Article I, Section 26 of the Texas Constitution ("Perpetuities and Monopolies; Primogeniture or Entailments")

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Adopted February 15, 1876:

Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.

Editor Comments

The Declaration of Rights in the Republic of Texas constitution (1836) and the Bill of Rights in each of the state's first four constitutions (1845, 1861, 1866, & 1869) contained a section with the same substantive language as this section.

Note that only a few other states have a similar provision in their constitutions. Cf. City of Memphis v. Memphis Water Co., 52 Tenn. 495, 529 (1871) ("We know of no better definition of a monopoly, than that given by Lord Coke, . . .").

—Attorney Steve Smith

Recent Decisions

  • ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 868 (Tex. 2018) (citations omitted) ("When an interest violates the Rule because it is uncertain to vest, if at all, within the required time period, we have traditionally held that those provisions of the conveying instrument creating the interest are void. We have stated that our constitutional provision prohibiting perpetuities 'expresses one of the cardinal and basic principles of our system of government' and must be 'relentlessly enforced.' But we hesitate to apply the Rule to invalidate this future interest when, as the Koopmanns point out, such a holding would not serve the purpose of the Rule.")
  • Southern Union Co. v. City of Edinburg, 129 S.W.3d 74, 84 (Tex. 2003) (footnote omitted) ("The provisions of the franchise agreement reflect the parties' intent that the Grantee's 'gross income derived . . . not sales by other parties. This conclusion is consistent with the fact that this franchise agreement did not give the Grantee the exclusive right to sell gas within the City. Indeed, under Texas law, the grant could not have been an exclusive one. It is unreasonable to construe the franchise agreement to mean that the Grantee would have to pay franchise taxes on sales made by another company who had the lawful right to sell gas within the City.")

Historic Decisions

  • Brooker v. Brooker, 106 S.W.2d 247, 254 (Tex. 1937) ("Construed as above, we are further compelled to the conclusion that this will, as regards the trust estate, attempts to create a perpetuity in violation and contravention of section 26 of article 1 of our State Constitution. . . . According to our authorities, and also according to the authorities generally, the rule against perpetuities, as contained in the above constitutional provision, is that no interest within its scope is good unless it must vest, if at all, not later than twenty-one years after some life in being at the time of the creation of the interest, and in some instances the period of gestation will be added.")
  • Travelers' Insurance Co. v. Marshall, 76 S.W.2d 1007, 1010 (Tex. 1934) ("Could we say that, although section 26 of the Bill of Rights declares that monopolies shall never be allowed, yet, because of emergency conditions, the Legislature could pass laws for the purpose of allowing monopolies? Could we say that, although section 15 of the Bill of Rights declares that 'The right of trial by jury shall remain inviolate,' yet, because of emergency crime conditions, the Legislature, to preserve order and protect life and property, etc., would have the authority under the police power to suspend . . . . Obviously all these questions must be answered in the negative.")
  • Ennis Waterworks v. City of Ennis, 144 S.W. 930, 934 (Tex. 1912) ("To such an extent has [City of Brenham v. Brenham Water Co.] been cited, discussed, and approved, not only in relation to the general principles of law announced against monopolies and perpetuities, but as to the legal effect to be given the language in which the contract is couched, that we are not willing to say the interpretation there given the language granting the right and privilege for a great length of time to furnish and supply the city and its inhabitants with water has not become, at least in this jurisdiction, a rule of construction worthy to be observed and adhered to.")
  • City of Brenham v. Brenham Water Co., 4 S.W. 143, 155-56 (Tex. 1887) ("It will not do to say that an exclusive right in a municipal corporation to operate water or gas works stands upon the same ground as does such exclusive right held by a private corporation or an individual. . . . The correction of abuses in its management, whereby oppression may be avoided, is in the hands of the people; while, on the other hand, such works are operated for private gain, with every incentive to oppression, without power, in those to be affected, to relieve themselves from it. In the one case the exclusive right may create a monopoly, and in the other not.")
  • Macdonell v. I. & G. N. R'y Co., 60 Tex. 590, 596-97 (1884) ("A very essential element to constitute a monopoly is an exclusive right or privilege conferred on one person or association of persons by which they have the sole authority to pursue a given business. The averments of the petition not showing that the contract in question conferred any such exclusive right, it is not necessary further to inquire how far and what kind of exclusive privileges may be conferred without coming within the prohibition contained in sec. 26 of the Bill of Rights. For the error of the court in sustaining the demurrer to the petition the judgment is reversed and the cause remanded.")
  • Paschal v. Acklin, 27 Tex. 173, 196 (1863) ("There remains but one other question that need be discussed. Appellees' counsel have maintained, in an argument of much zeal and cogency, that the special bequest in Franklin's will in favor of his brothers, upon the trusts therein declared, is in violation of our constitutional prohibition of perpetuities and entailments; and that the court must, therefore, hold it illegal and void. The solution of this question depends upon the fact, whether the devise in question can be sustained as a bequest for charitable uses. If so, it must be conceded that it does not come within the constitutional inhibition referred to.")
  • Hancock v. Butler, 21 Tex. 804, 813 (1858) ("In the American states, perpetuities, entailments, and the right of primogeniture were generally prohibited by their written constitution; and the antagonism of classes never having existed here, the public mind was at ease on the subject of the encroachments of the power of property. Hence our decisions have not always kept pace with the English decisions in disregarding the qualifying words which formerly in their own courts took the case out of the rule. See opinions of Chief Justice Marshall, 10 B. Mon. 56, in which he adheres to former decisions and declines to follow the then late case of Jesson v. Wright.")

Library Resources

Online Resources

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