TO THE PROPOSED NEW
[including the complete text]
George D. Braden
INSTITUTE FOR URBAN STUDIES UNIVERSITY OF HOUSTON
STERLING SWIFT PUBLISHING CO. P.O. BOX 1352 - AUSTIN, TEXAS 78767
UNIVERSITY OF HOUSTON INSTITUTE FOR URBAN STUDIES
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
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.
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
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
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
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
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.
Basic Limitations: Bill of Rights
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.
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:
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,
As provided by law (Art. V, Sec.
On a jury finding (Art. V, Sec. 12(c))
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.
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
"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.
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 approved the Texas system.
The essence of the problem is that school districts have to finance their share of the cost of education from the property tax, a source of revenue that, even if the inequities discussed earlier (pp. 37-38) did not exist, produces wide income disparities among school districts. The state contributes to the cost of education but the distribution formula does not erase the inequities. The revision commission, which began work just after Rodriguez came down, took note of that opinion's criticism and by direct constitutional language tried to meet the problem of financial inequity. The first section of its education article repeated the present duty to "establish and make suitable provision for the equitable support and maintenance of an efficient system of free public schools" and added a duty "to provide equal educational opportunity for each person in this State." The commission then added this:
"In distributing State resources in support of the free public schools, the Legislature shall ensure that the quality of education made available shall not be based on wealth other than the wealth of the State as a whole and that State supported educational programs shall recognize variations in the backgrounds, needs, and abilities of all students. In distributing State resources, the Legislature may take into account the variations in local tax burden to support other local government services."
The convention was unable to reach a true consensus on this crucial issue. The result was a confused command the meaning of which will have to await many judicial interpretations. (This is not to imply that there would have been no litigation over what the revision commission meant.) The first section of Article VII repeats the substance of the present duty of the state to provide for an "efficient system of free public schools" and adds this: "The system must furnish each individual an equal educational opportunity, but a school district may provide local enrichment of educational programs exceeding the level provided by the state consistent with general law." This compromise between the desire for equal educational opportunity and the unwillingness to forego the opportunity for local communities to provide themselves with something better than the state average defies logic and altogether satisfies no one. Nevertheless, the norm of equal opportunity is stated and will undoubtedly have weight with the legislature and the courts. On the other hand, the exception means that a community will not be barred from spending some extra money in an effort to improve educational quality. In a pluralistic, still competitive society that thrives on innovation, such illogic has its points.
Both the revision commission and the convention retained the state board of education but the convention specified that the board is to be elected rather than continue the current option of election or appointment as determined by law. (See Section 4. One keeps wondering whether the legislature sitting as a convention was simply using the occasion to enact permanent laws. The board is elected today, but why assume that people will never want an appointed board.) Both the commission and the convention continued the system of local control of schools and community junior colleges (Section 5). Both the commission and the convention retained the permanent school fund and the available school fund and provided that the latter is to consist of the income from the permanent school fund and one-fourth of the state motor fuel tax and one-fourth of state occupation taxes (Section 2).
On two school fund issues the commission and the convention diverged. The present constitution requires the distribution of the available school fund to counties according to the scholastic population. The commission removed this requirement, presumably because it is an inflexible element potentially inconsistent with equal educational opportunity. The convention put the requirement back in (Section 2(d)). The present constitution provides for county permanent school funds but a 1972 amendment permits the distribution of a county's fund to the school districts within the county but to be used only for capital purposes. The commission dropped the county fund on the theory that the 1972 amendment made the whole business essentially statutory. The convention put everything back in (Section 3).
Higher education also has constitutional status. The 1876 constitution called for the establishment of a university "of the first class" to be called the "University of Texas" and to include an "Agricultural, and Mechanical Department" and created a permanent fund to provide income for that university. Today Texas has a system of higher education of which the university "of the first class" is only a part. Not surprisingly there was a lot of pulling and hauling in both the revision commission and the convention over how far to go in preserving the elite position of the university of the first class.
Both the commission and the convention found an easy solution to the first-class problem. The commission's draft stated that the legislature "shall provide for a system of higher education of the first class which shall include The University of Texas System, the Texas A&M University System, universities, colleges, community colleges, and other first class institutions or systems as may be provided by law." Thus, by constitutional fiat everything became "first class." (Whether the legislature would have been able to create an additional system of higher education of the second class is not clear.) The convention went along with this statement only up to the "which" clause (Section 6), thereby leaving ambiguous whether there can be a mandated system of the first class and another lesser system or whether every part of the higher education system has to be first class.
Whether to share the permanent university fund with all other institutions of the first class was a controversial issue. Actually, an effort was made over 25 years ago to let all institutions share in the fund. This was defeated, but the University of Texas and Texas A&M quickly got behind a proposal to create an equivalent source of capital money for the other institutions. (Until relatively recently, income from the permanent fund was restricted to buildings and other capital items.) Thus, the present constitution has a dedicated state property tax of 10c on $100 assessed valuation for the other institutions. This means that they can float bonds for capital construction and equipment since the dedicated tax guarantees them an annual income to retire the bonds just as the income from the permanent university fund can be pledged for bonds for capital construction and equipment.
Under the present arrangements, the University of Texas and Texas A&M Systems receive more income from the permanent fund than the amount available to the other institutions from the 10c tax. The revision commission undertook to redress this imbalance by requiring the legislature to levy a property tax sufficient to enable the other institutions to become first class but in no event was the tax to be less than 10c. The convention initially tackled the imbalance by providing for a mandatory annual appropriation equal to the permanent-fund income the first year under the new constitution. Late in the convention the formula was changed back to the 10c tax now in the constitution but with two differences. The tax could be "reduced by law," something not permitted today; and the state was to establish an assessment ratio to be applied statewide. (Today the ratio is the ratio used by each county, which means that a taxpayer in County A pays twice as much state tax as a taxpayer in County B if A has an assessment ratio of 40 percent and B of 20 percent, assuming that the two counties are consistent in their appraisals, a relatively ridiculous assumption.) The 64th Legislature substituted "changed" for "reduced," but went on to provide that the tax may not exceed 10c. (See Section 9(b). A court will have an interesting time figuring out the purpose of this rewording.)
It is not all clear who was seeking to get what with this new arrangement. The present tax yields considerably less than the permanent fund's income and under Section 9(b) the tax can never exceed 10c, but can be decreased. Under the initial convention proposal the other institutions would never receive less than an amount equal to the current income from the permanent fund. Under the final proposal, the legislature can set a high assessment ratio and make the yield jump dramatically, leave things as are, or reduce the tax rate. In the end, the other institutions are at the mercy of the legislature to a greater extent than they are today.
The most fascinating thing about the entire revision effort is that the attempt to eliminate unnecessary statutory detail failed in two areas, one wholly concerned with higher education and the other, pensions, concerned significantly with education (see pp. 52-53). In the case of higher education neither the revision commission nor the convention could bring itself simply to provide that the permanent university fund be preserved, that the other institutions receive a dedicated appropriation, and that the respective income and appropriation be pledged or spent as provided by law. Instead, there is a great amount of detail concerning the investment of the permanent fund, the allocation of the income between the UT and A&M systems, and the use of the income within each system (Sections 7 and 8). As for the other higher educational institutions, there is much less unnecessary detail in the section concerning their dedicated fund (Section 9). The lessons, ironies, and paradoxes of all this are too numerous to mention.
The Environment (Article X, Sections 7, 8, and 9). The environment has become a source for affirmative constitutional commands. All new constitutions adopted in this decade contain them; as time goes on, environment provisions will probably be as ubiquitous as education provisions. Both the revision commission and the convention provided that the environment should be protected and commanded the legislature to enforce the policy. The only difference between the two versions is that the commission used a lot of environmental gobblydegook to express a simple principle. The convention's version is Section 7 of Article X. Both the commission and the convention took a conservative position and avoided making the policy self-enforcing by giving citizens a right of action to protect the environment. (Some of the new constitutional provisions in other states are self-enforcing.)
The present constitution contains a commitment to the conservation and development of natural resources. This provision really serves only as a preamble to a grant of power that authorized the creation of conservation districts to get around tax limitations. Presumably the revision commission dropped the commitment as well as the grant of power because the tax limitations were also dropped. The convention put the commitment back in, presumably at the instance of bond attorneys who, conservative as usual, want to be perfectly sure that bond issues concerning water development are constitutional. (See Section 8 of Article X.)
In 1962 a totally redundant amendment was adopted authorizing the legislature to authorize coastal counties to regulate beaches. The revision commission quite properly dropped the section but not without some flack from people who mistakenly think that the amendment gives the people some rights to use of the beaches. (Under traditional law beaches and submerged lands belong to the state.) The battle was renewed in the convention with the result that a wordy section was adopted saying a great deal about the public's right to beaches but really having only one constitutionally operative provision a limitation on the power of the legislature to convey away the state's beaches and submerged lands. (See Section 9 of Article X.)
Health Care (Article X, Section 24). As noted earlier, there may be a developing trend to put more and more affirmative provisions into constitutions. The convention came up with a surprise: "A goal of this state is to provide every resident access to adequate, comprehensive health care as may be provided by law." Note, however, that this section differs from the article on education and the section on the environment; there is no command that the legislature act. This is not to say that the section will be without value. It will be a useful arguing point in support of health-care legislation.
Pensions (Article X, Section 21). Prior to April 22, 1975, the present constitution had more than 3,000 words concerning pensions for government employees. (The constitutions of Connecticut and Vermont are each about 8,000 words in length.) None of these words was constitutionally necessary in the first place, most of them were of no real constitutional significance, and almost nothing would be lost if they were all repealed. The revision commission recognized this and came up with 44 words that said it all and more more in the sense of more pension protection than the present constitution then afforded. The commission's section read: "Any pension or retirement system of this State, or of any political subdivision thereof, or of any governmental agency of either, now in effect shall be continued. No funds held pursuant to any such system shall be used for any purposes inconsistent therewith." The words "shall be continued" went beyond the pre-April 22 constitution, for under it there were no words that clearly required the continuation of a pension plan so far as future contributions were concerned.
The revision commission's short form did not fly. Instead, the convention accepted a muddled, wordy section that violates rules of good constitution-drafting. For example, the section begins: "The legislature may enact...." There is no need to tell the legislature what it may do. A sub-subsection states that the laws creating pension systems are to remain in effect, substantially what the revision commission said. But two following subsections command the legislature to create the very state and local pension systems that the sub-subsection keeps in effect. (Section 21 also continues the judicial retirement system.) The convention's section does represent a significant 80 percent reduction in words from the detail in the pre-April 22 constitution. But the convention's 654 words really do nothing more than the commission's 44 words. The only explanation offered for the insistence on so much unnecessary detail was that it constitutes a necessary security blanket for nervous public employees and teachers.
To compound the confusion over verbose statutory detail in the pension section, the amendment adopted on April 22, 1975, repealed the more than 3,000 words mentioned above and substituted a section that is almost but not quite the same as the section to be voted on in November 1975. The newly adopted amendment states in part that the legislature shall establish the amount employees contribute but that this must be at least six percent of current compensation and that the state's contribution may not be less than six nor more than 10 percent of current compensation. The amendment also states that the legislature may appropriate additional necessary sums but only in "an emergency, as determined by the governor." The proposed Section 21(b)(3) provides that the legislature shall determine the amount to be contributed by employees and the amount to be contributed by the state but that the state's amount must be at least six percent of current compensation. The sub-subsection also authorizes the legislature to appropriate additional necessary sums but says nothing at all about an "emergency." If the proposed Article X is adopted, Section 21 will supersede the current amendment on September 1, 1976.
Here is a beautiful example of what happens when people start putting statutes in the constitution. All this detail about how much is to be contributed and by whom is obviously a policy matter that is subject to change from year to year. Indeed, the legislature as a convention made the policy decision embodied in Sub-subsection (b)(3). Substantially the same people made the policy decision embodied in Sub-subsection (b)(3) of the amendment of April 22. And those same people subsequently reaffirmed the convention's Sub-subsection (b)(3) by proposing Section 21. A constitutional provision worthy of the name ought to be good for at least a decade or two and preferably for several decades. A constitutional provision with this amount of waffling within the space of one year is not worthy of the name.
Special Limitations (Article X). In one sense the pension provision is really a limitation, not an affirmative command. Although Section 21 commands the creation of pension systems, the systems exist and the net effect of the proposal is to limit the legislature's power to repeal the systems. There are other limitations in the present constitution that are affirmative government policies preserved by a limitation on the legislature's power to meddle with them. They differ from the special affirmations previously discussed in that the latter are directions to the legislature to carry out a general policy and the former are specific policies embodied in the constitution and thereby removed from the legislature's policy-making power.
Both the revision commission and the convention retained most of these special limitations unchanged in significant substance. These include community property (Section 11); the protection of homesteads and personal property from forced sale (Sections 12 and 13); the prohibition of wage garnishment (Section 14); the guarantee of mechanics' liens (Section 20); the preservation of local option (Section 17); and the prohibition on granting preferences to schools of medicine (Section 18). Retention of this last limitation is an example of the power of a special-interest lobby. By all the rules of constitution-drafting, this is a weird and ridiculous provision. (See Citizens' Guide, p. 72.) No other state has anything like it. The first half of the present section states that the "legislature may," which is totally unnecessary. The only operative part is the prohibition on granting preferences to schools of medicine. If this means anything it means that the legislature is prohibited from giving sensible, reasonable preferences since unreasonable preferences are prohibited by the Bill of Rights. (It is argued that Texas has higher requirements for medical practice than many other states. This may be true, but to give this section credit would require asserting that Texas has higher requirements than any other state because no other state has a section like this. Moreover, the implication is that the legislature calls for higher requirements only because of the constitution.)
The revision commission retained the section unchanged and offered the foregoing argument in support of the retention. The convention initially made no change but the Style and Drafting Committee created a problem by proposing to word the section correctly by simply providing that no law regulating the practice of medicine could give a preference to any school of medicine. A royal battle ensued. The physicians took the position that the section was as sacred as the laws of the Medes and the Persians and that not a comma was to be disturbed. The committee threatened to report the section unchanged but with a note disclaiming any responsibility for the violation of the committee's drafting rules. At the last minute a compromise was reached. By a bit of semantic fakery changing the improper "the legislature may" to the proper "the legislature shall" the committee's drafting conscience was salved. In return the physicians permitted the committee to redraft the section intelligently.
There were three provisions which the revision commission and the convention treated differently. The revision commission dropped the usury provision as unnecessary. (This is true; a provision does not mean a great deal if it makes contracts usurious where the interest rate exceeds 10% unless the legislature provides otherwise.) The convention retained the section (Section 22). The commission dropped the prohibition against lotteries and gift enterprises and substituted a prohibition against the government running lotteries or any other form of gambling. The convention retained the old section but authorized the legislature to permit bingo and raffles by charitable organizations (Section 19). The commission dropped the prohibition on branch banking; the convention retained it and added a rather Quixotic subsection: The legislature by law shall provide for the regulation of bank holding companies. (See Section 16.) This represents a typical legislative compromise over policy. The argument for dropping a prohibition on branch banking is that banks get around the prohibition by creating holding companies. The opponents of branch banking would like to prohibit bank holding companies, but this is a little difficult because they are already here. Thus, the compromise is to toss the holding company problem in the legislature's lap. Having gone this far, the convention might as well have done what the revision commission did toss the whole banking problem in the legislature's laps by deleting the constitutional prohibition.
The purist will deplore the retention of all these special limitations; the political realist will recognize that once provisions like this get into a constitution it is devilishly difficult to get them out. Neither the revision commission nor the convention should be faulted for leaving in so many limitations. They are among the familiar items that preserve the link with the past and reassure people that changes are not too great. Both the commission and the convention are to be praised for not adding a lot of new ones.
The Amending Process
Most state constitutions provide two methods for amending the document. One is the process of submitting individual amendments for voter approval; the other is the convention process. The present constitution provides only for individual amendments. (The recent convention was a one-shot deal provided for by a constitutional amendment that is now dead.)
Except for excessive detail the present section on individual amendments is satisfactory. The revision commission retained the essence of the present system but without the unnecessary detail. Under the system an amendment must pass each house by a two-thirds vote and be approved by a majority of the voters voting on the amendment. In addition to dropping the unnecessary detail the commission inserted a minor requirement that, before voting on a proposed amendment, the legislature was to obtain an opinion of the attorney general concerning the significance of the amendment and particularly whether the amendment would be necessary. It is well-known that the legislature on occasion has proposed an unnecessary amendment simply to get a referendum approval by the voters. The commission hoped that the attorney general might be able to discourage this habit of unnecessarily amending the constitution.
Although the commission retained the essence of the present provision, one change was made: amendments could be voted upon only at general elections. The convention went back to the present option of submission at either a general or a special election. The convention also rejected the idea of getting the attorney general's opinion. The convention in turn made a change of its own. A sentence was inserted limiting an amendment to the revision of a single article "except that the amendment may revise parts of other articles that are germane to the revision of the principal article." This was an interesting example of the failure of the technical experts to convince the delegates that they were probably making a mistake. The purpose of the sentence was to permit a single amendment to cover more than one article. The technicians pointed out that this can be done under the present constitution and that the new sentence, if anything, would restrict the freedom of amendment because of the addition of a requirement of germaneness.
The revision commission naturally added a section providing for constitutional conventions. The proposal was close to the generally accepted "good government" theory for constitutional revision by convention. First, it was provided that, by majority vote of each house, the legislature could put on the ballot the question whether to call a convention. Second, in any event the question was to go on the ballot at least once every 20 years. Third, a delegate was to be elected from each representative district. Fourth, justices, judges, legislators, and elected state executive officers could not serve as delegates. (This was a tactical error, obviously, since the commission's report went to a convention consisting solely of legislators. Error or no, it was "good government" theory.) Fifth, all housekeeping details were to be provided for by the legislature. Sixth, the convention was to act by a majority vote of its membership. Finally, the voters had the usual say on approving whatever the convention proposed.
In all honesty one can only say that the convention so mangled the revision commission's proposal as to produce one of the worst constitutional convention sections ever proposed. First, the convention required a two-thirds vote in each house simply to put on the ballot the question whether to call a convention. Second, the maximum interval between submitting the question for a vote was increased from 20 to 30 years. Third, the legislature was to have the privilege of specifying in the call whether the convention was to be unlimited or restricted to revision of certain articles. This, of course, would permit the legislature to control the convention process. An extreme example could be a call permitting revision of every article except the article on the legislature. Compare this with the 1970 Illinois constitution which permits the voters to initiate constitutional amendments but only to amend the legislative article. Illinois recognized that you cannot depend on an institution to reform itself. The Texas convention of legislators seemed to be trying to prove this by its proposed control over the revision process.
Fourth, the convention made two changes in the provisions concerning the details of a convention. The legislature was to provide for the election of delegates. This meant that the legislature would have been able to call for one delegate from each representative district as the revision commission required or any other arrangement. Indeed, some suspicious soul raised the question whether the legislature could name itself as was the case with the 1974 convention. The experts were of the opinion that providing for the "election of delegates" precluded naming the legislature as the convention. The other change was to drop the restriction on who could be a delegate. Instead, this obscure sentence went in: No public officer is prohibited from serving as a delegate by virtue of any provision in this constitution. The only purpose of this sentence is to be sure that Section 3(e) of proposed Article III, the dual office-holding provision, does not prevent a legislator from serving as a delegate to a constitutional convention. The sentence covers other public officers, of course, but the wording is this broad in order to obscure the true purpose. (Note, however, that under the proposal the legislature has the power to prohibit certain public officers, including legislators, from serving as delegates.)
Finally, the convention's proposal provided that a two-thirds vote of the delegates would be required to submit anything to the voters. One may assume that the failure of the 1974 convention is enough to convince people that this is a bad provision. It perhaps is significant that no other state has a two-thirds requirement; indeed, only a handful of states even specify that a majority of all the delegates is required. But the argument is made that if it takes a two-thirds vote to submit an amendment, a standard and generally accepted rule, it should take a two-thirds vote to submit a constitution. There are two answers to this, one practical, one theoretical. The theory is that the two-thirds vote is to increase the difficulty of amending the constitution. A convention is called, however, because change is wanted. It is illogical to call for change and then make change difficult. (The Connecticut convention of 1965 is cited as one that required a two-thirds vote. The situation was different. There was only one thing seriously wrong with the 1818 constitution it violated the one man-one vote rule. This absolutely had to be changed; nothing else did. A two-thirds rule made it difficult to spoil a pure constitution. Actually, the vote requirement was a rule of the Connecticut convention adopted for wholly different reasons. By design the convention consisted of an equal number of Republicans and Democrats. The rule was to assure a general consensus of both parties. The resulting obstacle to change was partly a fortunate by-product.)
The practical answer is demonstrated by the events of the final weeks of the 1974 convention. It is one thing to work away to gather a two-thirds vote on a single amendment; it is wholly different to gather a two-thirds vote on 10 or 20 or 30 items held together by only a weak common thread. In the former situation the votes can normally be picked up by minor compromises of detail because a substantial majority is sold on the main point. In the latter situation there are many main points; compromises may have to be major, in the course of which the substantial majority may melt away. Because of the significance of the right-to-work issue, the compromising process in the 1974 convention is obscured. There is no way to prove it, but it seems likely that the convention would have behaved much the same way if nobody had ever mentioned right to work. There would have been one difference, however; the convention would probably have adopted a constitution.
In the light of this criticism of the two-thirds vote requirement, it is no surprise that Article XI as proposed by the Committee on Constitutional Revision of the House of Representatives changed the requirement to a majority of the delegates. This was accepted by the House, but when the proposal reached the floor of the Senate an amendment was offered to restore the two-thirds requirement. The floor leader for Article XI indicated that the change was not significant and the amendment sailed through. When the package returned to the House for concurrence in the Senate amendments, the House concurred. Although there was some strong feeling on this in the House, the problem was presumably not important enough to risk sending the package to a conference committee. Thus, the proposal to be voted upon in November is the same article that the convention drafted.
In view of all this, the voter may wonder whether it is important to vote for the proposed Article XI. As noted in Chapter I, a favorable vote for only some of the separate items in the revision package will result in a skewed constitution. (See Chapter VIII.) But, as also noted in Chapter I, there is an exception. If proposed Article XI is turned down, nothing will be skewed. The present Article XVII less Section 2, which is fully executed and obsolete contains nothing that either has to be changed or that creates inconsistencies with other articles. Thus, the voter can weigh the present Article against the proposed article without worrying about ending up with a mixed-bag constitution.
What, then, are the factors to be weighed? First, it should be noted that there is no absolute necessity for a section dealing with constitutional conventions, particularly in a state that has what is sometimes called a "right of revolution" provision. (Section 2 of Article I states that the people of Texas "have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.") A study recently made by the Texas Legislative Council demonstrates convincingly that under Article XVII the legislature by statute can call for a vote on whether to hold a constitutional convention and probably can call for a convention without a referendum. Thus, approval of Article XI is not necessary in order to have a convention sometime in the future. Second, if Article XI is adopted, Section 2 will govern many details of a convention including, of course, the two-thirds vote requirement whereas under Article XVII, the legislature can do as it likes including, of course, the two-thirds requirement. Thus, under Article XI everyone knows what many of the requirements will be whereas under Article XVII no one will know until the legislature acts. Third, if Article XI is adopted and the legislature does not sooner submit a convention call, the question will go on the ballot in the year 2006. If Article XVII is retained and the voters cannot sooner induce the legislature to submit a convention call, the voters in 2006 and thereafter will still have to convince the legislature to submit a call. On the basis of these factors, voters can make their choice.
The Mechanics of Adoption
There are many ways to revise a constitution and many ways to get the revision adopted. The Texas story of Proposition 4, the Constitution Revision Commission, the unsuccessful convention, and the successful legislative passage of a package of amendments constituting a new constitution is unique in the annals of state constitutional revision. Several states have, however, offered the voters a new constitution to be voted upon more or less article by article. Pennsylvania, for example, adopted a number of article-by-article amendments in 1966 and 1967 and then called a constitutional convention limited to the remaining articles, which were those needing the most revision. The convention's product was submitted in effect on an article-by-article basis and adopted in 1968. In Florida a constitutional revision commission prepared a new constitution and submitted it to the legislature. The legislature made changes in the commission's proposals and in 1968 sent on to the voters a new constitution less a judiciary article. (The legislature could not agree on a new one; several years later they did and the revision process is now complete.) The voters voted on the suffrage and local government articles separately and the rest of the constitution, less a judiciary article, as a single package.
Many knowledgeable people have argued for sometime that an article-by-article submission of a new Texas constitution would be an almost impossible task. The reason is that many of the articles contain matter that properly belongs in another article. Moreover, in the process of revision decisions are made to move things about purely as a matter of choice. For example, a veto section can appropriately be placed in either the legislative or the executive article. In the 1876 constitution the veto sections are in the executive article, but in the proposed constitution the veto section is in the legislative article.
Notwithstanding this inherent difficulty, the decision was made to try to arrange for a series of amendments to the present constitution. This is no problem in a case like the amending article, which is wholly self-contained and unaffected by any other part of the constitution. Nor is there any significant problem with the suffrage and education articles. The difficult problems are with the three state-structure articles legislative, executive, and judicial and the local government, finance, and general provisions articles. If any one of these is not adopted, the existing article remains. If inconsistencies are to be avoided, as they must, the proposed amendment must contain what may be called a "what if" adoption schedule. (There is also a Transition Schedule which will be part of the new constitution. This is discussed later. If the convention's original package had passed, there would have been an Adoption Schedule which would not have been a part of the new constitution. An adoption schedule is limited to the mechanics of adoption and is fully executed as soon as the adoption process is completed.)
The "what if " schedule is exceedingly complicated. Fortunately, the voter need not worry about it. The whole business is technical and without significant policy-implications. Consequently, the wording is cryptic and relatively unintelligible to the layman. Nevertheless, the voter ought to know what is involved in working all this out. First is the problem of what happens if, say, the judiciary article is not adopted but the local government article is. The "what if" schedule amends Sections 18, 20, 21, and 24 of the present Article V by removing what is covered by the new local government article but preserving what would have been covered by the proposed judiciary article had it been adopted. Second, it is necessary to provide not only for the repeal of the article or articles that are replaced by the new article but for the repeal of germane sections in other articles. For example, adoption of the local government article requires repeal of all or parts of six sections in the present legislative article, seven in the present general provisions article, and five in the present taxation and revenue article. All of this occurs whether or not those articles are replaced by new legislative, general provisions, and finance articles. In some instances simple repeal is not possible; the section must be reworded and preserved. In other instances, the preserved section must be transferred to another article. Finally, there will be a prodigious task of rearranging and renumbering if some of the proposed amendments are not adopted. Obviously, this cannot be done ahead of time. Section 7 of the Transition Schedule gives the secretary of state and the attorney general the duty to put everything together in an orderly way. The section also gives them the power to make any other necessary nonsubstantive changes. This will permit correction of any inadvertent errors that have crept into the "what if " schedule. For example, Section 6 of the present Article XI is obsolete, but it is repealed only if the local govenment article is adopted. Even if that article is not adopted,
Section 6 should be dropped. (Section 6 authorizes local governments to levy additional taxes to pay off any debts in existence on April 18, 1876. One may safely assume that those debts have long since been paid off.)
Beyond the mechanics of adoption is the problem of transition from the old constitution to the new. If most of the proposed amendments are adopted, Texas will have a new constitution but not a new government. Most everything will go on as before. It is traditional to make this clear somewhere in the new constitution. A common practice is to put it in a schedule that appears at the end of the main body of the constitution but is a part of it. Traditionally, there was only a single schedule containing both transitional provisions and provisions relating only to the mechanics of adoption. The result was publication for decades of obsolete material. The 1970 Illinois convention came up with the bright idea of having two schedules: an adoption schedule covering the mechanics of adoption and a transition schedule covering everything else. The convention further provided that the adoption schedule was not to be part of the new constitution and that the various sections of the transition schedule were to be dropped as they became obsolete. This approach was adopted by the Texas convention and has been followed by the 64th Legislature. (As the earlier discussion shows, there is no adoption schedule as such. This follows because the submission is in the form of eight separate amendments to the present constitution. For this reason each amendment sets forth the transition schedule sections that are common to all articles so that whatever the combination of successful amendments, there is a complete transition schedule. (Note that, as in Illinois, the transition schedule opens with instructions for deleting obsolete sections.)
The alert reader will note that there is no schedule to the 1876 constitution. The 1875 convention followed a different practice. The convention adopted an ordinance the term traditionally used for enactments by conventions claiming sovereign power concerning the adoption of the constitution. The transitional provisions were scattered about in the constitution. Section 6 of Article XI, discussed above, is an example. Another example is the concluding part of Section 6 of Article VIII, which authorized the first legislature under the 1876 constitution to appropriate money for a period longer than two years. The most all-inclusive transition provision in a constitution is the one that preserves general continuity from the old to the new. This is Section 1 of the proposed Transition Schedule. In the typical overwritten manner of the present constitution, general continuity is covered by three sections: 18, 48, and 53 of Article XVI.
In a "pure" constitution, a general continuity section is almost the only transition provision that is necessary. If the transition is from an old constitution filled with statutory detail to a new constitution without the same detail, there may be need for temporarily continuing the detail until the legislature can enact laws replacing the repealed constitutional detail. Section 4 of the proposed Transition Schedule temporarily continues all or part of 25 sections of the present constitution. Other sections of the schedule serve a similar purpose but are separated from Section 4 for one or another technical reason. See, for example, Sections 8, 11, 32, and 35. Somewhat analogous to the temporary continuation of a "statutory" constitutional provision is the "enactment" of a temporary statute to get things going without waiting for the first legislature to act under the new constitution. For examples see Sections 13, 14, 15, and 40.
An unusual feature of the Transition Schedule is the large number of sections dealing with the judiciary. See Sections 16 through 30. This is principally necessary because the present constitution contains an inordinate amount of detail concerning a judicial system that is considerably changed by the proposed judiciary article. Some of these provisions are in the same category as the temporary continuation of detail discussed above. But some of the sections are of the utmost political significance. County judges and other local judicial personnel worried about their status under the new constitution. In order to reassure them, the Transition Schedule includes specific language of continuation until otherwise changed by law. Much of this would be covered by the general continuity section, but obviously the generalities of that section are not so reassuring as a specific provision.
Another group that worries are the bond attorneys. They are never happy with generalities, even those that say "all." For their benefit there are several sections preserving everything that any bond attorney could conceivably argue might be necessary. See Sections 2, 33, and 34.
In the drafting of a constitution, care should be taken to make it easily intelligible to the layman whose document it is. The rule does not apply to the Transition Schedule. This is the technical part of the constitution, drafted for the use and benefit of the technicians who have real (or imagined) technical problems. Once the decision is made to provide a method for dropping these technical provisions after they have served their purpose, there is little reason to resist the inclusion of unnecessary transition sections. The proposed Transition Schedule is probably twice as long as is absolutely essential, but why worry? The layman's document is the constitution itself. He can leave the intricacies of a transition schedule to others. In any event, as the years go by the Transition Schedule will get shorter and shorter until only a section or two remain.
At this moment in the story of constitutional revision in Texas the appropriate word is "miraculous." Many people doubted that Proposition 4 would pass so handily in 1972. Many people doubted that the convention would accept most of what the Constitutional Revision Commission recommended. And, surely, almost nobody outside the legislature believed that it would pick up the pieces from the shattered convention, put them back together essentially unchanged, and send on to the voters the constitution that the commission and the convention had wrought.
But it happened. Those who deserve medals as miracle workers are many the voters, who staunchly supported revision; the commission, which produced an excellent draft constitution; the convention delegates who, though unable to muster a two-thirds vote for final passage, in the main did accept the new constitution; those concerned citizens who spoke up angrily after the convention failed; and, above all, the 64th Legislature, which rescued the product of much hard work.
The final chapter in the miracle story is up to the voters of Texas. They can give themselves a new basic document of which they can be proud, but only if they approve most of the eight propositions. To be specific, it is necessary to adopt five of the propositions if the revision process is to be considered either a success or substantially completed. These are the two propositions (#1 and 2) covering the structure of state government, local government (#6), finance (#5), and general provisions (#7). Defeat of any of these will not only preserve some of the worst elements of the present constitution, it will also preserve certain badly written details in the present constitution. Proposition #3, suffrage, creates no problem if defeated, but voting against it seems relatively fruitless since much of the present article is unconstitutional and the proposed article covers just about everything that is constitutionally permissible.
Education, Proposition #4, is a different matter. The proposed article is shorter and much better written than the present article, but there is no earthshaking change from the old to the new except for the recognition of the Rodriguez case problem. This is enough to justify adoption, for if the article is defeated, litigation will continue and the courts will eventually force some element of equality on the "chaotic and unjust" Texas system unless the legislature gets there first by doing what the proposed article calls for. As noted in Chapter VII, Proposition #8 is the one proposition that can be voted up or down without in the least preserving a skewed constitution with something new accompanied by something old.
If the voters adopt the five crucial propositions and some or all of the rest of them, the voters will have done three things. They will have expressed their confidence in and thanks to the many dedicated Texans who have worked so hard to draft a modern constitution. They will have acknowledged that Texas is now an important urban state that needs a 20th century constitution. And they will have moved Texas from the column of states with poor constitutions to the column of states with good constitutions.
Basic Limitations: The Bill of Rights
[This is essentially Chapter II of the Citizens' Guide to the Texas Constitution, published in 1972. The references to other articles of the 1876 constitution have been changed to conform to the proposed constitution.]
There are three types of limitations on the power of a limited government, which can be called basic, special, and derivative. Basic limitations are aimed at controlling the power of government as such; special limitations control the exercise of power in some substantive area; and derivative limitations are those that flow from the manner in which the government is set up and in which power is distributed between central and local government. For example, a prohibition against taking property without compensation is a basic limitation because the power to confiscate is totally denied. A prohibition against a personal income tax is a special limitation because it simply restricts the manner in which the government exercises its power to raise money. A provision stating that the legislature may override a governor's veto by a two-thirds vote is a derivative limitation both on legislative power and gubernatorial power. This sort of characterization of limitations is an oversimplification but is useful for purposes of understanding a constitution.
Most of the basic limitations are found in the Bill of Rights. For purposes of discussion it is useful to divide them into groups: those that protect the public, those that protect property, those that protect people accused of crimes and convicted of crimes, and those that are more philosophical statements than specific limitations on the power of government. It must be noted that these are rough groupings for discussion purposes only.
The sections in the Texas Bill of Rights designed to protect the general public include Sections 3, 19, and 16, discussed below; Sections 8 and 27 covering the political freedoms of speech, press, assembly, and petition; Sections 4 through 7 covering religion; and Sections 23 through 25, designed to thwart tyranny, principally tyranny by military force. To some extent Section 12, Habeas Corpus, and Section 28, Suspension of Laws, are aimed at tyranny in this sense, but are also general protections against any kind of arbitrary government. The two principal provisions protecting the public are Section 3,* the Texas equivalent of the Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution, and Section 19, the Texas equivalent of the Due Process Clause of that amendment and of the Fifth Amendment. Finally, there is Section 16, which protects the public against arbitrary retroactive acts by the government. The section provides, in part, that no "retroactive law...shall be made."
There are several general comments to be made about this group of provisions protecting the public. First, they are relatively straightforward and intelligible to the general reader. (The religious liberty sections are a little wordy but still intelligible.) Second, paradoxically, these relatively straightforward and simple statements of fundamental rights generate great quantities of constitutional litigation. It is not possible in a few sentences to elucidate the limits of protected speech, of freedom to practice religion, of what is or is not a denial of equal protection or due process of law. A great many judicial decisions have to be digested in order to spell out such limits. Third, these great protections are so fundamental to the American system of government that variations in wording from state to state are of little significance. Indeed, the omission of one of them is usually not significant, for the courts are likely to find some other provision that will serve the purpose.
Fourth, many of these rights are binding on the State of Texas by virtue of the Fourteenth Amendment of the United States Constitution, but it does not follow that Texas should drop them from its Constitution. With both sets of constitutional rights the citizen has two chances to win against the government. The Texas courts may construe a Texas constitutional provision against the Texas government when the United States Supreme Court would read the Fourteenth Amendment in favor of the Texas government. The Texas government cannot, however, appeal to the United States Supreme Court when a Texas court construes the Texas Constitution against the Texas government. But if the Texas courts rule against the citizen under similar provisions under the two constitutions, the citizen can seek review by the United States Supreme Court, and if it takes the case and rules in favor of the citizen, this is binding on the Texas courts and the Texas government. Finally, it should be noted that the right of suffrage belongs in this group of fundamental rights of the public. But the details of suffrage are part of the mechanism of government and will be discussed in that context.
In the preceding discussion, several sections, 3 (equal protection), 19 (due process), 28 (suspension of laws), and 16 (retroactive laws) were singled out as protection against arbitrary government. These four are equally applicable for the protection of property against arbitrary treatment. In addition, there are two provisions specifically directed at property. One is Section 16, forbidding laws impairing the obligation of contracts, and the other Section 17, requiring the government to compensate for the taking of property. Section 18 prohibiting imprisonment for debt is more a matter of property protection or lack of property, perhaps than a criminal provision.
Section 26 is a property provision but it is arbitrariness in reverse, so to speak. That is, it is a constitutional prohibition against permitting the citizen to handle his property as he may arbitrarily desire. The section prohibits monopolies, perpetuities, primogeniture, and entailments. Everybody knows what a monopoly is, but the other three terms are technical and normally known only to lawyers and historians. A perpetuity is a device whereby a person ties up his property so that his heirs and their heirs and on and on could use the property but could never "own" it and therefore never sell it. Primogeniture was an ancient rule that land descended to the oldest son. Entailing an estate was, in effect, a perpetuity as described above but limited to the owner's children and their children and so on. These devices were all designed to preserve intact large estates. All three have long since died out in this country, normally by statute or through the development of the common law, but rarely by a constitutional provision. These tying-up-of-estate prohibitions are historical anachronisms, unnecessary but harmless in a constitution.
In addition to the monopoly prohibition in Section 26, there are prohibitions against exclusive privileges in Sections 3 and 17. The exclusive privileges prohibition in Section 3 appears to be another way of saying all men are equal; the exclusive privileges prohibition in Section 17 appears to be, in part, another way of saying that no monopolies are to be handed out, and, in part, a way to forestall a claim that a corporate charter is a contract that cannot be impaired.
Thirteen of the 29 sections of the Bill of Rights are concerned, in whole or in part, with the rights of those accused of crimes and those convicted of crimes. Four of the thirteen, Sections 12, 16, 19, and 28, have already been referred to. Section 12 guarantees the availability of the writ of habeas corpus, an order issued by a judge to the official holding a person in custody directing the official to establish that the person is held lawfully. As noted earlier, the writ is one of the arsenal of weapons against arbitrary government in general. It is also a weapon against unlawful or unconstitutional incarceration of persons accused of crimes and persons alleged to have been wrongfully convicted. The writ is frequently the means by which to establish failure to obey other sections of the Bill of Rights.
Section 16, prohibiting retroactivity, includes two criminal forms of retroactivity bills of attainder and "ex post facto" laws. A bill of attainder purports to punish a person without trial; an "ex post facto" law makes something a crime which was not unlawful when done. Section 28 is the prohibition against selective suspension of the laws. Section 19 is the Due Process Clause. It serves as a catch-all weapon against any arbitrary criminal process that is not specifically covered by other sections of the Bill of Rights.
The other nine sections dealing with criminal matters (9-11, 13-15, 20-22) cover the waterfront from looking for evidence to treatment after conviction. Section 9 is the traditional prohibition against unreasonable searches and seizures. Section 10 gathers in all of the traditional requirements for a fair trial: (a) indictment by grand jury in serious cases; (b) right to know what the accusation is; (c) right to counsel; (d) trial by jury; (e) right to a speedy and public trial; (f) right to have the witnesses against the accused appear in person at the trial; (g) right to have the government's help in getting witnesses for the accused to the trial; and (h) right of the accused not to be forced to incriminate himself. (In the middle of Section 10, there is an insignificant exception concerning antitrust; it is the sort of clutter that easy and frequent amendment produces. See also Section 13 of Article V for additional provisions concerning the grand and trial juries.)
Section 11 guarantees the right to be let out on bail. (Section 11a, permitting denial of bail to an accused previously twice convicted, is an exception added in 1956; it is another example of a spur-of-the-moment, piecemeal effort to deal with a complicated problem.) Section 13 is the traditional prohibition against excessive bail and fines and against cruel or unusual punishment. (The second sentence of Section 13 has no relation to the first sentence but the two have been in tandem since 1836. The second sentence, giving a right to a remedy in court, really adds nothing to the protection afforded by Section 19's due process clause.)
Section 20, prohibiting banishment as a punishment, is a relatively rare provision in state constitutions. Section 21, prohibiting the visiting of the sins of the father on his children, so to speak, is more common in state constitutions, but, nevertheless, an anachronism left over from early English law. Section 14 is the traditional prohibition against being tried twice for the same crime. (This prohibition is reinforced by Section 14 of the proposed Article V, which denies the state the right of appeal in most criminal cases.) Section 22 is a traditional requirement that especially good evidence be presented to establish treason. This is another throwback to ancient days in England when the crown trumped up treason charges to railroad political enemies to prison or the scaffold.
One section of the group of criminal protections has been held until the end because it covers a noncriminal matter. This is Section 15 which says that the "right to trial by jury shall remain inviolate." Since Section 10 guarantees a right to a jury trial in criminal matters, one might conclude that Section 15 is limited to noncriminal matters. The courts, however, have read both sections together, a reading that helps to define "jury," since the words "remain inviolate" in Section 15 preserve the criminal jury as it was at common law. That is, twelve people who must agree in order to render a verdict. In civil cases, Section 15 means that if a particular type of lawsuit at common law was by jury, the right continues, but if, as was true of many kinds of lawsuit, there was no jury, there still is no right to a jury. Section 13 of Article V, however, permits the legislature to relax the rule of unanimity in civil cases.
Section 15 has had a curious history, curious because it is rather rare for a traditional Bill of Rights provision to be tinkered with and end up in a statutory format. Section 15 originally said nothing about mentally ill persons. At the time of the Constitutional Convention in 1875, there was a statute on the books guaranteeing a right to jury trial before commitment to a mental institution. A Supreme Court decision in 1917 declared invalid a new statute substituting a commission of doctors for a jury in commitment proceedings. (White v. White, Civ. App., 183 S.W. 369 (1916), affirmed 108 Tex. 570, 196 S.W. 508 (1917).) This decision can be criticized on three grounds: (1) It seems unlikely that the delegates in 1875 meant to preserve "inviolate" every statute on the books at the moment, even assuming that they were aware of a right to jury trial in commitment proceedings; (2) the "remain inviolate" language goes back to 1845 and it seems reasonable to construe the words as referring to the common law
tradition, which does not appear to have included this particular type of jury trial guarantee; and (3) it would have been reasonable to hold that the power granted to the legislature to "regulate the same" included the power to substitute a professional judgment for a layman's judgment as to mental illness. Be that as it may, the solution to the problem was to put in an exception limited to temporary commitments on the order of a county judge without a jury. This simply compounded the error, for temporary commitments could be made willy-nilly by a judge, but long-term commitments still required a jury of laymen. Section 15-a, adopted in 1956, finally brought order out of chaos. In retrospect it would seem that an effort should have been made to get the White case overruled. Failing that, a better approach would have been to make commitment proceedings subject to regulation by the legislature.
The fourth group of Bill of Rights provisions is the trio of philosophical statements (Sections 1, 2 and 29). Although courts have occasionally relied on one or more of these sections as a limitation on some specific exercise of power by the government, in almost all cases the same result could be obtained under another section of the Bill of Rights and in the rare case where this would not be true, the decision should be read skeptically. Nevertheless, philosophical statements are common in state constitutions, but they should be read for what they are philosophical statements. If the people wish to limit their government, the limitations should be more specific than the generalizations in these three sections.
All in all, the Texas Bill of Rights fairly tracks the traditional Bills of Rights as they appear across the country. In any comprehensive revision of the Constitution, some of the wordiness could be eliminated, things could be arranged a little more logically, and some additions might be considered.
PROPOSED 1976 REVISION
OF THE TEXAS CONSTITUTION
*Section 3a, the Texas Equal Rights Amendment, was adopted in November 1972 after this Guide had been published.
The proposed 1976 revision of the Texas Constitution presupposes that all eight amendments on the November 4, 1975 ballot are adopted by the voters. If fewer than all the amendments are adopted by the voters, the resulting constitution would be a combination of those amendments which were adopted by the voters, and the portions of the Constitution of 1876, as amended and as it existed on November 4, 1975 which are not repealed or amended by the provisions adopted.
Humbly invoking the blessings of Almighty God, the people of the State of Texas, do ordain and establish this Constitution.
BILL OF RIGHTS
That the general, great and essential principles of liberty and free government may be recognized and established, we declare:
Section 1. Freedom and Sovereignty of State. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.
Sec. 2. Inherent Political Power; Republican Form of Government. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.
Sec. 3. Equal Rights. All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.
Sec. 3a. Equality Under the Law. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.
Sec. 4. Religious Tests. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.
Sec. 5. Witnesses Not Disqualified By Religious Beliefs; Oaths and Affirmations. No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury.
Sec. 6. Freedom of Worship. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.
Sec. 7. Appropriations For Sectarian Purposes. No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes.
Sec. 8. Freedom of Speech and Press; Libel. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the
right to determine the law and the facts, under the direction of the court, as in other cases.
Sec. 9. Searches and Seizures. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.
Sec. 10. Rights of Accused in Criminal Prosecutions. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.
Sec. 11. Bail. All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.
Sec. 11a. Multiple Convictions; Denial of Bail. Any person accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor may, after a hearing, and upon evidence substantially showing the guilt of the accused, be denied bail pending trial, by any judge of a court of record or magistrate in this State; provided, however, that if the accused is not accorded a trial upon the accusation within sixty (60) days from the time of his incarceration upon such charge, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to a court of appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder.
Sec. 12. Habeas Corpus. The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.
Sec. 13. Excessive Bail or Fines; Cruel and Unusual Punishment; Remedy By Due Course of Law. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.
Sec. 14. Double Jeopardy. No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.
Sec. 15. Right of Trial By Jury. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Provided, that the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of the appropriate court without the necessity of a trial by jury.
Sec. 15-a. Commitment of Persons of Unsound Mind. No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases. Such laws may provide for a waiver of trial by jury, in cases where the person under inquiry has not been charged with the commission of a criminal offense, by the concurrence of the person under inquiry, or his next of kin, and an attorney ad litem appointed by a judge of the court where the trial is being held, and shall provide for a method of service of notice of such trial upon the person under inquiry and of his right to demand a trial by jury.
Sec. 16. Bills of Attainder; Ex Post Facto or Retroactive Laws; Impairing Obligation of Contracts. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.
Sec. 17. Taking, Damaging or Destroying Property For Public Use; Special Privileges and Immunities; Control of Privileges and Franchises. No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; but all privileges and franchises granted by the Legislature, or created under its authority shall be subject to the control thereof.
Sec. 18. Imprisonment For Debt. No person shall ever be imprisoned for debt.
Sec. 19. Deprivation of Life, Liberty, Etc.; Due Course of Law. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.
Sec. 20. Outlawry or Transportation For Offense. No citizen shall be outlawed, nor shall any person be transported out of the State for any offense committed within the same.
Sec. 21. Corruption of Blood; Forfeiture; Suicides. No conviction shall work corruption of blood, or forfeiture of estate, and the estates of those who destroy their own lives shall descend or vest as in case of natural death.
Sec. 22. Treason. Treason against the State shall consist only in levying war against it, or adhering to its enemies, giving them aid and comfort; and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court.
Sec. 23. Right To Keep and Bear Arms. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.
Sec. 24. Military Subordinate To Civil Authority. The military shall at all times be subordinate to the civil authority.
Sec. 25. Quartering Soldiers In Houses. No soldier shall in time of peace be quartered in the house of any citizen without the consent of the owner, nor in time of war but in a manner prescribed by law.
Sec. 26. Perpetuities and Monopolies; Primogeniture or Entailments. Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.
Sec. 27. Right of Assembly; Petition For Redress of Grievances. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.
Sec. 28. Suspension of Laws. No power of suspending laws in this State shall be exercised except by the Legislature.
Sec. 29. Provisions of Bill of Rights Excepted From Powers of Government; To Forever Remain Inviolate. To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.
SEPARATION OF POWERS
Section 1. Separation of Powers. The powers of government of the State of Texas are divided among three distinct branches: legislative, executive, and judicial. Except as otherwise authorized by this constitution, members of one branch may not exercise any power properly attached to either of the others.
Section 1. The Legislative Power. The legislative power of the State of Texas is vested in a senate and a house of representatives, together styled "The Legislature of Texas."
Sec. 2. Composition. The senate consists of 31 members. The house of representatives consists of 150 members.
Sec. 3. Qualification of Members. (a) To be eligible to serve in the senate, a person must be a qualified voter at least 25 years old and immediately preceding election have been a resident of this state for five years and of the senatorial district for one year.
(b) To be eligible to serve in the house, a person must be a qualified voter at least 21 years old and immediately preceding election have been a resident of this state for two years and of the representative district for one year.
(c) In the general election following a redistricting, a person is eligible to the legislature from any new district that contains a part of the district in which that person was eligible for election immediately preceding the redistricting, but only if within 60 days after election that person becomes a resident of the new district.
(d) The office of a member of the legislature becomes vacant if the member changes residence from the district from which the member was elected unless the change is to comply with Subsection (c) of this section.
(e) A member of the legislature may not hold any other office or position of profit or trust under this state, the United States, or a foreign government, except as a member of the National Guard, National Guard Reserve, or any of the armed forces reserves of the United States, as a retired member of the armed forces or of the armed forces reserves of the United States, or as a notary public.
(f) A person holding a lucrative office under this state, the United States, or a foreign government, is not eligible to serve in the legislature during the term of that lucrative office.
Sec. 4. Election and Terms of Members. (a) Senators and representatives are elected by the qualified voters of their respective districts at a statewide general election.
(b) Each senator serves a term of four years beginning on the date prescribed by law for convening the legislature in regular session following election. The qualified voters elect a new senate after each statewide senatorial redistricting. The senators shall decide by lot which serve four-year terms and which serve two-year terms, so that one-half will be elected every two years thereafter.
(c) Each representative serves a term of two years beginning on the date prescribed by law for convening the legislature in regular session following election.
(d) Vacancies in the senate and house of representatives are filled by special election in the manner prescribed by law.
Sec. 5. Redistricting. (a) Before December 15 following publication of each federal decennial census, the legislature by law shall divide the state into single-member senatorial, single-member representative, and single-member congressional districts.
(b) Senatorial, representative, and congressional districts must be composed of compact and contiguous territory and contain, respectively, as nearly as practicable an equal number of inhabitants except that a county is not to be divided unless necessary to prevent a significant population variance among districts.
(c) County lines are to be respected in drawing district lines. If the population of a county is sufficient to provide for one or more districts, only population in excess of that required for complete districts may be added to population of other counties to form districts. If the excess population in a county equals 50 percent or more of that required for a district, the excess must be kept in a single district.
(d) If the Supreme Court of Texas or a federal court enters a final decree concluding legal action that invalidates a redistricting plan or prior to entry of the decree orders a redistricting plan into effect, the legislature shall consider enacting a new redistricting plan. If the legislature is in regular session on the day that the final decree is entered or the order takes effect, a new redistricting bill may be passed only within 30 days thereafter. If the final decree is entered or the order takes effect within 45 days prior to the convening of a regular session, a new redistricting bill may be passed only within the first 30 days after the convening of the session. If the decree is entered or the order takes effect at any other time, the legislature convenes in a redistricting special session within 14 days thereafter, either on a date set by the secretary of state or on the 14th day.
(e) If the legislature fails to pass a new redistricting bill to replace an invalidated plan or if a new redistricting bill does not become law, a legislative redistricting board consisting of the lieutenant governor, speaker of the house of representatives, attorney general, comptroller of public accounts, and commissioner of the general land office shall convene. The board shall convene within 10 days after the legislature fails to act or a new redistricting bill fails to become law and within 30 days thereafter shall redistrict the state. The legislature shall provide funds for the board's clerical, technical, and other expenses.
Sec. 6. Compensation. (a) Compensation and allowances for members of the legislature may not exceed the amounts recommended by the salary commission established by this section. No change in compensation may take effect prior to the first regular session following a statewide general election.
(b) The salary commission consists of nine members. The governor, lieutenant governor, speaker of the house of representatives, attorney general, and Chief Justice of Texas, acting together, appoint the members of the commission and designate the chairman. Members must be selected on a nonpartisan basis with due regard to representation of both sexes and of the ethnic groups and geographical regions of the state. No person may be appointed who is related by blood or marriage to, or who has or has had a business association with, an appointing officer. No person may be appointed who has served a full term on the commission.
(c) Members serve six-year terms. One-third of the members are appointed every two years. The appointing officers fill vacancies for the unexpired term.
(d) No member while serving on the commission may hold any other public office, be an employee of the state, or hold an office in a political party.
(e) The commission shall review legislative compensation and allowances annually and at that time may recommend changes.
Sec. 7. Sessions. (a) The legislature shall convene in regular session each year on a date prescribed by law. Sessions may not exceed 140 consecutive days in odd-numbered years and 90 consecutive days in even-numbered years.
(b) Special sessions may not exceed 30 consecutive days. Veto sessions may not exceed 15 consecutive days.
(c) Sessions of the legislature must be open to the public.
(d) Neither house may adjourn or recess for more than 10 days without the consent of the other.
(e) The legislature shall meet at the seat of government unless otherwise provided by law.
(f) The legislature by petition of three-fifths of the membership of each house may convene in veto session on the first Monday following the 50th day after adjournment solely to reconsider bills or resolutions for passage over a veto. Bills or resolutions that may be reconsidered are (1) bills, resolutions, or appropriation items that the governor vetoed within 10 days of adjournment and that the legislature did not reconsider before adjournment and (2) bills, resolutions, or appropriation items that, by virtue of action of the governor after adjournment, did not become law.
Sec. 8. Organization and Procedure. (a) Each house is the judge of the qualifications and election of its own members, but contested elections are determined as provided by law.
(b) The legislature may provide by law for assembling and organizing either or both houses prior to the convening of a regular session. If the assembly precedes the regular session following a statewide general election, the assembly is composed of the members of either or both houses of the next legislature.
(c) At an organizational assembly prior to or at the beginning of the regular session in an odd-numbered year, each house by majority vote may adopt or amend its rules of procedure. The legislature by majority vote of the membership of each house shall adopt joint rules. Rules of procedure and joint rules, once adopted, remain in effect until changed by the same or succeeding legislatures.
(d) At an organizational assembly or on convening in regular session, at the beginning of other sessions, and at the end of each session, the senate shall elect from its members a president pro tempore who performs the duties of lieutenant governor when the lieutenant governor is absent or disabled, or when the office is temporarily vacant.
(e) At an organizational assembly prior to or at the beginning of the regular session in an odd-numbered year, the house of representatives shall elect a speaker from its members. The legislature may limit by law the number of terms a person may serve as speaker.
(f) Two-thirds of the membership of each house constitutes a quorum for transacting business, but fewer members may recess or adjourn from day to day and may compel the attendance of absent members.
(g) Each house shall prepare and publish a journal of its proceedings while in session. At the request of any three members present, the votes on any question must be recorded in the journal.
(h) Each house may punish a member for disorderly conduct or other cause deemed sufficient by that house and may expel a member by an affirmative two-thirds vote of its membership, but not a second time for the same offense.
Sec. 9. Legislative Immunity. (a) A member may not be questioned in any other place for speech or debate during a legislative proceeding.
(b) Except for treason, felony, or breach of the peace, a member is privileged from arrest while attending a session of the legislature and while traveling to and from its meeting place for that purpose.
Sec. 10. Conflict or Interest. (a) No member may be appointed to an office that is filled by the legislature.
(b) During the term for which elected, a member is ineligible for appointment to (1) any civil office of profit under this state that is created or the emoluments of which are substantially increased during that term, or (2) any office or position the appointment to which is made by either house of the legislature. The ineligibility terminates on the last day in December of the last full calendar year of the member's term.
(c) A member privately interested in a bill, resolution, or other matter before the legislature shall disclose that interest and not vote on the bill, resolution, or other matter.
(d) No member may enter into a contract with the state during the term for which the member is elected unless the contract is a renewal under an existing state program.
Sec. 11. Bills and Resolutions. (a) A law may be enacted only by bill.
(b) A bill may originate in either house. After a bill passes one house, the other may amend or reject it, but neither house may so amend a bill as to change its original purpose.
(c) A bill must be limited to a single subject. The subject must be expressed in the title of the bill. If a bill that becomes law embraces a subject that is not expressed in the title, only the portion of the law concerning the subject not expressed in the title is void. A general appropriations bill must be limited to the subject of appropriations. A statutory revision bill must be limited to that subject.
(d) A bill, amendatory in form, must set out the complete section, as amended, of the statute it amends.
(e) Before a house considers a bill, it must have been referred to a committee of that house and reported at least five days before adjournment of the session, but either house by a record affirmative four-fifths vote of the members present and voting may suspend this five-day requirement.
(f) Before a bill becomes law, it must be read in each house on three separate days. Either house by a record affirmative four-fifths vote of the members present and voting may suspend this requirement.
(g) If a bill or resolution is defeated by a vote of either house, no bill or resolution containing the same substance may be passed during the same session.
(h) The presiding officer of each house shall certify the final passage of each bill and the final passage of each resolution that requires the concurrence of both houses. The fact of certification must be recorded in the journal.
(i) No law except general appropriations acts and redistricting acts may take effect until 90 days after adjournment of the session at which it was enacted. The legislature by a record affirmative two-thirds vote of the membership of each house may authorize an earlier effective date.
Sec. 12. Action on Bills and Resolutions. (a) Each bill that passes both houses of the legislature must be presented to the governor. The governor may approve the bill by signing it, in which event it becomes a law. The governor may veto the bill by returning it with objections to the house in which it originated. That house shall enter the objections in its journal and reconsider the bill for passage over the veto. If the bill passes that house by a record affirmative three-fifths vote of the membership, it must be sent with the governor's objections to the other house, which shall enter the objections in its journal and reconsider the bill for passage over the veto. If the bill likewise passes that house by a record affirmative three-fifths vote of the membership, the bill becomes a law. If the governor fails to veto a bill within 10 days (Sundays excepted) after it is presented, the bill becomes a law. If the legislature by its adjournment prevents a veto, a bill becomes a law unless within 20 days after adjournment the governor files the bill and objections with the secretary of state and gives public notice thereof by proclamation. If the legislature meets in veto session, the secretary of state shall return the bill with the governor's objections to the house in which the bill originated for reconsideration in the manner provided above. Bills that become law are filed with the secretary of state.
(b) The governor may veto any item of appropriation in a bill. Portions of a bill not vetoed become law. An item vetoed, together with the governor's objections, must be returned to the house in which the bill originated and may become law in the same manner as a vetoed bill.
(c) Resolutions requiring the concurrence of both houses of the legislature must be presented to the governor. The governor may approve a resolution by signing it or permit it to become effective by filing it with the secretary of state. The governor may disapprove a resolution by returning it to the house in which it originated. In that case the resolution does not become effective unless repassed by both houses in the same manner as a vetoed bill. Presentation to the governor is not required if a resolution pertains to (1) an amendment to the state or federal constitution, (2) a referendum, (3) adjournment, (4) legislative rules, (5) an investigation or study, (6) internal administration of the legislative branch, or (7) removal by address.
Sec. 13. Local and Special Laws. (a) Except as expressly authorized by this constitution, the legislature may not enact a local or special law if a general law is or can be made applicable. Whether a general law is or can be made applicable is a question subject to judicial determination.
(b) No local bill may be passed unless notice of the intention to introduce the bill has been given in the affected locality in the manner prescribed by law. Evidence that the notice was given must be exhibited in the legislature before the bill is passed. Compliance with these notice requirements is subject to judicial review.
(c) A local law must identify the area to which it applies by the name or other official designation of the area.
(d) No bill may be considered and no law enacted that limits or defines the area to which it applies by the use of population figures or other statistical data except general laws that have statewide application and classify all of one or more types of political subdivisions on the basis of population.
Sec. 14. Impeachment. (a) The house of representatives has the sole power to conduct legislative investigations to determine the existence of cause for impeachment and, by a record majority vote of its membership, to impeach officers of the executive department, the Chief Justice of Texas, or justices of the supreme court. The house of representatives by petition of a majority of its members may convene and conduct impeachment proceedings.
(b) An officer against whom articles of impeachment have been preferred is suspended from the exercise of the duties of the office during the pendency of the impeachment. If the governor is suspended, the lieutenant governor acts as governor. If the lieutenant governor is suspended, the president pro tempore of the senate acts as lieutenant governor. In other cases the governor may make a temporary appointment to fill the vacancy during suspension.
(c) Impeachments are tried by the senate. The senate shall convene for this purpose upon presentation of articles of impeachment by the house of representatives. Senators shall affirm or take an oath to try impartially the party impeached. If the governor or lieutenant governor is tried, the Chief Justice of Texas shall preside. A person may be convicted of impeachment charges only by a record affirmative two-thirds vote of the membership of the senate.
(d) On conviction by the senate, the office becomes vacant. A judgment of conviction may not extend beyond removal from office and disqualification to hold any office of honor, trust, or profit of this state. An impeached person, whether convicted or acquitted, is amenable to prosecution, trial, judgment, and punishment according to law.
Sec. 15. Advice and Consent of the Senate. An affirmative two-thirds vote of the members present constitutes consent to any appointment which this constitution requires to be with the advice and consent of the senate. A person appointed to an office requiring the advice and consent of the senate does not take office until confirmed by the senate unless the appointment is made when the senate is not in session, in which case the person ceases to serve on rejection by the senate or, if the appointment fails to be voted on at the session to which the appointment is submitted, on adjournment sine die. A person not confirmed by the senate may not be appointed again to fill the same vacancy. An appointment made when the senate is not in session must be submitted to the senate within 10 days after it convenes.
Section 1. Officers. The governor is the chief executive officer of the state. Officers of the executive department of the executive branch are the governor, lieutenant governor, attorney general, comptroller of public accounts, treasurer, commissioner of the general land office, commissioner of agriculture, secretary of state, and other officers as provided by law.
Sec. 2. Selection and Terms of Officers. (a) The governor, lieutenant governor, attorney general, comptroller of public accounts, treasurer, commissioner of the general land office, commissioner of agriculture, and other elected officers of the executive department provided for by law are elected by the qualified voters of the state for four-year terms. Separate votes are cast for candidates for governor and lieutenant governor. Quadrennial elections for officers of the executive department start with the statewide general election in 1978.
(b) The secretary of state and other appointed officers of the executive department are appointed by the governor with the advice and consent of the senate and serve at the pleasure of the governor.
(c) The governor appoints officers to state agencies unless otherwise provided by law. Officers appointed by the governor to state agencies are appointed with the advice and consent of the senate.
(d) In addition to other procedures provided by law for the removal of appointed officers, officers appointed by a governor with the advice and consent of the senate and not serving at the pleasure of the governor may be removed by the governor only for stated reasons. Prior to removal and not less than 45 days prior to the required adjournment of a regular session or not more than two days after the convening of a special session, the governor shall advise the senate in writing of the reasons for the proposed removal. If within 45 days after receipt of the governor's statement of reasons the senate by majority vote of the membership rejects the governor's proposed removal, the governor may not remove the officer for those stated reasons.
(e) The term of an officer appointed by the governor to a statutory state agency expires on a date prescribed by law, but the date must fall between February 1 and May 1 of the odd-numbered year. The terms of officers of multimember state agencies must be staggered.
(f) Only an appointed officer of a multimember statutory state agency having appointed members may serve as its chairman, unless a law designates a member of the executive department as chairman. The governor designates the chairman in odd-numbered years to serve for a term of two years and in the event of a vacancy designates a new chairman to serve for the remainder of the term. If the governor designates a new appointee as chairman and the officer is not confirmed by the senate, the governor designates a new chairman. If the governor fails to designate the chairman prior to May 1, the appointed members designate the chairman.
Sec. 4. Returns of Election. Election returns for executive officers must be canvassed and certified in a public forum in the manner prescribed by law.
Sec. 4. Governor's Eligibility and Installation. (a) To be eligible to serve as governor, a person must be a citizen of the United States at least 30 years old and have been a resident of the state for at least five years immediately preceding election. A person serving as governor in the second of two consecutive four-year terms is not eligible for a third consecutive term.
(b) The legislature shall provide an appropriation for assistance to a governor-elect prior to inauguration. A governor-elect is entitled to receive any information and reports that the incumbent governor is entitled to require from officers and state agencies.
(c) The governor is inaugurated on the second Thursday in January or as soon thereafter as practicable.
Sec. 5. Gubernatorial Succession. (a) If the governor-elect is disqualified, dies, or refuses the office prior to inauguration, the lieutenant governor-elect becomes governor for the full term. If the governor-elect fails to assume office for any other reason, the lieutenant governor-elect acts as governor. If the governor-elect does not assume office by the end of the first year of the term, the lieutenant governor becomes governor and serves for the remainder of the term.
(b) If after inauguration the office of governor becomes vacant, the lieutenant governor becomes governor. An elected lieutenant governor who becomes governor serves for the remainder of the term. An appointed lieutenant governor who becomes governor serves until the next statewide general election.
(c) If the offices of both governor and lieutenant governor become vacant, the speaker of the house of representatives, if eligible, becomes governor and serves for the remainder of the term.
(d) The office of governor or lieutenant governor becomes vacant if the person holding the office dies, resigns, becomes permanently disabled, is removed from office, or comes to the end of a period of appointment.
(e) If the governor is absent from the state or temporarily disabled, the lieutenant governor acts as governor until the governor returns or is no longer disabled. If the lieutenant governor is also absent from the state or temporarily disabled, the president pro tempore of the senate acts as governor until either the governor or lieutenant governor returns or is no longer disabled.
(f) While serving or acting as governor a person receives only the compensation payable to a governor.
(g) The legislature shall provide by law for further succession to the office of governor.
Sec. 6. Disability of Elected Officers of Executive Department. (a) The governor may notify the Chief Justice of Texas in writing of the governor's temporary disability. If, because of the disability, the governor fails to send notification to the chief justice, a majority of the following officers may jointly send the notification: the lieutenant governor, attorney general, comptroller of public accounts, treasurer, commissioner of the general land office, commissioner of agriculture, speaker of the house of representatives, and president pro tempore of the senate. A temporary disability ends on the delivery to the chief justice of the governor's sworn statement to that effect. The governor's sworn statement may not be denied by another notification to the chief justice. The same procedure applies in the case of the temporary disability of the lieutenant governor except that the governor and not the lieutenant governor is one of the eight officers voting on a notification. At the end of one year a temporary disability becomes a permanent disability without a determination by the Supreme Court of Texas.
(b) Whether an elected officer of the executive department is permanently disabled and unable to discharge the duties of office is to be determined only by the Supreme Court of Texas in a proceeding conducted under rules of procedure prescribed by that court. The proceeding may be initiated only by a majority vote of the governor, lieutenant governor, attorney general, comptroller of public accounts, treasurer, commissioner of the general land office, commissioner of agriculture, speaker of the house of representatives, and president pro tempore of the senate. If the supreme court determines that the officer is permanently disabled and unable to discharge the duties of office, it shall declare the office vacant.
Sec. 7. Compensation of Officers of Executive Department. The compensation of the officers of the executive department may not be diminished during their term of office. The governor has the use of the Governor's Mansion.
Sec. 8. Dual Office Holding and Employment. An officer of the executive department may not hold any other civil or corporate office and, for compensation or the promise of compensation, may not practice any other profession or hold any other employment.
Sec. 9. Commander-in-chief; Calling Forth Militia. The governor is commander-in-chief of the military forces of the state except when they are called into actual service of the United States. The governor may call forth the militia to execute the laws of the state, suppress insurrections, repel invasions, and protect life and property in cases of disasters.
Sec. 10. Execution of Laws; Conduct of Business With Other States, The United States, and Foreign Nations. The governor shall cause the laws to be faithfully executed and shall conduct, in person or in the manner prescribed by law, all intercourse and business of the state with other states, the United States, and foreign nations.
Sec. 11. Convening the Legislature in Special Session. The governor, on extraordinary occasions, may convene the legislature in special session, stating specifically the purpose of the session. The legislature may consider only those matters that the governor specifies in the call or subsequently presents to the legislature.
Sec. 12. Governor's Message. At the beginning of each legislative session the governor shall, and at other times may, give the legislature information on the condition of the state and may recommend legislative action.
Sec. 13. Chief Planning Officer. The governor is the chief planning officer of the state and may require written information or written reports from all state agencies and executive branch officers on any subject relating to their duties, conditions, management, and expenditures.
Sec. 14. Budget Preparation. At the beginning of each session at which appropriations are to be made for the general operation of the government, the governor shall submit to the legislature a budget for all proposed state expenditures for the applicable fiscal period.
Sec. 15. Budget Executive. (a) The legislature by law may authorize or direct the governor to exercise fiscal control over the expenditure of appropriated money.
(b) The governor shall ensure that items of appropriation for the executive branch, except items for the other elective offices of the executive department, are expended only as directed by the legislature. The legislature by law may remove the exception.
Sec. 16. Administrative Reorganization. (a) At the regular session held in odd-numbered years, the governor shall submit to the legislature a report on the organization and efficiency of the executive branch.
(b) In recommending plans for reorganization of the executive branch, the governor may submit to the legislature one or more reorganization bills limited to consolidating, abolishing, or transferring functions among statutory state agencies in the executive branch. The legislature must consider those bills but may amend them. A submitted reorganization bill, whether amended or not, must be brought to a vote of each house during the session at which the bill is submitted.
Sec. 17. Reprieves, Commutations, and Pardons; Remission of Fines and Forfeitures. (a) The legislature shall prescribe by law the number of members and the terms of office of the Board of Pardons and Paroles. The governor, the Chief Justice of Texas, and the attorney general each appoint an equal number of members of the board. Appointments are made with the advice and consent of the senate. A vacancy is filled by the officer who made the original appointment.
(b) The governor may grant one reprieve in a capital case for a period not to exceed 30 days. The governor, on the written signed recommendation and advice of a majority of the Board of Pardons and Paroles, may grant pardons, reprieves, and commutations of punishment; remit fines and forfeitures; and revoke paroles and conditional pardons.
Sec. 18. Lieutenant Governor. The lieutenant governor must be eligible to serve as governor. The lieutenant governor, by virtue of the office, is president of the senate but may vote only to cast a deciding vote when the senate is equally divided.
Sec. 19. Attorney General. The attorney general represents the state in those civil actions before the Supreme Court of Texas in which the state may be a party and, except as otherwise provided by law, represents the state in all other civil actions in which the state may be a party. The attorney general shall especially inquire into the charter rights of private corporations and shall take such action in the courts as may be proper and necessary to prevent a private corporation from exercising a power not authorized by law. When sufficient cause exists and unless otherwise expressly directed by law, the attorney general shall seek a judicial forfeiture of a corporate charter. The attorney general shall give legal advice in writing to the governor and other executive officers when requested by them and perform such other duties as may be required by law. The attorney general has the powers of the office as at common law except as expressly provided by law to the contrary. The attorney general must be qualified to practice before the Supreme Court of Texas.
Sec. 20. Commissioner of the General Land Office. The commissioner of the general land office shall administer at the seat of government a general land office in which all land titles that emanate from the state must be registered and shall perform other duties as provided by law.
Sec. 21. Other Officers of the Executive Department. The comptroller of public accounts, the treasurer, the commissioner of agriculture, and the secretary of state shall perform the duties required by this constitution and other duties as provided by law.
Sec. 22. Railroad Commission. The railroad commission consists of three commissioners elected at a statewide general election for six-year terms. One commissioner is elected every two years. The legislature by law may prescribe qualifications for the office of commissioner. The commission has the authority and performs the duties prescribed by law. The legislature by law may abolish the commission.
Sec. 23. Vacancies in Statewide Elective Offices. Unless otherwise provided by this constitution, vacancies in elective statewide offices are filled by appointment of the governor with the advice and consent of the senate. If the office of lieutenant governor becomes vacant, the governor shall call the senate into session within 20 days to confirm the appointment of a lieutenant governor. If the senate rejects the appointee, the governor shall continue to submit appointments until a lieutenant governor is confirmed. The senate shall then adjourn sine die. The term of an officer appointed to a vacancy in an elective statewide office ends at the next statewide general election.
Sec. 24. State Agencies. (a) State agencies include all boards, commissions, departments, institutions, and other executive or administrative agencies of state government. State agencies are a part of the executive branch unless otherwise provided by law.
(b) Statutory state agencies with statewide jurisdiction having appointed officers, except institutions related to higher education, have a life of not more than 10 years unless renewed by law for not more than 10 years at a time. Unless otherwise provided by law, appointed officers serving on the effective date of a renewal continue to hold office for the terms for which they were appointed. A bill to renew an agency or agencies, the life of any one of which expires in less than two years from the beginning of the session in which the bill was introduced, must be reported from committee in the house and senate and brought to a vote in each house not less than 20 days before adjournment.
(c) Subsection (b) of this section does not end the life of a state agency with outstanding bonds unless the legislature by law first provides for the administration of property under the control of the agency and makes adequate provision for servicing the outstanding debt to ensure that the bond obligations are not impaired.
Sec. 25. Seal of State. The seal of the state is a star of five points encircled by olive and live oak branches and the words "The State of Texas." The seal of the state is kept by the secretary of state and used by that officer officially under the direction of the governor.
Section 1. Judicial Power. (a) The judicial power of the state is vested in the judicial branch. The state unified judicial system is composed of a supreme court, courts of appeals, district courts, and circuit courts. All courts have jurisdiction as provided by law, but jurisdiction of courts of the same level within the unified judicial system must be uniform throughout the state. No courts may be created except those authorized by this article.
(b) The legislature by law may grant the supreme court the power to answer questions of state law certified from a federal court.
(c) Courts that have original jurisdiction of criminal cases may (1) subject to regulation by law, suspend imposition or execution of sentence and place a defendant on probation, or (2) if authorized by law, modify, set aside, or reimpose sentence.
Sec. 2. Supreme Court. The supreme court is the highest court of the state and consists of the Chief Justice of Texas and at least eight other justices. The court may sit en banc or in sections of not fewer than five justices. The concurrence of a majority of the justices sitting is necessary to decide a case.
Sec. 3. Courts of Appeals. The legislature by law shall establish one or more districts and in each provide for a court of appeals consisting of a chief judge and at least two other judges. The court may sit in sections if authorized by law. The concurrence of a majority of the judges sitting is necessary to decide a case.
Sec. 4. District Courts. The state is divided into judicial districts, each with one district court having one or more judges. The legislature from time to time may determine by law the number and location of districts and the number of judges in each district.
Sec. 5. Circuit Courts. The legislature by general or local law may provide for circuit courts, each with one or more judges, and from time to time shall determine the number and location of circuit courts. A circuit court may serve one or more counties, but no county may be served by more than one circuit court.
Sec. 6. Other Courts. (a) The county courts in existence on August 31, 1976, are continued unless otherwise provided by general or local law. The county courts have jurisdiction as provided by general law. The county judge is the presiding officer of the county court and has judicial functions as provided by general law.
(b) The governing body of each county shall (1) divide the county from time to time into not fewer than four nor more than eight justice precincts and (2) establish and maintain one or more justice courts, each serving one or more precincts in the manner prescribed by general law.
(c) Municipal courts may be established by general law or by charter as authorized by general law.
Sec. 7. Court Administration and Rulemaking Authority. (a) The supreme court shall provide for the efficient administration of the judicial branch. The supreme court may delegate administrative authority to the chief justice and the administrative judges.
(b) The supreme court may direct the transfer of cases between courts of the same level. The supreme court may temporarily assign justices or judges within or between levels.
(c) Each court of appeals district constitutes an administrative district for the management of trial courts. The Chief Justice of Texas with the advice and consent of the senate shall designate a judge to serve as the administrative judge of each district.
(d) The legislature by law may provide for an agency of the judicial branch to propose rules for administration of the unified judicial system and to perform other duties as provided by law. Members of this agency are not subject to the provisions of Article II of this constitution.
(e) A rule of administration may not be inconsistent with general law or rules of procedure and does not take effect until approved by the supreme court.
(f) The supreme court may promulgate rules of civil procedure for all courts but may not promulgate other procedural rules except as provided by law. A rule of civil procedure promulgated by the court may not be inconsistent with general law and has no effect if expressly disapproved by the legislature.
Sec. 8. Qualifications of Judges. To be eligible to serve as a justice, judge, or justice of the peace, a person must be a citizen of the United States, a resident of this state, and otherwise qualified as prescribed by law. No person may serve as a justice or judge in the unified judicial system unless licensed to practice law in this state.
Sec. 9. Selection and Terms of Judges. (a) The justices of the supreme court are elected for six-year terms by the qualified voters of the state. The judges of each court of appeals are elected for six-year terms by the qualified voters of the court-of-appeals district. A district judge is elected for a four-year term by the qualified voters of the judicial district. A circuit judge is elected for a four-year term by the qualified voters within the geographical area served by the circuit court. The legislature may prescribe by law a mandatory retirement age for justices and judges of these courts.
(b) A justice of the peace is elected for a four-year term by the qualified voters of the precinct or precincts. A municipal court judge is selected in the manner prescribed by law or by charter as authorized by law.
(c) A vacancy in the office of justice of the supreme court or judge of a court of appeals, district court, or circuit court is filled by appointment of the governor with the advice and consent of the senate. A vacancy in the office of justice of the peace is filled by appointment of the governing body of the county. A justice, judge, or justice of the peace appointed to a vacancy serves until the next statewide general election.
(d) Justices, judges, and justices of the peace are elected in the manner prescribed by law.
Sec. 10. Removal and Discipline of Judges. (a) The governor shall remove a justice of the supreme court on the address of two-thirds of the members of each house of the legislature for willful neglect of duty, incompetency, oppression in office, or other reasonable cause not a sufficient ground for impeachment.
(b) The legislature by law (1) shall provide for a judicial qualifications commission and (2) may provide for the removal, suspension, or censure of justices of the supreme court, judges, and justices of the peace.
Sec. 11. District Attorneys. (a) In each district as defined by law, the qualified voters elect a district attorney for a four-year term.
(b) Each county may be served by a district attorney. The district attorney shall represent the state in all criminal cases in courts below the level of court of appeals, except municipal courts or justice courts, but in counties in which there is a county attorney, the duties and functions of the district and county attorneys are as provided by law. The district attorney performs other duties and functions provided by law.
(c) A district attorney must be licensed to practice law in this state. Other qualifications of district attorneys, the grounds and procedure for disqualification, suspension, and removal, and the filling of vacancies in office are as provided by law.
Sec. 12. District Clerks. (a) The qualified voters of each county elect a district clerk for a four-year term. The legislature may provide by law for the election of a single clerk to perform the duties of both a county clerk and a district clerk.
(b) The district clerk is the clerk of the district and circuit courts of the county and performs such duties as provided by law.
(c) A clerk holding office under this section may be removed on a jury finding of incompetence, official misconduct, or other cause defined by law. A vacancy in the office is filled by appointment by the judges of the district and circuit courts of the county in the manner prescribed by law. A clerk appointed to a vacancy serves until the next statewide general election.
Sec. 13. Juries. (a) The grand jury is impaneled only in the district court and consists of 12 persons. Nine members of a grand jury constitute a quorum. At least nine members must concur in a bill of indictment.
(b) A party has a right to a trial by jury on demand made in the manner prescribed by law. The legislature by law shall provide for trial juries.
(c) A jury verdict must be unanimous except that in civil cases the legislature by law, or the supreme court by procedural rule promulgated under this article, may authorize a jury verdict to be rendered by not less than three-fourths of the jurors sitting in the case. Alternate jurors are not permitted unless authorized by law.
Sec. 14. Appeal By State. Subject to the guarantees of the Bill of Rights of this constitution, the state may appeal in a criminal case only (1) from a trial court ruling that a law is unconstitutional or (2) from a court of appeals decision to the supreme court, which appeal is at the discretion of the supreme court unless otherwise provided by law.
Sec. 15. Appeal By Accused. (a) A person convicted of a criminal offense in a trial court has a right to an appeal to the court having jurisdiction.
(b) An appeal to the supreme court in a criminal case is at the discretion of the supreme court unless otherwise provided by law.
Sec. 16. Appeals From Administrative Action. Notwithstanding any other
provision of this constitution, the legislature may provide by law for the method of appeal to the courts from rulings, decisions, or other actions of state agencies or political subdivisions of the state.
Sec. 17. Financing. The state shall pay the basic compensation of justices and judges of the unified judicial system and district attorneys and shall pay such other expenses of the system as provided by law.
VOTER QUALIFICATIONS AND ELECTIONS
Section 1. Qualifications For Voting. (a) A citizen of the United States who is at least 18 years old and who meets the registration and residence requirements provided by law is a qualified voter unless the person has been convicted of a felony and for that felony is incarcerated, on parole, or on probation or unless the person is mentally incompetent as determined by a court.
(b) The legislature may provide by law for additional limitations on voting by persons convicted of a felony.
(c) The legislature by law may require property ownership as an additional qualification for voting (1) in an election held by a political subdivision for the purpose of authorizing property taxes or issuing bonds that are payable from property taxes or (2) in an election held by a special district or authority that principally engages in special or limited activities that have a disproportionate effect on property owners.
Sec. 2. Elections. (a) Voting by the people in all elections must be by secret ballot.
(b) The legislature shall provide by law for residence, registration, and absentee voting requirements, for the administration of elections, and for the protection of the integrity of the electoral process.
(c) The general election for state and county officers is to be held in even-numbered years on a date prescribed by law.
ARTICLE VII EDUCATION
Section 1. Equitable Support of Free Public Schools. A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, the legislature has the duty to establish and provide by law for the equitable support and maintenance of an efficient system of free public schools below the college level. The system must furnish each individual an equal educational opportunity, but a school district may provide local enrichment of educational programs exceeding the level provided by the state consistent with general law.
Sec. 2. Permanent and Available School Funds. (a) The Permanent School Fund consists of the property set apart, before or after this article takes effect, for the support of free public schools; the proceeds from sale and mineral development of the property; and the property purchased with the proceeds.
(b) The Permanent School Fund is held in perpetual trust for the free public schools. The principal of the fund may not be spent. The land of the permanent fund may be sold, leased, or exchanged as provided by law. The State Board of Education shall direct the investment of all Permanent School Fund money in the manner prescribed by law.
(c) The Available School Fund consists of the income from the Permanent School Fund and the state taxes dedicated to the Available School Fund.
(d) The State Board of Education shall set aside from the Available School Fund an amount sufficient to provide the free textbooks, and other instructional materials authorized by law, that are required in educational programs in the free public schools. The remainder of the Available School Fund must be distributed among the counties according to their respective scholastic populations and must be spent for the support of free public schools in the manner prescribed by law.
Sec. 3. County Public School Fund. (a) The County Public School Fund of each county consists of the property transferred to the county for the support of free public schools in that county, the proceeds from sale and mineral development of the property, and the property purchased with the proceeds.
(b) Title to the property is in the county and may not be divested by limitation. A county may sell, lease, or exchange the property and invest the proceeds in the manner prescribed by law. A county may annually spend the income from the fund for the support of its free public schools in the manner prescribed by law.
(c) The governing body of a county may transfer in the manner prescribed by law all or part of the property in its County Public School Fund to the school districts of the county for use by them to reduce their bonded indebtedness or to make permanent improvements. State financial aid to a school district may not be reduced because of a transfer under this subsection.
Sec. 4. State Board of Education. The legislature shall provide by law for a State Board of Education composed of elected members.
Sec. 5. School and Community Junior College Districts. The legislature shall provide by general law for school districts and community junior college districts.
Sec. 6. First Class Colleges and Universities. The legislature shall provide by law for a system of higher education of the first class.
Sec. 7. Permanent and Available University Funds. (a) The Permanent University Fund consists of the land set apart for The University of Texas by Article VII, Section 15, of the Constitution of 1876, as amended and as it existed on November 4, 1975, and the Legislative Act of April 10, 1883; the proceeds from sale and mineral development of the land; and the property purchased with the proceeds.
(b) The Permanent University Fund is held in perpetual trust for the people of Texas and for the use and benefit of The Texas A&M University System and The University of Texas System. The principal of the fund may not be spent. The board of regents of The University of Texas System may sell, lease, exchange, or otherwise manage the assets of the fund in the manner prescribed by law and shall invest all proceeds.
(c) The board of regents of The University of Texas System shall make full disclosure of all investments as provided by law. The board of regents shall invest the Permanent University Fund in accordance with generally accepted fiduciary standards but may invest only in stocks or bonds, debentures, or other obligations and may not:
(1) invest in the stock of a corporation that is not incorporated in the United States;
(2) invest in the stock of a corporation unless:
(A) the corporation or its predecessors have paid dividends on common stock for at least five years preceding investment; and
(B) the stock is either:
(i) listed on an exchange registered with the Securities and Exchange Commission or its successor; or
(ii) issued by a bank or insurance company with capital and surplus of not less than $5 million and admitted assets of not less than $50 million;
(3) invest more than one percent of the fund in the securities of any one corporation;
(4) permit the fund to own more than five percent of the voting stock of any one corporation; or
(5) invest in the obligations of any state or its political subdivisions other than the State of Texas or its political subdivisions.
(d) The Available University Fund consists of the income from the Permanent University Fund less administrative expense and less the net income from grazing leases of permanent-fund land. Out of one-third of the Available University Fund the legislature shall appropriate an annual sum sufficient to service Permanent University Fund bonds or notes issued by the governing board of The Texas A&M University System under authority of this article. The legislature shall appropriate the remainder of that one-third for the support and maintenance of Texas A&M University in the County of Brazos. Out of two-thirds of the Available University Fund the legislature shall appropriate an annual sum sufficient to service Permanent University Fund bonds or notes issued by the board of regents of The University of Texas System under authority of this article. The legislature shall appropriate the remainder of that two-thirds and the net income from grazing leases of permanent-fund land for the support and maintenance of The University of Texas at Austin.
Sec. 8. Permanent University Fund Bonds and Notes. (a) The governing boards of The Texas A&M University System and The University of Texas System each may issue negotiable bonds or notes for the benefit of the institutions included in their respective systems on the date this article is adopted. The aggregate principal amount of bonds and notes issued for The Texas A&M University System may not exceed 10 percent, and for The University of Texas System may not exceed 20 percent, of the value of the Permanent University Fund exclusive of real estate at the time of any issuance. The bonds or notes may be issued to acquire real property, construct permanent improvements, repair or rehabilitate existing permanent improvements, acquire library books or library materials, acquire capital equipment, or refund bonds.
(b) Bonds and notes issued under this section are payable only out of the Available University Fund and must mature not more than 30 years from the date of issuance.
(c) The governing boards of The Texas A&M University System and The University of Texas System each may pledge in whole or in part their respective interests in the Available University Fund to secure payment of bonds or notes issued under this section. No bonds or notes may be issued under this section without the prior approval of the attorney general. After approval the bonds and notes are incontestable.
Sec. 9. Higher Education Fund For Texas and Bonds and Notes. (a) There is hereby established the Higher Education Fund for Texas.
(b) A state ad valorem tax is hereby levied on real property and tangible personal property of 10 cents on the $100 assessed valuation for the Higher Education Fund for Texas. The rate of the tax may be changed by law, but not to exceed 10 cents on the $100 assessed valuation. For purposes of this tax, the legislature shall establish by law an assessment ratio that must be applied uniformly throughout the state.
(c) The legislature shall provide by law for an annual assessment of needs, according to which the fund is to be allocated among the state systems of higher education (except institutions in The University of Texas System and The Texas A&M University System) and the state senior institutions not included in a system. The fund must be allocated under equitable formulas based on statewide higher education needs. If in any year the total allocations
are less than the revenue generated by the tax levied in this section, the surplus revenue accumulates in the fund and is to be invested as provided by law. Income from the fund is allocated as provided in this subsection.
(d) The fund, income from the fund, or proceeds from bonds or notes issued under this section may be used to acquire real property, construct permanent improvements, repair or rehabilitate existing permanent improvements, acquire library books or library materials, acquire capital equipment, or service debt incurred under this section.
(e) The governing boards of the state systems of higher education (except institutions in The University of Texas System and The Texas A&M University System) and the governing boards of the state senior institutions not included in a system may issue negotiable bonds or notes for the benefit of their systems or institutions based on allocations to their systems or institutions under Subsection (c). Bonds or notes issued under this subsection are secured by and payable only from the fund. Bonds or notes may be issued to refund bonds issued under this section. No bonds or notes may be issued under this section without the prior approval of the attorney general. After approval the bonds and notes are incontestable.
(f) The Legislature may provide by law for allocation of a portion of the fund to state-owned vocational and technical institutes that do not grant academic degrees.
ARTICLE VIII. FINANCE
Section 1. State Taxation. (a) State taxes may be levied and collected only
by general law.
(b) No state ad valorem tax on real property or tangible personal property may be levied for state purposes except (1) the tax of 10 cents on the $100 assessed valuation levied under Article VII of this constitution and (2) a tax of two cents on the $100 assessed valuation that is hereby levied to provide funds for the State Building Fund. This two-cent tax may be reduced by law.
Sec. 2. Ad Valorem Taxation. (a) 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.
(b) The legislature by general law shall provide for the establishment and enforcement of standards and procedures for appraisal of property for ad valorem tax purposes. These standards and procedures must be applied uniformly throughout the state. Except as limited by general law, a taxing authority levying a tax on property within a county may seek countywide enforcement of these standards and procedures.
(c) Each county shall provide for appraisal of all taxable property within its boundaries in the manner prescribed by law. Each taxing authority imposing a tax on property within the county shall tax in proportion to, but not in excess of, this appraisal. The costs and expenses of appraisals are to be allocated among the taxing authorities in the manner prescribed by general law.
(d) Ad valorem taxes delinquent less than 10 years may not be released.
Sec. 3. Ad Valorem Tax Exceptions. (a) The legislature by general law shall establish separate formulas for appraising land to promote the preservation of open-space land devoted to farm or ranch purposes and by general law may establish separate formulas for appraising land to promote the preservation of forest land devoted to timber production. The legislature by general law may provide limitations and impose sanctions in furtherance of the appraisal policy of this subsection.
(b) The legislature by general law may permit the rolling stock of railroads to be assessed for ad valorem tax purposes by the county in which the principal office of the railroad is located and require the comptroller of public accounts to apportion on the basis of track mileage the assessed value of the rolling stock among the counties through which the railroad runs.
Sec. 4. Ad Valorem Tax Exemptions. (a) The following property is exempt from ad valorem taxation:
(1) property of the state except as otherwise provided by law;
(2) property of political subdivisions of the state used for public purposes;
(3) household goods not used for the production of income;
(4) personal effects not used for the production of income; and
(5) farm products in the hands of the producer and family supplies for home and farm use.
(b) Each residential homestead is exempt from state ad valorem taxation in the amount of $3,000 of appraised value. The legislature by law may increase this amount.
(c) The residential homestead of persons at least 65 years old is exempt from ad valorem taxation in the amount of $3,000 of assessed value in each taxing political subdivision except that a person may elect in writing to be excluded from the exemption. A political subdivision may increase this amount within its jurisdiction. In a political subdivision that has pledged its ad valorem tax for the payment of debt, a residential homestead exemption does not become effective if the exemption would impair the obligation of the contract under which the tax was pledged.
(d) Subject to such limitations, classifications, or exclusions as it may prescribe, the legislature by law may exempt from ad valorem taxation:
(1) property used exclusively for educational or charitable purposes;
(2) nonresidential property owned and used exclusively by organizations chartered by both the State of Texas and the United States and whose membership is composed solely of former members of the armed services of the United States;
(3) places of burial not held for profit;
(4) property owned by a disabled veteran of the armed services of the United States, by the surviving spouse or minor children of a disabled veteran of the armed services of the United States, or by the surviving spouse or minor children of a member of the armed services of the United States whose life was lost while on active duty;
(5) actual places of religious worship;
(6) property owned by a church or a strictly religious society for exclusive use as a dwelling place for the ministry of the church or religious society if the property yields no revenue to the church or religious society, but the exemption may not extend to more property than is reasonably necessary for a dwelling place and in no event to more than one acre of land; or
(7) property that is owned by a nonprofit water supply corporation whose board of directors is elected by the members it serves, that is not held for profit, and that is reasonably necessary for and is used in the acquisition, storage, transportation, or distribution of water or in providing sewage or waste water treatment service.
Sec. 5 Ad Valorem Tax Relief. (a) The legislature by law may grant relief from residential ad valorem taxes payable by persons determined to be in need of relief because of economic circumstance and either age or disability. A law granting relief must provide either (1) that political subdivisions are reimbursed for revenue losses caused by the relief or (2) that relief applies to the ad valorem taxes of a political subdivision only if the political subdivision approves.
(b) The legislature by law may provide for the preservation of cultural, historical, or natural history resources by:
(1) granting relief from state ad valorem taxes on appropriate property so designated in the manner prescribed by law; or
(2) authorizing political subdivisions to grant relief from ad valorem taxes on appropriate property so designated by the political subdivision in the manner prescribed by general law.
Sec. 6. Ad Valorem Tax Actions. (a) Notwithstanding other remedies provided by law, an owner of property may pay under protest ad valorem taxes due on that property and sue for a refund in a district court.
(b) In a suit for a refund of taxes, a court has the duty of entering those orders necessary to ensure equal treatment under the law for the complaining property owner, including refund of taxes and equalization of property appraisal and assessment.
(c) Subject to limitations provided by law, the court has the additional duty of entering all other orders necessary to ensure equal treatment under the law for all property owners within the taxing authority, including refunds of taxes and equalization of property appraisals and assessments.
Sec. 7 Allocations and Uses of Certain Revenues. (a) Each county receives from the net revenue derived annually from motor vehicle registration fees attributable to the county an amount prescribed by general law but that amount must be at least equal to all fees collected up to $50,000 and 50 percent of the next $250,000 of fees collected.
(b) All net revenue from motor vehicle registration fees not retained by the counties and three-fourths of all net revenue derived from taxes on motor fuels and lubricants used to propel motor vehicles over public roadways, except gross production, petroleum products manufacturing, and ad valorem taxes, may be appropriated only for the following purposes:
(1) acquiring rights-of-way for public roadways;
(2) constructing or maintaining public roadways;
(3) Administering laws pertaining to the supervision of traffic or safety on public roadways; or
(4) policing public roadways.
(c) One-fourth of all net revenue from the motor fuel tax and from state occupation taxes is dedicated to the Available School Fund.
(d) No revenue from taxes on motor fuels and lubricants or from motor vehicle registration fees not retained by counties may be appropriated for payment of principal or interest on bonds or warrants issued by political subdivisions.
Sec. 8 State Debt. (a) State debt may not be incurred except as authorized by this constitution.
(b) "State debt" means bonds or other evidences of indebtedness that are secured by the general credit of the state or are to be repaid from taxes, fees, tuition, or other charges of the state, a state senior college or university, or a state agency or institution having statewide jurisdiction. "State debt" does not include bonds or other evidences of indebtedness issued to finance a project if the debt is authorized by law and is payable solely from revenues generated by the project to be financed.
(c) State debt may be authorized by law if approved by a record affirmative two-thirds vote of the membership of each house of the legislature and submitted to and approved by a majority of the qualified voters of the state voting on the question.
(d) State debt may be authorized by law to refund outstanding state debt.
Sec. 9 Appropriations. (a) No money may be drawn from the state treasury except in accordance with specific appropriation made by law. No law may appropriate money from the state treasury for a purpose not previously authorized by law.
(b) No appropriation of money from the state treasury may be made for a period longer than two years.
(c) On the convening of the legislature in regular session, the comptroller of public accounts shall submit to the governor and the legislature a report that shows (1) the condition of the treasury at the end of the preceding fiscal period. (2) an estimate of the probable receipts and disbursements for the current fiscal year. (3) an itemized estimate of anticipated revenues for the next applicable fiscal period, and (4) other information required by law. On the convening of a special session of the legislature, the comptroller of public accounts shall submit a report showing changes from the regular report previously submitted. In the event of changes at other times, the comptroller of public accounts shall report the changes to the governor and to the members of the legislature.
(d) No bill containing an appropriation may be considered as passed or be presented to the governor unless the comptroller of public accounts has certified that the amount appropriated is within the estimated revenue for the applicable fiscal year or unless the appropriation is made in response to imperative public necessity and approved by a record affirmative four-fifths vote of the membership of each house of the legislature.
Sec. 10. Public Funds. Public funds and public credit may be used only for public purposes. No public funds or public credit may be used to influence the election of a public officer.
Sec. 11. Report of Dedicated Funds. The legislature shall provide by law for an annual report of the receipts and expenditures of constitutionally dedicated funds.
Sec. 12. Exemption From Retail Sales Tax. No retail sales tax may be imposed on (1) agricultural machinery or parts, fertilizer, feed or seeds. (2) prescription drugs or medicine, or (3) food for human consumption except food sold by restaurants or comparable establishments for immediate consumption.
Sec. 13. Refundable Marine Food or Agricultural Assessments. An assessment voted by marine food or agricultural producers on their product sales is not a tax if provision is made for the individual producer to receive a refund of the assessment when the producer does not desire to be assessed.
ARTICLE IX LOCAL GOVERNMENT
Section 1. Counties. (a) The counties of the state are those that exist on the date of adoption of this article.
(b) Under procedures prescribed by general law, (1) county boundaries may be changed if approved by a majority of the qualified voters in each affected county who vote on the question, and (2) counties may be merged or county seats relocated if approved by two-thirds of the qualified voters in each affected county who vote on the question.
Sec. 2. Powers of County Government. Counties have only the powers of government granted by the constitution and general laws of this state.
Sec. 3. County Officers. (a) The governing body of each county is the county commission, consisting of a county judge elected by the qualified voters of the county, and four county commissioners, each elected by the qualified voters of separate and compact precincts containing as nearly as practicable an equal number of inhabitants. The county judge is the presiding officer of the county commission.
(b) The qualified voters of each county elect a sheriff, treasurer, tax assessor-collector, and county clerk. The qualified voters elect a county attorney in those counties designated by general or local law.
(c) The county commission shall provide for the election of one or more constables.
(d) The qualifications, duties, and functions of county officers and the grounds and procedure for disqualification, suspension, and removal are as provided by general law except that (1) among other qualifications the county attorney must be licensed to practice law in this state and (2) among the duties and functions of the county clerk are those of county recorder and clerk of the county commission.
(e) Under methods and procedures established by general law, the qualified voters of a county by a majority vote of those voting on the question may create additional offices, eliminate offices, or combine the duties and functions of offices. In the case of a county commission this power is limited to reducing or increasing the number of county commissioners. If the duties and functions of an office named in Subsection (b) and (c) of this section are combined with another office, the holder of the combined offices must be elected. The county commission shall designate the officer to perform the duties required by law to be performed by an officer whose office is eliminated.
(f) Vacancies in county offices are filled as provided by general law.
Sec. 4 County Ordinances. (a) Under procedures prescribed by general law, the qualified voters of a county, by a majority of those voting on the question, may grant to or withdraw from the county commission a general or limited power to enact ordinances. If this power is granted, the county commission may enact ordinances that are not inconsistent with the constitution or laws of this state. The legislature by general law may provide procedures by which the qualified voters of a county may repeal ordinances.
(b) If a county ordinance conflicts with an ordinance of an incorporated city or town, the municipal ordinance prevails within its jurisdiction as defined by law.
Sec. 5. General Law Cities. Cities and towns having a population of 1,500 or less may be chartered only under general law.
Sec. 6. City Charters. Cities and towns having more than 1,500 inhabitants, by a majority vote of the qualified voters voting on the question, may adopt, amend, or repeal their charters in the manner prescribed by law. No charter or ordinance may be inconsistent with the constitution or laws of this state. No tax may be levied unless authorized by law or charter. No city loses the power to amend or repeal its charter because its population drops below 1,500.
Sec. 7. Special Districts and Authorities. (a) The legislature may provide by general or local law for special districts or authorities.
(b) Counties, cities, and towns may provide for special districts or authorities within their boundaries but only if authorized by general law. No local law may create a special district or authority wholly within a county, city, or town if a general law authorizes the county, city, or town to create a special district or authority for the same purpose.
(c) Special districts or authorities may be created only for public purposes.
(d) The provisions of this section are not applicable to school districts or community junior college districts.
Sec. 8. Terms of Office. Constitutional county officers are elected for four-year terms. Other elected county officers and elected officers of other political subdivisions are elected for terms as provided by law or charter.
Sec. 9. Compensation of Officers. Elected officers of political subdivisions are not to be compensated on a fee basis.
Sec. 10. Tax Rates and Debt Limitations. (a) The maximum annual tax rate established by law or charter for ad valorem taxes levied by a city or town for purposes other than debt service may not exceed $2 on the $100 of assessed valuation. The maximum annual tax rate established by law for ad valorem taxes levied by a county for purposes other than debt service may not exceed $1.25 on the $100 of assessed valuation.
(b) No school district, community junior college district, or special district or authority may levy an annual ad valorem tax for purposes other than debt service unless a maximum annual tax rate, not exceeding the maximum rate permitted by law, has been approved by a majority of the qualified voters of the district or authority voting on the question at an election held for that purpose.
(c) A political subdivision may levy an additional annual ad valorem tax at a rate not greater than necessary to provide an annual amount sufficient to service debt payable from ad valorem taxes.
(d) The legislature shall establish by general law the maximum amount of interest-bearing obligations payable from ad valorem taxes that may be issued by cities, towns, counties, school districts, and community junior college districts.
(e) No interest-bearing obligations payable from ad valorem taxes, other than refunding obligations, may be issued by school districts, community junior college districts, or special districts or authorities unless authorized by a majority of the qualified voters of the district or authority voting on the question at an election held for that purpose.
(f) No interest-bearing obligations for mass transportation purposes and payable from ad valorem taxes may be issued by a political subdivision unless authorized by a majority of the qualified voters of the political subdivision who vote on the question.
(g) The power of a political subdivision to levy taxes or issue interest-bearing obligations previously voted is not lost by any change in its boundaries. If boundaries are changed by annexation or by merger or consolidation of two or more political subdivisions of the same type, the surviving political subdivision may levy taxes at the highest rate previously voted by any of the affected political subdivisions and may issue interest-bearing obligations to the extent previously approved by each of the affected political subdivisions. The legislature shall provide by general or local law for the assumption of outstanding obligations of political subdivisions whose boundaries are changed.
(h) No interest-bearing debt may be created by a political subdivision unless at the same time provision is made for paying the interest and principal when due.
(i) Ad valorem taxes levied by school districts, community junior college districts, or special districts or authorities are not to be counted as part of the ad valorem tax limits imposed on counties, cities, and towns.
Sec. 11. Intergovernmental Cooperation. The legislature shall prescribe by law the manner in which a political subdivision, by act of its governing body, may cooperate or contract with other political subdivisions, the state, or the United States for the performance of functions required or authorized by the constitution or laws of this state.
Sec. 12. Consolidation of Offices and Transfer of Functions. Political subdivisions may be authorized only by general law to consolidate offices, transfer functions of government, or cancel a consolidation or transfer. A law may not authorize a consolidation or transfer among political subdivisions of more than one geographical county. No consolidation or transfer may take effect unless it is approved by a majority of the qualified voters in each affected political subdivision who vote on the question except that the legislature by general law may provide for the consolidation of the function of collection of taxes in a county.
Section 1. Official Oath. State and local officers shall take the following oath before entering on the duties of public office:
"I, , do solemnly swear (or affirm) that I will faithfully execute the duties of the office of and will to the best of my ability, preserve, protect, and defend the constitution and laws of the United States and of this state; and I furthermore solemnly swear (or affirm) that I have not directly or indirectly paid, offered, or promised to pay, contributed or promised to contribute any money or valuable thing, or promised any public office or employment, as a reward for the securing of this office, so help me God."
Sec. 2. Residence of Civil Officers. Public officers shall reside within the state. Officers of a political subdivision or district shall reside and shall keep their offices at the locations prescribed by law. An office becomes vacant if the officer does not comply with this section.
Sec. 3. Forfeiture of Residence By Absence on Public Business. A person's absence from the state, a political subdivision, or a district on business of the United States, this state, or the political subdivision or district does not forfeit a residence for purposes of suffrage or of election or appointment to public office.
Sec. 4. Continuation In Office. An officer of this state continues to perform the duties of office until a successor has assumed office, but an officer appointed by the governor to a statutory state agency may not perform those duties beyond December 31 of the year in which the term expires.
Sec. 5. Vacancies Filled For Unexpired Term. A person elected to fill a vacancy in office serves for the remainder of the term.
Sec. 6. Disqualification, Suspension, and Removal from Constitutional Office. The legislature by law may provide grounds and procedures for the disqualification, suspension, or removal of those constitutional officers whose removal is not provided for elsewhere in this constitution and for the temporary filling of vacancies.
Sec. 7. Protection of the Environment. The quality of the environment of the State of Texas is to be protected. The legislature by law shall implement and enforce this policy.
Sec. 8. Conservation and Development of Natural Resources. (a) It is the policy of this state to promote the conservation and development of the natural resources in the state. The legislature by law shall implement and enforce this policy. In furtherance of this policy the legislature shall provide by law for (1) the control, storage, preservation, and distribution for useful purposes of storm, flood, river, and stream waters; (2) the reclamation, irrigation, and drainage of land; (3) the abatement of subsidence; (4) the conservation of the atmosphere; (5) the collection and disposal or recycling of wastes; (6) the conservation and development of the energy resources and forests; and (7) the navigability of the waters.
(b) No state fund established for purposes of water development, transmission, transfer, or filtration may be used to finance a project that contemplates or results in removing surface water from the river basin of origin if the surface water is necessary to supply the reasonably foreseeable water requirements of the basin for the ensuing 50 years. This subsection does not apply to a removal of water (1) that is sufficiently replaced to the point of removal from outside the state or (2) that is on a temporary, interim basis.
Sec. 9. Coastal Natural Resources. (a) In order to preserve the coastal natural resources of the state, the state holds in perpetual trust for the use and benefit of the people of this state the beaches and those coastal submerged lands belonging to the state and may not by sale transfer a fee simple absolute title in these lands.
(b) Subject to such reasonable limitations as prescribed by law, the public, individually and collectively, has the free and unrestricted right of use and benefit of the beaches. The state and its political subdivisions shall provide reasonable access avenues to the beaches and coastal public waters. An illegal entry on private property to gain access to a beach is not permitted by virtue of this section.
(c) In this section "beach" means the land on the seaward shore of the open Gulf of Mexico, whether island or mainland, that extends inland from the line of mean low tide to the natural line of vegetation or the larger contiguous area to which the public has (1) acquired a right of use by dedication, prescription, or estoppel or (2) retained a continuous right of use recognized by law or custom since time immemorial.
Sec. 10. Protection of Wildlife Resources. The legislature may enact local laws to regulate the taking of wildlife resources.
Sec. 11. Separate and Community Property of Spouses. (a) The property owned or claimed by a spouse before marriage and that acquired by a spouse during marriage by gift, devise, or descent is the separate property of the spouse. The legislature by law may prescribe more precise rules within the principles of this definition and may more clearly define the rights of each spouse in relation to separate and community property.
(b) The definition in Subsection (a) of this section does not limit the power of spouses to enter into written contracts or other written transactions between themselves that affect their property rights. Spouses may enter into written contracts or other written transactions (1) that change their community property into separate property if the change does not prejudice the rights of preexisting creditors or (2) that create between themselves a right of survivorship in community property. The form, manner of execution, and recordation requirements of the written contracts or other written transactions are as prescribed by law.
Sec. 12. Homestead. (a) The homestead is the home of a family or single adult. The place used for conducting the occupation of the claimant of an urban homestead may also be a homestead.
(b) The rural homestead consists of not more than 200 acres of land in one or more parcels, with improvements, located outside a city, town, or village. Not more than 50 acres on which the home is located is a residential homestead; the rest is a non-residential homestead. A rural homestead may not be changed to an urban homestead without the claimant's consent so long as the land is used for agricultural purposes.
(c) The urban homestead consists of land, with improvements, located in a city, town, or village; but the value of the land, without improvements, at the time of establishment as homestead may not exceed $10,000, or a larger sum if prescribed by law. The urban homestead is a residential homestead if used as a home and a nonresidential homestead if used as a place for conducting the occupation of the claimant.
(d) The homestead is not subject to forced sale for the payment of debt except for (1) purchase money for the homestead, (2) taxes due on the homestead, and (3) the value of improvements made on the homestead under a written contract (A) to which the claimant consents or (B) in the case of a homestead of spouses, to which both spouses consent in the manner prescribed by law for the conveyance of a homestead. A pretended sale of a homestead involving a defeasance or a condition nullifying the sale is void.
(e) A mortgage, trust deed, or other lien on a residential homestead is void except for (1) the purchase money for the homestead or (2) the value of improvements as provided in Subsection (d) of this section. A lien on a nonresidential homestead may be created but only in the manner prescribed by law for the conveyance of a homestead.
(f) Except as otherwise provided by law, a homestead of spouses may not be sold or abandoned without the consent of both spouses. A temporary renting of a homestead does not change its character if no other homestead is acquired.
(g) A homestead of spouses descends and vests like other real property but may not be partitioned so long as the homestead is used or occupied as a home by either a surviving spouse or minor child if that use has been granted the child by a proper court.
Sec. 13. Protection of Personal Property From Forced Sale. The legislature shall provide by law for the protection from forced sale of certain personal property belonging to each adult and each head of family.
Sec. 14. Protection of Wages From Garnishment. Current wages for personal service are not subject to garnishment.
Sec. 15. Private Corporations. A private corporation may not be chartered except under general law.
Sec. 16. Banking. (a) No bank may engage in business at more than one place in this state. A bank shall designate in its charter the place at which it will engage in business.
(b) The legislature by law shall provide for the regulation of bank holding companies.
(c) No foreign corporation except a bank chartered by the United States and domiciled in Texas may exercise banking or discounting privileges in this state.
Sec. 17. Alcoholic Beverages. (a) The legislature by law shall provide for the regulation of the manufacture, packaging, sale, possession, and transportation of alcoholic beverages and mixed alcoholic beverages.
(b) This regulation must preserve the right of local option by counties, justice precincts, or incorporated cities or towns but may not provide for local option by other political subdivisions. Local option is a determination of whether to legalize or prohibit the sale of these beverages and a determination of the various types and various alcoholic contents of these beverages that may be sold.
(c) A local-option determination by a county, justice precinct, or incorporated city or town may be made only by a majority of the qualified voters who vote on the question at an election in that political subdivision.
(d) The local-option status of a county, justice precinct, or incorporated city or town on the effective date of this article, may be changed only by a majority of the qualified voters who vote on the question at an election in that political subdivision.
Sec. 18. Practitioners of Medicine. The legislature shall pass laws to prescribe the qualifications of practitioners of medicine and to punish persons for malpractice. No preference may be given by law to any schools of medicine.
Sec. 19. Lotteries and Gift Enterprises. The legislature by law shall prohibit lotteries and gift enterprises except that the legislature by law may authorize bingo or raffles conducted for the benefit of a nonprofit charitable organization if (1) all proceeds are spent in this state for the purposes of the organization and (2) the games are limited to one location as defined by law.
Sec. 20. Liens of Mechanics, Artisans, and Materialmen. Mechanics, artisans, and materialmen have a lien on the buildings or articles made or repaired by them. The lien is for the value of labor or material furnished. The legislature by law shall provide for the efficient enforcement of the lien.
Sec. 21. Retirement Benefits For Public Employees. (a) General Provisions. (1) The legislature may enact general laws establishing systems and programs of retirement and related disability and death benefits for public employees and officers. Financing of benefits must be based on sound actuarial principles. The assets of a system are held in trust for the benefit of members and may not be diverted.
(2) A person may not receive benefits from more than one system for the same service, but the legislature may provide by law that a person with service covered by more than one system or program is entitled to a fractional benefit from each system or program based on service rendered under each system or program calculated as to amount upon the benefit formula used in that system or program. Transfer of service credit between the Employees Retirement System of Texas and the Teacher Retirement System of Texas may also be authorized by law.
(3) Each statewide benefit system must have a board of trustees to administer the system and to invest the funds of the system in such securities as the board may consider prudent investments. In making investments, a board shall exercise the judgment and care under the circumstances then prevailing that persons of ordinary prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income therefrom as well as the probable safety of their capital. The legislature by law may further restrict the investment discretion of a board.
(4) General laws establishing retirement systems and optional retirement programs for public employees and officers in effect on the date of adoption of this article, remain in effect, subject to the general powers of the legislature established in this subsection.
(b) State Retirement Systems. (1) The legislature shall establish by law a Teacher Retirement System of Texas to provide benefits for persons employed in the public schools, colleges, and universities supported wholly or partly by the state. Other employees may be included under the system by law.
(2) The legislature shall establish by law an Employees Retirement System of Texas to provide benefits for officers and employees of the state and such state-compensated officers and employees of the unified judicial system as may be included under the system by law.
(3) The legislature shall establish by law the amount to be contributed by persons participating in the Employees Retirement System of Texas and the Teacher Retirement System of Texas. The amount contributed by the state must be at least six percent of the aggregate compensation paid to individuals participating in the system. The legislature may appropriate such additional sums as are actuarially determined to be required to fund benefits authorized by law.
(c) Local Retirement Systems. (1) The legislature shall provide by law for:
(A) the creation by any city or county of a system of benefits for its officers and employees;
(B) a statewide system of benefits for the officers and employees of counties or other political subdivisions of the state in which counties or other political subdivisions may voluntarily participate; and
(C) a statewide system of benefits for officers and employees of cities in which cities may voluntarily participate.
(2) Benefits under these systems must be reasonably related to participant tenure and contributions.
(d) Judicial Retirement System. (1) Notwithstanding any other provision of this section, the system of retirement, disability, and survivors' benefits heretofore established in the constitution or by law for justices, judges, and commissioners of the appellate courts and judges of the district and criminal district courts is continued in effect. The legislature shall provide for inclusion in the system of judges of all courts in the unified judicial system. Contributions required and benefits payable are to be as provided by law.
(2) General administration of the Judicial Retirement System of Texas is by the Board of Trustees of the Employees Retirement System of Texas under such regulations as may be provided by law.
Sec. 22. Regulation of Interest and Lending. (a) Except as otherwise provided by law, a contract providing for a rate of interest in excess of 10 percent a year is usurious. If a contract does not specify a rate of interest, the rate under the contract may not exceed six percent a year.
(b) The legislature may not delegate the power to classify loans or lenders, define interest, or fix maximum interest rates.
Sec. 23. Equal Treatment of the Handicapped. A person may not be denied a right, benefit, or opportunity because of a physical or mental handicap as defined by law except (1) as otherwise provided in this constitution, (2) as prescribed by law in the regulation of commerce, or (3) to the extent a handicap prevents work performance in employment. This guarantee is self-operative.
Sec. 24. Access to Health Care. A goal of this state is to provide every resident access to adequate, comprehensive health care as may be provided by law.
ARTICLE XI. MODE OF AMENDING THE CONSTITUTION OF THE STATE
Section 1. Amendments to the Constitution. (a) The legislature may propose amendments to this constitution by a record affirmative two-thirds vote of the membership of each house. The legislature shall limit a proposed amendment to the revision of all or part of one article except that the amendment may revise parts of other articles that are germane to the revision of the principal article.
(b) A proposed amendment must be submitted to the people at the next statewide general election or at a special election held on a date specified by the legislature. In no event is an election on a proposed amendment to take place less than 90 days after the legislature proposes the amendment.
(c) Proposed amendments must be publicized in the English language and any other language prescribed by law. The legislature shall prescribe by law the procedure for publicizing proposed amendments.
(d) A proposed amendment is adopted if approved by a majority of the qualified voters voting on the question and becomes a part of this constitution on the date that the statewide returns of the election are canvassed.
Sec. 2. Constitutional Convention. (a) The legislature by a record affirmative two-thirds vote of the membership of each house may submit to the people the question of whether to call a constitutional convention and may stipulate in the question the articles of the constitution that the convention may consider. The question must be submitted at the first statewide general election occurring at least six months after the legislature approves the submission. A constitutional convention must be called if approved by a majority of the qualified voters voting on the question.
(b) The question of whether to call a constitutional convention must be submitted to the people at least once every 30 years.
(c) At the next legislative session following approval of a call, the legislature shall provide by law for the election of delegates and the filling of vacancies; for the convening of the convention on a date no later than three months after the election of delegates; for the meeting place and duration of the convention; for the pay, allowances, and expenses of delegates and officers; and for the other expenses of the convention.
(d) No public officer is prohibited from serving as a delegate by virtue of any provision in this constitution.
(e) The constitutional convention by a record affirmative two-thirds vote of its membership, in the case of an unlimited call, may propose any revision of or amendments to the constitution or, in the case of a limited call, may propose any revision of or amendments to the articles stipulated in the call. The convention shall determine the manner of submitting and publicizing its proposals and fix the date of the election. Convention proposals must be publicized in the English language and in any other language specified by the convention.
(f) A revision or amendment proposed by the constitutional convention becomes effective, as the convention provides, if approved by a majority of the qualified voters voting on the question.
The following schedule provisions remain part of this constitution until executed. Once each year the attorney general shall review the schedule and certify to the secretary of state which remaining provisions have been executed. A provision so certified is to be removed from and no longer published as part of the constitution.
Sec. 1. Existing Laws, Rights, and Proceedings. All laws not inconsistent with the 1976 revision of this constitution continue in effect until they expire by their own limitation or until amended or repealed. All existing writs, actions, suits, proceedings, civil or criminal liabilities, prosecutions, judgments, sentences, orders, decrees, appeals, causes of action, contracts, claims, demands, titles, and rights continue unaffected except as modified in accordance with the revised provisions of this constitution.
Sec. 2. Validity of Issued Bonds. Bonds or other evidences of indebtedness validly issued by or on behalf of the state or any agency or political subdivision thereof under authority previously granted by the Constitution of 1876, as amended and as it existed prior to November 4, 1975, remain valid and enforceable in accordance with their terms and subject to all applicable terms and conditions notwithstanding the repeal of such authority by virtue of the 1976 revision of this constitution. The state, agency, or political subdivision, as the case may be, shall continue to provide for a source or sources of payment in accordance with the terms of the bonds or other evidences of indebtedness, whether from taxes or otherwise, until the bonds or other evidences of indebtedness are paid in full.
Sec. 3. Delayed Effective Date. Notwithstanding the general effective date of each article revised in 1976, as provided in each amendment, the following provisions become effective on the date indicated, or earlier if provided by law:
(1) Section 5 of Article III on January 1, 1981;
(2) Section 9 of Article VII on January 1, 1979;
(3) Subsections (b) and (c) of Section 2 of Article VIII on January 1, 1978; and
(4) Subsection (c) of Section 6 of Article VIII on January 1, 1979.
Sec. 4. Provisions of the Constitution of 1876. Until January 1, 1980, unless earlier enacted, repealed, or superseded by law, the following provisions of the Constitution of 1876, as amended and as it existed on November 4, 1975, continue in effect as if statutes, but only to the extent that they are not in conflict with the 1976 revision of this constitution:
(1) Article III, Section 13;
(2) Article III, Section 29;
(3) Article III, Section 36 insofar as it refers to revival of bills;
(4) Article III, Section 52e (as added in 1967);
(5) Article IV, Section 3 insofar as it relates to tie votes and prescribes a procedure for the canvassing of the votes for the governor and lieutenant governor;
(6) Article IV, Section 11 insofar as it provides for the number of members and the terms of the Board of Pardons and Paroles;
(7) Article IV, Section 20;
(8) Article IV, Section 24 insofar as it relates to information under oath and perjury penalties;
(9) Article V, Section 18 insofar as it requires the county commission to divide the county into commissioners precincts;
(10) Article VII, Section 6b insofar as it requires county permanent school funds to be distributed on a per scholastic basis;
(11) Article VIII, Section 1-d;
(12) Article VIII, Section 1-e, Subsections (4) and (5);
(13) Article VIII, Section 9 insofar as it authorizes each county to put all tax money collected by the county into one general fund without regard to the purpose or source of each tax;
(14) Article XI, Section 11;
(15) Article XVI, Section 11 insofar as it authorizes trial de novo for those whose permits have been denied or cancelled by a regulatory agency;
(16) Article XVI, Sections 12, 33, and 40;
(17) Article XVI, Section 14;
(18) Article XVI, Section 26;
(19) Article XVI, Section 30 insofar as it provides that the duration of all offices not fixed by law or the Constitution of Texas is not to exceed two years;
(20) Article XVI, Section 41;
(21) Article XVI, Section 59, Subsections (d) and (e);
(22) Article XVI, Section 61;
(23) Article XVI, Section 64;
(24) Article XVI, Section 65; and
(25) Article XVII, Section 1 insofar as it provides a procedure for publicizing amendments to the constitution.
Sec. 5. Terms of Office. Elected officers in this state continue in office until the end of their terms unless their offices are sooner abolished in accordance with this constitution or laws enacted pursuant thereto.
Sec. 6. Anticipatory Legislation. Laws may be enacted in anticipation of the effective date of revised articles, but those laws may not become effective prior to September 1, 1976.
Sec. 7. Powers of the Secretary of State Under Amendments Adopted November 4, 1975. Regarding nonsubstantive matters, the secretary of state, after the review and approval of the attorney general, shall: (1) number, locate, amend, or delete articles, sections, or subsections, and change cross-references in the Constitution of Texas in accordance with constitutional amendments adopted by the voters of the state on November 4, 1975; (2) number, locate, amend, or delete portions of the transition schedule of the constitution in accordance with constitutional amendments adopted by the voters of the state on November 4, 1975; and (3) make other nonsubstantive changes in the constitution or amendments to the constitution as required to assure an orderly revision of the Texas Constitution from amendments adopted by the voters of the state on November 4, 1975.
Sec. 8. Redistricting. Until January 1, 1981, unless earlier enacted, repealed, or superseded by law, Sections 25, 26, and 28 of Article III of the Constitution of 1876, as amended and as it existed on November 4, 1975, continue in effect as if statutes, but only to the extent that they are not in conflict with court rulings.
Sec. 9. Legislative Salary Commission. When making the initial appointments to the legislative salary commission, the appointing body shall determine which three members serve until October 15, 1977, which three members serve until October 15, 1979, and which three members serve until October 15, 1981.
Sec. 10. Convening the Legislature. The legislature convenes in regular session at 12 noon on the first Monday in January, 1976. The 1976 regular session of the legislature is limited to considering those matters that are submitted by the governor or such matters as the legislature considers necessary to effect implementation occurring as a result of the adoption of one or more amendments revising one or more articles of the constitution.
Sec. 11. Residence of Executive Department Officers. Until enacted, repealed, or superseded by law, the requirements of the Constitution of 1876, as amended and as it existed on November 4, 1975, that certain officers of the executive department reside at the seat of government, or maintain an office or their records at the seat of government, continue in effect as if by statute.
Sec. 12. Alignment of Terms of Office. Subject to a law or laws establishing terms within the guidelines of Article IV, Section 2, Subsection (e), the terms of all officers appointed by the governor to statutory state agencies are extended to February 1, 1979, 1981, and 1983, if they expire prior to those dates but after January 31, 1978, 1980, and 1982, respectively; are shortened to April 30, 1977, 1979, and 1981, if they expire subsequent to those dates but prior to February 1, 1978, 1980, and 1982, respectively; and are extended to February 1, 1977, if they expire after December 31, 1976, and prior to February 1, 1977. The foregoing adjustments are applicable only to offices that are not abolished.
Sec. 13. State Agency Renewal. (a) Within two years of January 1, 1976, the Texas Legislative Council, or its successor, shall submit to each house of the legislature a suggested agency disposition list for Subsection (b) of Section 24 of Article IV. This disposition list is to contain as nearly as possible a complete listing of all state agencies affected by Subsection (b) of Section 24.
(b) An affected agency not included on the disposition list shall register with the Legislative Council prior to May 31, 1978, listing its membership, statutory authorization, and who appoints its members. The Legislative Council shall transmit this information to the speaker of the house of representatives and the lieutenant governor, who shall add the agency to the disposition list.
(c) Beginning in the 1979 regular session, the legislature shall consider individually each agency on the disposition list.
Sec. 14. Reorganization. Within two years after January 1, 1976, the governor shall submit to the legislature at least one bill of reorganization in conformity with Section 16 of Article IV.
Sec. 15. Legislative Compensation. Until the legislative salary commission makes its recommendations and new rates of compensation and allowances are set in conformity with Article III, Section 6 of this constitution, members of the legislature receive the compensation and allowances in effect on December 31, 1975.
Sec. 16. Judiciary Transition on Effective Date. On September 1, 1976:
(a) Supreme Court; Court of Criminal Appeals. The chief justice of the supreme court becomes the Chief Justice of Texas. The presiding judge and the other judges of the court of criminal appeals and the associate justices of the supreme court become justices of the supreme court. Each commissioner of the court of criminal appeals becomes a commissioner of the supreme court.
(b) Courts of Appeals Districts and Judges. The supreme judicial districts of the state become court of appeals districts and the courts of civil appeals become courts of appeals, except that supreme judicial districts which occupy the identical territory become a single court of appeals district and the courts of civil appeals which exercised jurisdiction within that territory become a single court of appeals. Chief justices and associate justices of courts of civil appeals become, respectively, chief judges and judges of courts of appeals, except that where a court of appeals would have two or more chief judges the Chief Justice of Texas shall designate from among them one to be the chief judge of that court.
(c) District and Circuit Judges. (1) Until otherwise provided by law, each district judge or judge of a criminal district court, domestic relations court, special juvenile court, or specially designated probate court becomes a district court judge.
(2) The offices of county court at law judge, county civil court at law judge, county criminal court judge, county criminal court at law judge county criminal court of appeals judge, and judge of any other county court created by statute are continued until the legislature implements Section 5 of the 1976 revision of Article V; upon implementation, judges holding those offices in a county that is to be served by a circuit court become judges of the circuit court.
(d) Criminal District Attorneys. Each criminal district attorney becomes a district attorney. Until otherwise provided by law, a criminal district attorney who becomes a district attorney under this section continues to perform the duties and functions prescribed by law applicable to the office of that criminal district attorney in effect on August 31, 1975. Unless otherwise provided by law, Article 329 of the Revised Civil Statutes of Texas, 1925, does not apply to a county in which a criminal district attorney becomes a district attorney under this section.
(e) Transfer of Proceedings and Records. All courts, except those authorized by the 1976 revision of Article V, are abolished, and all matters pending before them are transferred to the appropriate successor courts authorized by the 1976 revision of Article V. The courts into which the matters are transferred assume full jurisdiction of them and full authority to dispose of them and to execute or otherwise give effect to all orders, judgments, and decrees issued by their predecessor courts. Courts authorized by the 1976 revision of Article V succeed to all records and property of courts abolished by this subsection.
(f) Transfers From Court of Criminal Appeals. All matters filed in or docketed by the court of criminal appeals but not heard by the court are transferred to the court of appeals in which the matters would have been docketed were they civil in nature and the court of appeals still a court of civil appeals.
Sec. 17. Stabilization of Supreme Court Size. Unless otherwise provided by law, the offices of the first five justices, except the chief justice, who cease to be members of the supreme court by reason of death, removal, resignation, or retirement after September 1, 1976, cease to exist. The death, removal, resignation, or retirement of an incumbent justice after having been defeated at a primary or general election does not terminate the office. The position of commissioner of the supreme court exists only as long as it is held by the individual in the office on September 1, 1976.
Sec. 18. County Court; County Judge. Unless otherwise provided by general or local law, county courts created in Article V, Section 15, of the Constitution of 1876, as amended and as it existed on November 4, 1975, continue in effect as the courts authorized in Section 6(a) of the 1976 revision of Article V, and the judges of those courts remain as county court judges and as presiding officers of the county commissioners courts. However, a judge of the county court who is licensed to practice law, by written notice to the governor filed with the secretary of state within 30 days after September 1, 1976, may elect instead to become a judge of the circuit court established pursuant to Section 5 of the 1976 revision of Article V if there is no circuit court judge provided for that district under the provisions of this transition schedule. If a judge of the county court becomes a circuit judge, the office of county judge becomes vacant and is filled by the county commissioners court until the next statewide general election. Should more than one judge of a county court within the same circuit court district file such written notice, the governor shall select the one to become judge of the circuit court. Section 6(a) of the 1976 revision of Article V does not mandate or require a change in the jurisdiction or judicial functions of a county judge.
Sec. 19. Municipal Court Judges and Justices of the Peace. Unless otherwise provided by law, order, charter, or ordinance, municipal court judges and justices of the peace remain as they exist on August 31, 1976.
Sec. 20. Clerks. All laws pertaining to the office of district clerk or county clerk which are in effect on August 31, 1976, and which are consistent with the provisions of the 1976 revision of Article V, remain in effect until changed by law.
Sec. 21. Prosecutors. All laws pertaining to the office of district attorney or county attorney which are in effect on August 31, 1976, remain in effect until changed by law. Section 11 of the 1976 revision of Article V does not mandate or require a redistricting of existing district attorney districts.
Sec. 22. Qualifications Commission. Members of the judicial qualifications commission continue in office and perform the duties of the commission established by Article V, Sections l(a) (2-13) of the 1876 Constitution, as amended and as it existed on November 4, 1975, until a commission is established pursuant to Section 10(b) of the 1976 revision of Article V.
Sec. 23. Judicial Districts. Until otherwise provided by law, the judicial districts in existence on August 31, 1976, remain in effect, including any judicial districts then authorized by law but which take effect after August 31, 1976. Section 4 of the 1976 revision of Article V does not mandate or require judicial redistricting.
Sec. 24. Laws and Rules Continued. Except to the extent inconsistent with the provisions of the 1976 revision of Article V, all laws and rules of court in force on August 31, 1976, continue in effect until superseded as authorized by law.
Sec. 25. Manner of Appeal in Criminal Cases. Until the legislature or supreme court makes provisions for the appeal of criminal cases from the courts of appeals, the rules and laws presently in force for appeals from courts of civil appeals also apply to the appeal of criminal cases.
Sec. 26. Judicial Office Transition. No judicial office is abolished until the expiration of the term of the person who holds the office on August 31, 1976, or until that person ceases to hold the office, whichever occurs first.
Sec. 27. Initial Judicial Terms. The initial justices, judges, and justices of the peace in the judicial branch established by the 1976 revision of Article V serve for the remainder of the terms for which elected and thereafter terms of office are as provided in the 1976 revision of Article V.
Sec. 28. Initial Terms for Certain Prosecutors. Individuals who become district attorneys pursuant to Section 16 of this transition schedule hold that office two years beyond the terms for which they were elected. Successor office holders are elected for the same terms and in the same manner as are other district attorneys.
Sec. 29. Member of Board of Pardons and Paroles. The member of the Board of Pardons and Paroles who was appointed by the Presiding Judge of the Court of Criminal Appeals serves the full term to which appointed. A vacancy in that position is filled by the Attorney General of Texas with the advice and consent of two-thirds of the senate present.
Sec. 30. Other Judiciary Transition. In the event a transfer or transition required by the revision of Article V has not been provided for by this transition schedule or by law, the supreme court shall provide by rule for the orderly transfer or transition.
Sec. 31. Disqualification From Voting. Unless provided otherwise by a law enacted after July 31, 1975, no person may be disqualified from voting because of conviction for a felony unless for the felony the person is incarcerated, on parole, or on probation.
Sec. 32. State Ad Valorem Tax. (a) Until December 31, 1978, Article VII, Section 17 (except for the first paragraph) of the Constitution of 1876, as amended and as it existed on November 4, 1975, continues in effect as if part of the constitution.
(b) The state ad valorem tax on property of two cents on the $100 assessed valuation levied by the first paragraph of Article VII, Section 17 of the Constitution of 1876, as amended and as it existed on November 4, 1975, is hereby levied until December 31, 1978, unless an amendment revising the finance provisions of the constitution is adopted and a state ad valorem tax of two cents is levied in the constitution.
Sec. 33. Continuation of Bond Authority. (a) Bonds or other evidences of indebtedness specifically authorized to be issued or executed by or on behalf of the state or an agency thereof under the following designated sections of the Constitution of 1876, as amended and as it existed on November 4, 1975, may be validly issued or executed subject to all applicable terms and conditions:
(1) Article III, Section 49-b, Veterans' Land Program;
(2) Article III, Section 49-c, Texas Water Development Board; Bond Issue; Texas Water Development Fund;
(3) Article III, Section 49-d, Acquisition and Development of Water Storage Facilities; Filtration; Treatment and Transportation of Water; Enlargement of Reservoirs;
(4) Article III, Section 49-d-l, Additional Texas Water Development Bonds:
(5) Article III, Section 49-e, Texas Park Development Fund;
(6) Article III, Section 50b, Student Loans; and
(7) Article III, Section 50b-l, Additional Student Loans.
(b) The bonds or other evidences of indebtedness may be issued or executed bearing any rate of interest within the limits permitted by the Constitution of 1876, as amended and as it existed on November 4, 1975. However, the legislature by law may authorize new limits if approved by a record affirmative two-thirds vote of the membership of each house of the legislature and submitted to and approved by a majority of the qualified voters voting on the question.
(c) Until January 1, 1981, or an earlier date provided by law, bonds or other evidences of indebtedness payable solely from the general building use fees of senior colleges or universities and issued under the authority of Chapter 55 of the Education Code as it existed on July 31, 1974, are not included within the definition of "state debt" contained in Section 8(b) of Article VIII.
Sec. 34. Constitutional Powers Omitted From Implementing Statutes. (a) Any power directly granted to any of the following state agencies by the applicable designated section of the Constitution of 1876, as amended and as it existed on November 4, 1975, not also granted by statute continues in effect until the effective date of a statute either granting that power or otherwise expressly superseding the power hereby continued:
(1) Veterans' Land Board Section 49-b of Article III;
(2) Texas Water Development Board Sections 49-c, 49-d, and 49-d-l of Article III;
(3) Texas Water Quality Board or any successor agency Section 49-d-l of Article III;
(4) The Parks and Wildlife Department or its successor Section 49-e of Article III; and
(5) Coordinating Board, Texas College and University System, or its successor or successors Sections 50b and 50b-l of Article III.
(b) No statute may supersede a power the continuation of which is made necessary by Section 2 of this schedule.
Sec. 35. County and Road District Highway Fund. Notwithstanding Section 7(d) of the 1976 revision of Article VIII, payments may be made to the County and Road District Highway Fund for the payment of the principal and interest on county and road district bonds or warrants voted or issued prior to January 2, 1939, and declared eligible prior to January 2, 1945, as provided under Section 7-a of Article VIII of the Constitution of 1876, as amended and as it existed on November 4, 1975.
Sec. 36. Ad Valorem Tax Exemptions. (a) Ad valorem tax exemptions granted by the 1976 revision of Article VIII, apply for the 1977 tax year. Ad valorem tax exemptions granted by the Constitution of 1876, as amended and as it existed on November 4, 1975, apply for the 1976 tax year.
(b) If an exemption in excess of $3,000 of the assessed value of the residential homestead of persons 65 years of age or older has been granted by a political subdivision under Article VIII, Section 1-b, Subsection (b) of the Constitution of 1876, as amended and as it existed on November 4, 1975, the amount of the exemption in excess of $3,000 continues in effect for persons eligible under Section 4, Subsection (c) of the 1976 revision of Article VIII unless lowered in the manner permitted by the Constitution of 1876, as amended and as it existed on November 4, 1975.
Sec. 37. Confederate and Texas Ranger Pensions. Revenue from the two-cent tax levied by Section l(b) (2) of the 1976 revision of Article VIII may be used for the additional purposes of paying Confederate and Texas Ranger pensions to those persons entitled to benefits under Article III, Section 51 and Article XVI, Section 66 of the Constitution of 1876, as amended and as it existed on November 4, 1975, until no persons are entitled to benefits under those provisions or until a trust fund is established by law to provide benefits for those persons.
Sec. 38. Sheriff, Assessor-Collector of Taxes. In those counties in which the offices of sheriff and assessor-collector of taxes are combined on August 31, 1976, the offices remain combined as if they had been combined in conformity with Article IX, Section 3(e), of the 1976 revision of Article IX.
Sec. 39. County Attorneys. Those counties in which the office of county attorney exists, under Section 21 of Article V of the Constitution of 1876, as amended and as it existed on November 4, 1975, retain those offices under Subsection (b) of Section 3 of Article IX until otherwise provided by general or local law. The county attorneys have those duties as provided in Section 21 of Article V of the Constitution of 1876, as amended and as it existed on November 4, 1975, unless otherwise provided by general law.
Sec. 40. Local Government Debt Limits. Until the legislature by general law establishes a maximum amount of interest-bearing obligations payable from ad valorem taxes that may be issued by a class of political subdivisions under Section 10, Subsection (d) of the 1976 revision of Article IX, a political subdivision of that class may issue interest-bearing obligations payable from ad valorem taxes only to the extent that the total amount of outstanding interest-bearing obligations payable from ad valorem taxes does not exceed the following applicable percentage of the then current assessed valuation of taxable property within the political subdivision:
(1) a city or town 12 percent;
(2) a county 8 percent for purposes other than those described in Article III, Section 52, Subsection (c) of the Constitution of 1876, as amended and as it existed on November 4, 1975, for which the limit is 25 percent of the assessed value of real property for obligations approved by a majority of the qualified electors voting on the issue;
(3) a school district 10 percent; or
(4) a community junior college district 10 percent.