The constitution and government of Texas

Front matter

V

THE CONSTITUTION AND GOVERNMENT OF TEXAS

BY

Preface To The First Edition

An act of the Texas Legislature places upon the educational in¬ stitutions of the State the duty of offering a course of instruc¬ tion in the Constitutions of the United States and of Texas. In¬ terest in the consideration of these documents, therefore, has been revived. Excellent treatises dealing with the Federal Constitution are available, but a usable college text treating specifically the Constitution of Texas has not been provided. To supply such a text has been the effort of the authors of this book.

In order to understand the full significance of the Constitution, one should know how it came to be, its character, and the evolu¬ tion of its changes. Consequently, the first chapter of the book undertakes to give in brief summary the historical background of the present Constitution and to point out some of the most salient features of each of the six constitutions which were formulated by the people of Texas. In the second chapter suggestions are offered which it is hoped will be of value in further adapting our government to the rapidly changing conditions of the State. A study of the Constitution apart from the government operating under it offers small returns to the student. Part II, therefore, deals with the actual government under the Constitution and out¬ lines the organization, powers, and duties of the principal depart¬ ments of government and gives a brief survey of local government and the State’s relation to it. The text of the Constitution and selected readings are given in the Appendices.

The authors wish to acknowledge with appreciation assistance rendered in the preparation of the manuscript by Messrs. V. O. Key, Jr., Leon G. Halden, and Cecil H. Tolbert, upon whom, however, none of the probable imperfections may be placed.

F. M Stewart J. L. Clark

University of Texas January, 1930

Preface To The Revised Edition

Since the publication of the first edition significant changes in legislative organization and procedure have been introduced by constitutional amendment, and important proposals for the re¬ organization of the administrative and judicial branches of the State Government, and of local government, have been made. These changes and proposals are discussed and other facts have been brought up to date. Three new chapters have been included: “State Finance,” “State Educational Administration,” and “Par¬ ties, Suffrage, and Elections.” Recent amendments to the Consti¬ tution have been added, and the copy of the document printed in the Appendix is taken from one which has been compared with the original Constitution and amendments in the Secretary of State’s office. The book is no longer divided into Parts, and the selected readings that appeared in the Appendices of the first edition have been omitted.

A number of suggestions from teachers, editors, and public officials have been received and are gratefully acknowledged. The authors are under special obligation to Dr. Roscoe C. Martin and Miss Florence Spencer, of the University of Texas, and to Mrs. Roberta D. Stewart, for assistance in the work of revision.

F. M. S.

J. L. C.

August , 1933

Contents

CHAPTER p AGE

I. The Development of the Constitution . i

II. Amendment and Revision of the Constitution ... 18

Chapter I The Development Of The Constitution

The system of modern government, as it has come to be ac¬ cepted by enlightened peoples, involves a fundamental law—a con¬ stitution, which is “a law of a superior order and of a more per¬ manent character than legislative acts.” The chief purpose of such a law is security for the people against possible abuses on the part of those entrusted with the powers of government. 1

Written constitutions of modern states usually consist of a pre¬ amble, including an enacting clause; a section describing the or¬ ganization of the government; another setting forth the powers of its branches and the duties of its officers; a bill of rights plac¬ ing limitations on these officers; and, lastly, a method of altering or amending the document itself. 2 These have been the char¬ acteristics of the six constitutions formulated by the people of Texas.

THE MEXICAN PERIOD

The constitutional history of Texas may be said to have begun with the promulgation of the National Mexican Constitution of 1824, which created a Mexican Federal Union modeled some¬ what on the plan of the government of the United States of America. The government which it created was divided into three departments—the executive with an elected president, the judi¬ ciary, and the legislative, which was bicameral. In theory the government was based on popular sovereignty and the functions of legislation were assigned to representatives of the people. The federal, government was supreme in national affairs, while the states were given the power to legislate with respect to local matters. Stephen F. Austin conferred with Mexican leaders who helped frame this government, but no representatives of the

1 For a discussion of constitutions consult C. P. Patterson, American Government, rev. ed., Ch. XXXI (1933); W. F. Dodd, State Government, 2ded, Ch. IV (1928).

2 H. P. Judson, “The Essentials of a Written Constitution,” The Decen¬ nial Publications, University of Chicago, First Series, IV, 313 ff. (1903)*

American colonists in Texas sat in the assembly which formulated the Constitution, and it was never submitted to the people for ratification. 3

Under an act of May 7, 1824, Texas was joined temporarily with Coahuila to form a single state. In March, 1827, a Con¬ stitution for the State of Coahuila and Texas was promulgated. This instrument provided for a representative form of govern¬ ment, made liberal pronouncements of individual rights, and defined citizenship. It also placed restrictions on the institution of slavery and declared the Roman Catholic religion to be the religion of the State. Legislative power was vested in a unicameral Congress of twelve members, chosen for two years by an indirect method of election.

In addition to the religion and slavery clauses, and the other objectional features which have been mentioned, the Constitution of 1827 provided that four-fifths of the legislators were to be chosen from the Mexican population of Coahuila; it made no pro¬ vision for trial by jury, and allowed many cases, both civil and criminal, to be decided by executive order. 4

For nine years the Texans lived under this Constitution. Such laws as were enacted were printed in the Spanish language, with which but few of the colonists were familiar, and the political machinery for administering them was inadequate.

The union with Coahuila was understood to be only temporary, the promise having been made that when conditions justified it Texas was to have a separate state organization. Instead of fulfill¬ ing this promise, however, the central government became more tyrannical. Dissatisfaction spread among the Texans, and a keener desire arose for a separate state government.

THE PERIOD OF REVOLT

This desire for fairer treatment led to the holding of a series of consultations, or conventions, of duly elected delegates. The first such convention ever held in Texas met at San Felipe de Austin in October, 1832. 5 At this meeting the delegates discussed the advisability of seeking separation from Coahuila, yet remain-

3 “In spite of their political incapacity—or perhaps because of it—the Mexicans, after several false starts, declared in 1823 for the most complex form of government ever devised by man, and the next year promulgated the federal republican constitution of 1824.” E. C. Barker, Mexico and Texas, 1821-1835, 2 (1928).

4 H. P. N. Gammel, The Laws of Texas, I, 423-453 (1898).

ing one of the states of the Mexican federation. At a second meet¬ ing held at the same place in April, 1833, a Constitution for the proposed State of Texas was drawn up and a petition was formu¬ lated requesting its adoption by the Mexican authorities. 6 A com¬ mission was appointed to lay these matters before the central government, but no relief was secured by the Texans through this effort.

In October, 1835, delegates to a third consultation were called to San Felipe de Austin. At this meeting formal resolutions were drawn up charging Santa Anna and other military chieftains with having overthrown, by force of arms, the federal institutions of Mexico and with having “dissolved the Social Compact which ex¬ isted between Texas and other Members of the Mexican Con¬ federacy.” The delegates declared that the Texans had been forced to take up arms in defense of their rights and liberties and of the republican principles of the Federal Constitution of Mexico of 1824. 7

The Texans did not at this time make a formal declaration of independence, but they stated it as their right, during the disor¬ ganization of the federal system and the reign of despotism in Mexico, “to withdraw from the Union, to establish an inde¬ pendent Government,” adding that they would continue faithful to the Mexican Government so long as that nation was governed by “the Constitution and Laws that were formed for the govern¬ ment of the Political Association.” 8

On November 13 a Provisional Government was created. It consisted of a General Council, composed of one member from each of the municipalities represented in the Convention, a Gov¬ ernor, a Lieutenant-Governor, and a provisional judicial system. The English common law was adopted, with trial by jury specified, and steps were taken to protect individuals in their land titles. An army was created and Sam Houston was appointed commander-in-chief. Fighting had taken place on Texas soil, and Santa Anna was known to be advancing with a strong military force. A conven¬ tion was therefore called to meet March 1, 1836, at the town of Washington.

6 The proposed Constitution of 1833 is printed in D. B. Edward, The History of Texas, 196 (1836).

7 John Sayles, The Constitutions of the State of Texas, 4th ed., 137 (1893) ; Gammel, op. cit., 551-813.

8 Sayles, op. cit., 138.

On March 2 the delegates made a formal Declaration of In¬ dependence, proclaiming the Republic of Texas and enumerating the causes which impelled them to this action. 9 Among these causes for separation they cited denial of trial by jury, denial of freedom of worship, failure to provide for public education, and the oppres¬ sion of a tyrannical government.

As indicated in this declaration, there was deeper discontent than that which sprang from recent events. Historical and cul¬ tural differences between the American colonists and the Mexi¬ cans made inevitable a conflict of civilizations. The colonists were characterized by aggressiveness and independence of action which had enabled their forefathers to conquer the wilderness. They were devoted to the Anglo-Saxon culture of their ancestors, but were strangers to the Latin culture of Mexico. A Mexican official writing to President Victoria about the Texans said in 1828: “[They] travel with their political constitution in their pockets, demanding the privileges, authority, and officers which such a con¬ stitution guarantees.” 10 Above all, many of the Texans hated the religious restrictions which had been placed upon them, and they had become disgusted with the pretense of popular government in Mexico.

After the adoption of the Declaration of Independence the delegates assembled as a constitutional convention, and by the six¬ teenth of the month they had formulated what is known as the Constitution of the Republic of Texas. This document was signed on March 17 by Richard Ellis, President of the Convention and delegate from Red River, Albert H. S. Kimble, Secretary, and by fifty-six other delegates. 11 Pending the result of war, a government ad interim was set up with David G. Burnet as President. On the first Monday in the following September, after the victory of San Jacinto, the Constitution was ratified by popular vote.

With this action Texas started on the second phase of consti¬ tutional development. In doing this, however, the framers of the Constitution of 1836 did not produce an original fabric but set

10 General Manuel Mier y Teran to President Guadalupe Victoria, June 30, 1828, quoted in E. C. Barker, op. cit., 4.

n Sayles, op. cit., 155 - 175 ; Gammel, op. cit., 1069-1085; R. N. Richardson, “Framing the Constitution of the Republic of Texas,” Southwestern His¬ torical Quarterly, XXXI, 191-220 (1928), reprinted in part in E. C. Barker, Readings in Texas History, 246-261 (1929).

up a republican form of government similar to the one with which they were the most familiar. They made the Texas government unitary, however, instead of federal, with legislators elected from districts rather than from sovereign states, as in the government of the United States.

The Constitution of the Republic of Texas contained a division of powers among the legislative, executive, and judicial branches of the government. The Congress was bicameral. Members of the lower house were chosen annually by districts from among citizens who had attained the age of twenty-five years and who had re¬ sided at least six months in the county from which they were elected. That body was never to exceed forty in number. Senators were to have reached the age of thirty years. They were chosen by districts according to population and served three years, one-third retiring annually. Their number was never to be less than one-third nor more than one-half the number of the lower house. Their compensation was to be fixed by law.

The chief executive was the President, elected by direct vote. His term of office was three years, and he was ineligible for two terms in succession. His powers and duties followed closely those of the President of the United States. He must have attained the age of thirty-five years. His salary was fixed by Congress.

The judicial system consisted of a Supreme Court and such in¬ ferior courts as Congress might establish. The Supreme Court was composed of the Chief Justice and the district judges, who consti¬ tuted the associate judges. The Chief Justice of the Supreme Court and the district judges were elected by joint ballot of both houses of Congress. They held office for four years and were eligible for reelection. The Constitution provided that as early as practicable Congress was to introduce by statute the common law of England, which should be the rule of decision in all criminal cases.

A section of this Constitution defined as citizens “All persons (Africans and descendants of Africans and Indians excepted), who were residing in Texas on the day of the Declaration of In¬ dependence.” It provided for the naturalization of foreigners, legalized the institution of slavery, and prohibited the passing of any law against emigrants bringing their slaves into the Republic. Congress was given the power to create a system of education. A land commission was provided to settle disputed questions of title which had arisen during the period of unrest and revolution. The Anglo-American’s jealousy of individual liberty and personal rights was reflected in a “Declaration of Rights,” reserving to the people “everything in this bill of rights contained, and every other right not hereby delegated.”

A complicated method of changing the Constitution provided that an amendment might be proposed by either house of Congress, and when agreed to by a majority of both houses it should be en¬ tered upon the journals, referred to the next Congress, and pub¬ lished for three months previous to the election. If the amendment passed the next Congress by a two-thirds vote, it should then be submitted to the people. If it received a majority vote, the amend¬ ment should become a part of the Constitution. No amendment might be referred to the people oftener than once in three years.

In September, 1836, when the citizens of Texas ratified the Constitution of the Republic they voted also on the question of annexation to the United States. At that time there were only ninety-one negative votes. Annexation was not accomplished, how¬ ever, until 1845, owing to several factors, some domestic and others national. In 1845 a Constitution was drawn up, ratified by the peo¬ ple, and submitted to the Congress of the United States. On De¬ cember 29, 1845, it was accepted by that body in a joint resolution which declared that the State of Texas should be admitted into the Union on an equal footing with the original states.

Meanwhile, State officials had been elected as provided in the new Constitution. On February 16, 1846, they were inducted into office, making complete the change from Republic to State. 12

The convention which drafted the Constitution of 1845 has been called “the ablest political body that ever assembled in Texas.” The Constitution drafted by it was pronounced by some of Ameri¬ ca’s greatest authorities as the best state constitution of the time, and it has been asserted that Texas could well afford to return to the government which it set up. 13

12 In the annexation agreement, Texas recognized the right of the United States to adjust boundary disputes which might arise with other govern¬ ments, and ceded to the United States all public edifices, fortifications, bar¬ racks, the navy, navy yard, arms, armaments, and other means of defense. Texas retained all public funds, public lands, and taxes, and was to pay her own debts. It was further agreed that with the consent of Texas four addi¬ tional states might be made from her territory, any new states thus formed to be organized with respect to slavery on the principle established in the Missouri Compromise of 1820.

13 For a fuller treatment of this period of the political history of Texas, see Annie Middleton, “Donelson’s Mission to Texas in Behalf of Annexa-

The document was nearly twice as long as the Constitution of 1836, owing to the addition of new provisions. The general plan of governmental organization was similar to that of the Republic. Few changes were made in the bill of rights. The chief executive became the Governor and many of the powers of the former Presi¬ dent of Texas were transferred to the President of the United States. The Governor was elected for two years, with an annual salary of $2,000, and he was ineligible for election for more than four years in six. He was commander-in-chief of the militia and could convene the Legislature and adjourn it in case of disagree¬ ment between the two houses. He appointed the Secretary of State, could grant pardons and reprieves, and continued to possess the veto power. The Lieutenant-Governor took the place of the Vice- President.

The legislative branch of government continued bicameral in organization with biennial sessions. Representatives were elected for two years and must have attained the age of twenty-one years. Senators were elected for four years, one-half to be chosen bien¬ nially, and must have attained the age of thirty years. The salary of legislators was three dollars a day and three dollars for every twenty-five miles’ traveling to and from the seat of government, that distance being an estimated day’s journey. It was provided that a census for reapportionment should be taken every eight years, and that the number of Representatives should never be less than forty-five nor more than ninety, while the number of Sena¬ tors should never be less than nineteen nor more than thirty-three. The first Legislature consisted of sixty-six Representatives and nineteen Senators.

The judicial power of the State was vested in a Supreme Court, in district courts, and in such other inferior courts as the Legisla¬ ture might establish. The Supreme Court consisted of three judges. These judges and those of the district courts were appointed by the Governor, two-thirds of the Senate concurring, for a term of six years with a salary of not less than $2,000 for Supreme Court judges and $1,750 for district judges. Both Supreme Court and district court judges could be removed by the Governor on address of two-thirds of each house of the Legislature for cause which was not sufficient ground for impeachment.

tion,” Southwestern Historical Quarterly, XXIV, 247-291 (1921), and “The Texas Convention of 1845,” ibid., XXV, 26-62 (1921). These articles are reprinted in part in E. C. Barker, Readings in Texas History, 375-393 (i 9 2 9 ).

The Attorney-General likewise was appointed by the Governor and the Senate for a period of two years with a salary to be fixed by law. A singular provision required that a district attorney for each district should be elected by a joint vote of both houses of the Legislature to serve for two years with a salary to be fixed by law. County officers, including a sheriff, justices of the peace, con¬ stables, and a coroner were elected for two years.

Article seven of this Constitution, entitled “General Provisions,” was the longest division of the document. Most of its thirty-six sections were restrictions on the Legislature. A noteworthy clause permitted the private ownership by married women of “All prop¬ erty, both real and personal,” owned before marriage or acquired afterwards by gift or inheritance. There was another provision exempting from forced sale the homestead of a family, not to ex¬ ceed two hundred acres of land or city property not exceeding two thousand dollars in value.

A short article on education declared it the duty of the Legis¬ lature to make suitable provisions for the support and mainte¬ nance of public schools. Ten per cent of the State’s revenue was to be set aside as a perpetual school fund. The General Land Office was continued in operation.

As was to be expected, slavery was legalized and the Legisla¬ ture was prohibited from emancipating slaves without the consent of and compensation to the owners. Neither could a law be passed prohibiting emigrants to the State from bringing their slaves with them. The State debt should never exceed one hundred thousand dollars, except in case of war, invasion, or insurrection, and no loan should ever be made except by vote of two-thirds of both houses of the Legislature.

The method of amending the Constitution provided that two-thirds of each house could propose an amendment, such an amend¬ ment to be published at least three months before the next general election of Representatives, and to be voted on by the people at such election. If a majority of all citizens of the State, voting for Representatives, voted for such amendment, and two-thirds of each house of the next Legislature should, after such election, ratify the same, it should become a part of the Constitution, provided that on each proposal in each house in each of the sessions at which it was considered readings were had on three separate days.

The only amendment which the Constitution received under this provision was approved January 16, 1850. It provided that judges of the Supreme Court, judges of the district courts, the Attorney- General, district attorneys, the Comptroller, the State Treasurer, and the Commissioner of the General Land Office should be elected by direct vote and that district judges and district attorneys should be chosen within their respective districts. 14

For fifteen years Texas lived under the Constitution of 1845. During the latter part of that period a great deal of confusion arose over the powers of the states under the Federal Constitu¬ tion and over the question whether a state had a constitutional right to secede from the Union. On January 18, 1861, an extra-legal convention assembled in Austin, pursuant to a call issued by a number of prominent citizens, all of whom favored secession from the Union.

On February 1 this convention passed an ordinance repealing the ordinance of annexation of July 4, 1845, and passed ordinances ratifying the Constitution of the Confederate States of America and requesting admission to the Confederation. The Constitution of 1845 was amended by the convention through the addition of appropriate clauses and the elimination of provisions made obso¬ lete by the change of allegiance. The first clause inserted in the amended document embodied the extreme state rights doctrine in the following words: . . no government or authority can exist

or exercise power within the State of Texas, without the consent of the people thereof previously given; nor after that consent be withdrawn.” 15

In the amended Constitution “Confederate States of America” was substituted for “United States of America,” conditions of citizenship in Texas were made to conform to secession require¬ ments, and it was stipulated that all officials should take oath to support the Constitution of the Confederacy “as long as the State shall remain a member of the Confederation.” Slavery was em¬ phasized by eliminating the emancipation provision of the Con¬ stitution of 1845, the freeing of slaves being denied to both the Legislature and the master.

After conferring on the Legislature power to call a convention, and declaring that all laws not repugnant to the Constitution of

14 For the Constitution of 1845, with appended ordinances, see Sayles, op. cit., 185-224. The amendment appears on page 222. See also Gammel, op. cit., II, 1275-1302.

15 Sayles, op. cit., 225.

the Confederate States or to that of the State of Texas should remain in effect until they expired or were repealed, the conven¬ tion adjourned on March 25. 16

The amended Constitution of 1845, changed to meet the condi¬ tions growing out of secession and civil war, is called the Con¬ stitution of 1861. It was superseded by the Constitution of 1866, formed after the downfall of the Confederacy.

The last battle of the Civil War was fought near Brownsville, Texas, May 13, 1865. Since the Southern States lost the war it became necessary for the people of Texas again to make their Con¬ stitution conform to that of the United States. On February 7, 1866, a convention met in Austin for that purpose. An ordinance was adopted declaring null and void the ordinance of secession and acknowledging the supremacy of the Constitution of the United States. Another ordinance repudiated all debts made by Texas in promoting the war, and prohibited the State Legislature from pay¬ ing any of the debts made by the Confederacy. Slavery was abol¬ ished, and it was stipulated that the freedmen should be protected in their rights of person and property by appropriate legislation, with the right to contract, acquire, and transfer property, to sue and to appear in court as witnesses. The Constitution of 1845 was readopted with certain changes, and in its changed form was ac¬ cepted by the people on the last Monday in June.

By these alterations, the Governor’s tenure of office was ex¬ tended to four years and his salary was raised to $4,000 a year. A census and reapportionment of Representatives was to be had every ten years. The number of Representatives was to be be¬ tween forty-five and ninety, and the number of Senators between nineteen and thirty-three. The compensation of legislators re¬ mained at eight dollars a day and eight dollars for each twenty-five miles traveled. The Supreme Court was increased from three judges to five with a ten-year tenure at a salary of $4,500 a year. Three judges constituted a quorum of the court. The Attorney- General was to serve four years with an annual salary of $3,000. District judges were to be elected by the people for eight years and were to receive an annual salary of not less than $3,500. A dis-

18 For the Constitution of 1861, and appended ordinances, see Sayles, op. cit., 225-276; Gammel, op. cit., V, 1-27. For an account of the secession move¬ ment in Texas, see C. W. Ramsdell, Reconstruction in Texas, Ch. I (1910).

trict Etorney and a district clerk were to be elected for each judi¬ cial cktrict. County courts were created, and provision made for the elction of county officials.

A ystem of internal improvement was outlined. A more elabo¬ rate sstem of public education provided for the appointment by the Gvernor of a Superintendent of Public Instruction and cre¬ ated idBoard of Education, consisting of the Governor, the Comp¬ troller and the Superintendent of Public Instruction. The Constitutionset aside public lands for the support of the public school syster and for the creation and endowment of a university and for tb support of institutions for the deaf, dumb, blind, and in¬ sane 6 the State. It conferred power on the Legislature to levy a schootax, especially stipulating that all taxes collected from Negroeshould be used in maintaining schools for Negroes. 17

Th Legislature, on a two-thirds vote, could call a convention and k the time and place of meeting. The method of amending the Gnstitution remained unchanged. What was needed to give Texarcomplete political reconstruction was the removal from her hordes of the United States troops and the seating of her repre¬ sentatives in the national Congress. But before these two things were ccomplished the radical element in Congress got control and put iro operation the Congressional Plan of Reconstruction.

In le opinion of those who had assumed leadership in Congress, Texadiad not been sufficiently punished for her part in the war. To aminister this punishment, they tightened the military power upon he State, removed Throckmorton and all other civil officers fronpower, and prescribed the “Iron-Clad Oath/’ which disfran¬ chise those who had participated in the “late rebellion.” They placedhe government largely in the hands of the “carpetbaggers,” the “salawags,” and the recently enfranchised Negroes.

Urier military domination, another convention was called to meet n Austin to frame a constitution which would conform to the rquirements of the radical leaders of Congress. This Recon¬ struct Convention, as it is called, lasted, with intermittent ses¬ sions from June i, 1868, to February 6, 1869. It spent a hundred

17 F© the system of education provided in the Constitution of 1866 see Saylesc>/>. cit., 327-330. The Constitution as amended, with ordinances, will be foud ibid., 299-354; Gammel, op. cit., V, 855-885. See also Ramsdell, op. cit.Ch. V.

thousand dollars, and finally dispersed without formally complet¬ ing, dating, or signing the document which had been drawn up. 18

Despite these and many other irregularities, the document was ratified by a restricted electorate under supervision of military authorities. It is known as the Constitution of 1869. Under it E. J. Davis was elected Governor and other officials were chosen.