Texas Constitution:Article I, Section 28: Difference between revisions

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Texas Constitution:Article I, Section 28 (view source)

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The Republic of Texas constitution (1836) did not have a provision concerning the suspension of laws. However, the State of Texas's first constitution (1845) did. Section 20 of the Bill of Rights read: "No power of suspending laws in this State shall be exercised, except by the Legislature or its authority." The state's next three constitutions (1861, 1866, & 1869) each contained the same exact provision as the state's first constitution.
The Republic of Texas constitution (1836) did not have a provision concerning the suspension of laws. However, the State of Texas's first constitution (1845) did. Section 20 of the Bill of Rights read: "No power of suspending laws in this State shall be exercised except by the Legislature or its authority." The state's next three constitutions (1861, 1866, & 1869) each contained the same exact provision as the state's first constitution.


The Legislature, in June 1873, passed a joint resolution proposing a constitutional amendment that eliminated the words "or its authority" from Section 20 of the Bill of Rights. Texans, in December 1873, voted overwhelmingly in favor of the amendment. The Legislature, in January 1874, in compliance with the amendment provision contained in the Texas Constitution of 1869, [https://texashistory.unt.edu/ark:/67531/metapth6731/m1/237/ ratified] the amendment and thereby made it effective.
The Legislature, in June 1873, passed a joint resolution proposing a constitutional amendment that eliminated the words "or its authority" from Section 20 of the Bill of Rights. Texans, in December 1873, voted overwhelmingly in favor of the amendment. The Legislature, in January 1874, in compliance with the amendment provision contained in the Texas Constitution of 1869, [https://texashistory.unt.edu/ark:/67531/metapth6731/m1/237/ ratified] the amendment and thereby made it effective.
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The substance of this section has its historical roots in the English Bill of Rights of 1689. Cf. ''English Bill of Rights 1689'' at [https://avalon.law.yale.edu/17th_century/england.asp 1] ("And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections . . . asserting their ancient rights and liberties declare [t]hat the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.").
The substance of this section has its historical roots in the English Bill of Rights of 1689. Cf. ''English Bill of Rights 1689'' at [https://avalon.law.yale.edu/17th_century/england.asp 1] ("And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections . . . asserting their ancient rights and liberties declare [t]hat the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.").


Approximately thirty states currently have a constitutional provision that specifically addresses the suspension of laws. Cf. ''Howell v. McAuliffe'', 788 S.E.2d 706, [https://scholar.google.com/scholar_case?case=14883908933778434974#p720 720] n.12 (Va. 2016) ("Other states included similar constitutional provisions. The Delaware Declaration of Rights and Fundamental Rules of 1776 provided '[t]hat no Power of suspending Laws, or the Execution of Laws, ought to be exercised unless by the Legislature.'").
Approximately thirty states currently have a constitutional provision that specifically addresses the suspension of state law. Cf. ''Howell v. McAuliffe'', 788 S.E.2d 706, [https://scholar.google.com/scholar_case?case=14883908933778434974#p720 720] n.12 (Va. 2016) ("Other states included similar constitutional provisions. The Delaware Declaration of Rights and Fundamental Rules of 1776 provided '[t]hat no Power of suspending Laws, or the Execution of Laws, ought to be exercised unless by the Legislature.'").


In Texas, due to the [https://lrl.texas.gov/scanned/statutes_and_codes/paschal_vol2.pdf#page=117 amendment] ratified in 1874 and carried over into the current constitution, it was held in a number of cases decided in the first third of the twentieth century that this section flatly prohibits the Legislature from delegating its power to suspend laws. Cf. ''Reed v. Buck'', 370 S.W.2d 867, [https://scholar.google.com/scholar_case?case=11576326271401640517#p870 870-71] (Tex. 1963) ("[T]he Court of Civil Appeals was of the opinion that these ancient cases, like old soldiers, had just faded away.").
In Texas, due to the [https://lrl.texas.gov/scanned/statutes_and_codes/paschal_vol2.pdf#page=117 amendment] ratified in 1874 and carried over into the current constitution, it was held in a number of cases decided in the first third of the twentieth century that this section flatly prohibits the Legislature from delegating its power to suspend laws. Cf. ''Reed v. Buck'', 370 S.W.2d 867, [https://scholar.google.com/scholar_case?case=11576326271401640517#p870 870-71] (Tex. 1963) ("[T]he Court of Civil Appeals was of the opinion that these ancient cases, like old soldiers, had just faded away.").
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Davis, in a January 1873 legislative [https://lrl.texas.gov/scanned/govdocs/Edmund%20J%20Davis/1873/SOS_Davis_1873.pdf#page=18 message], stated that: "The feature of the [militia law] looking directly to preservation of the peace was that delegating to the Governor the power to suspend the laws within disturbed districts. I have fortunately been compelled to resort to this authority but on three occasions, though the knowledge that I possessed the power, and might exercise it, doubtless often prevented disturbances hurtful to the prosperity of our State, and averted the interference of the United States government . . . . Under our Constitution, your houses have the granting or withholding of this power entirely confided to you, and if in your wisdom you conclude that the necessity for it has ceased, it would not be within the province of the Executive to object." In March 1873, the Democratic-controlled Thirteenth Legislature [https://texashistory.unt.edu/ark:/67531/metapth6732/m1/470/ repealed] Sections 26 and 27 of the militia law.
Davis, in a January 1873 legislative [https://lrl.texas.gov/scanned/govdocs/Edmund%20J%20Davis/1873/SOS_Davis_1873.pdf#page=18 message], stated that: "The feature of the [militia law] looking directly to preservation of the peace was that delegating to the Governor the power to suspend the laws within disturbed districts. I have fortunately been compelled to resort to this authority but on three occasions, though the knowledge that I possessed the power, and might exercise it, doubtless often prevented disturbances hurtful to the prosperity of our State, and averted the interference of the United States government . . . . Under our Constitution, your houses have the granting or withholding of this power entirely confided to you, and if in your wisdom you conclude that the necessity for it has ceased, it would not be within the province of the Executive to object." In March 1873, the Democratic-controlled Thirteenth Legislature [https://texashistory.unt.edu/ark:/67531/metapth6732/m1/470/ repealed] Sections 26 and 27 of the militia law.


Governor Greg Abbott's expansive response to the coronavirus pandemic has focused attention on this section and its proper interpretation. Cf. ''Garofolo v. Ocwen Loan Servicing, LLC'', 497 S.W.3d 474, [https://scholar.google.com/scholar_case?case=230463052788030019#p477 477] (Tex. 2016) (citation omitted) ("We strive to give constitutional provisions the effect their makers and adopters intended. Accordingly, when interpreting our state constitution, we rely heavily on its literal text and give effect to its plain language."). Without question, the section prohibits the suspension of a statute by the Governor without legislative consent. Cf. Tex. Att'y Gen. Op. GM-308 (1939) at [https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1939/gm0308.pdf#page=3 3] ("[T]he Governor may invoke martial law for the purpose of executing the provisions of the law . . . but [] the power and the responsibility of suspending the operation of such law is vested exclusively in the Legislature of this State and may not be exercised by the Governor.").
Governor Greg Abbott's expansive response to the coronavirus pandemic focused attention on this section and its proper interpretation. Cf. ''Garofolo v. Ocwen Loan Servicing, LLC'', 497 S.W.3d 474, [https://scholar.google.com/scholar_case?case=230463052788030019#p477 477] (Tex. 2016) (citation omitted) ("We strive to give constitutional provisions the effect their makers and adopters intended. Accordingly, when interpreting our state constitution, we rely heavily on its literal text and give effect to its plain language."). Without question, the section prohibits the suspension of a statute by the Governor without legislative consent. Cf. Tex. Att'y Gen. Op. GM-308 (1939) at [https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1939/gm0308.pdf#page=3 3] ("[T]he Governor may invoke martial law for the purpose of executing the provisions of the law . . . but [] the power and the responsibility of suspending the operation of such law is vested exclusively in the Legislature of this State and may not be exercised by the Governor.").


The real interpretive issue is whether the Legislature may ever authorize the Governor to suspend a statute and, if so, in what manner and to what degree. The literal text of the section flatly prohibits any person or entity other than the Legislature from suspending any law. But the available historical evidence regarding the intent of the makers and adopters of the 1874 constitutional amendment provides [https://texashistory.unt.edu/ark:/67531/metapth233475/m1/1/ support] for the position that the Legislature may expressly authorize the Governor to suspend a particular statute if the Governor's discretion is restricted to a "fixed and known" legislative purpose. The argument would be that, in that circumstance, the Governor is not suspending the relevant statute but rather administering it in accordance with the Legislature's stated policy choices. Cf. Article IV, Section [[Texas Constitution:Article IV, Section 10|10]] (the Governor "shall cause the laws to be faithfully executed").
The real interpretive issue is whether the Legislature may ever authorize the Governor to suspend state law and, if so, to what degree and in what manner. The literal text of the section flatly prohibits any person or entity other than the Legislature from suspending any law. But the available historical evidence regarding the intent of the makers and adopters of the 1874 constitutional amendment provides [https://texashistory.unt.edu/ark:/67531/metapth233475/m1/1/ support] for the position that the Legislature may expressly authorize the Governor to suspend a particular statute if the Governor's discretion is restricted to a "fixed and known" legislative purpose. The argument would be that, in that circumstance, the Governor is not "suspending" the relevant statute but rather "administering" it in accordance with the Legislature's stated policy choices. Cf. Article IV, Section [[Texas Constitution:Article IV, Section 10|10]] (the Governor "shall cause the laws to be faithfully executed").


Finally, note that Abbott's orders must be judged in context. Enforcement of structural provisions like this section may be relaxed during emergencies. Actions that would normally be invalid may be upheld in times of war or sudden crisis. Cf. Lindsay Wiley, ''Democratizing the Law of Social Distancing'', 19 Yale J. Health Pol'y L. Ethics 50, [https://openyls.law.yale.edu/bitstream/handle/20.500.13051/5965/Wiley_v19n3_50_121.pdf?sequence=2&isAllowed=y#page=34 83] (2020) ("[T]he Fifth Circuit 'reduced' the complex 1905 Supreme Court decision in ''Jacobson v. Massachusetts'' to 'a clear and easy test' dictating suspension of ordinary, heightened standards of review for measures that infringe upon civil liberties during a public health emergency."). However, any implied exception would apply only to the extent required by the exigencies of the situation. Therefore, the exception would be inapplicable to orders issued after the Legislature became institutionally capable of addressing the emergency.
Finally, note that Abbott's orders should be judged in context. Enforcement of structural provisions like this section may be relaxed during emergencies. Actions that would normally be invalid may be upheld in times of war or sudden crisis. Cf. Lindsay Wiley, ''Democratizing the Law of Social Distancing'', 19 Yale J. Health Pol'y L. Ethics 50, [https://openyls.law.yale.edu/bitstream/handle/20.500.13051/5965/Wiley_v19n3_50_121.pdf?sequence=2&isAllowed=y#page=34 83] (2020) ("[T]he Fifth Circuit 'reduced' the complex 1905 Supreme Court decision in ''Jacobson v. Massachusetts'' to 'a clear and easy test' dictating suspension of ordinary, heightened standards of review for measures that infringe upon civil liberties during a public health emergency."). However, any implied exception would apply only to the extent required by the exigencies of the situation. Therefore, the exception would be inapplicable to actions taken after the Legislature becomes institutionally capable of addressing the emergency.


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* ''In re Hotze'', 629 S.W.3d 146, [https://scholar.google.com/scholar_case?case=9645594308312450856#p148 148] (Tex. 2020) (J. Devine, concurring) ("This provision means what it says. The judiciary may not suspend laws. Nor may the executive. Only the Legislature. Despite this clear constitutional exhortation, we review orders from the Governor that purport to be made under the Texas Disaster Act of 1975, which says that the 'governor may suspend provisions of any regulatory statute prescribing the . . . . The State does not contend why [''Brown Cracker & Candy Co. v. City of Dallas''] was wrongly decided or why we should otherwise overrule that decision. The State's failure to address this precedent is troubling.")
* ''Abbott v. Harris County'', 672 S.W.3d 1, [https://scholar.google.com/scholar_case?case=3006813386139274701#p14 14] (Tex. 2023) (citations omitted) ("[W]e first note that even if we were to adopt the State's broad construction of section 418.016(a), we would still have to contend with the County's argument that the State's broad view of the Governor's suspension power runs afoul of the Suspension Clause of the Texas Constitution. This argument raises a serious question of constitutional law, which we should not resolve unless required to do so. Demonstrating the gravity of the constitutional question raised by the County—and the concomitant need to avoid deciding it if possible—requires only a brief explanation.")
 
* ''In re Hotze'', 629 S.W.3d 146, [https://scholar.google.com/scholar_case?case=9645594308312450856#p148 148] (Tex. 2020) (J. Devine, concurring) ("This provision means what it says. The judiciary may not suspend laws. Nor may the executive. Only the Legislature. Despite this clear constitutional exhortation, we review orders from the Governor that purport to be made under the Texas Disaster Act of 1975, which says that the 'governor may suspend provisions of any regulatory statute prescribing the procedures . . . . The State does not contend why [''Brown Cracker & Candy Co. v. City of Dallas''] was wrongly decided or why we should otherwise overrule that decision. The State's failure to address this precedent is troubling.")


* ''In re Hotze'', 627 S.W.3d 642, [https://scholar.google.com/scholar_case?case=13898575528214719134#p644 644] (Tex. 2020) (footnotes omitted) ("Relators argue that the [Governor's] proclamation was not authorized by the Act, or if it was, that the Act violates Article I, Sections 19 and 28 of the Texas Constitution. The State responds that relators have not identified a justiciable interest and therefore lack standing; that the Secretary of State has no power to enforce the two statutory provisions at issue, let alone a ministerial duty that could be compelled by mandamus; that the Act is not unconstitutional; and that relators have delayed too long since the Governor issued the proclamation to seek mandamus relief.")
* ''In re Hotze'', 627 S.W.3d 642, [https://scholar.google.com/scholar_case?case=13898575528214719134#p644 644] (Tex. 2020) (footnotes omitted) ("Relators argue that the [Governor's] proclamation was not authorized by the Act, or if it was, that the Act violates Article I, Sections 19 and 28 of the Texas Constitution. The State responds that relators have not identified a justiciable interest and therefore lack standing; that the Secretary of State has no power to enforce the two statutory provisions at issue, let alone a ministerial duty that could be compelled by mandamus; that the Act is not unconstitutional; and that relators have delayed too long since the Governor issued the proclamation to seek mandamus relief.")
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[[Category:Texas Bill of Rights]]
[[Category:Texas Bill of Rights]]
[[Category:State Government Law]]
[[Category:TxCon ArtI Sec]]
[[Category:TxCon ArtI Sec]]
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