Article I, Section 13 of the Texas Constitution

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Adopted February 15, 1876:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.

Editor Comments

This section's first sentence generally tracks the Eighth Amendment to the federal constitution ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted").

The section's second sentence is often referred to as the Texas "open courts" provision. Most other states have similar constitutional provisions, but the federal constitution does not contain such a provision.

Steve Smith

Recent Decisions

  • Methodist Healthcare System of San Antonio v. Rankin, 307 S.W.3d 283, 284-85 (Tex. 2010) (footnotes omitted) ("The Open Courts provision does not confer an open-ended and perpetual right to sue; it 'merely gives litigants a reasonable time to discover their injuries and file suit.' The Legislature may set an absolute cut-off point for healthcare suits, as it has for other suits, so long as the repose period is a reasonable exercise of the Legislature's police power to act in the interest of the general welfare. The ten-year statute of repose at issue adopts a constitutionally permissible policymaking judgment of the Legislature.")
  • Cantu v. State, 939 S.W.2d 627, 639 (Tex.Crim.App. 1997) ("In point thirteen, appellant remarks that this Court has said that it can and should interpret the Texas Constitution in a more expansive manner than the federal constitution and cites us to several cases for this proposition. See Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App. 1991). He then notes that the Texas Constitution proscribes 'cruel or unusual punishments' while the Eighth Amendment prohibits 'cruel and unusual punishments.' We have previously rejected this argument. Anderson v. State, 932 S.W.2d 502, 509 (Tex.Crim.App. 1996).")
  • Barshop v. Medina Cty. Underground Water Conservation Dist., 925 S.W.2d 618, 636-37 (Tex. 1996) ("The Texas Constitution provides the following 'open courts' guarantee: . . . . This provision includes three separate constitutional rights: (1) courts must actually be available and operational; (2) the Legislature cannot impede access to the courts through unreasonable financial barriers; and (3) meaningful remedies must be afforded, 'so that the legislature may not abrogate the right to assert a well-established common law cause of action unless the reason for its action outweighs the litigants' constitutional right of redress.'")

Historic Decisions

  • Travelers Indem. Co. of Illinois v. Fuller, 892 S.W.2d 848, 853 (Tex. 1995) (citations omitted) ("Fuller lastly argues that Travelers' immunity under the Workers' Compensation Act violates the Texas Open Courts Provision. We disagree. Generally speaking, the Open Courts Provision restricts the legislature's ability to withdraw all legal remedies from one having a cause of action well established and well defined in the common law. The Open Courts Provision has no applicability whatsoever to a cause of action for wrongful death, inasmuch as such a cause of action did not exist at common law.")
  • State v. Flag-Redfern Oil Co., 852 S.W.2d 480, 485 (Tex. 1993) (citations omitted) ("This provision 'specifically guarantees all litigants the right to redress their grievances—to use a popular and correct phrase, the right to their day in court.' Because access to the courts is a 'substantial right,' we have construed the open courts provision to guarantee access to the courts unimpeded by unreasonable financial barriers. Thus, the legislature cannot impose filing fees to support the state's general revenue; nor can it require prepayment of administrative penalties as a prerequisite to judicial review.")
  • Nelson v. Krusen, 678 S.W.2d 918, 921 (Tex. 1984) ("The numerous decisions of this court construing article I, section 13 establish that the guarantee of a remedy by due course of law is a substantial right, independent of other constitutional provisions. Although sections 13 and 19 of article I both guarantee due process, Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983), the two Texas due course of law provisions are not coterminous. . . . The common thread of this court's decisions construing the open courts provision is that the legislature has no power to make a remedy by due course of law contingent on an impossible condition.")
  • Sax v. Votteler, 648 S.W.2d 661, 665-66 (Tex.1983) ("We reaffirm today the interpretation of article I, section 13, set out in Hanks, Lebohm, and Waites. In doing so, we note that the basis for the Court's conclusion in these cases was that the litigant's right of redress outweighed the legislative basis for the respective ordinances and statute. We hold, therefore, that the right to bring a well-established common law cause of action cannot be effectively abrogated by the legislature absent a showing that the legislative basis for the statute outweighs the denial of the constitutionally-guaranteed right of redress.")
  • Lebohm v. City of Galveston, 275 S.W.2d 951, 955 (Tex. 1955) ("Thus it may be seen that legislative action withdrawing common-law remedies for well established common-law causes of action for injuries to one's 'lands, goods, person or reputation' is sustained only when it is reasonable in substituting other remedies, or when it is a reasonable exercise of the police power in the interest of the general welfare. Legislative action of this type is not sustained when it is arbitrary or unreasonable. . . . [T]he charter provision represents an attempted exercise of legislative power which is prohibited by Section 13 of Article I of the Constitution.")
  • Middleton v. Texas Power & Light Co., 185 S.W. 556, 559 (Tex. 1916) (citations omitted) ("The true rule is that while technical defenses may be abrogated by statute those which affect a party's substantial equities may not be. . . . Their operation in the common law action for damages is not to acquit the employer because of his having breached no duty and being without fault, but they deny recovery to the employee because of his conduct, or, under the fellow servant doctrine, because the act is that of a co-employee, and the consequences imputed to the employee for that reason as a rule of law.")
  • State v. Galveston, H. & S.A. Ry. Co., 97 S.W. 71, 78-79 (Tex. 1906) ("The declaration in the Constitution that 'fines' shall not be excessive makes it a question for the court to decide under all the facts of each particular case. . . . The assessment of a penalty of 100 per cent. for the failure to pay a tax would seem to be sufficiently excessive to authorize a court to declare it to be excessive, but the assessment of more than 4,000 per cent. upon the amount detained can leave no possible question that the penalties are out of all proportion to the amount of money detained, and the law must be held to be void for the penalties.")
  • Dillingham v. Putnam, 14 S.W. 303, 305 (Tex. 1890) ("We do not wish to be understood to hold that hardships which might and would frequently result if the validity of such a law as that in question was sustained would furnish . . . but to hold that a law which denies to any individual, whether acting in his own right or in a fiduciary capacity, or to a corporation, the right to appeal unless a supersedeas bond is executed, is violative of the constitution in that it deprives this court, if given effect, of jurisdiction conferred on it by the constitution, and deprives the party seeking revision of a judgment here of remedy by due course of law.")
  • Texas Mexican Ry. Co. v. Locke, 63 Tex. 623, 628 (1885) ("Such a construction as that contended for by the appellees cannot be maintained either upon reason or by authority. If it is true, then there is no court in which appellant can secure an adjudication upon its rights. And that would render the declaration in the Bill of Rights, that 'all courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law,' the merest bombast. What profit is it to appellant that 'all courts are open,' if in none of these it can secure a remedy 'by due course of law?'")
  • County of Anderson v. Kennedy, 58 Tex. 616, 622-23 (1883) ("It would be hard to believe that it was the intention of the constitution to give to no courts the power to hear and determine a multitude of questions which affect the welfare of the people most vitally, which, however, cannot be exactly measured by dollars and cents or defined by subject matter. Purvis v. Sherrod, 12 Tex. 160. If such be true of the present constitution, then the declaration in the bill of rights that 'all courts shall be open, and every person, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law,' is a mockery.")
  • Giddings v. City of San Antonio, 47 Tex. 548, 557 (1877) ("The same question, upon the same class of claims . . . . While it is of the highest importance that the courts should be open at all times for the assertion of rights that are believed to be well founded, it would be unfortunate that it should be thought practicable, on a doubtful question, to easily procure a change of decision with every change in the members, who might, from time to time, compose the Supreme Court. This question is, therefore, not before us as one of first impression, but stands with the weight in favor of an affirmance of the last decision of this court upon it.")

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