Texas Constitution:Article I, Section 28: Difference between revisions

Texas Constitution:Article I, Section 28 (view source)

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 The militia [https://texashistory.unt.edu/ark:/67531/metapth6734/m1/196/ law], enacted in June 1870, provided in part: "Sec. 26. It shall be the duty of the Governor, and he is hereby authorized, whenever in his opinion the enforcement of the law of this State is obstructed, within any county or counties, by combinations of lawless men too strong for the control of the civil authorities, to declare such county or counties under martial law, and to suspend the laws therein until the Legislature shall convene and take such action as it may deem necessary. . . . Sec. 27. Whenever the laws may be suspended, as provided for in last preceding section, it shall be the duty of the Governor to provide for the trial and punishment of offenders; and the Governor shall make all details of officers for this purpose, and prescribe all necessary regulations for the formation and government of courts martial and military commissions for this purpose."
-Democratic Senators, in a May 1870 minority [https://lrl.texas.gov/scanned/Senatejournals/12/S_12_1.pdf#page=103 report], had opined that: "It is not denied that the Legislature can make and also unmake laws, so long as the limits assigned by the constitution to the exercise of this power are not transcended, that the statutes of the State are under the control and at the disposal of the Legislature, and they may either change, modify, abolish or suspend them for a given time, or the Legislature may authorize some particular person or agent to suspend the operation of any particular statute for a given time and for a fixed and known purpose. But we cannot concur in the idea that this authority to suspend a law of the State can authorize the passage of a general law delegating to a co-ordinate department of the government the right and authority at pleasure to suspend and render nugatory all the civil laws of the State, whether statutory or organic."
+Democratic Senators, in a May 1870 minority [https://lrl.texas.gov/scanned/Senatejournals/12/S_12_1.pdf#page=103 report], had stated that: "It is not denied that the Legislature can make and also unmake laws, so long as the limits assigned by the constitution to the exercise of this power are not transcended, that the statutes of the State are under the control and at the disposal of the Legislature, and they may either change, modify, abolish or suspend them for a given time, or the Legislature may authorize some particular person or agent to suspend the operation of any particular statute for a given time and for a fixed and known purpose. But we cannot concur in the idea that this authority to suspend a law of the State can authorize the passage of a general law delegating to a co-ordinate department of the government the right and authority at pleasure to suspend and render nugatory all the civil laws of the State, whether statutory or organic."
 Davis, in a January 1873 legislative [https://lrl.texas.gov/scanned/govdocs/Edmund%20J%20Davis/1873/SOS_Davis_1873.pdf#page=18 message], stated that: "The feature of the [militia law] looking directly to preservation of the peace was that delegating to the Governor the power to suspend the laws within disturbed districts. I have fortunately been compelled to resort to this authority but on three occasions, though the knowledge that I possessed the power, and might exercise it, doubtless often prevented disturbances hurtful to the prosperity of our State, and averted the interference of the United States government . . . . Under our Constitution, your houses have the granting or withholding of this power entirely confided to you, and if in your wisdom you conclude that the necessity for it has ceased, it would not be within the province of the Executive to object." In March 1873, the Democratic controlled Thirteenth Legislature [https://texashistory.unt.edu/ark:/67531/metapth6732/m1/470/ repealed] Sections 26 and 27 of the militia law.
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 * ''Trimmier v. Carlton'', 296 S.W. 1070, [https://texaslegalguide.com/images/296_SW_1070.pdf#page=13 1082] (Tex. 1927) ("Again, there is strong support for our conclusion . . . that it is not a delegation of legislative power in violation of the Constitution to grant to some designated body powers which the Legislature cannot itself practically and efficiently exercise. Authorities, supra. In other words, that the exercise of that particular type of authority is read as an exception into the general language of limitation of the Constitution. It is merely tantamount to saying that the Constitution itself does not require the impracticable or the impossible. The case of Kinney v. Zimpleman, 36 Tex. 554, states the principle.")
-* ''Dockery v. State'', 247 S.W. 508, [https://texaslegalguide.com/images/247_SW_508.pdf#page=2 509] (Tex.Crim.App. 1923) ("Section 28, art. 1, of our Constitution, forbids the delegation of lawmaking power by the Legislature. We discussed this at some . . . . If the act under discussion be upheld, it would seem clear that the law requiring fire escapes would be such as that the essential part of it, i. e. the kind and character of specifications necessary, might be changed, modified, added to, or taken from by a power other than the Legislature, at the will, wish, or whim of such foreign power. Indeed, if the fire marshal declined to promulgate specifications it might be that the entire law would be rendered futile.")
+* ''Dockery v. State'', 247 S.W. 508, [https://texaslegalguide.com/images/247_SW_508.pdf#page=2 509] (Tex.Crim.App. 1923) ("Section 28, art. 1, of our Constitution, forbids the delegation of lawmaking power by the Legislature. We discussed this at some . . . . If the act under discussion be upheld, it would seem clear that the law requiring fire escapes would be such as that the essential part of it, i.e. the kind and character of specifications necessary, might be changed, modified, added to, or taken from by a power other than the Legislature, at the will, wish, or whim of such foreign power. Indeed, if the fire marshal declined to promulgate specifications it might be that the entire law would be rendered futile.")
 * ''Zucarro v. State'', 197 S.W. 982, [https://texaslegalguide.com/images/197_SW_982.pdf#page=5 986-87] (Tex.Crim.App. 1917) ("The state law (article 302, P. C.) prohibiting the conduct of the business for which appellant is prosecuted, the ordinance of the city of Ft. Worth could not have the effect of suspending the operation of the state law. This was held by the Court of Civil Appeals at Austin in an opinion by Judge Key in the case of Burton v. Dupree, [] 46 S.W. 272, and by the Supreme Court in an opinion by Chief Justice . . . . Other authorities in point are: Arroyo v. State, 69 S.W. 504; Ex parte Ogden, [] 66 S.W. 1100; Denton v. McDonald, [] 135 S.W. 1148, 34 L.R.A. (N.S.) 453; Fay v. State, [] 71 S.W. 603.")