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Texas Constitution:Article I, Section 28 (view source)
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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 | 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 Legislature, in June 1873, passed a joint resolution proposing a constitutional amendment that eliminated the words "or its authority" from Section 20 of the Bill of Rights. Texans, in December 1873, voted overwhelmingly in favor of the amendment. The Legislature, in January 1874, in compliance with the amendment provision contained in the Texas Constitution of 1869, [https://texashistory.unt.edu/ark:/67531/metapth6731/m1/237/ ratified] the amendment and thereby made it effective. | The Legislature, in June 1873, passed a joint resolution proposing a constitutional amendment that eliminated the words "or its authority" from Section 20 of the Bill of Rights. Texans, in December 1873, voted overwhelmingly in favor of the amendment. The Legislature, in January 1874, in compliance with the amendment provision contained in the Texas Constitution of 1869, [https://texashistory.unt.edu/ark:/67531/metapth6731/m1/237/ ratified] the amendment and thereby made it effective. | ||
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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 literal text of the section flatly 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 [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"). | 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 literal text of the section flatly 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 [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 | Finally, note that Abbott's orders should 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 actions taken after the Legislature becomes institutionally capable of addressing the emergency. | ||
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