a recognition of the tempo of change in a complex society.

The other kind of change represents a concerted effort to reshape the structure of government to meet a particular problem that has arisen over the years. The major example of this in the proposed constitution is a complex set of provisions designed to end the incredible proliferation of state agencies. (See pp. 17-19.) Obviously, not all changes neatly fit into one of these categories, but those that do not tend to be of minor significance.

Suffrage (Article VI). The proposed article on voter qualifications and elections is simplicity itself. Except for Section 1 (c), no explanation can tell anyone anything that he cannot find easily by reading the article. It should be noted, however, that a great deal of the simplicity is achieved by leaving details to be spelled out by statute. Thus, a person knows that if he is only 17 years old or if he has been convicted of a felony and is on parole, he cannot vote. But the proposed constitution does not tell a person who is 18 or older whether he can vote, for registration and residence requirements are to be statutory.

Section l(c) is a carefully tailored provision designed to permit the legislature to impose property restrictions on voting in certain local elections. Under the present constitution only property owners may vote in local elections concerning spending or borrowing money. The United States Supreme Court has invalidated state restrictions of this kind. (On May 12, 1975, the Court struck down the present Texas restriction. Hill v. Stone, 43 U.S. Law Week 4576.) On the theory that the Supreme Court may change its mind, Section l(c) would permit the legislature thereafter to impose the property restriction for voting in bond elections or elections imposing property taxes.

Section l(c) also permits the legislature to restrict voting in any election held by certain special districts. This permission is also in response to a recent United States Supreme Court decision permitting voting restrictions if the special district engages in limited activities the costs of which are principally paid for by the owners of property in the district.

In short, Section l(c) is designed to let the legislature follow the Supreme Court returns, so to speak. The subsection is essential as a permissive device because the only restrictions on voting that may be imposed are those that a suffrage article permits. (The revision commission decided against any property restrictions on voting. That is, their draft had no Section l(c).)

Separation of Powers (Article II). The proposed separation of powers article is shorter and simpler in wording than the present constitution's article, but the general opinion in the convention was that no change had been made. This is not true technically. Both the old and the new articles distribute the powers of government among the three traditional branches — legislative, executive, and judicial — and prohibit one branch from exercising a power belonging to another branch. Each constitution has an exception to this prohibition, but with a difference. The present constitution says "except in the instances herein expressly permitted" whereas the proposed document says "except as otherwise authorized by this constitution." In constitution drafting, "expressly" is a crucial word. In effect, "expressly" means that if the exception cannot be found in so many words, it does not exist. In the absence of "expressly," an exception can be found more easily. One can rely on "intent," on vague language, on general principles, and the like. (Interestingly enough, the delegate who got "expressly" removed also saw to it that there was an "express" exception elsewhere to meet the separation of powers problem that he was particularly worried about. See Section 16 of Article V.)

The doctrine of separation of powers is a key limitation on government. "It is obvious that arbitrary or tyrannical government is more likely if the power to make, enforce, and interpret laws is lodged in one person than if the power is distributed among three people who are independent of each other." (Citizens' Guide, p. 28.) This limitation is reinforced by the system of checks and balances whereby one branch is given a piece of the action of another branch. Examples are the gubernatorial veto, the requirement for obtaining the advice and consent of the senate for gubernatorial appointments, and the most newsworthy of them all these days — impeachment. The "exception" discussed above is a recognition that the system of checks and balances is an exception to strict separation of powers.

There is, however, a more important need for the exception than the recognition of checks and balances. The doctrine of separation of powers is a general principle, not a rigid standard by which to allocate each governmental action to one of the three branches. The day-to-day administration of government requires more flexibility than rigid allocation would allow. Thus, administrators and regulatory agencies are given "quasi-legislative" rule-making power and "quasi-judicial" decision-making power.

An effort was made to get the convention to redraft the article so that it would be clear that the article was not to be construed rigidly. (The proponents of that effort used the revision commission's version, which was specifically drafted to loosen things up. Instead of "prohibiting" one branch from exercising the power of another, the revision draft simply provided that each branch should exercise the powers appropriate to that branch.) Although the attempted redraft failed, the failure is probably harmless. The argument against any change seemed to be more a fear that change might destroy the principle of separation of powers than a desire to make separation of powers more rigid.

The Legislature (Article III). The convention made a great many changes affecting the legislature but most of these are not in the proposed constitution at all. The principal changes were in the deletion of many restrictions on what the legislature can do, many of which are in the legislative article of the present constitution. Most of those restrictions concern money and taxes. (The significance of this is discussed at length in Chapter V.) A correlative change was the deletion of substantially all provisions that tell the legislature what it may do. As noted in the Introduction, the legislature, as the principal policy-making body, has whatever power is not denied it. Although this was accepted constitutional theory in 1875, the drafters of the 1876 document were not consistent in adhering to the theory. The 1974 convention made a valiant effort to follow the theory and by and large succeeded.

Lest the reader who also reads the proposed constitution be misled, it must be noted that there is a technical difference in the case of a provision that commands the legislature to do something. There the people have imposed a duty on the legislature to exercise a power that it has. As a practical matter, this frequently makes no difference because there is no way to force the legislature to pass a bill. Nevertheless, there is value in imposing the duty. For one thing, it strengthens the hand of those who want the legislature to act. For another thing, it prevents the legislature from acting in a manner inconsistent with the imposed duty. By the same token, however, a command to act does not prevent the legislature from taking other action not inconsistent with the imposed duty. Thus, although a "pure" constitution would omit both commands and permissions to make policy, the inclusion of commands is not nearly so dangerous as the inclusion of permissions, for the latter give the impression that maybe the legislature really does not have all power not denied to it.

The Citizens' Guide contains a brief description of the significance of each section dealing with the legislative process. This approach was appropriate in the case of the present constitution, partly because of its wordiness but principally because the arrangement of sections is not logical. In the proposed Article III the reader progresses logically, section by section, through the establishment of the legislature, the determination of its membership, the rights of members, the procedures governing sessions, the process for enacting laws, and ends with two nonlegislative duties — impeachment and senate confirmation of appointed officers.

The proposed article is so easy to read that there is no need to explain what most of the sections mean. It is important, however, to point out the significant changes in the new article. Three of these deal with membership. The senate is left at 31 members and the house at 150 members, but both houses are to be elected from single-member districts. This represents a change in the case of the house, which has multi-member districts. (These are under judicial attack, principally on the ground that they discriminate against ethnic minorities.)

The revision commission also opted for single-member districts but recommended two significant changes not accepted by the convention. One change was to permit each house to vary in size but to require that the house have two to five times as many members as the senate. (The senate range was 31 to 50; the house 93 to 155.) To this was added the "pod" concept; each senate district was to be divided into the requisite number of house districts. Thus, with 31- and 93-member houses, each senate district would be divided into three house districts. If the sizes were 31 and 155, there would be five house districts in each senate district.

The second change concerning membership is in the ground rules for drawing districts. Here the proposed constitution follows the latest trend in United States Supreme Court decisions concerning one man-one vote. The traditional words are used: "districts must be composed of compact and contiguous territory and contain, ..., as nearly as practicable an equal number of inhabitants." But in following this general rule, the county is to be the building block. (See Section 5(c).) Since the Supreme Court has recently retreated from requiring mathematical equality to the exclusion of other factors, the proposed section takes advantage of this by stating that "a county is not to be divided unless necessary to prevent a significant population variance among districts." (See Section 5(b).) This could mean, for example, that if a county has a population almost large enough to qualify mathematically for a representative, the county can constitute a representative district without taking population from another county. (The revision commission's formulation was less clear, but seemed more or less to add up to the same rules.)

The third change cuts down the power of the Legislative Redistricting Board. Under the present constitution the board is convened if the legislature fails to act. The proposed section preserves the legislature's control over redistricting for a longer period of time. After a decennial census, the legislature is commanded to enact a redistricting plan. If the legislature acts, that ends the matter unless a court invalidates the plan. (If the legislature fails to act, someone would undoubtedly start a lawsuit because the existing districts, based on a census ten years old, would probably violate the population requirements.) If a court invalidates a plan, the legislature has a second chance to come up with a plan. If it fails to act, the Legislative Redistricting Board is convened to draw up a plan. (The revision commission preserved the old system and made it explicit that if a redistricting plan was invalidated, only the redistricting board had a second chance, no matter who acted first, the legislature or the board.)

It should also be noted that the proposed redistricting section includes congressional redistricting. Under the present Supreme Court rules, the "significant population variance" exception discussed above is unconstitutional in the case of congressional districts, but then Supreme Court rules are subject to change without notice. Moreover, even if the Supreme Court loosens up on one man-one vote, Congress can tighten it back up. In short, congressional redistricting is controlled by the United States. What Texas puts into its constitution cannot be definitive. (Incidentally, the new rules concerning districting do not take effect until after the 1980 census.)

The most important change concerning the rights of members deals with the prickly subject of compensation. In deference to the general principle that a person should not set his own salary, the convention proposed a citizens' salary commission to make annual recommendations on compensation and allowances. Under Section 6, the legislature cannot exceed the commission's recommendation and cannot put a salary change into effect until after a general election. Thus, except for the holdover half of the senate, a member would have to get re-elected in order to benefit from a recommended increase. (The salary of legislators was set at $4,800 a year at the end of 1960. On April 22, 1975, the voters approved an amendment increasing the salary to $7,200 a year. Even this increase is less than the increase in the cost of living since 1960. From the end of 1960 to the end of 1974 the cost of living went up by 74%. Thus, a salary of $8,352 a year today would represent no increase in real pay over 1961.) The revision commission likewise recommended a salary commission but provided that the commission also was to recommend maximum compensation for executive officers and for judges in the unified judicial system.

The proposed constitution contains three major changes in the law-making process. One is Section 7(a) providing for annual sessions. In odd-numbered years the session is to be limited to 140 days as at present and in even-numbered years to 90 days. (The revision commission's recommendation was more flexible. The legislature was to provide by law how often and for how long it would meet, but it had to meet at least once every two years.) The reason for this change is obvious. Things happen too fast these days to justify two-year intervals between major policy-making deliberations. Moreover, no organization spending over five billion dollars a year can accurately budget for a two-year period. Indeed, the trend to annual sessions in the United States has been phenomenal. In 1941, only four states had annual sessions, by 1950 the number had reached ten, by 1960 was up to 18, and today has reached at least 44.

The second major change is Section 7(f), permitting three-fifths of the membership to call itself into a veto session to consider overriding vetoes that were not considered either because the bills were vetoed too near the end of the session or because they were vetoed after adjournment. The same number of votes is required to override a veto. This is a reduction from two-thirds in the present constitution. It should be noted that the shift from two-thirds to three-fifths represents a strange convention compromise arising out of a mysterious error in the present constitution. Section 14 of Article IV of the present constitution provides that the first house to consider a vetoed bill may pass it by a vote of "two-thirds of the members present," but the second house has to have a vote of "two-thirds of the members." In correcting this error, a committee of the convention made the vote two-thirds of those present in each house. This was objected to as decreasing the governor's power. The compromise was to make the requirement three-fifths of the membership. (Incidentally, the veto section has been moved from the executive article to the legislative.)

The third major change in law-making is a comprehensive revision of the prohibition on local and special laws. Although the present constitution prohibits local laws, the courts have not effectively enforced the provision and the legislature has taken advantage of the lack of enforcement. ("Local" laws apply to a specific local government; "special" laws apply to a specific person, corporation, or anything else not geographic. Special laws are not a serious problem.) The typical device is known as a "bracket bill," a bill applying to all counties or cities or other political subdivisions with a population not less than so many nor more than so many. A bracket bill purports to be a general law, but usually only one county or city or town happens by a strange coincidence to fall within the population brackets.

The proposed Section 13 contains four changes that, taken together, go about as far as anybody can go in killing off local laws.

First, a local law is prohibited if a general law will do. The old section says this much, but the new one goes on to state that whether a general law will do "is a question subject to judicial determination." This is a signal to the courts to change and start enforcing the prohibition. Second, the section exempts only local laws expressly authorized by the constitution. (See p. 10 concerning "expressly." For examples of express authorizations, see Section 5, Article V; Section 7(a), Article IX; and Section 10, Article X.) Third, the section requires a local law to designate the area by name or other official designation. Finally, the section prohibits the use of population figures except in "general laws that have statewide application and classify all of one or more types of political subdivisions on the basis of population." (The revision commission was content with the first of these changes. Normally, this should be enough. The convention, consisting of legislators, took no chances. They tried to nail it all down.)

In a way this business of local laws is technical and the reader may wonder why the convention's changes are considered major. The principal reason is that an effective prohibition on local laws is essential if local governments are to be protected from legislative meddling in their affairs. Home rule loses some of its strength if local citizens who are unable to get what they want from their local government can make an end run and get the legislature to enact a local law. (See also the discussion of the local government article, pp. 32.) Moreover, the legislature's main job is to set state policy, including state policy concerning local government, but not to set policy for individual local governments. If state problems are now so pressing and complex that annual sessions are justified, it follows that the legislature should not be burdened with hundreds of local bills.

There are a few minor changes from the present constitution, such as the deletion of the requirement that revenue bills originate in the house, but they are not sufficiently important to justify discussion.

The Executive (Article IV). The proposed executive article has one major change involving five of the 24 sections. It will be discussed at some length. For the balance of the executive article, it is sufficient to note briefly the significant minor changes from the present constitution. The commissioner of agriculture is given constitutional status. (The railroad commission is too, but it is an Indian gift, for the legislature is permitted to abolish the commission. See Section 22.) The governor is to be limited to two consecutive four-year terms. (See Section 4(a). Note Section 4(b), which is designed to help a new governor learn the ropes before taking office.) A section has been added spelling out the method of handling the disability of executive department officers, a new provision common to recently revised constitutions. (President Eisenhower's heart attack in 1955 probably had more to do with constitutional coverage of disability than any other recent event.)

The most important technical change is in Section 5 on gubernatorial succession. Under the present constitution the lieutenant governor becomes governor when there is a vacancy. The office of lieutenant governor then remains vacant until the end of the term. (The president pro tempore of the senate presides there once the lieutenant governor has moved into the governor's office.) This was not much of a problem when the governor was elected for only two years. With four-year terms, gubernatorial succession becomes particularly important in terms of who chooses the person who becomes governor.

Section 5 arranges gubernatorial succession so that under most circumstances the person occupying the governor's mansion will have been elected by the voters of the state. The most likely event is for the lieutenant governor to take over and serve out the governor's term. If the lieutenant governor takes over he appoints a lieutenant governor. (The governor does the same in case of a vacancy in the office of lieutenant governor.) An appointed lieutenant governor serves only until the next statewide general election. This, in effect, puts the offices of governor and lieutenant governor back to two-year terms so far as filling vacancies are concerned. Thus, in the unlikely event that an appointed lieutenant governor becomes governor, the period of service will be less than two years. (Under the present constitution a senator, the president pro tempore, could become governor and serve for almost four years.)

In the Citizen's Guide it was pointed out that Texas has a weak executive. This is partly a result of constitutional provisions, principally the long ballot calling for the election of so many executive officers and the restrictions on the governor's power to remove appointed officers; and partly legislative practices that have preserved executive weakness, principally legislative control over budgeting and the practice of creating innumerable multimember agencies, boards, and commissions. (See Citizens' Guide, pp. 37-40, 45-46, and 62.)

Although the proposed executive article is as clearly and simply written as other articles in the proposed constitution, the manner in which the weakness of the executive was attacked is not immediately apparent. The first step is in Section 1, which establishes an executive department within the executive branch. The executive department is to consist of the governor, who is the "chief executive officer of the state," the other elected state officers, the appointed secretary of state, and any other offices later added by law. Section 2(b) provides that appointed officers of the executive department serve at the pleasure of the governor. Thus, the framework exists for legislative action to fold independent agencies into departments with appointed heads fully accountable to the governor.

Section 2 is the second step in strengthening the governor's hand. Here it is important to remember that there are more than 200 separate state agencies. (It is literally true that nobody has an exact count.) In an effort to enhance the governor's power over these agencies, the convention provided that the terms of multimember agencies have to be staggered and that the terms of members appointed by the governor have to expire between February 1 and May 1 of odd-numbered years (Section 2(e)). The purpose is to permit a new governor to appoint new people shortly after inauguration and more new people early in the third year of the governor's term. If, as is frequently the case, agency terms are for six years, a governor can name a majority of the members within not much more than the first half of his term. (Section 2(f) provides that, in most instances, the governor is to designate the chairman every two years.)

Section 2(d) adds removal power to the governor's arsenal of weapons of control over agencies. In the case of gubernatorial appointees serving for fixed terms rather than at the pleasure of the governor, the governor may propose to remove an appointee for stated reasons. Unless the senate by majority vote "vetoes" the stated reasons, removal can take place. (On removal power in general, see pp. 25-26.)

In addition to having new control over agencies, the governor is encouraged to reorganize the executive branch. Section 16 requires biennial reports on the organization and efficiency of the executive branch and permits the governor to "introduce" reorganization bills, which have to be acted upon. To prevent a live-and-let-live attitude on the part of the governor or the legislature, the convention added Section 24. This section turns most state agencies into temporary agencies by providing that they have a life of not more than ten years and can be renewed but not for more than ten years at a time. In short, the convention gave everybody power to remodel the executive house and then put a self-renewing time bomb in the house to force remodeling.

The third step in strengthening the governor's hand is in the area of budgeting. Section 14 requires the governor to submit an executive budget. Unfortunately, the convention failed to require the legislature to use the executive budget and it may be that legislative supremacy over budgeting will continue. On the other hand, the long-run effect may be that the governor will build up a strong, professional budget department and that the Legislative Budget Board, which really controls budgeting today, will eventually become more of a reviewing agency.

This long run development will be enhanced by Section 15, which requires the governor to oversee the expenditure of money. An expansion of the budget department will be required for this purpose.

It should be noted, however, that these various steps designed to enhance the governor's power in no way turns Texas into a "strong governor" state. The election of an attorney general, comptroller of public accounts, treasurer, commissioner of the general land office, and commissioner of agriculture assure considerable diffusion of executive power. Beyond that, affirmative legislative action is required to place state agencies under the direct control of the governor.

At this point it is appropriate for several reasons to review in some detail the revision commission's approach to the problem of executive disorganization in Texas. In the first place, the fact that there were two different approaches reinforces the observation that, so far as structure of Texas state government is concerned, the weak executive is the major problem. In the second place, the commission's approach demonstrates that there is more than one way constitutionally to attack a major problem. Finally, the differences in approach show the importance of who makes the approach — here, a citizens group and a legislature acting as a constitutional convention.

The revision commission used a logical approach based, it would appear, upon the assumption that all that is needed to get the executive house in order is to give the governor the power to act. The commission's document gave the governor plenary power to reorganize the executive branch, including "reassigning functions among or consolidating or abolishing any State governmental agencies." The only limitation on reorganization power was that a plan be submitted to the legislature following which either house within a limited period could reject the plan. The convention permitted the governor to submit plans but the legislature could amend them and, in any event, nothing happened unless both houses passed a bill. Thus, the commission gave the initiative to the governor and a veto power to the legislature; the convention kept all real power in the legislature's hands.

The commission did not include a "self-destruct" section designed to end the life of agencies every ten years unless the legislature affirmatively acted to renew the agencies. This is understandable, for the commission undoubtedly assumed that the governor would work away at reorganization. The convention, as legislators, obviously knew that failure-to-act is an occupational hazard of legislatures.

In the budgeting area the commission logically gave the governor the major power over budgeting by providing that he was to submit a budget accompanied by a budget bill covering all expenditures. This bill would have had to be introduced and would have become the general appropriations bill. This should have reduced the Legislative Budget Board's control over the budgeting process. It is no surprise that the convention ignored this budget recommendation.

The commission enhanced the governor's power over appointments in much the same manner as provided for in the convention's document. In the case of removal power, the commission did not go so far as the convention. Both documents made all appointed officers of the executive department removable at will but whereas the convention gave the governor constitutional power to remove other executive officers for cause, the commission left their method of removal to be determined by law. This difference in approach is probably a matter of different assumptions. The commission may have assumed that the governor would use his reorganization power to consolidate the myriad agencies into a number of executive departments whose heads he could remove at will. The convention may have assumed that many of the agencies, boards, and commissions will go on forever and that only by a constitutional grant of removal power can there be some control over their independence.

It is not the purpose of this guide to analyze the significance of having the legislature serve as a constitutional convention. It is appropriate, however, to note that the convention's methods of strengthening the governor's control over the executive branch were novel as state constitutions go. The commission's methods were more nearly the standard devices used elsewhere. The novelty is undoubtedly the result of legislators trying to cope with a disorganized executive while trying to avoid giving up power to the governor.

The Judiciary (Article V). The convention's proposed judiciary article would appear at first blush to be a radical departure from the article in the present constitution. There are actually only two major changes of significance in the sense that the changes will take place immediately if the proposed constitution is adopted. There is a third major constitutional change that actually is of no immediate significance. (The present Article V also contains several provisions concerning county government. These are now covered in the article on local government.)

The two major changes are summed up in the term "unified judicial system." Section 1 of Article V vests the judicial power in the judicial branch, but within the judicial branch is the unified judicial system, consisting of the supreme court, courts of appeals, district courts, and circuit courts. (The other courts in the judicial branch are discussed later.

The first major consequence of having a unified judicial system is the elimination of the court of criminal appeals. Under the new system, appeals, both civil and criminal, go to one of the several courts of appeals. (Right now there are 14 courts of civil appeals across the state.) The supreme court will sit as a second reviewing court for the normal purposes for which a top court exists — to produce uniformity in the law and to correct major errors committed by the lower appellate courts. Under the present constitution the supreme court reviews only civil cases. There are no intermediate courts for criminal appeals; all appeals go from the trial court to the court of criminal appeals. This has resulted in an overburdened appellate court. The proposed two-tier appellate system provides the flexibility needed to avoid congestion. (It is argued by some that an appellate court limited to criminal cases is ill-advised. Others argue the opposite.)

The elimination of the court of criminal appeals creates a side effect. In addition to giving the state the right to appeal from a decision invalidating a criminal statute (see pp. 6-7), Section 14 gives the state the right to appeal from the court of appeals to the Supreme Court. This is not a matter of civil rights. The only time that the state can appeal will be in a case where a convicted defendant has appealed and the court of appeals reverses. Unless the state can appeal in that situation, the supreme court cannot carry out its supervisory function over the administration of justice. Otherwise, there could be extended periods of time when the criminal laws was interpreted one way in East Texas, another way in West Texas, and a third way in Harris County, for example.

The other major attribute of the unified judicial system is a prohibition in Section 1 on creating any courts not created or authorized by Article V. Under the current constitution, Section 1 of Article V vests the judicial power in named courts "and in such other courts as may be provided by law." Over the years, statutory courts have proliferated. If the new constitution is adopted, these statutory courts die. There will be only the courts listed earlier and the courts discussed below.

Outside the unified judicial system there can be only three courts: county courts, justice courts, and municipal courts. Of these, only the justice courts have permanent constitutional status. Municipal courts have to be authorized directly by statute or indirectly by statutory authorization to home-rule cities to provide for the courts in their charters.

The county courts continue until changed by law. This provision, Section 6(a), represented one of those inevitable compromises necessary to placate a powerful political group. (The same can be said about the justice courts manned by justices of the peace. But there is a significant difference. There is need for minor local courts outside cities having municipal courts. The political power of justices of the peace preserved their courts as the ones to meet the need. There is no real need to preserve county courts in addition to circuit courts.) If the proposed constitution is adopted, the legislature will probably chip away slowly at the county courts' jurisdiction until there is nothing left except minor judicial duties.

The third major change in the proposed Article V is the sensible provision in Section 1 that "all courts have jurisdiction as provided by law." The present constitution spells out the jurisdiction of most of the courts. Most of these provisions have been amended, the latest being a 1973 amendment concerning the jurisdiction of the district court. Since only lawyers and judges have an interest in the jurisdiction of the several courts, it is sensible to leave the matter up to the legislature and not to burden the poor voter with technical constitutional amendments. The proposed constitution ends this burden. But as noted earlier, this shift in power from the people to the legislature does not automatically change anything.

In the Citizen's Guide, it was stated that the citizen's principal concerns with the judicial system should be, first, "the judges — their qualifications, the method of their selection, and the degree of their independence, that is, the length of their terms of office"; and, second, "the efficient administration of the judicial system" (p. 43).

The proposed constitution makes no changes in the method of selecting judges — they are to be elected; makes no changes in length of terms — six years for appellate judges, four years for trial judges; but makes two changes in qualifications — there is no longer either a minimum age or a minimum length of time that a judge must have been a member of the bar.

The efficient administration of justice will be greatly enhanced by adoption of the proposed constitution. In part this flows from the very concept of a unified judicial system. Section 7 of Article V puts teeth into the concept. (Perhaps "teeth" cannot be put into a concept; Section 7 puts teeth into something, however.) The section directs the supreme court to "provide for the efficient administration of the judicial system" and goes on to spell out several powers of administration and rule-making, some of which are subject to overriding by the legislature and some of which are not.

All in all, the proposed judiciary article is an example of good constitutional revision. The article simplifies a complex predecessor, creates a well-structured judicial system, and includes a maximum constitutional effort to secure efficient judicial administration. The article is a model of change for the better without changing the essence of a familiar system.

With one major and a few minor exceptions, the revision commission's judicial article was much the same as the convention's proposal. The minor exceptions were that the commission preserved county courts rather than provide for circuit courts; did nothing about letting the state appeal in criminal cases; and did not go into a lot of detail about the administration of the judicial system. The difference between the commission's short section on administration and the convention's somewhat more detailed section is that the latter leaves more power in the legislature.

The major exception is that the revision commission opted for what is called "merit selection" of appellate judges. Under this system, also known as the "Missouri Plan," a nominating commission submits names to the governor, the governor chooses one to fill a judicial vacancy, the appointee serves for a short period and then runs on his record for retention for a full term and subsequent full terms. The system is a compromise between a judiciary appointed in theory on the basis of competence and a judiciary democratically chosen in an ordinary political campaign. Under the system the voters do not choose a judge initially in a popularity contest, but they retain the power to reject a judge they do not like.

"Merit selection" is a political hot potato. The revision commission recognized this by recommending that the voters be given the opportunity to vote separately on an alternative system of election of appellate judges. Even so, the commission recommended that those elections be nonpartisan. The convention recognized that there is an alternative to election of judges but did not seriously consider merit selection. (The convention's proposal permits but does not require nonpartisan elections (Section 9 (d)). Indeed, some delegates were so suspicious of merit selection that they worried whether the statement that judges' are to be "elected in the manner prescribed by law" is a Trojan horse. Other delegates pointed out that "elected" cannot be read to mean "appointed.")

Removal from Office. The Citizens' Guide opens this subject thus: "The subject of removal from office is treated here separately in part because there is a separate article on Impeachment (XV) — which, however, is not limited to impeachment — and in part because there is a bewildering collection of removal powers scattered all over the Constitution" (p. 44). With reference to the proposed constitution, this sentence is still accurate except that there is no longer a separate article on impeachment. Ironically, the contents of that article are now "scattered all over the Constitution." It is easy to see how this happened. Except for a section in the general provisions article, removal provisions deal with the officers covered in the appropriate article — legislative, executive, judicial, and local government. Thus, each convention committee solved its own problem.

The present constitution has one particularly unfortunate provision in the impeachment article. The drafters in 1875 gave the legislature power to provide for means of removal other than impeachment, but used the words "trial and removal." This greatly restricted the legislature's power. (See the Citizens' Guide, pp. 45-46.) The convention's constitution took care of this for all officers except one, thus perpetuating an anomaly. (The Citizens' Guide mentions several anomalies in the present constitution. See pp. 45-46.) The "trial and removal" restriction remains for the clerk of the district court. He is removable only on "a jury finding of incompetence, official misconduct, or other cause defined by law." (Article V, Section 12(c).)

The simplest way to set forth the removal provisions is by a table, thus:

Legislators

Each house may expel a member by two-thirds vote of the membership. (Art. III, Sec. 9(h))

Constitutional elected state executive officers

Of the executive department

Impeachment (Art. III, Sec. 14)

of the executive branch (Railroad Commission)

As provided by law (Art. X, Sec. 6)

Constitutional appointed state executive officers of the executive department (Secretary of State)

By the governor* (Art. IV, Sec. 2(b))

of the executive branch (Board of Pardons and Parole)

As provided by law (Art. X, Sec. 6)

Statutory elected state executive officers

No constitutional provision; therefore, as provided by law

Statutory appointed state executive officers of the executive department

of the executive branch

By the governor* (Art. IV, Sec. 2(b))

(1) By the governor for cause, subject to senate rejection of the cause (Art. IV, Sec. 2(d))

(2) As otherwise provided by law (Art. IV, Sec. 2(d))

Justices and judges Supreme Court

(1) Impeachment (Art. III, Sec. 14)

(2) By address (i.e., two-thirds of the members of each house) (Art. V, Sec. 10 (a))

(3) As provided by law (Art. V, Section 10(b))

All other judges** and justices of the peace District attorneys

As provided by law (Art. V,

Sec. 10(b))

As provided by law (Art. V, Sec.

11(c))

District clerks

On a jury finding (Art. V, Sec. 12(c))

County officers**

As provided by law (Art. IX, Sec. 3(d))

*It is unclear whether the legislature is able to provide a method of removing an officer who serves "at the pleasure of the governor." These officers are subject to impeachment, however.

**The county judge is to be a county officer. Until otherwise provided by law, he is also to be a judge under Article V. Presumably, there can be different methods of removal applicable to a county judge.

CHAPTER IV

Local Government

(Article IX)

The proposed article on local government is perhaps potentially the most far-reaching of the proposed constitution. There are several reasons for this. It was pointed out earlier that changes in the structure of the state government are perforce limited because the basic structure created at the end of the 18th century has proved to be satisfactory. On the other hand, as noted in the Citizens' Guide (p. 49), constitutional conventions traditionally did not give much attention to local government. Indeed, the most important section on local government in the present constitution, home rule for cities, was added by amendment in 1912. Since the constitution was adopted, Texas has changed from a primarily agricultural state to a major urban state. It should come as no surprise to find that both the revision commission and the convention made major changes in local government.

Interestingly enough, the present constitution has no single article on local government. The article on counties, as of today, mostly concerns special districts; the article on municipal corporations has something for everybody; the essence of county government is found in the judiciary article; and miscellaneous tidbits are scattered about in other articles. Both the commission and the convention took care of this by gathering everything together in one article called "Local Government."

Apart from bringing order out of confusion, a reviser was faced with three much needed changes. One was to open the door to local self-government for counties, something cities have had for 60 years. A second was to remove the constitutional financial strait-jacket imposed on local governments, particularly counties but also on cities and towns. The third was to find a way to stop legislative meddling in local matters by the local law route. The revision commission went all out in making the first two needed changes. As noted earlier (p. 16), the convention went further than the commission in trying to solve the problem of local laws. On county home rule and financial freedom the convention backtracked. The differences in handling these three problems are good examples of the effect of differences in the make-up of the two bodies and of the influence of political pressure.

The obvious way to provide for self-government for counties is by a home-rule provision like that for cities. But there are two difficulties, one theoretical, the other practical. Cities are municipal corporations operating under charters. It is no great change to provide that the voters in a city may write their own charter under constitutional and statutory guidelines instead of having the legislature write the charter. Counties, however, have traditionally been viewed as agencies of the state carrying out state policy. To give them home-rule charter power seems somewhat inconsistent with their status as agents of the state. This theoretical point created no great problem for the commission, but the convention, consisting of the legislature, seemed to find this point something of a stumbling block. It may be that the theoretical argument was something of a make-weight in opposing home rule, but make-weight or not, the argument was made.

One suspects that the argument was make-weight because of the practical politics of county government. There are a great many officeholders whose jobs are frozen in the constitution. This means that only the people of the state as a whole plus two-thirds of each house of the legislature can make any change in those offices. A true home-rule provision would permit the people of a single county to create a form of government that could abolish some or all of the constitutional offices in that county. It is difficult to argue that the voters of a county should be denied the opportunity to choose their own form of local government. Hence the make-weight argument that the state must keep control over its agents, the counties.

The revision commission preserved the present county structure but provided that any county of 25,000 or more could adopt a home-rule charter. The commission also provided that any county by referendum could freely make changes in the government structure otherwise mandated by the constitution. The convention, presumably as a result of the political pressure from county governments, ditched home rule and limited the power to make changes in the government structure. The limitations prevent any change in the county commission — the new name for the commissioners court — except increasing or decreasing the number of commissioners, and require the continued election of any county officer who takes over the duties of an abolished constitutional elective office — sheriff, treasurer, assessor-collector, county clerk, county attorney, and constable. (See Section 3(e).) An effort was made to permit the voters to decide by a separate vote whether to add a true home-rule section. The effort failed. As a compromise, the convention proposed to permit the voters to decide whether to add a section "permitting the voters of a county to adopt a limited home rule charter." A charter would have been "limited" because it could not be inconsistent with the constitution. The constitution, of course, would have contained the very limitations just discussed. (In the case of home rule cities, the only limitation on structure in the present constitution is a maximum term of four years for officeholders.) This home-rule compromise is not part of the proposed constitution.

Section 3 of the local government article governs the structure of county government. Within the limitations mentioned earlier, Section 3(f) gives the voters of a county considerable power to rearrange the structure of county government. The county commission, presided over by the county judge, must be preserved, of course, but the voters may increase its size. (A decrease is also permitted, but it seems unlikely that many counties would opt for fewer than four commissioners.) Thus, a populous county may decide that it would like its county commission to be a county legislature with 15 or 25 or more members. Likewise, a county could decide that it wants a county executive or county manager, either elected or appointed. Thus, it will be possible to move in the direction of efficient, modern county government. (There is a minor hooker in all this. Section 3(d) states that the duties and functions of county officers "are as provided by general law." Thus, the legislature might decree that the county judge is the chief executive officer of the county. One would hope that the legislature would not try this, for it would subvert the purpose of Section 3(e).)

There is more to home rule than letting the voters choose the structure of their government. The important power is the ability to enact ordinances without first getting authorization by statute. Under the present constitution, home-rule cities can enact ordinances on any matter upon which the legislature can legislate. The only limitations are that an ordinance cannot be inconsistent with the constitution or laws of the state. A county, however, can act only to the extent that the legislature grants it the power to act. Both the revision commission and the convention permitted the voters of counties to grant ordinance-making power to the county commission. Thus, Section 4 grants counties almost the same home-rule law-making power that cities have. (The section carefully provides that in the case of a conflict between a county ordinance and a city or town ordinance, the latter prevails within the municipality's jurisdiction.)

Some people have argued that the powers contained in Sections 3(e) and 4 are adequate to give the voters significant home-rule power and that the "limited home-rule" section now abandoned was not worth all the fuss. The question is a close one, but there appear to be two lost advantages that would have gone with limited home rule. It would be advantageous to have a charter as such. As it is, a county desiring to change the structure of government may end up with a confusion of separate changes in a series of referendums. A second advantage that is lost is the power to force the county commission to act. Section 4 permits voters to limit the law-making power of the commission but gives the voters no power to act if the commission fails to enact a desired ordinance. (Except by "throwing the rascals out.") With limited home rule, the voters could provide for initiative and referendum. (Note that Section 4(a) permits repeal of ordinances by initiative and referendum. The negative implication is that the legislature cannot grant the power "to enact ordinances by initiative and referendum.) It may be, however, that if there is a spate of experimentation by voters exercising their powers under Section 3(e), the legislature may become convinced that county voters would like to have the same home-rule powers that cities have. This could lead eventually to the submission of an amendment providing for complete home rule.

The second major revision concerning local government was the removal of the financial strait-jacket imposed on local governments by the present constitution. The principal limitation is a maximum ad valorem property tax that counties, cities, and towns can levy. This maximum also serves as a limit on the amount of debt that can be incurred since the debt must be retired out of these limited tax revenues. Over the years the present constitution has been amended to permit more money to be raised by property taxes, but the relief has usually been in the nature of a grant of power to a special district — road, conservation, water, hospital, fire protection, and the like. The long and short of it is that the present constitution is absolutely chaotic in this area.

The revision commission swept away all of the constitutional chaos and inserted only one significant constitutional limitation on local finances: political subdivisions were to be permitted to issue general obligation bonds only if the voters approved the bond issue. This would not have meant that there would be no other limitations on taxing and borrowing powers of local governments. The legislature would have had the power to set property tax limits, to deny the power to levy particular taxes, to set debt limits, to require voter approval of other types of bond issues, and the like.

It seems paradoxical that the convention delegates, legislators all, backed way away from the commission's decision to leave the legislature with full control over local taxes and debt. The convention's solution was to put back into the constitution a fistful of limitations but to arrange the limitations so ingeniously that, by one means or another, local governments with the assistance of the legislature can do everything that would have been permitted under the commission's proposal. It is not clear why the convention followed this route; a good guess is that some delegates recognized the political danger in proposing a new constitution with no restrictions on local taxation and debt to replace one loaded down with restrictions. The danger would be that a demagogic argument could, and surely would, be made: "There are no tax limits in the proposed constitution; therefore, if it is adopted, your taxes will go sky high."

In any event, the proposed constitution restores property tax limits of $2.00 on the $100 of assessed value for cities and towns and $1.25 for counties. (The present constitution sets maximums of $2.50 for home rule cities, $1.50 for general law cities and towns, and $.80 for counties to which can be added up to $.45 for special purposes. Counties can also levy an additional property tax to retire road bonds.) Section 10 provides, however, that this limitation does not apply to taxes levied to service debt and also provides that any political subdivision can levy whatever additional property tax is necessary to pay off debt. Finally, the section commands the legislature to establish a maximum amount of debt payable from property taxes that each class of political subdivision can incur. In one sense this is unnecessary, for the legislature can do this without a mandate; in another sense the provision has teeth in it, for a schedule provision sets maximum limits applicable until changed by law. (See Section 40 of the Transition Schedule.)

Under the present constitution, as mentioned earlier, the special district has been the device used for getting around rigid constitutional property tax limits. Unfortunately, this has had to be done by constitutional amendment. The proposed constitution preserves the special district device as authorized by statute. Thus, the legislature willing, counties, cities, or towns that reach their tax limit can enhance their taxing power by creating a special district to levy an additional tax for a service that ordinarily would be paid for out of regular revenues.

The third major revision problem in local government was to scuttle the Texas tradition of enacting local laws. Since this is a matter of procedure in the legislative process, the solution appears in the legislative article. The manner in which the revision commission and the convention dealt with the problem has already been described (pp. 15-16). The discussion is renewed here because the focus should be on the relationship between prohibiting local laws and the integrity of local self-government. The principal reason for a local government article is to provide constitutional status for local governments. Constitutional status is needed only to protect those governments from the central government. Yet the central government must have the power to set policy for the state as a whole. The point at which these competing needs clash is in the enactment of general legislation affecting local governments. The problem at this point is to find a way to be sure that the legislation is truly "general," a matter of state policy, and not "local," a matter for the local government to decide. Although this problem can be described in abstract blacks and whites, the reality is fuzzy.

Both the revision commission and the convention tackled the problem resolutely. In addition to the strengthening of the prohibition on local laws in the legislative article, both bodies endeavored to reinforce the prohibition by specifying in the local government article what could be done only by general law and what could be done by general or local law. (The convention did a better job of spelling this out.)

Apart from these three major areas of revision, some minor changes have been made in the local government picture. By taking the county commissioners court out of the judiciary article and putting it into the local government article as the county commission, the revision commission and the convention have ended the confusion that flows from giving an administrative/legislative body attributes of a court. (Nobody was willing to deny the title "county judge" to the presiding officer of this nonjudicial body.) Both the revision commission and the convention lowered the minimum population for home-rule cities from 5,000 to 1,500.

Both the commission and the convention tackled the problem of special districts. (A "special district" is any political subdivision with a limited purpose except that school districts are traditionally excluded from the definition.) Everybody knows that Texas is saturated with special districts but may not know that they crept into the constitution only as a means of getting around its severe property tax restrictions. (Not all current special districts have constitutional status; those that do not have no power to tax, however.) The revision commission provided that special districts could be created only under general law whereas the proposed constitution permits them under either general or local law.

The revision commission forbade a special district if the service to be performed could be provided by an existing political subdivision. This would have greatly restricted the use of special districts. These districts are obviously necessary where, as in the case of a river authority, their area of service covers several political subdivisions; where the district is co-extensive with or within part of an existing subdivision, there is no necessity for the district except as a taxing device. The convention, having preserved special districts as an exception to tax limits, could hardly follow the commission route. Instead, Section 7 provides that counties, cities, and towns can create special districts if authorized by general law and that under these circumstances no local law can create a comparable special district within the political subdivision. This serves much the same purpose as the commission's prohibition — no special districts forced on a political subdivision against its will.

Finally, both the revision commission and the convention provided for intergovernmental cooperation. The commission had a self-operative section confirming the power of a political subdivision to cooperate or contract with other political subdivisions. The convention's version differs only in retaining for the legislature a power to prescribe the manner of cooperation. (Actually, the "power" is stated as a "duty"; since there is an existing intergovernmental cooperation act, Section 11 is self-operative in effect.) The convention also provided for consolidation of offices and transfer of functions among political subdivisions within a geographical county. The commission presumably omitted the provision because it is not necessary. This was a better approach. Section 12 limits consolidations and transfers to a single county. The commission's silence would have permitted the legislature to authorize consolidations and transfers across county lines, thus providing more flexibility.

All in all, the proposed local government article alone is almost worth the entire revision effort. Texas is one of the many states that have long decried the growth of power in Washington at the expense of the power of the states. The main thrust of the revision effort in this area is to enhance the power of local governments to run their own affairs and to decrease the need to rely on Austin. Except for the convention's unwillingness to accept unlimited county home rule, the revision effort to strengthen local government can be called an almost total success.

CHAPTER V. Finance

(Article VIII)

"Slightly less than one-third of the total number of sections in the present constitution are partially or wholly concerned with some aspect of governmental finance, and out of this number no less than forty-eight relate specifically to the subject of revenue and taxation." So wrote Professor Lynn Anderson in 1957. Since then over 50 of the 90 amendments adopted have dealt with financial matters. Both the revision commission and the convention recognized the necessity for ending this obsession with severe constitutional control over the power of government to raise and spend money. In the case of local governments, as already discussed, the whole business was wrapped up in a single section of the local government article. The proposed Article VIII on finance wraps up most of the other problems. (Five of the nine sections in the proposed education article deal with financial matters. A section on pensions has been put into the article on general provisions.)

Much of the financial clutter in the present constitution has grown out of the 1875 convention's prohibition against granting money or lending credit to any person or corporation. It is axiomatic that a government may spend or lend only for a public purpose. On the theory that constitution drafters do not idly spin out meaningless provisions, one would suppose that a prohibition against grants and loans means something different from spending or lending only for a public purpose. If so, the meaning has to be that grants and loans cannot be made even for public purposes. Certainly many people have accepted this meaning, for there are provisions in the present constitution that call for grants and loans for what almost everyone would concede to be a public purpose. One example demonstrates this. Few people would argue that the government cannot operate poor houses and orphanages. Welfare payments differ only in that cash is provided instead of room and board. Yet somebody thought it necessary to amend the constitution to permit welfare payments.

About 25 years ago the Texas courts began to equate grants and loans with public purpose in the sense that if the grant or loan is for a public purpose it is not a grant or loan. (If this sounds illogical, it is because it is illogical.) For a long time this was all a bit tentative but in the last few years the attorney general has consistently relied on the reasoning of these cases in his upholding of grants or loans. The argument was made both to the revision commission and to the convention that a constitutional requirement that public money and credit could be used only for public purposes was sufficient and that the grants and loans prohibition was redundant. The argument was accepted, the prohibition was dropped, and all amendments related to grants and loans were dropped. Apart from permitting the dropping of more than 25 sections, silence concerning grants and loans will greatly decrease the occasions for amending the new constitution.

Both the revision commission and the convention made another decision that will decrease the occasion for amendments. Under the present constitution the state may not incur debt. Therefore, water development bonds, veteran land bonds, student loan bonds, and what have you require a constitutional amendment to authorize them and further amendment to increase the maximum amount. ("What have you" is not quite right. There are "gimmick" bonds that are not technically state debt. They are discussed below.) There is a simple way to solve this problem: provide that state debt may be incurred only if passed by a two-thirds vote of each house and approved by the voters. This is what it takes to amend the constitution. Thus, the limitation on incurring debt is just as strong and a lot of unnecessary detail is kept out of the constitution. This is the route taken by both the revision commission and the convention. (See Section 8.)

The commission and the convention also tackled the problem of "gimmick" bonds. These are bonds which are not based on the state's credit but which, in one way or another, end up being paid for by the taxpayers. Tuition bonds are a good example. They are secured by the tuition paid by students at a state college or university. If the state has to appropriate from tax revenues to provide some of the operating costs of a college or university, the taxpayer is in effect paying off the bonds because more money has to be appropriated than would be the case if all tuition receipts could be used for operating costs. Dormitory bonds are different. They are "revenue" bonds secured by the rent charged for living in the dormitory. (If the dormitory operates at a loss and the college subsidizes the dormitory, the bonds become revenue/gimmick bonds.) The significance of all this is that the interest rate on state bonds is lower than on either revenue or gimmick bonds. Moreover, in the case of gimmick bonds the taxpayer is in effect paying the highest interest. In the case of revenue bonds the people who use the service and pay the charges are the ones who pay the higher interest.

The method used to kill off gimmick bonds is to define state debt so that only revenue bonds are excluded. This means than any state bonds issued will be general obligation bonds carrying the lower rate of interest. This also means that the requirement for voter approval before going into debt cannot be evaded. The revision commission said that state debt included debt "to be repaid, directly or indirectly, from tax revenue." The convention rejected this definition as too vague. Instead, the convention excluded revenue bonds from state debt and tried hard to produce an airtight definition of a revenue bond so that no one can slip a gimmick bond under the definition. (See Section 8(b). See also Section 33(c) of the Transition Schedule. This provision temporarily permits continued issuance of building use fee bonds, a gimmick bond used to finance construction of college and university buildings.)

The major revision problem in finance was the property tax. In the case of local governments, the principal users of that tax, a major problem was the severe limits on permissible tax rates. The way in which this was solved was discussed in the chapter on local government (pp. 31-32). The important statewide problem under the present constitution is that the administration of the property tax in Texas is a shambles. There are a number of reasons for this, mostly flowing from provisions in the 1876 constitution. Both the revision commission and the convention took the steps necessary to end the present mess, but the differences in the steps taken are more pronounced than in any other area of the two draft constitutions.

The major obstacle to a rational and fair property tax system is the provision that all private property must be taxed in proportion to its value. (The present constitution also states that taxation must be "equal and uniform." Although there has been a lot of confused talk, particularly by judges, the better view is that "equal and uniform" means the same as equal protection of the laws — that is, no unreasonable classification for tax purposes. In any event, "equal and uniform" can have no significance if all property must be taxed in proportion to its value. But note below how the convention ended up combining the two ideas.) What automatically flows from this rigid rule is that the property tax system will be administered unconstitutionally from day one. First, all property includes real estate, which the assessor-collector can easily find; tangible personal property, some of which, like automobiles and boats, is easy to find because it is registered, and some of which, such as jewelry, furs, golf clubs, paintings, and stamp collections, is not so easy to find; and intangible personal property, most of which, such as stocks, bonds, mortgages, and bank accounts, is invisible, moves around like mad, and can be made almost impossible to find. Obviously, not all property is taxed. Second, all property is to be taxed in proportion to its value. ("Value" here means "market value.") This is not likely to happen in Texas because there are hundreds of assessors, all of whom have their own appraisal rules, and hundreds of boards of equalization, all of which have their own rules for equalizing appraisals.

Third, all property is to be taxed in proportion to its value. This permits a taxing jurisdiction to assess property at some percentage of appraised value. If each jurisdiction uses the same percentage, or assessment ratio, of appraised value for all property within the jurisdiction, there is no problem of inequality. (There is a problem of comparing tax burdens among jurisdictions unless one knows the ratio used.) But if various tax rolls are used to levy a statewide tax and the assessment ratios are different, the statewide tax will not be levied equally in proportion to value. (The proposed education article preserves a statewide property tax. Section 9(b) of Article VII carefully provides: For purposes of this tax, the legislature shall establish by law an assessment ratio that must be applied uniformly throughout the state.) Finally, the present constitution states that "value shall be ascertained as may be provided by law." It is not clear how far the legislature can go in imposing statewide rules on assessors and equalization boards, assuming that this would be politically feasible. In any event, the legislature has never imposed statewide rules.

And so, everything rattles along unconstitutionally. But what about the courts? They are no fools; they long ago devised various stumbling blocks that make it extremely difficult to obtain relief from failure within a taxing jurisdiction to tax all property or to appraise property consistently. The courts may have done this partly to keep from getting mired down in a hopeless mess. They probably also recognized that judicial relief could result in an inability of governments to meet their payrolls because their tax rolls were tied up in court.

The revision commission "solved" the constitutional property tax problem by simply taking out the offending provision. (They also dropped "equal and uniform.") This would have meant that the legislature could take any and all steps necessary for a reasonable and rational tax system. Taxation of intangibles could have been dropped. Taxation of tangible personal property could have been dropped. Or taxation of all tangible property except automobiles could have been dropped. Tangible property used in business could have been taxed and other personal property dropped. All these classifications are used one place or another in the United States. (Unfortunately, the commission preserved restrictions on tax exemptions (see p. ), which would have permitted an argument that failure to tax a class of property would be granting an exemption.)

The convention, paradoxically one might say, was not happy with leaving all this up to the legislature. Instead, the convention took the opportunity to make some legislative decisions and freeze them in the proposed new constitution. The first decision was to go back almost to 1876. "Except as otherwise permitted in this article, all real property and tangible personal property must be taxed equally and uniformly in proportion to market value." (Section 2(a). Note the omission of intangible property.) Having thus threatened to restore some of the shambles, the convention took a number of steps to undo the damage. First, they commanded the legislature to provide for standards and procedures for property appraisal. Second, they provided that these standards and procedures, when adopted, are to be uniform throughout the state. Third, they gave any taxing authority the power to go into court to obtain uniform countywide enforcement of these standards and procedures. (See Section 2(b).)

Fourth, the convention decreed that one agency would appraise all property within a single county. This provision, Section 2(c), has been changed slightly to specify that the manner of countywide appraisal is to be prescribed by law. This will allow tailoring to fit the need. For example, in a rural county the county assessor might do the appraising; in a county with most of the population in one city, the city assessor might be given the job. Note, however, that this single operation relates only to appraisal. Each city, school district, special district, and the county itself can take the roll, assess the property at some percentage (not over 100) of the appraised value, and apply the tax rate to the assessed value. Thus, the difficulty of comparing taxes from one taxing authority to another will remain, but within a single county comparison will be much easier than it is today, for at least the appraisals will tend to be consistent across the county; and if the statewide standards are adhered to, statewide comparisons will be easier. (This will be particularly important in evolving a formula for state aid to education. See p. 47.)

Fifth, the convention presumably recognized that their command to tax all tangible property in proportion to market value would not necessarily end the present administrative shambles, for they inserted an ingenious provision designed to encourage — there is no known way to "compel" — courts to enforce the constitutional command of equal taxation. Section 6 directly grants a right of action to a property owner to sue for a refund of a property tax paid under protest. The provision instructs the judge to issue any orders necessary to ensure equal treatment under the law both for that taxpayer and "for all property owners within the taxing authority." The convention was careful, however, to reserve to the legislature the power to place restrictions on the judicial duty to ensure equal treatment for all property owners. It would not be appropriate to command a judge to go so far as to foul up the tax system so that no taxes can be collected for an extended period.

Actually, even the 1876 constitution does not require all property to be taxed. There are both constitutional exemptions of certain property and constitutional permission to exempt certain other property. It would have been logical for the revision commission to drop all exemptions, or at least those that are only permissive, since the commission was proposing legislative power to classify property. Instead, the commission preserved almost intact the exemptions of the present document. (Naturally, good grammar was used; the grammar of the exemption sections is among the most abominable in the present document.) Apparently, this was for fear that anyone who has an exemption today would be worried if he did not see it in the proposed document. Why the commission prohibited any other exemptions is not so clear. The commission generally did not exhibit the distrust of the legislature that the convention did. Moreover, as noted earlier, this prohibition might have been stretched to prohibit classification of property, which certainly was not intended.

The convention, of course, had to retain the exemptions because it had gone back to the magic "all" property had to be taxed. By and large the convention followed the commission's pattern, which in turn followed the current pattern. The only major change is the tax exemption for the elderly. Under both the present constitution and the commission's draft, the exemption is optional with each taxing authority. The convention first made it mandatory then later modified the exemption to limit it to those elderly whose income did not exceed $7,500 a year or such larger income as subsequently set by law. The 64th Legislature in turn removed the income limitation. Thus, the proposed Section 4(c) grants a mandatory exemption regardless of income.

The magic "all" also required the convention to mention special treatment for certain property which would not be taxed "in proportion to market value." One is an old chestnut that has been around since 1876. This one permits railroad rolling stock to be assessed by the county where the home office is located and the assessed value apportioned on the basis of trackage. It is a minor matter from every point of view but the railroads were quite excited about it and the delegates apparently did not feel particularly strongly about it. (See Section 3(b).) A second one is the special treatment to be accorded farm land in danger of being gobbled up by developers. A self-executing provision added in 1966 to the present constitution requires a lower appraisal than market value to encourage the farmer to continue in business, something he might not be able to do if the assessor had to use the high market value of land suitable for subdividing. The convention preserved this concept in a more flexible form and added permission for the legislature to do much the same thing for timber land. (See Section 3(a).) Two new items were added. One permits property tax relief for property owners in need (Section 5(a)); the other permits property tax relief to encourage historic preservation (Section 5(b)).

Notwithstanding the wordiness of the present constitution, there is little in it that inhibits the state from levying any non-property tax it pleases. Both the revision commission and the convention, after removing unnecessary words, left their documents pure so far as nonproperty taxes are concerned.

There is, of course, the problem of the dedicated highway tax. Technically, the present Section 7-a of Article VIII does not restrict the state's taxing power; rather the section restricts the appropriation power. Thus, there is no requirement that there be a gasoline tax and no limit on its size. But since three-fourths of the proceeds can be spent only for highways and one-fourth for education, there is a significant practical restriction on the state's taxing power. It makes little sense to utilize a taxing power to raise money only to be spent contrary to the current needs of government. (Texas has the lowest gasoline tax in the United States.)

The revision commission decided not to tamper with this sacred cow. Only one substantive change was made; constructing and maintaining highways was to be limited to a "State highway system." Initially, the convention also decided not to tamper with the sacred cow. Indeed, the convention went back to Section 7-a's broader term "public roadways." There was, however, continuing agitation over the dedicated tax in relation to the problem of mass transportation. The proponents of mass transportation succeeded in getting a separate ballot item on whether three-fourths of any increase in the gasoline tax should go into the general fund rather than the highway fund. (One-fourth of any increase would go into the Available School Fund.) Late in the convention a proposal was offered to exclude a tax at the refinery from the definition of the dedicated highway tax. This was accepted in return for dropping the separate submission on proceeds from an increase in the gasoline tax. (See Section 7.) If the proposed constitution is adopted, a small manufacturers' excise tax could be levied that would produce a great deal more revenue than an increase in the gasoline tax for the simple reason that most refinery products are consumed outside of Texas. The proceeds from a refinery tax would, of course, go into the general fund. (Some believe that this would be the case under the present constitution; others disagree.)

There are three other tax provisions worth mentioning if only because of the strange story surrounding each. One is Section l(b), which prohibits any statewide property tax except (1) a tax of not more than 10 cents on the $100 assessed valuation for higher education (see p. 50) and (2) a tax of not more than two cents for the State Building Fund. The interesting thing about this prohibition is that it showed up suddenly in the waning days of the convention after the finance article was supposed to have been put to bed. This is particularly interesting because the present constitution prohibits the two cent tax after December 31, 1976, and all other state property taxes after December 31, 1978, except the 10 cent tax for higher education. This phasing-out amendment was adopted as recently as 1968. One can only conclude that the people who had originally pushed the phasing-out amendment did not wake up to what was going on until late in the convention and had to make their pitch to the Committee on Submission and Transition, which was charged with trying to put together a final package that could command enough votes to get adopted.

Section 12 of the proposed article is an even stranger last minute addition. It was first added on the last day of the convention as part of the final package to be voted upon. This section constitutionally exempts from the sales tax groceries, medicines, and agricultural supplies. (These are all exempt today by statute.) The inclusion of this particular exemption appears to have been part of the frantic end-of-convention compromising between the "conservatives" and the "liberals." In the subsequent legislative effort to rescue the work of the convention there was a strong inclination to avoid fighting the convention battles all over again. Presumably, this explains the preservation of this relatively unimportant limitation on taxing power.

Section 13 is a new section added by the 64th Legislature. The section is both unimportant and a little bit silly. Moreover, it is the sort of obscure provision that turns off the ordinary citizen who tries reading the constitution. Indeed, in order to make the section intelligible to the reader it is necessary to spin a long, almost a tall, tale.

Article 55c of the Revised Statutes permits the producers of most agricultural commodities to agree by referendum that they are to be assessed a certain percentage of the price at which they sell their commodity to a processor. The processor collects the assessment by deducting the appropriate amount from the amount due each producer for the commodities purchased. The processor remits the assessment to a board elected by the producers. The board spends the money for "programs of research, disease and insect control, predator control, education, and promotion, designed to encourage the production, marketing, and use of " the particular commodity. Once all this machinery is set up, all producers of the commodity within a defined geographical area are assessed, but any producer for whatever reason can demand a refund of his assessment within two months after it is collected. So far so good. This seems an eminently democratic self-help program under the aegis of the state with a built-in "right to work" equivalent.

Unfortunately, a processor of sorghum refused to collect the assessment authorized by the sorghum producers in 29 counties of West Texas. A lawsuit ensued, culminating on January 15, 1975, in a 5-4 decision of the Texas Supreme Court holding the assessment unconstitutional. (Conlen Grain and Mercantile, Inc. v. Texas Grain Sorghum Producers Board, 519 S.W. 2d 620.) The majority held that the assessment is really a tax, that the tax is an occupation tax, and that it is unconstitutional because Section 1 of Article VIII of the present constitution prohibits an occupation tax on agricultural pursuits. This is not the place to analyze the majority opinion. The principal dissenting opinion admirably demonstrates the wooden, legalistic nature of the majority's reasoning.

What is important is the legislature's reaction to this decision. Section 13 was added to the proposed finance article. (Incidentally, Section 13 includes "marine food" producers. Article 55c of the revised statutes does not.) But the proposed constitution does not prohibit an occupation tax on agricultural pursuits. Indeed, there is only one remaining reference to occupation taxes in the proposed constitution. Section 7(c) provides that one-fourth of net revenue "from state occupation taxes is dedicated to the Available School Fund." Thus, the only conceivable purpose served by Section 13 is to be sure that no one ever argues that one-fourth of the assessments under Article 55c have to go to the school fund.

"If the judges hand down a bad decision, lawyers should try some new theories that might get the judges to change their minds. In short, back to the courts rather than back to the constitutional drawing board." (Citizens' Guide, p. 10). Here, it is not necessary to go that far. One need go back only to the legislative drawing board. There are a number of ways to revise Article 55c to get around the Sorghum case, assuming that the Supreme Court's mind cannot be changed. The sad thing about this tale is that the legislature opted for Section 13 instead of thinking through the problem. One can only hope that this "quickie" is not an augury of legislative practice under a new constitution. If it is, the new constitution will soon be burdened down with insignificant amendments.

Except for these minor aberrations, the proposed finance article is a great step forward. Indeed, one may say that this article, like the local government article, is alone almost worth the revision effort. Unless future legislatures react hastily and propose aberrations like Section 13, Professor Anderson will have no occasion to repeat his 1957 characterization of the Texas constitution.

CHAPTER VI

Special Limitations and Affirmations

(Articles VII and X)

This chapter deals with the grab-bag part of the proposed constitution. Put another way, this chapter discusses the impurities that keep the proposed constitution from being "pure." (Actually, most of the finance article is "impure" in this sense. See the pure constitutions of Connecticut and Vermont. Neither has a finance article or any substantive provisions concerning taxation or debt.) The "pure" constitution sets up a limited government, but the limitations are principally those that are traditionally in the Bill of Rights. Put another way, a "pure" limited government is one that has a particular limiting structure — separation of powers — and other general limitations — a Bill of Rights — both designed to prevent arbitrary and tyrannical government. A pure constitution does not limit the government's policy-making power. The original state constitutions were pure.

The impure constitutions were those adopted from about the middle of the 19th Century to the Second World War. They came into being for two principal reasons. One was that people were unhappy, not so much with the theory and structure of their government as with what their governments had done. The other reason was that state governments in the last half of the 19th Century were notoriously corrupt. Thus, a constitutional convention in that period was likely to have two mandates: change those terrible things the corrupt government did and fix it so that they cannot be done again.

One can usually tell from reading one of these impure constitutions what the problems of the day were. A prohibition on incurring debt means that the legislature was borrowing too much; limitations on taxes mean that taxes had gotten too high; prohibitions on grants and loans mean that legislatures had been giving things or lending state credit to private groups; a long article on railroads means that they had been taking advantage of the people; and so on. Constitutions adopted since World War II represent a new trend. There is a tendency to head back toward a pure constitution but a reluctance to go all the way. The reasons for this are somewhat complex. For one thing, there is a reluctance to make too great a change. For another, there is frequently a group with a vested interest in some substantive item and that group's lobbying is frequently stronger than any lobbying by the general public. Finally, and probably most important, government is undoubtedly not so corrupt as it used to be but it is still not trusted. Illogical as it may be, the voters do not trust the people they choose to govern them. Which is to say that they do not trust themselves.

The impurities in a constitution are, therefore, limitations but with a difference. They are not limitations to prevent arbitrary and tyrannical government; they are limitations to protect the people from themselves in the sense that the people do not trust themselves to choose representatives to do what the majority wants. To distinguish these limitations from those in the Bill of Rights, the term "special" is used.

There is a second new trend in recent constitutional revision. Except for a general statement in a preamble, a pure constitution says nothing about what the government should or must do. The newer constitutions tend to contain affirmative commands to the government to do this or that. Again, the reasons are somewhat complex. For one thing, government is accepted as a more important factor in our day-to-day living than was the case at the end of the 18th century. For another thing, familiarity with special limitations to prevent evil things breeds a desire to put into the constitution some good things that are to be done. Finally, if a constitutional convention can be unhappy about what the government has done, it can be unhappy about what the government has not done. (Consider equal treatment for the handicapped, discussed earlier (p. ).) It was not enough to prohibit discriminatory treatment by the government, the traditional purpose of a bill of rights provision; also prohibited was discrimination by private business. Traditionally, this is a policy choice to be made by the legislature, not by a constitutional convention.) Both the revision commission and the convention opted for affirmative provisions.

Education (Article VII). A requirement that the government provide free education has always been an exception to the basic assumption that a constitution should be silent about the affirmative duties of government. Even the original pure state constitutions suggested that the government ought to support education. Almost all subsequent constitutions transformed the suggestion into a duty. The Texas constitution of 1876 is no exception. What is somewhat exceptional is the amount of detail, principally concerning higher education.

Actually, the detail is all about money. Seventeen of the 22 sections in the education article of the present constitution are concerned wholly or partly with financing education. (An 18th section deals with money but not education. This concerns the minuscule dedicated capital funds for asylums. Both the revision commission and the convention dropped it.) Moreover, the convention's fierce battle over what the constitution should say about the state's duty to provide free education was essentially a matter of money. Paradoxically, the discussion that follows is less a matter of what affirmative duty should be imposed on the state than a matter of who is to pay for elementary and secondary education and who is to control the allocation of money for higher education. Everybody apparently agrees that education is an affirmative duty of the state.

On the elementary and secondary level the word is "Rodriguez." In the Rodriguez case the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment does not invalidate the Texas system of financing education, but the decision was by a vote of five to four. One of the five, Mr. Justice Stewart, in a separate concurring opinion observed succinctly that the Texas system "can fairly be described as chaotic and unjust." Mr. Justice Powell, speaking for the majority, contented himself with a wordy disclaimer that anything he said implied that he and his colleagues app