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

The Republic of Texas constitution (1836) did not have a provision concerning the suspension of laws. However, the State of Texas's first constitution (1845) did. Section 20 of the Bill of Rights read: "No power of suspending laws in this State shall be exercised, except by the Legislature or its authority." The state's next three constitutions (1861, 1866, & 1869) each contained the same exact provision as the state's first constitution.

The direct [https://texashistory.unt.edu/ark:/67531/metapth277466/m1/2/ impetus] for the 1874 constitutional amendment was several controversial actions taken in late-1870 and 1871 by "Radical Republican" Governor E. J. Davis under a militia law that had been passed by the Republican dominated Twelfth Legislature. Cf. Reginald Jayne, ''Martial Law in Reconstruction Texas'' (May 2005) at [https://www.shsu.edu/dotAsset/c0ac2b23-8d71-4de2-af31-5bceef4798d8.pdf#page=23 17] ("Davis was not exaggerating when he reported Texas as being in a state of lawlessness.").

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."

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.

Governor Greg Abbott's expansive response to the coronavirus pandemic has focused attention on this section and its proper interpretation. Cf. ''Garofolo v. Ocwen Loan Servicing, LLC'', 497 S.W.3d 474, [https://scholar.google.com/scholar_case?case=230463052788030019#p477 477] (Tex. 2016) (citation omitted) ("We strive to give constitutional provisions the effect their makers and adopters intended. Accordingly, when interpreting our state constitution, we rely heavily on its literal text and give effect to its plain language."). Without question, the section prohibits the suspension of a statute by the Governor without legislative consent. Cf. Tex. Att'y Gen. Op. GM-308 (1939) at [https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1939/gm0308.pdf#page=3 3] ("[T]he Governor may invoke martial law for the purpose of executing the provisions of the law . . . but [] the power and the responsibility of suspending the operation of such law is vested exclusively in the Legislature of this State and may not be exercised by the Governor.").

The real interpretive issue is whether the Legislature may ever authorize the Governor to suspend a statute and, if so, in what manner and to what degree. The text of the section literally prohibits any person or entity other than the Legislature from suspending any law. But the available historical evidence regarding the intent of the makers and adopters of the 1874 constitutional amendment provides at least some [https://texashistory.unt.edu/ark:/67531/metapth233475/m1/1/ support] for the position that the Legislature may expressly authorize the Governor to suspend a particular statute if the Governor's discretion is restricted to a "fixed and known" legislative purpose. The argument would be that, in that circumstance, the Governor is not suspending the relevant statute but rather administering it in accordance with the Legislature's stated policy choices. Cf. Article IV, Section [[Texas Constitution:Article IV, Section 10|10]] (the Governor "shall cause the laws to be faithfully executed").

Finally, note that Abbott's orders would be judged in context. Enforcement of structural provisions like this section may be relaxed during emergencies. Actions that would normally be invalid may be upheld in times of war or sudden crisis. Cf. Lindsay Wiley, ''Democratizing the Law of Social Distancing'', 19 Yale J. Health Pol'y L. Ethics 50, [https://openyls.law.yale.edu/bitstream/handle/20.500.13051/5965/Wiley_v19n3_50_121.pdf?sequence=2&isAllowed=y#page=34 83] (2020) ("[T]he Fifth Circuit 'reduced' the complex 1905 Supreme Court decision in ''Jacobson v. Massachusetts'' to 'a clear and easy test' dictating suspension of ordinary, heightened standards of review for measures that infringe upon civil liberties during a public health emergency."). However, any implied exception would apply only to the extent required by the exigencies of the situation. Therefore, the exception would be inapplicable to orders issued after the Legislature became institutionally capable of addressing the coronavirus pandemic.

* ''Williams v. State'', 176 S.W.2d 177, [https://texaslegalguide.com/images/176_S.W.2d_177.pdf#page=8 184-85] (Tex.Crim.App. 1943) ("The next question presented is: Does the Act authorize the Commissioner of Agriculture to suspend the law? This question arises by reason of the provisions of the Act which authorize the Commissioner to promulgate rules and regulations constituting exceptions to the Act making it unlawful to grow cotton in regulated zones. We think this question has been determined by the Supreme Court of the United States, in . . . . The court held the contention untenable and that the power to grant exceptions there authorized was that of a fact-finding and administrative nature.")

* ''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.")