Chapter 2.8: Constitution of 1876
Overview
Constitution of 1876
Learning Objectives
By the end of this section, you will be able to:
- Understand the background of the Constitution of 1876
- Understand the basic provisions of the Constitution of 1876
- Understand why the Texas Constitution is so long and why it has so many amendments
- Understand attempts at revising the Constitution of 1876
Introduction
The Constitution of 1876 is the current Texas constitution. This section explores the background, basic provisions, length and complexity, and attempts to revise the document.
Background
Background
The Constitution of 1876 is the sixth constitution by which Texas has been governed since independence from Mexico was achieved in 1836. It was framed by the Constitutional Convention of 1875 and adopted on February 15, 1876, by a vote of 136,606 to 56,652, and it remains the basic organic law of Texas. The constitution contains some provisions that are uniquely Texan, many of which are products of the state's unusual history. Some, for example, may be traced to Spanish and Mexican influence. Among them are sections dealing with land titles and land law in general, debtor relief, judicial procedures, marital relations and adoption, and water and other mineral rights. Other atypical provisions may be attributed to the twin influences of Jacksonian agrarianism and frontier radicalism-both prevalent when Texas first became a state and both widely supported by the bulk of immigrants to Texas before the Civil War. Those influences produced sections prohibiting banks and requiring a stricter separation of church and state than that required in older states. Reconstruction, under the highly centralized and relatively autocratic administration of Governor Edmund J. Davis and his fellow Radical Republicans, prompted provisions to decentralize the state government. Upon regaining control of both the legislative and executive branches of the government, the Democrats determined in 1874 to replace the unpopular Constitution of 1869. They wanted all officials elected for shorter terms and lower salaries, abolition of voter registration, local control of schools, severely limited powers for both the legislature and the governor, low taxation and state expenditures, strict control over corporations, and land subsidies for railroads.
Early in 1874 a joint legislative committee reported an entire new constitution as an amendment to the Constitution of 1869. Because the document had not been prepared by a convention and because of the possibility that its adoption might antagonize the federal government, the legislature rejected the proposal. On the advice of Governor Richard Coke, the next legislature submitted the question of a constitutional convention to the voters, who, on August 2, 1875, approved the convention and elected three delegates from each of the thirty senatorial districts. In the convention, which convened on September 6, seventy-five members were Democrats and fifteen, including six blacks, were Republicans. Not one had been a member of the Constitutional Convention 1868-69, forty-one were farmers, and no fewer than forty were members of the Patrons of Husbandry (The Grange), the militant farmers' organization established in response to the Panic of 1873. In the convention the Grange members acted as a bloc in support of conservative constitutional measures. To assure that the government would be responsive to public will, the convention precisely defined the rights, powers, and prerogatives of the various governmental departments and agencies, including many details generally left to the legislature.
It was believed that the new constitution should restrict the state government and hand the power back to the people. Some examples of how the government was restricted were:
- Legislative sessions moved from annual to biennial sessions
- Creation of a plural executive
- Mandated a balanced budget
- State Judges would be elected by the people
- The people would vote on the ratification of amendments
Basic Structure and Provisions
Basic Structure and Provisions
The structure of the document is a Preamble, 17 Articles, and 498 Amendments (current as of the 2017 Constititutional election).
Articles of the Texas Constitution of 1876
Articles of the Texas Constitution of 1876
Article 1: "Bill of Rights"
Article 1 is the Texas Constitution's bill of rights. The article originally contained 29 sections; four sections have since been added. Some of the article's provisions concern specific fundamental limitations on the power of the state.
The provisions of the Texas Constitution apply only against the government of Texas. However, a number of the provisions of the U.S. Constitution are held to apply to the states as well, under the Due Process Clause of the 14th Amendment to the U.S. Constitution.
Section 4 purports to prohibit officeholders from the requirements of any religious test, provided they "acknowledge the existence of a Supreme Being". This conflicts with the U.S. Constitution's No Religious Test Clause, and would almost certainly be held unenforceable if challenged,[citation needed] as was a similar South Carolina requirement in Silverman v. Campbell, and a broader Maryland restriction in Torcaso v. Watkins.
Section 32 denies state recognition to same-sex unions, a practice that was invalidated as a consequence of Obergefell v. Hodges.
Article 2: "The Powers of Government"
Article 2 provides for the separation of powers of the legislative, executive, and judicial branches of the state government, prohibiting each branch from encroaching on the powers of the others.
Article 3: "Legislative Department"
Article 3 vests the legislative power of the state in the "Legislature of the State of Texas", consisting of the state's Senate and House of Representatives. It also lists the qualifications required of senators and representatives and regulates many details of the legislative process. The article contains many substantive limitations on the power of the legislature and a large number of exceptions to those limitations.
As with the United States Constitution, either house may originate bills (Section 31), but bills to raise revenue must originate in the House of Representatives (Section 33).
Section 39 allows a bill to take effect immediately upon the Governor's signature if the bill passes both chambers by a two-thirds vote unless otherwise specified in the bill. If the bill does not pass by this majority it takes effect on the first day of the next fiscal year (September 1).
The largest Section within this article is Section 49 ("State Debts"), which includes 30 separate sub-sections (including two sub-sections both added in 2003 and both curiously numbered as "49-n"). Section 49 limits the power of the Legislature to incur debt to only specific purposes as stated in the Constitution; in order to allow the Legislature to incur debt for a purpose not stated numerous amendments to this section have had to be added and voted upon by the people. In addition, Section 49a requires the Texas Comptroller of Public Accounts to certify the amount of available cash on hand and anticipated revenues for the next biennium; no appropriation may exceed this amount (except in cases of emergency, and then only with a four-fifths vote of both chambers), and the Comptroller is required to reject and return to the Legislature any appropriation in violation of this requirement. Section 49-g created the state's "Rainy Day Fund" (technically called the Economic Stabilization Fund).
Article 4: "Executive Department"
Article 4 describes the powers and duties of the Governor, Lieutenant Governor, Secretary of State, Comptroller, Commissioner of the General Land Office, and Attorney General. With the exception of the Secretary of State the above officials are directly elected in what is known as a "plural executive" system. (Although the Texas Agriculture Commissioner is also directly elected, that is the result of Legislative action, not a Constitutional requirement.)
Under Section 16 of this article, the Lieutenant Governor automatically assumes the power of Governor if and when the Governor travels outside of the state.
Article 5: "Judicial Department"
Article 5 describes the composition, powers, and jurisdiction of the state's Supreme Court, Court of Criminal Appeals, and District, County, and Commissioners Courts, as well as the Justice of the Peace Courts.
Article 6: "Suffrage"
Article 6 denies voting rights to minors, felons, and people who are deemed mentally incompetent by a court (though the Legislature may make exceptions in the latter two cases). It also describes rules for elections.
Article 7: "Education"
Article 7 establishes provisions for public schools, asylums, and universities. Section 1 states, "it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools". This issue has surfaced repeatedly in lawsuits involving the State's funding of education and the various restrictions it has placed on local school districts.
This Article also discusses the creation and maintenance of the Permanent University Fund (Sections 11, 11a, and 11b) and mandates the establishment of "a University of the first class" (Section 10) to be called The University of Texas, as well as "an Agricultural, and Mechanical department" (Section 13, today's Texas A&M University, which opened seven years prior to UT); it also establishes Prairie View A&M University in Section 14.
Article 8: "Taxation and Revenue"
Article 8 places various restrictions on the ability of the Legislature and local governments to impose taxes. Most of these restrictions concern local property taxes.
Section 1-e prohibits statewide property taxes. This Section has been the subject of numerous school district financing lawsuits claiming that other Legislative restrictions on local property taxes have created a de facto statewide property tax; the Texas Supreme Court has at times ruled that the restrictions did in fact do so (and thus were unconstitutional) and at other times ruled that they did not.
Texas does not have a personal income tax. Section 24 of the article, added by an amendment adopted in 1993, restricts the ability of the Legislature to impose such a tax. Under the section, a law imposing a personal income tax must be ratified in a statewide referendum to take effect; any further change in the tax must also be ratified to take effect, if it would increase the "collective liability" of all persons subject to the tax. The proceeds from the tax must first be used to reduce local school property taxes, with any remainder being used for the support of education.
No such restriction exists on imposition of a corporate income tax or similar tax; in May 2006 the Legislature replaced the existing franchise tax with a gross receipts tax.
Article 9: "Counties"
Article 9 provides rules for the creation of counties (now numbering 254) and for determining the location of county seats. It also includes several provisions regarding the creation of county-wide hospital districts in specified counties, as well as other miscellaneous provisions regarding airports and mental health.
Article 10: "Railroads"
Article 10 contains a single section declaring that railroads are considered "public highways" and railroad carriers "common carriers". Eight other sections were repealed in 1969.
Article 11: "Municipal Corporations"
Article 11 recognizes counties as legal political subunits of the State, grants certain powers to cities and counties, empowers the legislature to form school districts.
Texas operates under Dillon's Rule: counties and special districts are not granted home rule privileges, while cities and school districts have those privileges only in the limited instances specified below.
Sections 4 and 5 discuss the operation of cities based on population. Section 4 states that a city with a population of 5,000 or fewer has only those powers granted to it by general law; Section 5 permits a city, once its population exceeds 5,000, to adopt a charter under home rule provided the charter is not inconsistent with limits placed by the Texas Constitution or general law (the city may amend to maintain home rule status even if its population subsequently falls to 5,000 or fewer).
School districts may adopt home rule,[2] but none have chosen to do so.[3]
Article 12: "Private Corporations"
Article 12 contains two sections directing the Legislature to enact general laws for the creation of private corporations and prohibiting the creation of private corporations by special law. Four other sections were repealed in 1969, and a fifth section in 1993.
Article 13: "Spanish and Mexican Land Titles"
Article 13 established provisions for Spanish and Mexican land titles from the Mexican War Era to please the Mexican government.[citation needed] This article was repealed in its entirety in 1969.
Article 14: "Public Lands and Land Office"
Article 14 contains a single section establishing the General Land Office and the office of commissioner of the General Land Office. Seven other sections were repealed in 1969.
Article 15: "Impeachment"
Article 15 describes the process of impeachment and lists grounds on which to impeach judges. The House of Representatives is granted the power of impeachment.
Article 16: "General Provisions"
Article 16 contains miscellaneous provisions, including limits on interest rates, civil penalties for murder, and the punishment for bribery.
Section 28 prohibits garnishment of wages, except for spousal maintenance and child support payments (however, this does not limit Federal garnishment for items such as student loan payments or income taxes).
Section 37 provides for the constitutional protection of the mechanic's lien.
Section 50 provides for protection of a homestead against forced sale to pay debts, except for foreclosure on debts related to the homestead (mortgage, taxes, mechanic's liens, and home equity loans including home equity lines of credit). This section also places specific restrictions on home equity loans and lines of credit (Texas being the last state to allow them), the section:
- limits the amount of a home equity loan, when combined with all other loans against a home, to no more than 80 percent of the home's fair market value at the time of the loan,
- requires that the advance on a home equity line of credit be at least $4,000 (even if the borrower wants to borrow less than that amount, though nothing prohibits a borrower from immediately repaying the credit line with a portion of said advance),
- requires a 14-day waiting period before any loan or line of credit is effective (at the initial borrowing; later borrowings against a line of credit can still be made in less time),
- and places restrictions on where closing can take place.
Article 17: "Mode of amending the Constitution of this State"
Notwithstanding the large number of amendments (and proposed amendments) that the Texas Constitution has had since its inception, the only method of amending the Constitution prescribed by Article 17 is via the Legislature, subject to voter approval. The Constitution does not provide for amendment by initiative, constitutional convention, or any other means. A 1974 constitutional convention required the voters to amend the Constitution to add a separate section to this Article; the section was later repealed in 1999.
The section also prescribes specific details for notifying the public of elections to approve amendments. It requires that the legislature publish a notice in officially approved newspapers that briefly summarizes each amendment and shows how each amendment will be described on the ballot. It also requires that the full text of each amendment be posted at each county courthouse at least 50 days (but no sooner than 60 days) before the election date.
Once an amendment passes it is compiled into the existing framework (i.e., text is either added or deleted), unlike the United States Constitution.
Length and Amendments
Length and Amendments
Over the years, 217 new sections have been added, while 66 of the original sections and 51 of the added sections have been removed, so that the Texas Constitution today has 389 sections. For most of that time, the constitution has been updated at least biennially through amendments proposed by the legislature and approved by the Texas electorate. No legislative rules or other restrictions limit the number of amendment proposals, provided each receives the required two-thirds vote in both the senate and the house.
Since 1876, the legislature has proposed 680 constitutional amendments, and 677 have gone before Texas voters. Of the amendments submitted to the voters so far, 498 have been approved by the electorate, 179 have been defeated, and three amendments never made it to the ballot.
Most of the amendments are due to the document's highly restrictive nature: the State of Texas has only those powers explicitly granted to it by its Constitution–there is no "necessary and proper clause" as contained in the U.S. Constitution.
The current constitution is among the longest of state constitutions in the United States. From 1876 to 2017 the legislature proposed 673 constitutional amendments, of which 491 were approved by the electorate and 179 defeated. Despite its length, Texas' Constitution is not nearly as long as the Alabama Constitution (which has been amended over 800 times despite having been adopted 25 years after Texas' current constitution) nor the California Constitution (which, due to provisions allowing amendments via initiative, is subject to frequent revision).
Attempts at Revision
Attempts at Revision
Because of the unwieldiness of the state constitution, there have been attempts to draft a new constitution or to significantly revise the existing one:
The most successful of the attempts took place in 1969 when 56 separate obsolete provisions (including the entirety of Article 13, and 22 entire sections from Articles 10, 12, and 14) were successfully repealed.
In 1971 the Texas Legislature placed on the November 1972 ballot an Amendment which called for the Legislature to meet in January 1974 for 90 days as a constitutional convention, for purposes of drafting a new state Constitution. The measure passed (thus adding Section 2 to Article 17; the section was later repealed in November 1999) and the Legislature met. However, even with an additional 60 days added to the session, the convention failed by a mere three votes to propose a new constitution.
In 1975, the Legislature, meeting in regular session, revived much of the work of the 1974 convention and proposed it as a set of eight amendments to the existing constitution. All eight of the amendments were overwhelmingly rejected by the voters (in 250 the state's 254 counties, all eight amendments were defeated; only in Duval and Webb counties did all eight amendments pass).
In 1979 the Legislature placed on the ballot four amendments which had their origins in the 1974 convention; of which three were approved by the voters:[5] One amendment created a single property tax "appraisal district" in each county for purposes of providing a uniform appraised value for all property in a county applicable to all taxing authorities (previously, each taxing authority assessed property individually and frequently did so at dissimilar values between the authorities) Another amendment gave to the Texas Court of Appeals criminal appellate jurisdiction (previously, the Courts had jurisdiction over civil matters only; though death penalty cases still bypass this level) The last amendment gave the Governor of Texas limited authority to remove appointed statewide officials
In 1995, Senator John Montford drafted a streamlined constitution similar to the 1974 version. However, Montford resigned his seat to become chancellor of the Texas Tech University System, and his initiative subsequently died. Later that year, though, voters approved an amendment abolishing the office of State Treasurer and moving its duties to the Texas Comptroller of Public Accounts office.
In 1998, a bipartisan effort (led by Republican Senator Bill Ratliff and Democratic Representative Rob Junell) produced a rewritten constitution, with the help of students from Angelo State University (Junell's district included the San Angelo area). The second draft was submitted to the 76th Legislature but failed to gain support in committee.
Reading Review Questions
- By whom was the constitution of 1876 first drafted and why was it rejected by the legislature?
- What steps were taken to draft a new constitution in1875?
- What was the general belief regarding government power that was apparent in the provisions of the new constitution?
- What is the general purpose of Article 1 of the 1876 Texas constitution?
- What do Articles 2-5 accomplish?
- What governing units are provided for in Articles 9 and 11?
- Why is Article 17 so important to the longevity of the Texas constitution?
- In general, how has the 1876 constitution changed over the years?
- For what two reasons has the Texas constitution underwent so many changes (amendment) over the years?
- Why were the revisions of 1969 regarded as successful?
- Why did the streamlined constitution, introduced in 1995, die before it was even introduced to the Texas legislature?
- What happened in 1998 regarding revision to the Texas constitution?
For More Information
For More Information
The entire Texas Constitution of 1876 can be accessed at Texas Constitution and Statues site of the Texas Legislature Online. Portable Document Format (PDF), Plain text, and Microsoft Word® versions are available.
More information on the Constitution of the State of Texas (1876) may be found at the Texas Constitutions 1824-1876 project of the Tarlton Law Library, Jamail Center for Legal Research at the University of Texas School of Law, The University of Texas at Austin.
The project includes digitized images and searchable text versions of the constitutions.