Article II, Section 1 of the Texas Constitution ("Separation of Powers Among Three Departments")

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Adopted February 15, 1876:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: those which are Legislative to one, those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

Editor Comments

This fundamental section informs the operation of each part of Texas government. The Republic of Texas constitution (1836) and each of the state's first four constitutions (1845, 1861, 1866, & 1869) contained a section with the same substantive language as this section. In contrast, the federal constitution and roughly twenty percent of state constitutions do not contain an express separation-of-powers provision.

The opening paragraph of a 1990 law review article written by a University of Texas law professor accurately states: "The constitutional law of Texas, mirroring the state's history, is rich, unique, and sometimes perplexing. A strong separation-of-powers tradition is a prominent feature of this law. In both the state and the federal contexts, everyone favors separation of powers as an abstract principle, but few understand its application to modern government. In particular, the 'fourth branch' of government—administrative agencies—rests uncomfortably in the classical tripartite scheme. Texas courts, like those elsewhere, have struggled with separation-of-powers issues and have produced a body of case law that resists confident application to new controversies." Harold Bruff, Separation of Powers Under the Texas Constitution, 68 Tex. L. Rev. 1337, 1337 (1990) (footnote omitted).

Attorney Steve Smith

Recent Decisions

  • Morath v. Lewis, 601 S.W.3d 785, 789 (Tex. 2020) (citation omitted) ("We do not have power to decide moot cases, whether they 'involve a matter of public concern' or not. Indeed, the need for courts to mind their jurisdictional bounds is perhaps at its greatest in cases involving questions of public importance, where the potential for undue interference with the other two branches of government is most acute. If courts were empowered to ignore the usual limits on their jurisdiction, such as mootness, when matters of public concern are at stake, then we would no longer have a judiciary with limited power to decide genuine cases and controversies.")
  • City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 592 (Tex. 2015) (citations omitted) ("Separation-of-powers concerns may arise if a matter is constitutionally committed to a coordinate political department or there are no judicially discoverable and manageable standards for resolving the issue. However, neither of those circumstances are presented here. Courts have historically exercised their jurisdiction to resolve boundary disputes. We have also applied standards to determine whether particular property falls within a city's boundary. More to the point . . . . Interpreting and applying an ordinance is also well within judicial authority.")
  • Ex parte Lo, 424 S.W.3d 10, 28 (Tex.Crim.App. 2013) (citations omitted) ("Our state's express provision 'reflects a belief on the part of those who drafted and adopted our state constitution that one of the greatest threats to liberty is the accumulation of excessive power in a single branch of government.' . . . We have viewed the Texas provision as generally susceptible to violation in one of two ways: (1) when one branch of government assumes or is delegated a power 'more properly attached' to another branch, or (2) when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.")
  • Perry v. Del Rio, 67 S.W.3d 85, 93 (Tex. 2001) (citations omitted) ("To accept the State defendants' position that the Attorney General becomes the Legislature's voice when the Legislature fails to act would condone a constitutional violation. As a member of the executive branch, the Attorney General may not perform legislative functions unless expressly authorized to do so. Neither our Constitution nor [] the Government Code expressly authorizes the Attorney General's position here. And the State defendants provide us with no other authority giving the Attorney General the Legislature's power to resolve the congressional redistricting controversy.")
  • Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 635 (Tex. 1996) (citations omitted) ("They maintain that this process is a judicial function that cannot be performed by an agency of the executive branch. Typically, the power to determine controverted rights to property by means of binding judgment is vested in the judicial branch. Nevertheless, this principle does not bar administrative agencies of the executive branch of government from working in tandem with the judicial branch to administer justice under appropriate circumstances. Administrative fact findings are . . . and are not an exclusively judicial function.")

Historic Decisions

  • State v. Flag-Redfern Oil Co., 852 S.W.2d 480, 484 (Tex. 1993) (citation omitted) ("[A]s a lessor, the State may reassess its rights under the lease as a matter of course. Section 52.135 merely allows a lessee to participate in the State's reassessment of its rights. A hearing under section 52.135 is thus no different, in principle, from routine decision-making by any ordinary lessor. To the extent that section 52.135 merely allows the State to reassess its position with regard to state mineral leases, rather than to subject participants to binding judgments, we hold that the statute does not offend article II, section 1 of the Texas Constitution.")
  • Texas Antiquities Comm. v. Dallas County Cmty. Coll. Dist., 554 S.W.2d 924, 927 (Tex. 1977) (plurality opinion) (citations omitted) ("[W]e are unconvinced that we should renounce the settled law of Texas that the legislature may not delegate its powers without providing some criteria or safeguards. Depending upon the nature of the power, the agency, and the subject matter, varying degrees of specific standards have been required in testing the reasonable breadth of statutes. Sound reasons support the rule that some reasonable standard is essential to the constitutionality of statutory delegations of powers to state boards and commissions.")
  • State v. Southwestern Bell Telephone Co., 526 S.W.2d 526, 530-31 (Tex. 1975) ("'It is one thing to inquire whether the rates which have been charged and collected are reasonable—that is a judicial act; but an entirely different thing to prescribe rates which shall be charged in the future—that is a legislative act.' The distinction thus drawn is applicable to rates fixed by the utility as well as to those otherwise prescribed. . . . We do not agree with the argument of Bell that the court adjudicates when it protects a utility by enjoining a rate as too low; but that the court legislates when it protects the public by enjoining a rate as too high.")
  • Government Servs. Ins. Underwriters v. Jones, 368 S.W.2d 560, 564-65 (Tex. 1963) ("We speak of the American system of separation of powers and checks and balances. These are seemingly contradictory terms and it should be recognized that all three branches of government are to some extent interdependent. . . . It is primarily the responsibility of the respective branches of government to curb abuses within their particular spheres. While a continuing failure to meet this responsibility may indicate a need for constitutional change, the circumstance that a power may be abused is not a valid basis for arguing that the power is non-existent.")
  • Key Western Life Ins. Co. v. State Bd. of Ins., 350 S.W.2d 839, 845 (Tex. 1961) ("That case upheld the standard 'not worthy of the public confidence'. In upholding such standard, the court cited Administrative Law Treatise, par. 2.03, by Professor Davis, wherein there were given numerous illustrations of phrases employing general terms which have been held sufficient as administrative standards, and we quote . . . . The standard 'encourage misrepresentation' appears equally as definite as the standard 'unworthy of the public confidence', as well as the standards cited. The true test is whether the idea embodied in the phrase is reasonably clear.")
  • Friedman v. American Surety Co., 151 S.W.2d 570, 580 (Tex. 1941) ("The very life of our republican form of government demands that each of the three co-ordinate branches thereof shall operate within its constitutional limitations. It is the exclusive right and duty of the legislative branch of government to determine the wisdom of legislation. . . . It is not only the right, but it is the duty of the judicial branch to determine whether or not a legislative Act contravenes or antagonizes the fundamental law; and in determining such we are unalterably wedded to the principle that the Constitution means what it meant when it was written.")
  • Housing Authority of Dallas v. Higginbotham, 143 S.W.2d 79, 87 (Tex. 1940) ("Considering the broad policy and purpose of the Housing Authorities Law and taking into consideration the varying conditions throughout the state to which the law must apply, we conclude that the legislature has furnished a sufficient guide for the housing authority. Our decisions from our own jurisdiction . . . . Applying the principles announced in the cases cited, we are of the opinion that the housing law under attack is not violative of Section 1 of Article 2 of the Constitution of Texas. Moreover, like attacks have been made in other jurisdictions and in each instance overruled.")
  • Brown v. Humble Oil & Refining Co., 83 S.W.2d 935, 940-41 (Tex. 1935) (citations omitted) ("Certain Acts were passed which specifically declare the public policy of this State with respect to the development and protection of oil and gas, and established primary standards relating to such policy, and placed the duty upon the Railroad Commission to carry out the details under the general provisions of the statutes. That this is a valid exercise of power is now definitely settled. In the absence of a well defined standard . . . . The power to pass laws rests with the Legislature, and that power cannot be delegated to some commission or other tribunal.")
  • Trimmier v. Carlton, 296 S.W. 1070, 1079 (Tex. 1927) ("Article 2 of the state Constitution, originating with the Constitution of 1845, and continuing in substance the same language throughout the constitutional history of the state, provides that the powers of government shall be divided into three distinct departments . . . . It may therefore be said that the general principles of constitutional law, as declared by the various states of the Union, and by the Supreme Court of the United States, on the subject of delegation of legislative power, are applicable and may be examined in determining the meaning of our own constitutional provisions.")
  • Robbins v. Limestone County, 268 S.W. 915, 920 (Tex. 1925) ("Formerly, under 'the laws of the State', these powers were exercised by the county commissioners courts, but, as it was constitutionally authorized to do, the Legislature created another [] the State Highway Commission, and invested it with certain powers and functions, same to be performed and executed in conjunction with other agents and agencies of the State. The powers here bestowed by the Legislature are not different from those formerly vested in Commissioners Courts, which are in no sense a delegation of legislative authority, or a delegation of the power to suspend laws.")
  • Board of Water Engineers v. McKnight, 229 S.W. 301, 307 (Tex. 1921) ("An inquiry involving such questions and resulting in the binding adjudication of property rights is strictly judicial, and we would not uphold the Constitution as it is plainly written were we to sanction the delegation of the power to conduct and to finally determine such an inquiry to any other tribunal than the courts. . . . The Legislature having attempted by the statutes in question to confer on persons belonging to the executive department powers which properly attach to another department, without express permission of the Constitution, the statutes are void.")
  • Snyder v. Compton, 28 S.W. 1061, 1062-63 (Tex. 1894) ("A legislature may not construe a former law so as to give such construction a retroactive operation. Such is an evasion of the province of the courts. Not so, however, when the act itself contains a provision declaring the mode in which it shall be construed. A notable instance of this is found in our Revised Statutes, which contain a chapter in which rules are laid down for the construction of all civil statutory enactments. These rules have frequently been applied in this court in construing the provisions of the Revised Statutes, and have ever been regarded as binding upon the court.")
  • Milan County v. Bateman, 54 Tex. 153, 167 (1880) ("[U]nder our system of government, unlike the parliament of Great Britain, [the Legislature] has no general judicial powers. As said by Mr. Cooley, 'the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a court of review, to which parties might appeal when dissatisfied with the rulings of the courts.'")
  • Houston Tap & Brazoria Ry. Co. v. Randolph, 24 Tex. 317, 336 (1859) ("It contemplates that the persons employed in each department, will be wise enough, and honest enough, to discharge the duties entrusted to them, without the aid or interference of the others. And it is a full warrant for each department to disregard and repel such volunteer and unauthorized aid and interference. For, as before said, each one of these departments acts under a delegated limited authority, and if one exceed its authority, by usurping powers not belonging to it, its act is a nullity, not binding upon the other departments, and may be totally disregarded by them.")

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