Texas Bill of Rights GOVT 2306

Transcription

1 Texas Bill of Rights GOVT 2306

2 As with the states (notably the original 13) and the naaonal government as well, the Texas ConsAtuAon has a Bill of Rights. It is contained in ArAcle One of the Texas ConsAtuAon.

3 The purpose of a Bill of Rights is to clearly define the rights of individuals in a governmental system. This is done in two interrelated ways.

4 First, it establishes limits on what government can do. Second, it states what individuals should be able to do.

5 These sound the same, but they are not. The subject of the first is government: What laws can be passed, how the execuave can implement the laws, and what process the judiciary must when adjudicaang disputes.

6 The subject of the second is the individual ciazen: what rights they ought to be able to enjoy. This is a far more proacave statement the former. It suggests an obligaaon an enatlement on the party of government to establish certain rights.

7 As a point of comparison, the United States Bill or Rights is primarily concerned with restricang the powers of government. The subject is not what the people are enatled to, but what the legislature, the execuave and the judicial branches cannot do.

8 The First Amendment states that Congress cannot pass certain laws, including those that abridge religious and paracipatory freedoms.

9 The language does not clearly state that people have certain rights (like to speech, security, and jury trials). It assumes they have them and restricts government s ability to deny them. [These rights are not absolute however. The Supreme Court occasionally rules on excepaons to them, but we cover this topic in GOVT 2305]

10 The idea that the rights of individuals ought to be araculated is an ancient one. It dates back to the Magna Carta, which was a document wriyen in 1215 that araculated the rights of the nobility that were recognized by King John. Along with other documents, this provides the foundaaon for the bills of rights in the United States.

11 State consatuaons needed them because they possessed reserved powers, which were undefined. The state governments could do anything they wished. A clarificaaon of what they could not do was essenaal to protect the people from state power.

12 A naaonal Bill of Rights was argued to be superfluous, but James Madison believed it was harmless and introduced a Bill of Rights immediately upon the convening of the First Congress. Not that the US Bill of Rights was amended to the ConsAtuAon. It was an a^erthought.

13 Note that the US Bill of Rights only protected people from the naaonal government. UnAl the 14 th Amendment was raafied, the naaonal government had no ability to protect the people from the state government. We discussed this topic in one of the first lectures in this class.

14 Once the 14 th Amendment was raafied, the protecaons people were guaranteed from the acaons of the naaonal government also applied to the state governments as well. The process that led to this is called the selecave incorporaaon of the Bill of Rights to the states.

15 The point is that the people of Texas are covered by the rights listed in the United States Bill of Rights, as well as that of Texas. Since the US Bill of Rights is defined by the naaonal government, there s tremendous opportunity for conflict here due to the tension in the poliacal culture of the US versus that of Texas.

16 Now a look at the contemporary document. It contains 33 secaons and 3,600 words. The US Bill of Rights has ten secaons and contains 482 words.

17 Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the ConsAtuAon of the United States, and the maintenance of our free insatuaons and the perpetuity of the Union depend upon the preservaaon of the right of local self-government, unimpaired to all the States.

18 Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All poliacal power is inherent in the people, and all free governments are founded on their authority, and insatuted for their benefit. The faith of the people of Texas stands pledged to the preservaaon of a republican form of government, and, subject to this limitaaon only, they have at all Ames the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.

19 Sec. 3. EQUAL RIGHTS. All free men, when they form a social compact, have equal rights, and no man, or set of men, is enatled to exclusive separate public emoluments, or privileges, but in consideraaon of public services.

20 Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or naaonal origin. This amendment is self-operaave. (Added Nov. 7, 1972.)

21 Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualificaaon to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious senaments, provided he acknowledge the existence of a Supreme Being.

22 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 affirmaaons shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalaes of perjury.

23 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 ayend, 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 mayers 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 denominaaon in the peaceable enjoyment of its own mode of public worship.

24 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.

25 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 prosecuaons for the publicaaon of papers, invesagaang the conduct of officers, or men in public capacity, or when the mayer published is proper for public informaaon, 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 direcaon of the court, as in other cases.

26 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 affirmaaon.

27 Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecuaons the accused shall have a speedy public trial by an imparaal jury. He shall have the right to demand the nature and cause of the accusaaon 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,...

28 ... except that when the witness resides out of the State and the offense charged is a violaaon of any of the ana-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admiyed by deposiaon, under such rules and laws as the Legislature may herea^er 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 penitenaary, in cases of impeachment, and in cases arising in the army or navy, or in the miliaa, when in actual service in Ame of war or public danger.

29 Sec. 11. BAIL. All prisoners shall be bailable by sufficient sureaes, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail a^er indictment found upon examinaaon of the evidence, in such manner as may be prescribed by law.

30 Sec. 11a. MULTIPLE CONVICTIONS; DENIAL OF BAIL. This secaon is quite lengthy, and establishes why a defendant may be denied bail. The layer part of the secaon is worth noang because it helps clarify two terms used in the secaon:

31 (b) In this secaon: (1) "Violent offense" means: (A) murder; (B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault; (C) aggravated kidnapping; or (D) aggravated robbery. (2) "Sexual offense" means: (A) aggravated sexual assault; (B) sexual assault; or (C) indecency with a child.

32 Sec. 11b. VIOLATION OF CONDITION OF RELEASE PENDING TRIAL; DENIAL OF BAIL. Any person who is accused in this state of a felony or an offense involving family violence, who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violaaon of a condiaon of release may be denied bail pending trial if a judge or magistrate in this state determines by a preponderance of the evidence at a subsequent hearing that the person violated a condiaon of release related to the safety of a vicam of the alleged offense or to the safety of the community.

33 Sec. 11c. VIOLATION OF AN ORDER FOR EMERGENCY PROTECTION INVOLVING FAMILY VIOLENCE. The legislature by general law may provide that any person who violates an order for emergency protecaon issued by a judge or magistrate a^er an arrest for an offense involving family violence or who violates an acave protecave order rendered by a court in a family violence case, including a temporary ex parte order that has been served on the person, or who engages in conduct that consatutes an offense involving the violaaon of an order described by this secaon may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated the order or engaged in the conduct consatuang the offense.

34 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.

35 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 reputaaon, shall have remedy by due course of law.

36 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 a^er a verdict of not guilty in a court of competent jurisdicaon.

37 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 observaaon and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of Ame not to exceed ninety (90) days, by order of the County Court without the necessity of a trial by jury.

38 Sec. 15-a. COMMITMENT OF PERSONS OF UNSOUND MIND. No person shall be commiyed as a person of unsound mind except on competent medical or psychiatric tesamony. The Legislature may enact all laws necessary to provide for the trial, adjudicaaon of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases....

39 ... 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 ayorney ad litem appointed by a judge of either the County or Probate Court of the county where the trial is being held, and shall provide for a method of service of noace of such trial upon the person under inquiry and of his right to demand a trial by jury.

40 Sec. 16. BILLS OF ATTAINDER; EX POST FACTO OR RETROACTIVE LAWS; IMPAIRING OBLIGATION OF CONTRACTS. No bill of ayainder, ex post facto law, retroacave law, or any law impairing the obligaaon of contracts, shall be made.

41 Sec. 17. TAKING, DAMAGING, OR DESTROYING PROPERTY FOR PUBLIC USE; SPECIAL PRIVILEGES AND IMMUNITIES; CONTROL OF PRIVILEGES AND FRANCHISES.

42 This secaon is also quite lengthy, and was heavily amended following the US Supreme Court s decision in Kelo v New London, which was a major case expanding the right of eminent domain. A brief, but similar statement exists in the last sentence in the 5 th Amendment.

43 Sec. 18. IMPRISONMENT FOR DEBT. No person shall ever be imprisoned for debt.

44 Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF LAW. No ciazen of this State shall be deprived of life, liberty, property, privileges or immuniaes, or in any manner disfranchised, except by the due course of the law of the land.

45 Sec. 20. OUTLAWRY OR TRANSPORTATION FOR OFFENSE. No ciazen shall be outlawed. No person shall be transported out of the State for any offense commiyed within the same. This secaon does not prohibit an agreement with another state providing for the confinement of inmates of this State in the penal or correcaonal faciliaes of that state.

46 Sec. 21. CORRUPTION OF BLOOD; FORFEITURE; SUICIDES. No convicaon shall work corrupaon 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.

47 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 tesamony of two witnesses to the same overt act, or on confession in open court.

48 Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every ciazen 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.

49 Sec. 24. MILITARY SUBORDINATE TO CIVIL AUTHORITY. The military shall at all Ames be subordinate to the civil authority.

50 Sec. 25. QUARTERING SOLDIERS IN HOUSES. No soldier shall in Ame of peace be quartered in the house of any ciazen without the consent of the owner, nor in Ame of war but in a manner prescribed by law.

51 Sec. 26. PERPETUITIES AND MONOPOLIES; PRIMOGENITURE OR ENTAILMENTS. PerpetuiAes 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.

52 Sec. 27. RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The ciazens 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 peaaon, address or remonstrance.

53 Sec. 28. SUSPENSION OF LAWS. No power of suspending laws in this State shall be exercised except by the Legislature.

54 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.

55 Sec. 30. RIGHTS OF CRIME VICTIMS. This is another lengthy secaon. It was added in 1989.

56 Sec. 31. COMPENSATION TO VICTIMS OF CRIME FUND; COMPENSATION TO VICTIMS OF CRIME AUXILIARY FUND; USE OF FUND MONEY. (Added Nov. 4, 1997.)

57 (a) The compensaaon to vicams of crime fund created by general law and the compensaaon to vicams of crime auxiliary fund created by general law are each a separate dedicated account in the general revenue fund. (b) Except as provided by SubsecAon (c) of this secaon and subject to legislaave appropriaaon, money deposited to the credit of the compensaaon to vicams of crime fund or the compensaaon to vicams of crime auxiliary fund from any source may be expended as provided by law only for delivering or funding vicam-related compensaaon, services, or assistance. (c) The legislature may provide by law that money in the compensaaon to vicams of crime fund or in the compensaaon to vicams of crime auxiliary fund may be expended for the purpose of assisang vicams of episodes of mass violence if other money appropriated for emergency assistance is depleted.

58 Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman. (b) This state or a poliacal subdivision of this state may not create or recognize any legal status idenacal or similar to marriage. (Added Nov. 8, 2005.)

59 Sec. 33. ACCESS AND USE OF PUBLIC BEACHES. (Added Nov. 3, 2009.)

60 (a) In this secaon, "public beach" means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low Ade to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low Ade to the line of vegetaaon bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescripaon or dedicaaon or has established and retained a right by virtue of conanuous right in the public under Texas common law.

61 (b) The public, individually and collecavely, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsecaon is dedicated as a permanent easement in favor of the public. (c) The legislature may enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments. (d) This secaon does not create a private right of enforcement.

62 What is DiscriminaAon? DiscriminaAon occurs when the civil rights of an individual are denied or interfered with because of their membership in a paracular group or class.

63 Is There Any Law Against DiscriminaAon? Statutes have been enacted to prevent discriminaaon based on a person's race, sex, religion, age, previous condiaon of servitude, physical limitaaon, naaonal origin, and in some instances sexual preference.

64 What Led to the Civil Rights Movement? A^er the end of reconstrucaon, Southern states implemented laws that promoted: Racial segregaaon Disenfranchisement ExploitaAon Violence against minoriaes (Blacks, LaAnos, Asians)

65 Civil Rights Movement in Texas Civil-rights campaigns in Texas are generally associated with the state's two most prominent ethnic minoriaes: African Americans Mexican Americans

66 Freedom at Last When President Lincoln s EmancipaAon ProclamaAon took effect in 1865, an enare race of people was freed. Texas 1866 ConsAtuAonal ConvenAon gave African- American men the right to sue or be sued, to contract and be contracted with, to acquire and transmit property, to obtain equal criminal prosecuaon under the law, and to tesafy orally in any case involving another African American.

67 Freedom at Last Significantly, the 1866 ConsAtuAon did not allow African Americans to hold public office or to vote. 11th Texas Legislature refused to raafy either the 13th Amendment, which abolished slavery, or the 14th Amendment, which granted ciazenship to African Americans.

68 Freedom at Last The legislature wanted to return Texas as much as possible to the way it was before the war and restrict the rights of African Americans.

69 SegregaAon Followed EmancipaAon Freedmen found themselves barred from most public places and schools, and confined to certain residenaal areas of towns. By the early twenaeth century, such pracaces had been sancaoned by law.

70 Poll-tax and PoliAcal paraes InsAtuAon of poll-tax, a fixed tax for every person regardless of income, was used to disenfranchise minoriaes and poor whites. By the late 1920s, Texas poliacians had effecavely immobilized African Texan voters through court cases that defined poliacal paraes as private organizaaons which could exclude members.

71 Jim Crow Laws Increased the segregaaon of the races. Blacks and Hispanics ayended segregated and inferior "colored" and "Mexican" schools. In mid-1950s, the state legislature passed segregaaonist laws directed at blacks (and by implicaaon to Tejanos), some dealing with educaaon, others with residenaal areas and public accommodaaons.

72 Fight for Equality Mexican and Black Texans conanued their advocacy for equality during the depression era. The black movement, for its part, won increased white support in the 1930s from the ranks of the AssociaAon of Southern Women for the PrevenAon of Lynching and from such prominent congressmen as Maury Maverick. The associaaon pursued the eliminaaon of the white primary and other obstacles to voang, as well as the desegregaaon of schools, insatuaons of higher educaaon, and public places.

73 DesegregaAon of Schools The famous case of Brown v. Board of Educa/on (1954) produced the integraaon of schools, buses, restaurants, and other public accommodaaons. The case of Swea2 v. Painter (1950) integrated the University of Texas Law School, and in its wake several undergraduate colleges in the state desegregated.

74 Racial Equality The federal government pursued an agenda designed to achieve racial equality, and Mexican and Black Texans both profited from this iniaaave. The 24 th Amendment, raafied in 1964, barred the poll tax in federal elecaons, and that same year Congress passed the Civil Rights Act outlawing the Jim Crow tradiaon.

75 Racial Equality Texas followed suit in 1969 by repealing its own separaast statutes. The federal VoAng Rights Act of 1965 eliminated local restricaons to voang and required that federal marshals monitor elecaon proceedings.