Not For Sale. The Constitutional Setting

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1 2 Representative Debbie Riddle sponsored a series of bills in 2011 regarding voter identification, proof of citizenship to enter school, and immigration enforcement. She also proposed a constitutional amendment that would limit local property assessment. AP Photo/Thomas Terry. The Constitutional Setting _ch02_ptg01_hr_ indd 38

2 Constitutions should consist of only general provisions; the reason is that they must necessarily be permanent, and that they cannot calculate for the possible change of things. Alexander Hamilton, American statesman and one of the authors of The Federalist Papers urging adoption of the U.S. Constitution All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. Article I, Texas Constitution OUTLINE Introduction Purposes of Constitutions Texas Constitutions The Present Texas Constitution 2 Constitutional Revision Constitutional Politics Summary INTRODUCTION Since its ratification in 1789, the U.S. Constitution frequently has been used as a model by emerging nations. State constitutions, however, seldom enjoy such admiration. Indeed, the constitution of the state of Texas is more often ridiculed than praised because of its length, its obscurity, and its outdated, unworkable provisions. Such criticism of state constitutions is common. The political circumstances that surrounded the writing of the national Constitution differed considerably from those that existed at the times when many of the fifty states especially those of the old Confederacy were writing their constitutions. State constitutions tend to be very rigid and include too many specific details. They do not follow the advice of Alexander Hamilton cited in the quotation above. As a result, Texas and many other states must resort to frequent constitutional amendments, which are formal changes in the basic governing document. In federal systems, which are systems of government that provide for a division and sharing of powers between a national government and state or regional governments, the constitutions of the states complement the national Constitution. Article VI of the U.S. Constitution provides that the Constitution, laws, and treaties of the national government take precedence over the constitutions and laws of the states. This provision is known as the supremacy of the laws clause. Many states, including Texas, have constitutional and statutory provisions that conflict with federal laws, but these are unenforceable because of Article VI. Although the U.S. Constitution is supreme, state constitutions are still important because state governments are responsible for many basic programs and services, such as education, that affect citizens daily. This chapter examines purposes of constitutions, as well as outlines the development of the several Texas constitutions. It elaborates the principal features of the state s current document, briefly traces the movement for constitutional reform in Texas, and provides an overview of constitutional politics. OBJECTIVES After reading this chapter, you should be able to Understand the purposes of constitutions as well as the extent to which these are reflected in the Texas Constitution. Describe the history of Texas constitutions. Discuss the key aspects of the present Texas Constitution. Explain why the Texas Constitution is so frequently amended. Analyze the political process involved in constitutional change. I NTRODUCTION _ch02_ptg01_hr_ indd 39

3 Purposes of Constitutions A constitution is the basic law of a state or nation that outlines the primary structure and functions of government. The purposes of all constitutions are the same. Legitimacy The first purpose served by a constitution is to give legitimacy to the government. Legitimacy is the most abstract and ambiguous purpose served by constitutions. Legitimacy derives from agreed-upon purposes of government and from government keeping its actions within the guidelines of these purposes. The constitution contributes to this legitimacy by putting it down on paper. A government has legitimacy when the governed accept its acts as moral, fair, and just, and thus believe that they should obey its laws. This acceptance cuts two ways. On the one hand, citizens will allow government to act in certain ways that are not permitted to private individuals. For example, citizens cannot legally drive down a city street at sixty miles per hour, but police officers may do so when in the act of pursuing wrongdoers. Proprietors of private schools cannot command local residents to make financial contributions to their schools, but these local residents pay taxes to support public schools. On the other hand, citizens also expect governments not to act arbitrarily; the concept of legitimacy is closely associated with limiting government. If a police officer were to speed down a city street at ninety miles per hour just for the thrill of doing so, or if citizens were burdened with confiscatory school taxes, these acts probably would fall outside the bounds of legitimacy. What citizens are willing to accept is conditioned by their history and their political culture. In Texas and the remainder of the United States, democratic practices including citizen participation in decision making, and fair processes are a part of that history and culture. Even within that broad acceptance of democratic principles, legitimacy varies from nation to nation and even from state to state. In England, for example, most police do not carry weapons; in California, pedestrians have absolute right of way in crossing streets. The traditionalistic/ individualistic political culture that predominates in the South is even more dedicated to limiting government than the moralistic political culture; thus, southern constitutions, as a group, tend to be very restrictive. Is It Legal? Public regard for what is legal is dynamic. For example, until the 1995 right-tocarry law, Texans were unable to carry a concealed weapon legally, although police detectives could do so. By 2011, the debate was whether students, teachers, and others should be able to carry weapons into the classroom. 40 C HAPTER TWO: THE CONSTITUTIONAL SETTING 33060_ch02_ptg01_hr_ indd 40

4 Organizing Government The second purpose of constitutions is to organize government. Governments must be organized in some way that clarifies who the major officials are, how they are selected, and what the relationships are among those charged with basic governmental functions. Again, to some extent, the American states have been guided by the national model. For example, both levels incorporate separation of powers that is, a division into legislative, executive, and judicial branches. Also following the national Constitution s lead, the states have adopted a system of checks and balances to ensure that each separate branch of government can be restrained by the others. In reality, separate institutions and defined lines of authority lead to a sharing of powers. For example, passing bills is thought of as a legislative function, but the governor can veto a bill. Each state has an elected chief executive. Each state, except Nebraska, has a legislative body composed of two houses, usually a house of representatives and a senate. Each state has a judicial system with some sort of supreme court. Just as the U.S. Constitution includes many provisions that establish the relationship between the nation and the states, state constitutions include similar provisions with respect to local governments. Specific organizational provisions of state constitutions vary widely, and invariably reflect the political attitudes prevalent at the time the constitutions were adopted and various amendments added. In Texas, the traditionalistic/ individualistic political cultures have dominated the constitutional process. Providing Power Article I, Section 8 of the U.S. Constitution expressly grants certain powers to the national government and implies a broad range of additional powers through the necessary and proper clause. This clause, also known as the elastic clause, enables Congress to execute all its other powers by giving it broad authority to pass needed legislation. Thus, granting specific powers is the third purpose of constitutions. The Tenth Amendment reserves for the people or for the states powers not explicitly or implicitly granted to the national government. As the U.S. Constitution has been developed and interpreted, many powers exist concurrently for both the federal and the state levels of government the power to assess taxes on gasoline, for example. Within this general framework, which continues to evolve, the Texas Constitution sets forth specific functions for which the state maintains primary or concurrent responsibility. Local government, criminal law, and regulation of intrastate commerce illustrate the diversity of the activities over which the state retains principal control. A combination of factors has reduced the power of state officials, however. For example, the federal government s widespread use of its interstate commerce powers has limited the range of commercial activities still considered strictly intrastate. The incorporation of the Bill of Rights the first ten amendments to the U.S. Constitution has compelled changes in the criminal justice systems of the states. Incorporation means making the national protections, for example, the right to a fair and speedy trial by a jury of one s peers, applicable to state and local governments. In addition, the ability of individual states to deal with many socioeconomic matters such as energy use, civil rights, and urbanism is P URPOSES OF CONSTITUTIONS _ch02_ptg01_hr_ indd 41

5 now seriously impaired. Thus, they are increasingly viewed as a responsibility of government at the national level. Nevertheless, the fundamental law of the state spells out many areas for state and local action. Which, if any, of the broad problems the national government addresses depends on the prevailing Washington political philosophy, the party that controls Congress, the national administration, and who sits on the U.S. Supreme Court. 1 Resistance to perceived national power growth prompted Tea Party adherents (see Chapter 4) to urge a strong states rights interpretation of the Tenth Amendment in 2010 and Limiting Governmental Power American insistence on the fourth purpose of constitutions limiting governmental power reflects the influence of British political culture, our ancestors dissatisfaction with colonial rule, and the extraordinary individualism that characterized national development during the eighteenth and nineteenth centuries. In Texas, the traditionalistic/individualist political culture resulted in a heavy emphasis on limiting government s ability to act. For example, the governor has only restricted power to remove members of state boards and commissions, particularly those appointed by a predecessor, except by informal techniques, such as an aggressive public relations campaign against a board member. This belief in limited government continues to wax strong in the new millennium. Citizens usually want less government regulation and more controls on spending. Chief among the guarantees against arbitrary governmental action is the national Bill of Rights. It was quickly added to the original U.S. Constitution to ensure both adequate safeguards for the people and ratification of the Constitution. The Texas Bill of Rights, included as Article I in the Texas Constitution, resembles the national Bill of Rights. 2 Later amendments to the national Constitution have extended guarantees in several areas, especially due process and equal protection of the laws, racial equality, and voting rights. In Texas, reactions to post Civil War Reconstruction rule were so keen at the time the current constitution was written that the document contains many specific and picayune limitations. The creation of certain hospital districts and the payment of pensions to veterans of the war of independence from Mexico are examples. Such specificities have made frequent amendments necessary and have hamstrung legislative action in many areas. Texas Constitutions The United States has had two fundamental laws: the short-lived Articles of Confederation and the present Constitution. Texas is currently governed by its sixth constitution, ratified in The fact that the 1876 constitution had five predecessors in only forty years illustrates the political turbulence of the mid- 1800s. Table 2-1 lists the six Texas state charters. Having been formally governed by Spain for 131 years and by Mexico for 15 years, Texans issued a declaration of independence on March 2, This declaration stated that the people of Texas, do now constitute a Free, Sovereign, and Independent Republic, and are fully invested with all the rights and attributes which properly belong to independent nations. After a brief but bitter war with Mexico, Texas gained independence on April 21 of that year 42 C HAPTER TWO: THE CONSTITUTIONAL SETTING 33060_ch02_ptg01_hr_ indd 42

6 Some Key Differences in U.S. and Texas Constitutions Powers are reserved to the states in the U.S. Constitution; local governments are regarded as creatures of the state in the Texas Constitution. The national document is considerably more flexible than the state one in allowing government to act. The presidency is a very strong office; the governorship is a weak one. The national court system is relatively simple; the Texas system is complex and confusing. The U.S. Constitution is rarely amended; the Texas constitution is frequently amended. However, there are also many similarities because both constitutions include separation of powers, checks and balances, and provisions for both empowering and limiting government, and for protecting individual rights. after the Battle of San Jacinto. Independence was formalized when the two Treaties of Velasco were signed by Mexican President Antonio López de Santa Anna and Texas President David Burnet on May 14, By September, the Constitution of the Republic of Texas, drafted shortly after independence was declared, had been implemented. Major features of this charter paralleled those of the U.S. Constitution, including a president and a Congress, but the document also guaranteed the continuation of slavery. TABLE 2-1 Constitutions of Texas Constitution Dates Republic of Texas Statehood Civil War Reconstruction Radical Reconstruction State of Texas 1876 Present TEXAS CONSTITUTIONS _ch02_ptg01_hr_ indd 43

7 The United States had been sympathetic to the Texas struggle for independence. However, admission to the Union was postponed for a decade because of northern opposition to admission of a new slave state. After ten years of nationhood, Texas was finally admitted into the Union. The Constitution of 1845, the Statehood Constitution, was modeled after the constitutions of other southern states. It was regarded as one of the nation s best at the time. The Constitution of 1845, which not only embraced democratic principles of participation but also included many elements later associated with the twentieth-century administrative reform movement, was a very brief, clear document. 4 The Constitution of 1845 was influenced by Jacksonian democracy, named for President Andrew Jackson. Jacksonians believed in an expansion of participation in government, at least for White males. 5 Jackson s basic beliefs ultimately led to the spoils system of appointing to office those who had supported the winning candidates in the election ( to the victors belong the spoils ). Jacksonian democracy also produced long ballots, with almost every office up for popular vote, short terms of office, and the expansion of voting rights. Thus, while participatory, Jacksonian democracy was not flawless. When Texas joined the Confederate States of America in 1861, the constitution was modified again. This document, the Civil War Constitution of 1861, merely altered the Constitution of 1845 to ensure greater protection for the institution of slavery and to declare allegiance to the Confederacy. Texas was on the losing side of the Civil War and was occupied by federal troops. President Andrew Johnson ordered Texas to construct yet another constitution. The 1866 document declared secession illegal, repudiated the war debt to the Confederacy, and abolished slavery although it did not provide for improving conditions for African Americans. In other words, the state made only those changes that were necessary to gain presidential support for readmission to the Union. Radical postwar congressional leaders were not satisfied with these minimal changes in the constitutions of the southern states. They insisted on more punitive measures. In , a constitution that centralized power in the Texas state government, provided generous salaries for officials, stipulated appointed judges, and called for annual legislative sessions was drafted. It contained many elements that present-day reformers would like to see in a revised state charter. Because the constitution was forced on the state by outsiders in Washington and by carpetbaggers northerners who came to Texas with their worldly goods in a suitcase made out of carpeting White southerners never regarded the document as acceptable. They especially resented the strong, centralized state government and the powerful office of governor that were imposed on them. However, because all former rebels were barred from voting, the Constitution of 1869 was adopted by Unionists and African Americans. Ironically, this constitution least accomplished the purpose of legitimacy acceptance by the people but was the most forward looking in terms of power and organization. The popular three-term governor, Elisha Pease, resigned in the fall of 1869 after the radical constitution was adopted. After a vacancy in the state s chief executive office lasting more than three months, Edmund J. (E. J.) Davis was elected governor and took office at the beginning of The election not only barred the state s Democrats and traditional Republicans, both conservative groups, from voting, but also exhibited a number of irregularities. Davis was an honest man, but the radical state charter, Davis s radical Republican ties, and his subsequent designation as provisional governor by President Ulysses Grant combined to give him dictatorial powers C HAPTER TWO: THE CONSTITUTIONAL SETTING 33060_ch02_ptg01_hr_ indd 44

8 The Present Texas Constitution Traditionally Democratic, as well as conservative, Texans began to chafe for constitutional revision changes to reform or improve the basic document when the Democrats regained legislative control in An 1874 reform effort passed in the Texas Senate but failed in the House. This constitution would have provided flexibility in such areas as how tax dollars could be spent and terms of office. It also would have facilitated elite control and a sellout to the powerful railroads, which were hated by ordinary citizens because of their pricing policies and corruption of state legislatures. 7 The legislature called a constitutional convention, and ninety delegates were elected from all over the state. The convention members were overwhelmingly conservative and reflected the retrenchment and reform philosophy of the Grange, which was one of several organizations of farmers. 8 This conservatism included a strong emphasis on the constitutional purpose of limiting government and a tolerance for racial segregation shared with other institutions of the time. As noted in Chapter 1, southern farmers were determined to prevent future state governments from oppressing them as they believed they had been oppressed under Reconstruction. Accordingly, the new constitution, completed in 1875, curbed the powers of government. The governor s term was limited to two years. A state debt ceiling of $200,000 was established. Salaries of elected state officials were fixed. The legislature was limited to biennial sessions, and the governor was allowed to make very few executive appointments. When this document went to the people of Texas for a vote in February 1876, it was approved by a margin of 136,606 to 56,652; 130 of the 150 Texas counties registered approval. All the ratifying counties were rural areas committed to the Grange and would benefit from the new constitution. The twenty counties that did not favor the new charter were urban areas that were heavily Republican, where newspaper criticism of the proposed document had been severe. 9 Independence Now and Then Because Texas was an independent republic when the United States annexed it, the annexation agreement reflected compromises by both the state and national governments. For example, Texas gave up its military property, but kept its public lands. The national government refused to assume the state s $10 million debt. Texas, however, can carve four additional states out of its territory should the state want such a division. In the 1990s, a radical group calling itself the Republic of Texas contended that because Texas had been illegally annexed in 1845, it remained a nation. Pursuing this belief, members of the movement harassed state officials in a variety of ways, including filing liens against the assets of public agencies and regularly accusing state officials of illegally using their powers. Several of these individuals are still in prison for their violent actions. In 2010, Governor Rick Perry suggested that Texas might secede from the United States. Texas did not enter the Union with any right of secession. THE PRESENT TEXAS CONSTITUTION _ch02_ptg01_hr_ indd 45

9 General Features The Texas Constitution of today is very much like the original 1876 document in spite of 467 amendments by the middle of 2011 and some major changes in the executive article. It includes a preamble and sixteen articles, with each article divided into subsections (see Table 2-2). 10 When the Texas Constitution was drafted more than a century ago, it incorporated protection for various private interests. It also included many details of policy and governmental organization to avoid abuse of government powers. The result is a very long, poorly organized document that does not draw clear lines of responsibility for government actions. As an example of details that might be contained better in legislation than in constitutional law, Article V, Section 18 spells out procedures for electing justices of the peace and constables. These provisions have been amended four times; one amendment is so specific that it allows Chambers County the flexibility to have between two and six justice of the peace precincts. Besides having its own amendment, Chambers County (county seat: Anahuac) is best known for being one-third under water. TABLE 2-2 Articles of the Texas Constitution I. Bill of Rights II. III. IV. The Powers of Government Legislative Department Executive Department V. Judicial Department VI. VII. VIII. IX. Suffrage Education [and] the Free Public Schools Taxation and Revenue Counties X. Railroads XI. XII. Municipal Corporations Private Corporations XIII. Spanish and Mexican Land Titles deleted by amendment in 1969 XIV. XV. XVI. XVII. Public Lands and Land Office Impeachment General Provisions Mode of Amending the Constitution of the State 46 C HAPTER TWO: THE CONSTITUTIONAL SETTING 33060_ch02_ptg01_hr_ indd 46

10 C Cartoonist Ben Sargent ccompares the wisdom of tthe national founding ffathers who produced a cconstitution requiring few aamendments to the limited vviewpoint of the writers of the Texas Constitution, o which must be amended w vvery frequently. Courtesy of Ben Sargent. C The Texas Constitution reflects the time of its writing, an era of strong conservative, agrarian interests, and of reaction to carpetbagger rule. Changes in the U.S. Constitution, both by amendment and by judicial interpretation, have required alterations of the state constitution, although provisions remain that conflict with federal law. These unenforceable provisions, along with other provisions that are so outdated that they will never again be enforced, are known as deadwood. Both the Sixty-fifth Legislature in 1977 and the Seventy-sixth Legislature in 1999 undertook to clean up the constitution by removing deadwood provisions through the formal amending process. The frequent amendments have produced a state charter that is poorly organized and difficult to read, much less interpret, even by the courts.11 Yet, the amendments are necessary because of the restrictiveness of the constitution. In recent years, voters have tended to approve virtually all proposed amendments. The Lone Star State can almost claim the record for the longest constitution in the nation. Only the constitution of Alabama contains more than the 93,000plus words in the Texas charter.12 Specific Features The Texas Constitution is similar in many ways to the U.S. Constitution, particularly the way in which the purposes of organizing and limiting government and legitimacy are addressed. Each government has executive, legislative, and judicial branches. Both are separation of powers systems; that is, they have separate institutions that share powers. Both include provisions against unequal or arbitrary government action, such as restricting freedom of religion. The two documents are less alike in terms of the purpose of providing power to government. The national Constitution is much more flexible in allowing government to act than is the state document. Texas legislators, for example, cannot set their own salaries.13 Bill of Rights Like the national Bill of Rights, Article I of the Texas Constitution provides for equality under the law; religious freedom, including separation of church and TH E P R E S E N T TE X A S C O N S T I T U T I O N 33060_ch02_ptg01_hr_ indd 47 47

11 state; 14 due process for the criminally accused; and freedom of speech and of the press. Among its thirty protections, it further provides safeguards for the mentally incompetent and provides several specific guarantees, such as prohibition against outlawing an individual from the state. It includes an equal rights amendment for all Texans. Citizen opinion generally supports the U.S. and Texas Bills of Rights. However, just as the public sometimes gets upset with the U.S. Bill of Rights when constitutional protections are afforded to someone the public wants to throw the book at an accused child molester, for example Texans sometimes balk at the protections provided in the state constitution. Nevertheless, modern efforts toward constitutional revision have left the provisions intact. 15 Following the terrorists attack on the World Trade Center in New York City in 2001, many Americans became willing to sacrifice some protections to help prevent further acts of terrorism, a willingness that has engendered national debate on the conflict between homeland security and civil rights and liberties. Support for such intrusions on basic civil liberties has been dwindling, however. 16 Because homeland security issues involve racial and ethnic profiling, Texas, with its very diverse population, could be affected more than some other states. In a few Texas cities, such as Farmers Branch, efforts to restrict noncitizen immigrants began in These actions reflect a national concern over illegal immigration and impatience with the lack of a federal immigration bill. Chapter 10 discusses rights and liberties in greater detail, including interpretations of the right to keep and bear arms. A stress on individual rights can, however, cause problems of its own. In Texas, the legislature has tended toward liberalizing laws on carrying guns, for example, in spite of objections from law enforcement officers. Separation of Powers Like the national Constitution, the state charter allocates governmental functions among three branches: the executive, the legislative, and the judicial. Article II outlines the separation of powers, including the departments as the branches are labeled in the state constitution of government. The national government divides power between the nation and the states, as well as among the three branches. Providing for a sharing of power should keep any one branch from becoming too powerful. Article II outlines the separation of institutions, and the articles dealing with the individual departments develop a system of checks and balances similar to those found in the national Constitution. Often, the same checks found in the U.S. Constitution are established in the state constitution. A check on power results from assigning a function commonly identified with one branch to another. For example, the House of Representatives may impeach and the Senate may try a judicial function elected executive officials and judges at the district court level and above. 17 The governor has a veto over acts of the legislature and an item veto over appropriation bills a legislative proceeding. The Texas Supreme Court may issue a writ of mandamus ordering an executive official to act an executive function. These examples are applicable at the national as well as the state level and illustrate that powers are not truly separated, but overlapping and shared. 48 C HAPTER TWO: THE CONSTITUTIONAL SETTING 33060_ch02_ptg01_hr_ indd 48

12 LONE STAR MEDIA Rights versus Rights Article 8 of the Texas Constitution and Article 1 of the United States Constitution guarantee freedom of the press. Article 10 of the state charter and Article 6 of the national one speak to the accused s access to witnesses.* One of the functions of constitutions, and especially of Bills of Rights, is to protect the personal freedom of choice of individual citizens. Yet, what is an important purpose of democratic constitutions in theory sometimes runs up against the unpleasant fact that rights sometimes are in conflict with each other. For example, in a much-publicized Denton County trial involving the charge of a man murdering his wife, various media were important in the trial. The Denton Record-Chronicle covered the story over more than a six-year period from the wife s disappearance on December 29, 2004, through the husband s trial in January and February of 2011, when he was convicted. Internet subscribers to RSS and MyYahoo read some of this coverage. The defense attorney wanted to call Donna Fielder, the reporter who regularly covers the courts and law enforcement, as a witness, believing that she could testify in rebuttal of the testimony of investigating officers. However, there is a strong tradition in journalism that members of the press resist efforts to involve them in trials, and over the years, a number of reporters have gone to jail for resisting a subpoena to testify. This tradition is based on the belief that the public cannot trust the press to be free and impartial if it also must work on behalf of the courts. Moreover, in 2009 the Eighty-first Legislature passed the Texas Free Flow of Information Act, known informally as the Shield Law, joining thirty-six other states that shield reporters from revealing sources, making testimonials, or producing notes so long as they practice responsible journalism. Fielder resisted the subpoena from the defense, which compelled her to serve as a defense witness. District Judge Bruce McFarling quashed the subpoena, saying that the reporter was protected by the Shield Law. The newspaper s attorney successfully argued that the defense did not meet the burden under the new law to compel testimony.** Thus the right of freedom of the press took precedence in this case over the accused s right to compel witnesses to testify. The reporter has a blog site, and her future comments are pending. *The two constitutions can be found at and **See Peggy Heinkle-Wolfe, Reporter Won t Testify, Denton Record-Chronicle, January 27, 2011, 1A 2A. Legislative Branch The Texas legislature, like the U.S. Congress, consists of a Senate and a House of Representatives. The legislative article (III) establishes a legislative body, determines its composition, sets the qualifications for membership, provides its basic organization, and fixes its meeting time. All these features are discussed in Chapter 6. The article also sets the salary of state legislators. Although a 1991 constitutional amendment provided an alternative method to recommend THE PRESENT TEXAS CONSTITUTION _ch02_ptg01_hr_ indd 49

13 salaries through the Ethics Commission, the commission has never made a salary recommendation, and legislative salaries remain frozen at a surprisingly low $7,200 a year. Rather than emphasizing the positive powers of the legislature, Article III spells out the specific actions that the legislature cannot take, reflecting reaction to the strong government imposed during Reconstruction. For example, the U.S. Constitution gives Congress broad powers to make any laws that are necessary and proper. In contrast, rather than allowing lawmaking to be handled through the regular legislative process, the Texas Constitution sometimes forces state government to resort to the constitutional amendment process. For example, an amendment is needed to add to the fund maintained by the state to help veterans adjust to civilian life by giving them good deals on the purchase of land. Another example is the need for an amendment to change the percentage of the state budget that can be spent on public welfare. The state constitution also provides the following limitations on legislative procedure: 1. The legislature may meet in regular session only every two years. 2. The number of days for introduction of bills, committee work, and floor action is specified. To permit early floor action, the governor can declare an emergency. 3. Salaries and the per diem reimbursement rate are described. Historically, this degree of specificity made an amendment necessary for every change in these figures. Although the Ethics Commission has made no recommendations about salaries, it has upgraded the per diem rate. 4. The legislature cannot authorize the state to borrow money. Yet, Section 23-A provides for a $75,000 payment to settle a debt to a contractor for a building constructed at the John Tarleton Agricultural College (now State University) in The legislative article, not the municipal corporations article, includes provisions for municipal employees to participate in Social Security programs. 6. In spite of a stipulation that the legislature cannot grant public monies to individuals, exceptions are made for Confederate soldiers, sailors, and their widows. These examples are taken only from the legislative article. A list of all similar idiosyncratic provisions in the constitution would be massive because limitations on legislative action are scattered throughout the constitution, especially in the General Provisions. Such detailed restrictions tie the hands of legislators and make it necessary for them to take many issues to the voters that are seemingly of little significance. Still, the legislature is the dominant institution in the state. Executive Branch Little similarity exists between the provisions for the executive branch in the state charter and those in the national Constitution. The U.S. Constitution provides for a very strong chief executive, the president, and creates only one other 50 C HAPTER TWO: THE CONSTITUTIONAL SETTING 33060_ch02_ptg01_hr_ indd 50

14 elected official, the vice president, who since 1804 has run on a ticket with the presidential candidate. Tradition is that the presidential candidate selects the running mate, usually in an effort to pick up votes where the top candidate is weak. Article IV provides that the governor will be elected statewide and will be the chief executive of the state. However, the state constitution requires that the following individuals also will be elected statewide: 1. The lieutenant governor, who presides over the Texas Senate. 2. The comptroller (pronounced con-trol-ler) of public accounts, who collects the state s taxes and determines who keeps the state s money on deposit. 3. The commissioner of the General Land Office, who protects the state s environment and administers its vast public lands. 4. The attorney general, who is the state s lawyer. 5. Members of the Texas Railroad Commission, who regulate intrastate transportation and the oil, gas, and other mining industries. Furthermore, statutory laws require that the commissioner of agriculture and members of the State Board of Education be elected. Thus, quite unlike the president, who appoints most other key federal executives, the governor is saddled with five other elected executives and two key elected policy-making boards. He or she has no formal control over these individuals. Thus, Texas has a plural executive, with the result that the executive branch is disintegrated or fragmented. Each elected executive is independent of the other. The governor must contend with a sprawling state bureaucracy, most of which receives policy direction from an administrative board or commission. The governor also has little power to reorganize executive agencies. Like the legislative one, the executive article is overly specific and creates roadblocks to expeditious governmental action. Government cannot act when faced with too many restrictions, even when citizens need a fast response. More than the other articles, Article IV reflects the period of its writing the extreme reaction in the 1870s to the excesses of Reconstruction Governor E. J. Davis. In a 2007 rating of institutional powers of the governor, the Texas governor was rated just slightly below the mean when the number of separately elected officials, tenure, appointments, budget authority, veto power, and control of party were all considered. 18 The governor was weakest on the factors of separately elected officials and statutory budget authority. This ranking is higher than previous ones, which tended to look only at constitutional factors, but slightly lower than the personal power ranking. Governors, however, have learned how to use what constitutional powers they have. For example, through control of special sessions and through the veto power, the governor retains significant legislative power. Also, there is no restriction on the number of terms that a governor may serve. Additionally, two modern amendments have strengthened the governor s position. In 1972, the governor s term of office was lengthened from two years to four years. In 1980, gubernatorial removal powers were strengthened by an amendment to Article XV. This amendment allows governors to remove, with the advice and consent of the Senate, individuals they have appointed. Legislation THE PRESENT TEXAS CONSTITUTION _ch02_ptg01_hr_ indd 51

15 approved in 1993 further strengthened the office by giving the governor greater control over major policy boards, such as those dealing with insurance regulation and public education. Judicial Branch The national judicial system is clear-cut district courts, appeals courts, the U.S. Supreme Court but the Texas judicial system is not at all clear. Like so many other articles in the constitution, the judicial article has various specific sections. These range from the requirement for an elected sheriff in each county to the restricted right of the state to appeal in criminal cases. 19 Article V, the judicial article of the state constitution, has three distinctive features. First, the constitution establishes a rather confusing pattern of six different types of courts. Further complicating the picture is the fact that Texas (along with Oklahoma) has two supreme courts, one each for civil (Supreme Court) and criminal (Court of Criminal Appeals) matters. Second, each level of trial courts has concurrent, or overlapping, jurisdiction with another level; that is, either level of court may hear the case. Additionally, trial courts established by statute have different jurisdiction from those established by the constitution. For example, in civil matters, constitutional county courts have concurrent jurisdiction with justice of the peace courts in civil cases involving $200 to $5,000. County courts at law overlap district courts in civil matters involving up to $100,000. Although the legislature can adjust the jurisdiction of statutory courts, the authority of constitutional courts can be altered only by constitutional amendment. Furthermore, the minimum dollar amounts stated in the constitution reflect economic values of the nineteenth century. In an era of multimillion-dollar lawsuits, having a district court the chief trial court of the state hear a case in which the disputed amount is $1,000 or less hampers the more significant trial work of that court. The courts are fully discussed in Chapter 9. Third, qualifications for Texas judges are so stated as to allow those with no legal training to be eligible for a trial court bench. 20 The resulting confusion increases the likelihood that someone without legal experience will The Succession Amendment Among the seventeen proposed amendments in 1999, the most interesting one was Proposition 1, which established a procedure for succession to the lieutenant governor s office. Amid wide speculation that Governor George W. Bush might be the next U.S. president, the state wanted to ensure an orderly procedure if Lieutenant Governor Rick Perry moved up to the governor s office. The amendment established a procedure whereby the members of the Senate would elect one of their own members as acting lieutenant governor. The individual would remain a member of the Senate. Even before the vote on the amendment, political speculation began about which senator might be catapulted into the very powerful position of lieutenant governor and, thus, presiding officer of the Senate. 52 C HAPTER TWO: THE CONSTITUTIONAL SETTING 33060_ch02_ptg01_hr_ indd 52

16 be elected as a justice of the peace or county judge. The problem of judicial qualifications is aggravated by the fact that judges are elected in Texas so that, on occasion, vote-getting ability may be more important than the ability to render fair judgments. 21 The tradition of elected judges reflects the nineteenthcentury passion for long ballots. In the national government, the president appoints all judges. Local Government Local governments in Texas fall into three categories: counties, municipalities (cities and towns), and special districts. The state constitution, through Articles III, IX, and XI, gives these governmental units varying degrees of flexibility. Counties, which are administrative and judicial arms of the state, are most restricted. They are saddled with a commission form of government that combines executive and legislative authority and is headed by a judge. The powers vested in the county governments and the services they offer are fragmented. An amendment of some 2,000 words was passed in 1933 to allow larger counties to adopt a home-rule charter, but the provisions were so restrictive as to be inoperable. Home rule allows a government to write its own charter and make changes in it without legislative approval. Had it been workable, this provision would have allowed counties to choose their own form of government and have more flexibility in day-to-day operations. The provision was deleted in In contrast, cities enjoy a workable home-rule provision. Those with populations of more than 5,000 may become home-rule units of government. General-law cities, which are those without home-rule charters, must operate under statewide statutes. Cities, towns, and villages, whether operating under a home-rule charter or general law, are fairly free to provide whatever services and create whatever policies the citizens and governing bodies want, as long as there is no conflict with constitutional or statutory law. The major constitutional difficulties for cities are the ceilings imposed on tax rates and debt and limitations on the frequency of charter amendments. Special districts are limited-purpose local governments that have taxing authority. The legislature generally authorizes the creation of special districts, although constitutional amendments have created some water and hospital districts. School districts are the best-known type of special district, but there are literally dozens of varieties. Because these types of government provide a way around the tax and debt limits imposed on cities and counties, they continue to proliferate. 22 (Chapter 11 discusses local government in detail.) Suffrage The provisions on voting and the apportionment of legislative bodies are interesting because many of them have clearly conflicted with federal law, which itself continues to evolve as the legal/political philosophy of federal judges changes. As a result, Article VI has been subject to frequent amendments to catch up with changes, such as the nationally established voting age and to allow participation in bond elections by voters who do not own property. The suffrage section of the constitution is shot through with temporary transition provisions to bridge the gap between state and federal law. THE PRESENT TEXAS CONSTITUTION _ch02_ptg01_hr_ indd 53

17 TABLE 2-3 Comparison of State Provisions for Amending the Constitution State(s) Legislative Proposal Initiative by Voters Constitutional Convention Texas Yes No No Number of other states SOURCE: The Book of the States, 2010 Edition, vol. 42 (Lexington, Ky.: Council of State Governments, 2010), Amendments The framers of a constitution cannot possibly anticipate every provision that should be included. Consequently, all constitutions specify a procedure for amendment. Unlike the eighteen other states, most notably California, that allow citizens to initiate constitutional amendment proposals by petition and the forty-one states that provide for a constitutional convention (see Table 2-3), Texas has only one way to propose an amendment. In Texas, proposals for amendments may be initiated during a regular or special session of the legislature, and an absolute two-thirds majority that is, one hundred House and twenty-one Senate members must vote to submit the proposed changes to the voters. The governor cannot veto a proposed amendment. The legislature also specifies the date of the election at which an amendment is voted on by the public. At least three months before the election, a proposed amendment must be published once a week for four weeks in a newspaper in each county. Whenever possible, amendments are placed on the ballot in general elections to avoid the expense of a separate, called election. Only a simple majority that is, half plus one of those citizens who choose to vote is needed for ratification, making it rather easy to add amendments. The governor officially proclaims the passage or rejection of amendments. The public had voted on 646 proposed amendments by the middle of 2011, resulting in the addition of 467. This number is vivid proof that the amendment process in the state has occupied considerable legislative time and that citizens have frequently confronted constitutional propositions at the polls. This number is sure to grow after ten proposals from the 2011 legislature go to the voters. Table 2-4 illustrates the relentlessness of the amendment phenomenon and the increasing reliance on amendments as a way to get something done in government. Forty-nine percent of the amendments were added between 1980 and Some streamlining of the state charter ensued from a constitutional amendment passed in November 1997 that called for elimination of duplicate numbers in the Texas Constitution and of obsolete provisions. Most observers, however, thought that the amendment did not provide sufficient clout to take care of the entire needed cleanup, an opinion reinforced by the seventy-seven amendments passed between 2000 and C HAPTER TWO: THE CONSTITUTIONAL SETTING 33060_ch02_ptg01_hr_ indd 54

18 TABLE 2-4 Texas Constitutional Amendments, 1879* 2011 Decade Proposed Adopted Cumulative Total 1870s 1880s s s s s s s s s s s s s Total through June *The first amendment to the 1876 Texas Constitution was adopted in Three early proposals never went to the voters. SOURCE: Compiled by the authors from Amendments to the Texas Constitution since 1876 (Austin: Texas Legislative Council, 2010), 1 2. Constitutional Revision The framers of the U.S. Constitution were wise enough to provide only the essential structure of national government and to consign broad powers to governmental agents. The flexibility inherent in this approach has made possible the country s transition from a nation whose government was mainly concerned with fending off hostile Native Americans and delivering the mail to one whose government now shoulders the burdens of world leadership and myriad socioeconomic policies. State constitutions, on the other hand, tend toward an inflexibility that leads to frequent revision. Overview of the Need for Reform During the bicentennial celebration of the U.S. Constitution ( ), Americans were proud that their fundamental law had been amended only twenty-six times (a twenty-seventh amendment was added in 1992) and that ten of the amendments the Bill of Rights were added almost immediately after ratification. At the national level, the admonition of Alexander Hamilton that opens this chapter has been heeded. C ONSTITUTIONAL REVISION _ch02_ptg01_hr_ indd 55

19 The Texas Secretary of State s office posted this sample ballot on his Web site prior to the May 12, 2007, constitutional amendment election. This site, www. sos.state.tx.us, is always a source of the latest proposed amendments. Photo of sample ballot. Texas. Public Domain. At the state level, however, constitutions have not fared as well. State charters tend to reflect the concerns of vested interests. These interests prefer the security blanket of constitutional inclusion to being left at the mercy of legislatures with changing party alignments, political persuasions, and political concerns. By the middle of 2011, the average state constitution had been amended 145 times. The champions of amendments were Alabama (807), California (519), and South Carolina (493). Texas came in fourth with its 467 amendments. The next closest states (Maryland, Nebraska, New York, Oregon, and South Dakota) were all in the lower 200s. The ratification dates of state constitutions provide a clue as to what to expect in the way of content and, thus, number of amendments. Older state charters, unless they have been updated, tend to be more problematic than newer ones. For example, the two newest states Alaska and Hawaii have workable, sound constitutions that were modeled in part on the ideal document proposed by the National Municipal League. 23 These states have clearly profited from the mistakes of others. In 2011, five state constitutions that had been revised in the modern era those of Illinois (1971), Michigan (1964), Montana (1973), Pennsylvania (1968), and Virginia (1971) had only 11, 29, 30, 30, and 43 amendments, respectively. Recent revision, however, does not guarantee fewer amendments. Louisiana, with a 1975 constitution, already had 154 amendments in That state also has had eleven constitutions, more than any other state. Whatever the primary method of proposing amendments in a given state, the result can be few or many charter changes, depending on how good the basic document is. 24 Security Blankets Make Constitutional Change Difficult One Texas example of a security blanket in the state constitution is the provision authorizing workers compensation insurance for state and local government employees. Another example is the section that benefits veterans by providing funds for land purchases. A third example is the benefits given to homeowners, who receive a partial tax exemption for their primary residence (homestead). 56 C HAPTER TWO: THE CONSTITUTIONAL SETTING 33060_ch02_ptg01_hr_ indd 56

20 Advocates of reform urge Texas to follow Hamilton s prescription by adopting a new document that is general, flexible, and streamlined in place of the specific, rigid, complicated constitution that hampers its government now. Reformers are not all of one mind and frequently differ on the details of their proposals. Nevertheless, reform advocates tend to agree on fundamentally important changes that should be made in the current constitution, as follows: 1. The biennial legislative session: As state politics and finance become more complex, the short legislative sessions held only every other year become more of a problem in developing long-range public policy. 2. The judicial system: The Texas judicial system, as previously discussed, is characterized by multiple layers of courts with overlapping jurisdictions. Many reform advocates would like to see the establishment of a streamlined, unified judicial system. 3. The plural executive branch: The executive branch has many elected officials. Reformers suggest a state executive branch modeled on the national one that is, a single elected official and a series of executive departments responsible to that official to avoid the disintegrated, fragmented nature of the present structure. 4. County government: Especially in urban counties, the structure of county government and its lack of power to pass ordinances (local laws) mean that the counties cannot respond readily to urban problems. Reform advocates suggest that county government be streamlined and given at least limited ordinance power. 5. Detailed provisions in the constitution: For example, each time more funding is needed for welfare payments or the veterans land program, a constitutional amendment must be passed. Thus, another area for reform is removing from the constitution details that are better left for statutory law, which can be changed more readily as situations demand. Recent Reform Efforts Attempts have been made to modernize the Texas Constitution from time to time since its adoption in Serious interest in constitutional reform/revision was evident in , , , and to some extent, and The only reform effort that resulted in an opportunity for the electorate to decide on a new document came in The effort was important for two reasons. First, it clarified a long-standing concern about whether the legislature had the constitutional right to convene itself as a constitutional convention. A 1972 constitutional amendment authorized the Sixty-third Legislature to convene itself as a constitutional convention. This constitutional convention was quickly labeled the Con-Con. Second, the Texas Constitutional Revision Commission, created by the same amendment, provided a detailed study of C ONSTITUTIONAL REVISION _ch02_ptg01_hr_ indd 57

21 the state constitution that served as the basis for new constitutions proposed in 1974 and The proposal drafted by the constitutional convention was defeated when two issues parimutuel (that is, racetrack) betting and right to work, which is an antiunion provision were introduced that became the red herrings for foes of reform. (Red herrings are diversions intended to draw attention away from the main issues.) These two issues brought opposition from Bible Belt conservatives and organized labor. The proposal died before ever reaching the voters Interest in constitutional reform remained high. When the Sixty-fourth Legislature convened in January 1975, constitutional revision was a principal issue. Senate Joint Resolution (SJR) 11 (with amendments) emerged as the vehicle for accomplishing constitutional change. Although the legislature did not adopt all the changes suggested by the 1973 revision commission, legislators did draw heavily on that work. 25 Highlights of SJR 11 included annual legislative sessions, a streamlined judicial system, and modernization of county government. SJR 11 eliminated such details as the welfare ceiling. It gave more power to the governor coupled with a limit of two terms. It also provided for property tax relief and a tax on petroleum refining. Powerful interests lined up on both sides of this proposed constitutional reform, with vested economic interests and emotionalism acting as important components of the struggle for ratification of the document. In spite of the efforts of most state officials to convince voters of the worth of the proposed state charter, voters defeated the entire proposal by a two-to-one margin on November 4, Governor Dolph Briscoe, fearful of higher taxes and government expansion, and county officials, concerned for their jobs, helped to bring about defeat. A combination of interests worried that the equal educational opportunity provisions would upset the scheme of funding public schools helped to convince citizens to vote against the proposal. Texans clearly preferred the old, lengthy, familiar document to one they saw as possibly promoting more spending and allowing greater governmental power Little interest in constitutional revision was evident in the fifteen years following the defeat of the proposed new state constitution in Too many problems demanding immediate solutions filled the legislative sessions, and legislators did not have time to consider constitutional change beyond proposing more amendments. Besides, virtually every group with interests protected by the current constitution, from veterans to the University of Texas and Texas A&M systems to county commissioners, was anything but encouraging of constitutional change. Following the 1991 legislative session, however, Senator John Montford drafted a joint resolution that proposed a new constitution for consideration in The Montford proposal included features such as these: Six-year terms for senators and four-year terms for House members A limit of two consecutive terms for a senator and three for a House member 58 C HAPTER TWO: THE CONSTITUTIONAL SETTING 33060_ch02_ptg01_hr_ indd 58

22 A sixty-day budget session of the legislature in even-numbered years Empowerment of the legislature to meet to reconsider bills vetoed by the governor The only elected executives to be the governor, lieutenant governor, and comptroller, each with a limit of two terms Simplification of the court system and provision for nonpartisan elections Creation of five regional university systems, each of which would share in the Permanent University Fund (PUF) Ordinance power for counties, subject to local voter approval 26 As is so often the case, immediate problems such as the budget shortfall, school finance, and a prison system unable to cope with the volume of state prisoners crowded out constitutional revision in When Senator Montford prepared the draft constitution, he was one of the most powerful state senators in Texas, but even he had other issues to address between 1993 and Subsequently, he left the legislature to become head of Texas Tech University. Without a champion, constitutional revision was not considered by the 1997 legislature either and Beyond After the 1997 legislative session, Representative Rob Junell, chairman of the powerful House Appropriations Committee, expressed interest in constitutional reform. Junell liked some of Montford s ideas, particularly reducing the number of elected officials, including making judges subject to gubernatorial appointment. He was joined by Senator Bill Ratliff, chairman of the equally powerful Senate Finance Committee. Their proposal included the following: Six-year terms for senators and four-year terms for House members Limiting the elected executives to the governor, lieutenant governor, comptroller of public accounts, and attorney general Providing for an executive department that would consist of specified department heads, excluding elective officials, and report to the governor Simplification of the court system, with judges to be appointed by the governor Establishing the possibility of a veto session for the purpose of reconvening to consider whether to override the governor s veto Known as HJR 1 and SJR 1 in the Seventy-sixth Legislature in 1999, the Junell- Ratliff proposal was withdrawn from committee in late April when the sponsors realized that their resolution had no chance of being considered by the full House or Senate. Opposition was widespread among both the Democratic and Republican state party organizations, the Texas AFL-CIO, and various other interest groups. Longtime political reporter Sam Attlesey characterized the demise of the proposal as due to a lack of interest, excitement or crisis in state government. 27 Although three powerful legislators took an interest in constitutional reform in the 1990s, nothing came of their efforts. Neither other legislators nor citizens C ONSTITUTIONAL REVISION _ch02_ptg01_hr_ indd 59

23 Since 1989, the legislature has wrestled with the thorny issue of public school finance, trying various funding schemes to rectify the objections of state courts that the Texas public education system does not provide efficient and effective education for all students. At the eleventh hour in 2006, the legislature produced a funding scheme to meet a court-ordered deadline; spending cuts for might land the state back in court again. Ben Sargent. had much interest in constitutional revision. Both were more concerned about the issues that regularly beset the Texas political system education, health care, highways, air quality, and so on. Moreover, a pressing concern for constitutional reform is more likely to arise from a moralistic political culture than the traditionalistic/individualistic culture that characterizes Texas. Most Texans are politically conservative and prefer the basic governing document that they know to one that could cause social/political/economic changes that they might not like. Consequently, Texas has continued to use a patchwork approach to its basic document, relying on constitutional amendments and statutory law to alleviate some of the shortcomings of the constitution. The 1999 amendment that authorizes removal or rewording of outdated and repetitive parts of the state constitution is illustrative of the amendment approach to constitutional patching. Modifying the election code to ensure that the qualifications for voting in Texas conform to national requirements is one example of a statutory fix. Twenty-nine states have constitutions newer than Texas s, and twelve have state charters written since Yet, in spite of the occasional difficulty of governing under the present state charter, only the League of Women Voters has shown a long-term concern for constitutional revision, joined by sporadic media interest in reform. 28 Recent sessions of the legislature have faced too many problems demanding immediate solutions to allow legislators to give any consideration to a new constitution. Furthermore, many citizens fear that change may be for the worse rather than for the better, and special interests want to preserve what they already have embodied in the state charter. This conservative stance, reflecting once again the state s traditionalism, is encouraged by the major economic forces in the state. 60 C HAPTER TWO: THE CONSTITUTIONAL SETTING 33060_ch02_ptg01_hr_ indd 60