Texas Constitution:Article I, Section 19: Difference between revisions

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Texas Constitution:Article I, Section 19 (view source)

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The fundamental precept declared by this section has its origin in clause thirty-nine of the ''Magna Carta''. Cf. Thomas Cooley, ''A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union'' [https://texaslegalguide.com/images/Cooley_Constitutional_Limitations_1874_due_course.pdf#page=17 351-53] (1874) (citations omitted) ("In some form of words, it is to be found in each of the State constitutions . . . . Indeed, the language employed is generally nearly identical, except that the phrase 'due process (or course) of law' is sometimes used, sometimes 'the law of the land,' and in some cases both; but the meaning is the same in every case.").
The fundamental precept declared by this section has its origin in clause thirty-nine of the ''Magna Carta''. Cf. Thomas Cooley, ''A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union'' [https://texaslegalguide.com/images/Cooley_Constitutional_Limitations_1874_due_course.pdf#page=17 351-53] (1874) (citations omitted) ("In some form of words, it is to be found in each of the State constitutions . . . . Indeed, the language employed is generally nearly identical, except that the phrase 'due process (or course) of law' is sometimes used, sometimes 'the law of the land,' and in some cases both; but the meaning is the same in every case.").


This section is similar to the due-process clause contained in the Fourteenth Amendment to the federal constitution ("nor shall any State deprive any person of life, liberty, or property, without due process of law"). Cf. ''Zucht v. King'', 260 U.S. 174, [https://scholar.google.com/scholar_case?case=17474784919803032884#p176 176] (1922) ("Long before this suit was instituted, ''Jacobson v. Massachusetts'', 197 U.S. 11, had settled that it is within the police power of a State to provide for compulsory vaccination. . . . And still others had settled that the municipality may vest in its officials broad discretion in matters affecting the application and enforcement of a health law.").
This section is textually similar to the due-process clause contained in the Fourteenth Amendment to the federal constitution ("nor shall any State deprive any person of life, liberty, or property, without due process of law"). Cf. ''Zucht v. King'', 260 U.S. 174, [https://scholar.google.com/scholar_case?case=17474784919803032884#p176 176] (1922) ("Long before this suit was instituted, ''Jacobson v. Massachusetts'', 197 U.S. 11, had settled that it is within the police power of a State to provide for compulsory vaccination. . . . And still others had settled that the municipality may vest in its officials broad discretion in matters affecting the application and enforcement of a health law.").


Note that the Texas Attorney General, in Tex. Att'y Gen. Op. [https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0308.pdf#page=2 KP-308] (2020), opined that: "While the Texas and federal Constitutions differ in that Texas refers to 'due course' rather than 'due process,' Texas courts regard these terms as without substantive distinction unless and until a party demonstrates otherwise." The foregoing assertion by the Texas Attorney General is correct concerning "procedural" due process. However, as reflected by some of the decisions referenced below, the state's unsettled "substantive" due process jurisprudence has sometimes differed from its federal counterpart.
Note that the Texas Attorney General, in Tex. Att'y Gen. Op. [https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0308.pdf#page=2 KP-308] (2020), opined that: "While the Texas and federal Constitutions differ in that Texas refers to 'due course' rather than 'due process,' Texas courts regard these terms as without substantive distinction unless and until a party demonstrates otherwise." The foregoing assertion by the Texas Attorney General is correct concerning "procedural" due process. However, as reflected by some of the decisions referenced below, the state's unsettled "substantive" due process jurisprudence has sometimes differed from its federal counterpart.
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* ''State v. Zurawski'', 690 S.W.3d 644, [https://scholar.google.com/scholar_case?case=7571856369762417682#p666 666] (Tex. 2024) (footnote omitted) ("The [Texas] due-course . . . . An unsettled question in this Court is whether the due-course clause protects substantive rights in addition to procedural rights. We need not decide this question today. Even if the due-course clause were to encompass substantive rights, the evidence adduced does not support the trial court's order that the Human Life Protection Act violates the Texas Constitution. If the due-course clause affords fundamental rights as a matter of substantive law and not just procedural protections before the government invades them, the right to life would be found among them.")
* ''State v. Zurawski'', 690 S.W.3d 644, [https://scholar.google.com/scholar_case?case=7571856369762417682#p666 666] (Tex. 2024) (footnote omitted) ("The [Texas] due-course . . . . An unsettled question in this Court is whether the due-course clause protects substantive rights in addition to procedural rights. We need not decide this question today. Even if the due-course clause were to encompass substantive rights, the evidence adduced does not support the trial court's order that the Human Life Protection Act violates the Texas Constitution. If the due-course clause affords fundamental rights as a matter of substantive law and not just procedural protections before the government invades them, the right to life would be found among them.")


* ''Texas Dep't of State Health Servs. v. Crown Distributing LLC'', 647 S.W.3d 648, [https://scholar.google.com/scholar_case?case=17653902673364512620#p664 664-65] (Tex. 2022) (J. Young, concurring) ("The Court today 'conclude[s] that the due-course clause does not protect the interest that the plaintiffs assert,' ''ante'' at 2, 125 S.Ct. 2195, and I agree. But what ''does'' that clause protect—and how does it do so? We still do not really know, even as we approach . . . . To that end, in Part II, I explain why I believe that our precedents do not go much beyond what has permeated most of our jurisprudence: the unadorned assertion that the Texas due-course clause is essentially the twin (the junior twin, to be sure) of the federal due-process clause.")
* ''Texas Dep't of State Health Servs. v. Crown Distributing LLC'', 647 S.W.3d 648, [https://scholar.google.com/scholar_case?case=17653902673364512620#p664 664-65] (Tex. 2022) (Young, concurring) ("The Court today 'conclude[s] that the due-course clause does not protect the interest that the plaintiffs assert,' ''ante'' at 2, 125 S.Ct. 2195, and I agree. But what ''does'' that clause protect—and how does it do so? We still do not really know, even as we approach . . . . To that end, in Part II, I explain why I believe that our precedents do not go much beyond what has permeated most of our jurisprudence: the unadorned assertion that the Texas due-course clause is essentially the twin (the junior twin, to be sure) of the federal due-process clause.")


* ''Mosley v. Texas Health & Human Services Comm'n'', 593 S.W.3d 250, [https://scholar.google.com/scholar_case?case=15370415983701477665#p265 265] (Tex. 2019) ("We measure what process is due under a 'flexible standard' that depends on 'the practical requirements of the circumstances.' ''Id''. This standard includes three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. ''Id''.")
* ''Mosley v. Texas Health & Human Services Comm'n'', 593 S.W.3d 250, [https://scholar.google.com/scholar_case?case=15370415983701477665#p265 265] (Tex. 2019) ("We measure what process is due under a 'flexible standard' that depends on 'the practical requirements of the circumstances.' ''Id''. This standard includes three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. ''Id''.")
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* ''University of Texas Medical School at Houston v. Than'', 901 S.W.2d 926, [https://scholar.google.com/scholar_case?case=15343094571363495286#p929 929] (Tex. 1995) (citations omitted) ("While the Texas Constitution is textually different in that it refers to 'due course' rather than 'due process,' we regard these terms as without meaningful distinction. As a result, in matters of procedural due process, we have traditionally followed contemporary federal due process interpretations of procedural due process issues. Although not bound by federal due process jurisprudence in this case, we consider federal interpretations of procedural due process to be persuasive authority in applying our due course of law guarantee.")
* ''University of Texas Medical School at Houston v. Than'', 901 S.W.2d 926, [https://scholar.google.com/scholar_case?case=15343094571363495286#p929 929] (Tex. 1995) (citations omitted) ("While the Texas Constitution is textually different in that it refers to 'due course' rather than 'due process,' we regard these terms as without meaningful distinction. As a result, in matters of procedural due process, we have traditionally followed contemporary federal due process interpretations of procedural due process issues. Although not bound by federal due process jurisprudence in this case, we consider federal interpretations of procedural due process to be persuasive authority in applying our due course of law guarantee.")


* ''In re J.W.T.'', 872 S.W.2d 189, [https://scholar.google.com/scholar_case?case=16303537001961127537#p221 221] (Tex. 1994) (J. Cornyn, dissenting) ("An appellate court's identification in its opinion of an established . . . . In this case, however, under the guise of an independent state constitutional interpretation, the court 1) disregards contrary precedent by the United States Supreme Court; 2) eschews our traditional constitutional analysis and creates a new constitutional right nowhere found in the text of the Texas Constitution or its history; 3) revives substantive due process in a particularly arbitrary new form; and 4) fails to identify and consider any of the substantial countervailing state interests reflected in these statutes.")
* ''In re J.W.T.'', 872 S.W.2d 189, [https://scholar.google.com/scholar_case?case=16303537001961127537#p221 221] (Tex. 1994) (Cornyn, dissenting) ("An appellate court's identification in its opinion of an established . . . . In this case, however, under the guise of an independent state constitutional interpretation, the court 1) disregards contrary precedent by the United States Supreme Court; 2) eschews our traditional constitutional analysis and creates a new constitutional right nowhere found in the text of the Texas Constitution or its history; 3) revives substantive due process in a particularly arbitrary new form; and 4) fails to identify and consider any of the substantial countervailing state interests reflected in these statutes.")


* ''Itz v. Penick'', 493 S.W.2d 506, [https://scholar.google.com/scholar_case?case=653538298795690003#p509 509] (Tex. 1973) ("A much more enlightened view of the necessity for immunization of students attending elementary and secondary schools and institutions of higher education in order to lessen the spread of communicable diseases has been adopted by the legislatures and approved by the courts of Texas and a majority of the other states during the past half century. All of appellants' points of error have been heretofore assigned in challenging the constitutionality of compulsory immunization statutes, city ordinances or school district regulations and overruled in one or more of the following Texas cases: . . . .")
* ''Itz v. Penick'', 493 S.W.2d 506, [https://scholar.google.com/scholar_case?case=653538298795690003#p509 509] (Tex. 1973) ("A much more enlightened view of the necessity for immunization of students attending elementary and secondary schools and institutions of higher education in order to lessen the spread of communicable diseases has been adopted by the legislatures and approved by the courts of Texas and a majority of the other states during the past half century. All of appellants' points of error have been heretofore assigned in challenging the constitutionality of compulsory immunization statutes, city ordinances or school district regulations and overruled in one or more of the following Texas cases: . . . .")


* ''Texas Power & Light Co. v. City of Garland'', 431 S.W.2d 511, [https://scholar.google.com/scholar_case?case=9341782243928193175#p527 527] (Tex. 1968) (C.J. Calvert, dissenting) ("Pervading the majority opinion dealing with these sections is a basic philosophy that when a municipality puts in a public utility of its own, with a private utility franchise then outstanding or thereafter granted, the two enterprises must be permitted to enter into a dog-eat-dog, survival of the fittest competition for customers, with the prize of survival going to the one with the greater resources and ability to absorb losses for a longer period of time. In my opinion, the philosophy is unsound. It was condemned long ago by the United States Court of Appeals, [].")
* ''Texas Power & Light Co. v. City of Garland'', 431 S.W.2d 511, [https://scholar.google.com/scholar_case?case=9341782243928193175#p527 527] (Tex. 1968) (Calvert, dissenting) ("Pervading the majority opinion dealing with these sections is a basic philosophy that when a municipality puts in a public utility of its own, with a private utility franchise then outstanding or thereafter granted, the two enterprises must be permitted to enter into a dog-eat-dog, survival of the fittest competition for customers, with the prize of survival going to the one with the greater resources and ability to absorb losses for a longer period of time. In my opinion, the philosophy is unsound. It was condemned long ago by the United States Court of Appeals, [].")


* ''Board of Firemen's Relief and Retirement Fund Trustees of Texarkana v. Hamilton'', 386 S.W.2d 754, [https://scholar.google.com/scholar_case?case=10592628077712497873#p755 755] (Tex. 1965) ("[S]he contends that since her claim for compensation as provided by statute involves a property right and that even though the statute made no provision for an appeal, that under the due process clauses of both the State and United States Constitutions she is entitled to an inherent right of appeal. . . . What the Constitution guarantees her is a judicial review of an order of an administrative agency affecting her property rights. Such a review must be sought in a court of competent jurisdiction, not to some other administrative agency.")
* ''Board of Firemen's Relief and Retirement Fund Trustees of Texarkana v. Hamilton'', 386 S.W.2d 754, [https://scholar.google.com/scholar_case?case=10592628077712497873#p755 755] (Tex. 1965) ("[S]he contends that since her claim for compensation as provided by statute involves a property right and that even though the statute made no provision for an appeal, that under the due process clauses of both the State and United States Constitutions she is entitled to an inherent right of appeal. . . . What the Constitution guarantees her is a judicial review of an order of an administrative agency affecting her property rights. Such a review must be sought in a court of competent jurisdiction, not to some other administrative agency.")
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