Article I, Section 5 of the Texas Constitution ("Witnesses Not Disqualified by Religious Beliefs; Oaths and Affirmations")

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Adopted February 15, 1876:

No person shall be disqualified to give evidence in any of the courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury.

Editor Comments

Sections 4 through 7 of Article I, including the recently adopted Section 6-a, concern religion.

Under this section, the State is prohibited from requiring the following oath: "I swear to tell the truth, the whole truth and nothing but the truth, so help me God."

In addition, the section prohibits a person from testifying in any state judicial proceeding unless he or she is "subject to the pains and penalties of perjury."

Attorney Steve Smith

Recent Decisions

  • Scott v. State, 80 S.W.3d 184, 196 (Tex.App.–Waco 2002, ref'd) (citations omitted) ("Article I, section 5 of the Texas Constitution and article 1.17 of the Code of Criminal Procedure require a witness to make his oath or affirmation 'subject to the pains and penalties of perjury.' In our view however, this does not equate to a requirement that the witness affirmatively state that he is testifying 'under penalty of perjury' if such a statement is contrary to the witness's religious beliefs. As stated by the Fourth Circuit, 'the form of the administration of the oath is immaterial, provided that it involves, in the mind of the witness, the bringing to bear of this apprehension of punishment [for perjury].'")

Historic Decisions

  • Craig v. State, 480 S.W.2d 680, 684 (Tex.Crim.App. 1972) (footnote omitted) ("In construing [Article I, Section 5 of the Texas Constitution], this court has previously held that it is constitutionally permissible that jurors be allowed to affirm instead of being sworn. . . . Article 1.17, V.A.C.C.P., which is almost identical to the above constitutional provision, is to be construed similarly. To the extent that prior decisions such as Crisp v. State, 87 Tex.Cr.R. 137, 220 S.W. 1104 (Tex.Cr.App. 1920) and Hewey v. State, 87 Tex.Cr.R. 248, 220 S.W. 1106 (Tex.Cr.App. 1920) are inconsistent with this holding, they are overruled. The statutes complained of are not unconstitutional.")
  • Ramirez v. State, 264 S.W.2d 99, 100 (Tex.Crim.App. 1953) ("From the letter in evidence it was evident that the appellant had in 1949 belonged to an organization from which the jury might reasonably conclude that he in fact did not believe in a Supreme Being. Under the state of this record, the evidence disclosed by the letter had no relevancy to the offense for which the appellant was being charged but was admitted solely for the purpose of impeaching the witness. Section 5 of Article 1 of the Constitution of Texas, Vernon's Ann. St., provides that no person . . . . The State has made no effort to justify this obvious error. The judgment is reversed and the cause remanded.")
  • Santillian v. State, 182 S.W.2d 812, 815 (Tex.Crim.App. 1944) ("Therefore a child who could never be 'convicted of a crime in any court' is not amenable to the pains and penalties of perjury, and therefore could not testify in any court. If such were true, then the result would be to deny to such child the equal protection of the laws, as guaranteed in the 14th Amendment to the Federal Constitution. If the child were hurt in an accident, with no witness save the child, it would have no protection under the law. Again, on the criminal side, in cases of rape under the age of consent, the female could not be heard to testify, she being not punishable under the law of perjury.")

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