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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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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.").


The direct [https://texashistory.unt.edu/ark:/67531/metapth277466/m1/2/ impetus] for the 1874 constitutional amendment was several controversial actions taken in late-1870 and 1871 by "Radical Republican" Governor E. J. Davis under a militia law that had been passed by the Republican-dominated Twelfth Legislature. Cf. Reginald Jayne, ''Martial Law in Reconstruction Texas'' (May 2005) at [https://www.shsu.edu/dotAsset/c0ac2b23-8d71-4de2-af31-5bceef4798d8.pdf#page=23 17] ("Davis was not exaggerating when he reported Texas as being in a state of lawlessness.").
The direct [https://texashistory.unt.edu/ark:/67531/metapth277466/m1/2/ impetus] for the 1874 constitutional amendment was several controversial actions taken in late-1870 and 1871 by "Radical Republican" Governor E. J. Davis under a militia law that had been passed by the Republican-dominated Twelfth Legislature. Cf. Reginald Jayne, ''Martial Law in Reconstruction Texas'' (May 2005) at [https://www.sam.edu/dotAsset/c0ac2b23-8d71-4de2-af31-5bceef4798d8.pdf#page=23 17] ("Davis was not exaggerating when he reported Texas as being in a state of lawlessness.").


The militia [https://texashistory.unt.edu/ark:/67531/metapth6734/m1/196/ law], enacted in June 1870, provided in part: "Sec. 26. It shall be the duty of the Governor, and he is hereby authorized, whenever in his opinion the enforcement of the law of this State is obstructed, within any county or counties, by combinations of lawless men too strong for the control of the civil authorities, to declare such county or counties under martial law, and to suspend the laws therein until the Legislature shall convene and take such action as it may deem necessary. . . . Sec. 27. Whenever the laws may be suspended, as provided for in last preceding section, it shall be the duty of the Governor to provide for the trial and punishment of offenders; and the Governor shall make all details of officers for this purpose, and prescribe all necessary regulations for the formation and government of courts martial and military commissions for this purpose."
The militia [https://texashistory.unt.edu/ark:/67531/metapth6734/m1/196/ law], enacted in June 1870, provided in part: "Sec. 26. It shall be the duty of the Governor, and he is hereby authorized, whenever in his opinion the enforcement of the law of this State is obstructed, within any county or counties, by combinations of lawless men too strong for the control of the civil authorities, to declare such county or counties under martial law, and to suspend the laws therein until the Legislature shall convene and take such action as it may deem necessary. . . . Sec. 27. Whenever the laws may be suspended, as provided for in last preceding section, it shall be the duty of the Governor to provide for the trial and punishment of offenders; and the Governor shall make all details of officers for this purpose, and prescribe all necessary regulations for the formation and government of courts martial and military commissions for this purpose."
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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").
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 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.
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/entities/publication/f5ca5d57-6544-425c-9926-27e0258a81fe 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) (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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