Article I, Section 3 of the Texas Constitution ("Equal Rights Provision")

Adopted February 15, 1876:

All freemen, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.

Editor Comments

This has been called the natural-rights section of the Texas Bill of Rights. However, the Texas Supreme Court and the Texas Court of Criminal Appeals have always treated it as simply an equal rights provision.

In addition, for at least the last thirty-five years, all published appellate court decisions have assumed that the substance of this section and the substance of the federal equal protection clause are identical.

It seems improbable that the foregoing interpretation will be departed from by the Texas judiciary in the future. Nonetheless, for completeness, the apparent origin of this section's unique text is outlined below.

The influential Virginia Declaration of Rights was adopted in June 1776. The first section read: "[A]ll men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." And the fourth read: "[N]o man, or set of men, is entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary."

The first North Carolina Declaration of Rights was adopted in December 1776. The third section read: "[N]o man or set of men are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services." And the twenty-second read: "[N]o hereditary emoluments, privileges or honors ought to be granted or conferred in this State." Note that no section directly addressed equality or equal rights.

The first Massachusetts Declaration of Rights was adopted in 1780. The first section read: "All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness." And the sixth read: "No man nor corporation or association of men have any other title to obtain advantages, or particular and exclusive privileges distinct from those of the community, than what rises from the consideration of services rendered to the public, and this title being in nature neither hereditary nor transmissible to children or descendants or relations by blood; the idea of a man born a magistrate, lawgiver, or judge is absurd and unnatural."

The first Kentucky Declaration of Rights was adopted in 1792. The first section read: "[A]ll men when they form a social compact, are equal, and [] no man or set of men are entitled to exclusive separate public emoluments or privileges from the community, but in consideration of public services." And the twenty-sixth read in part: "[T]he Legislature shall not grant any title of nobility or hereditary distinction."

The second Kentucky Declaration of Rights was adopted in 1799. The first section read: "[A]ll freemen, when they form a social compact, are equal, and [] no man or set of men are entitled to exclusive, separate public emoluments or privileges from the community but in consideration of public services." And the twenty-sixth read in part: "[T]he Legislature shall not grant any title of nobility or hereditary distinction."

The first Mississippi Declaration of Rights was adopted in 1817. The first section read: "[A]ll freemen, when they form a social compact, are equal in rights, and [] no man or set of men, are entitled to exclusive, separate, public emoluments or privileges, from the community, but in consideration of public services." And the twenty-sixth read: "[N]o hereditary emoluments, privileges, or honors shall ever be granted or conferred in this State."

The first Connecticut Declaration of Rights was adopted in 1818. The first section read: "[A]ll men when they form a social compact, are equal in rights; and [] no man, or set of men are entitled to exclusive public emoluments or privileges from the community." And the twentieth read: "No hereditary emoluments, privileges or honors, shall ever be granted, or conferred in this state."

The first Alabama Declaration of Rights was adopted in 1819. The first section read: "[A]ll freemen, when they form a social compact, are equal in rights; and [] no man, or set of men, are entitled to exclusive, separate public emoluments or privileges, but in consideration of public services." And the twenty-sixth read in part: "No title of nobility, or hereditary distinction, privilege, honor, or emolument, shall ever be granted or conferred in this State."

The Declaration of Rights of the Republic of Texas was adopted in 1836. The first section read: "All men, when they form a social compact, have equal rights, and no man or set of men are entitled to exclusive public privileges or emoluments from the community." And the eighth read in part: "No title of nobility, hereditary privileges or honors, shall ever be granted or conferred in this Republic."

In Jackson v. Bulloch, 12 Conn. 38, 42-43 (1837), the Connecticut Supreme Court opined: "The bill of rights, in its 1st section, declares, that all men, when they form a social compact, are equal in rights; and that no man, or set of men, are entitled to exclusive public emoluments or privileges from the community. The language is certainly broad; but not as broad as that of the bill of rights in Massachusetts, to which it has been compared. It seems evidently to be limited to those who are parties to the social compact thus formed. Slaves cannot be said to be parties to that compact, or to be represented in it."

The State of Texas's first Bill of Rights was adopted in 1845. The second section read: "All freemen, when they form a social compact, have equal rights; and no man, or set of men, is entitled to exclusive, separate, public emoluments or privileges, but in consideration of public services." Note that no section directly addressed titles of nobility or hereditary emoluments, privileges or honors.

In Williams v. Cammack, 27 Miss. 209, 218 (1854), the Mississippi Supreme Court opined: "The principle here announced is that of equality in political rights, and a denial of all title to individual privileges, honors, and distinctions from the community but for public services. It was directed against superiority of personal and political rights . . . . But it has no reference to the private relations of the citizens, nor to the action of the legislature in passing laws regulating the domestic policy and business affairs of the people, or any portion of them. Such matters are left, with but few limitations, to the discretion of the legislature."

In the State of Texas's second Bill of Rights adopted in 1861 due to it joining the Confederacy and its third Bill of Rights adopted in 1866 due to it leaving the Confederacy, the relevant constitutional language remained exactly the same.

The State of Texas's fourth Bill of Rights was adopted in 1869 due to the demands of Congressional Reconstruction. The second section read: "All freemen, when they form a social compact, have equal rights; and no man, or set of men, is entitled to exclusive separate public emoluments or privileges." And the twenty-first read: "The equality of all persons before the law is herein recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege, or immunity, nor be exempted from any burden, or duty, on account of race, color, or previous condition."

Without any recorded debate, section twenty-one was dropped by the Constitutional Convention of 1875 from the State of Texas's fifth and current Bill of Rights. Cf. Reid v. Rolling Fork Pub. Util. Dist., 979 F.2d 1084, 1089 (5th Cir. 1992) ("Reid also urges that even if his federal constitutional claim is defeated, his claim under the Texas Constitution's equal protection clause survives. . . . There is ample support in Texas case law for the District's contention that the same requirements are applied to equal protection challenges under the Texas Constitution as to those under the United States Constitution.").

The courts and commentators routinely insert the term "free men" rather than "freemen" when quoting the text of this section. Because it appears in the enrolled version of the state constitution, "freemen" is used here. Cf. Joshua Morrow, There Is Only One Texas Constitution, 52 St. Mary's L.J. 765, 835-36 (2021) ("One constitution governs Texas: the manuscript constitution that the delegates to the Convention of 1875 signed and enrolled. . . . No longer should any court cite a pre-ratification copy as law, although courts can use those copies to help dispel any ambiguities that appear in the ratified text.").

Finally, note that no published appellate court decision has ever detailed the origin or otherwise discussed the history of this section's unique text. Cf. State v. Webb, 238 Conn. 389, 409 (1996) (citation omitted) ("Thus, as the defendant acknowledges, the concepts of the social compact and of natural law as sources of unenumerated constitutional rights are intertwined. Indeed, we have treated the two as functionally the same. We now, therefore, reaffirm . . . that neither the social compact clause nor its counterpart, natural law, constitutes a source of unenumerated rights under our constitutional scheme.").

Steve Smith

Recent Decisions

  • Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015) ("The Texas Constitution provides that all people 'have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges.' . . . In conducting a rational-basis review, we consider whether the challenged action has a rational basis and whether use of the challenged classification would reasonably promote that purpose. Id. These determinations are 'not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.' FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).")
  • First American Title Ins. Co. v. Combs, 258 S.W.3d 627, 638-39 (Tex. 2008) (footnote omitted) ("'[T]he federal analytical approach applies to equal protection challenges under the Texas Constitution,' so resolution of the federal equal protection claim will also resolve the State equal protection claim. We conclude that the Comptroller's interpretation of the relevant statutes does not violate the insurers' equal protection rights. . . . This rational-basis review requires us to answer two questions: '(1) Does the challenged legislation have a legitimate purpose? and (2) Was it reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose?'")
  • Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 97-98 (Tex. 2004) ("The Fourteenth Amendment provides that 'No State shall . . . deny to any person . . . the equal protection of the laws.' U.S. CONST. amend XIV, § 1. The Texas Constitution contains a similar provision: '. . . .' TEX. CONST. art. 1, § 3. The parties do not argue any distinction between these two clauses, and we have said that both guarantees 'require a similar multi-tiered analysis.' Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 451 (Tex. 2000); see also Rose v. Doctors Hosp., 801 S.W.2d 841, 846 (Tex. 1990) ('Texas cases echo federal standards when determining whether a statute violates equal protection.').")
  • Bell v. Low Income Women of Texas, 95 S.W.3d 253, 265-66 (Tex. 2002) ("They rely on two cases which they claim suggest that we have 'applied a rational basis test more exacting than mere reasonableness,' in which the statutory classification must be rationally related not only to a legitimate state interest as required under federal law, but to the very object or subject of the legislation. . . . We do not read Whitworth and Richards to establish the more exacting standard the plaintiffs suggest. To the extent they might suggest such a standard, we have recently clarified that the federal analytical approach applies to equal protection challenges under the Texas Constitution.")
  • Cannady v. State, 11 S.W.3d 205, 215 (Tex.Crim.App. 2000) (footnotes omitted) ("Cannady recognizes that this Court in the past has held that the Texas equal rights provision and the federal equal protection provision are coterminous. But he urges us to reconsider these holdings. This we will not do. . . . Therefore, a claim that a provision of the capital murder statute violates equal protection is reviewed using the rational basis test and the challenged classification need only be 'rationally related to a legitimate governmental purpose.' We have recognized that states have a legitimate and compelling interest in maintaining the safe, orderly, and effective functioning of prisons.")
  • Texas Boll Weevil Eradication Foundation v. Lewellen, 952 S.W.2d 454, 464-65 (Tex. 1997) (citations omitted) ("The Legislature has broad discretion in enacting social or economic legislation that does not classify on suspect categories, such as race, or impinge on fundamental rights. Under both federal and state equal protection analysis, such legislation is valid as long as it is rationally related to a legitimate state interest. . . . The equal protection clause is not, without more, violated merely because a law treats different geographic regions or political subdivisions differently, or because it allows political subdivisions the discretion to adopt or reject a statutory scheme.")
  • Republican Party of Texas v. Dietz, 940 S.W.2d 86, 89-91 (Tex. 1997) ("The first clause of section 29 establishes that the purpose of the Texas Bill of Rights is to 'guard against transgressions of the high powers' delegated to the state government by the Texas Constitution. . . . Accordingly, based on the text of the Texas Bill of Rights, its history and purpose, our prior judicial decisions, the law in other jurisdictions, constitutional theory, and the concern for the liberty of all Texas citizens, we conclude that state action is required before a litigant can maintain a claim for deprivation of a right secured by the free speech, equal rights, and due course of law guarantees of the Texas Bill of Rights.")

Historic Decisions

  • Richards v. LULAC, 868 S.W.2d 306, 310-11 (Tex. 1993) (citations omitted) ("[E]qual protection challenges under the Texas Constitution are reviewed under a multi-tiered system. Generally, we require only that the classification under challenge be rationally related to a legitimate state purpose. The general rule gives way, however, when the classification impinges on the exercise of a fundamental right, or when the classification distinguishes between people, in terms of any right, on a 'suspect' basis such as race or national origin. In those instances, the state action is subjected to strict scrutiny, requiring that the classification be narrowly tailored to serve a compelling government interest.")
  • Vasquez v. State, 739 S.W.2d 37, 43 (Tex.Crim.App. 1987) ("Article I, Section 3 of the Texas Constitution and the Fourteenth Amendment to the Federal Constitution secure to all persons similarly situated equal protection under the laws of this State and the United States. In the absence of a suspect classification, a state law is not repugnant to either constitutional provision so long as unequal treatment of persons is based upon a reasonable and substantial classification of persons. Unequal treatment of persons under a state law which is founded upon unreasonable and unsubstantial classification constitutes discriminating state action and violates both the state and federal constitutions.")
  • Whitworth v. Bynum, 699 S.W.2d 194, 196-97 (Tex. 1985) (citations omitted) ("Subject to adhering to minimal federal standards, we are at liberty to interpret state statutes in light of our own constitution and to fashion our own tests to determine a statute's constitutionality. . . . This is particularly true when a state court is acting within a subject area uniquely appropriate for a state's judiciary, such as the common law. An examination of Texas cases reveals the standards we have previously set in respect to equal protection. A court begins by presuming a statute's constitutionality, whether the basis of the constitutional attack is grounded in due process or equal protection.")
  • Hill v. Texas Water Quality Bd., 568 S.W.2d 738, 739 (Tex.Civ.App.–Austin 1978, n.r.e.) ("Although the Attorney General [] refers to the 'unconstitutional' action of the Board, the only way that the Board's action could be remotely suspect under the Constitution of either the State or the Federal government would be a violation of equal protection due, as alleged by the Attorney General, to its arbitrary, capricious, and unreasonable action. This contention must fail as equal protection is a constitutional guaranty afforded only to 'persons' and the State does not have standing to raise the claim. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).")
  • Avery v. Midland County, 406 S.W.2d 422, 427 (Tex. 1966) ("The requirements of Article V, Section 18, of the Texas Constitution are to be construed and enforced consistently with Article I, Section 3, commonly referred to as the equal rights or equal protection clause of the Texas Constitution. Cf. Railroad Commission v. Shell Oil Co., [] 161 S.W.2d 1022 (1942). Equal protection of laws is not secured if persons are deprived of equality in political rights or otherwise subjected to an arbitrary exercise of governmental powers. See Burroughs v. Lyles, [] 181 S.W.2d 570 (1944); Mumme v. Marrs, [] 40 S.W.2d 31 (1931); Glasgow v. Terrell, [] 102 S.W. 98 (1907).")
  • Rucker v. State, 342 S.W.2d 325, 326-27 (Tex.Crim.App. 1961) ("Article 1, Section 3 of the Constitution of Texas, Vernon's Ann. St., and the 14th Amendment to the Constitution of the United States secure to all persons similarly circumstanced equal protection under the laws of this state or any subdivision thereof, and it is a well-settled rule in all jurisdictions that a penal ordinance of a municipal corporation constitutes state action subject to these fundamental provisions . . . . Unequal treatment of persons under a state law which is founded upon unreasonable and unsubstantial classification constitutes discriminatory state action and violates both the state and federal constitutions.")
  • San Antonio Retail Grocers v. Lafferty, 297 S.W.2d 813, 815-17 (Tex. 1957) ("We consider, then, whether there is any reasonable basis for applying the restrictive provisions of the Act to grocery stores only. We recognize that the test is whether there is any basis for the classification which could have seemed reasonable to the Legislature. . . . We can conceive of no reasonable basis for applying the provisions of the Act to grocery stores and exempting other stores therefrom. Neither can we conceive of any basis therefor which could have seemed reasonable to the Legislature. We agree with the conclusion of the trial court that the Act is unconstitutional.")
  • Ex parte George, 215 S.W.2d 170, 172 (Tex.Crim.App. 1948) ("The question arises as to whether the exemptions mentioned invalidate the Act. In approaching a determination of such question it is well to keep in mind that there is nothing in our State or Federal Constitutions which prohibits the legislature of this State from resorting to classification for the purpose of legislation. The only limitation upon the passage of such legislation is that there must be some reasonable basis for the classification not arbitrary or capricious, and it must rest upon grounds of difference having a fair and substantial relationship to the legislation, so that all persons similarly circumstanced shall be treated alike.")
  • Watts v. Mann, 187 S.W.2d 917, 924 (Tex.Civ.App.–Austin 1945, ref'd) ("The principles here involved are of long standing and general acceptation. Substantially they are: The Legislature may classify law violators and impose different penalties, inhibitions and restrictions upon the several classes, provided there is a reasonable basis for the classification. In determining whether there is a reasonable basis for the classification there is a general presumption that the Legislature has done its duty, not violated the Constitution; and therefore the classification will be upheld unless it appears, clearly and without doubt, that it has no reasonable basis of support.")
  • Burroughs v. Lyles, 181 S.W.2d 570, 574 (Tex. 1944) (citations omitted) ("Article I, Section 3, of the Constitution guarantees to all persons equality of rights. This provision of the Constitution was designed to prevent any person, or class of persons, from being singled out as a special subject for discriminating or hostile legislation. This principle of equality also applies to political rights. Under the foregoing provision of the Constitution the Legislature has the power to adopt any classification it sees fit, provided there is a reasonable basis for such classification. . . . The discrimination is apparent, and we can perceive no reasonable basis for the classification.")
  • Friedman v. American Surety Co., 151 S.W.2d 570, 576-77 (Tex. 1941) (citations omitted) ("It is settled that [Article I, Section 3] guarantees to all men equality of rights. In spite of this, the State can adjust its legislation to differences in situation. Our Constitution does not forbid legislative classification of subjects and persons for the purpose of regulatory legislation, but it does require that the classification be not arbitrary or unreasonable. Classifications must be based on a real and substantial difference, having relation to the subject of particular enactment. If there is a reasonable ground for the classification, and the law operates equally on all within the same class, it will be held valid.")
  • Mumme v. Marrs, 40 S.W.2d 31, 36 (Tex. 1931) ("[L]egislation is not open to objection if all who are brought under its influence are treated alike in the same circumstances. 9 Texas Jurisprudence, p. 553, § 117. In the very nature of society, with its manifold occupations and contacts, the Legislature must have, and clearly does have, authority to classify subjects of legislation, and, when the classification is reasonable—that is, based upon some real difference existing in the subject of the enactment—and the law applies uniformly to those who are within the particular class, the act is not open to constitutional objection. 9 Texas Jurisprudence, p. 555, § 119, p. 558, § 120, p. 561, § 121.")
  • Glasgow v. Terrell, 102 S.W. 98, 99 (Tex. 1907) ("Every state has of necessity dual functions to perform—first, its political functions, which affect the public; second, its private functions, such as the acquisition of private property and the disposition of property already acquired. The latter are not in our opinion affected by the provision of the Constitution in question. It was so held in the case of Williams v. Cammack, 27 Miss. 209, 61 Am. Dec. 508, in which a provision of the Constitution of Mississippi couched in substantially the same language was in question. . . . We have found no other case in which the words 'public emoluments and privileges' have been construed.")
  • Gustafson v. State, 48 S.W. 518, 519 (Tex.Crim.App. 1898) ("Our constitution provides (section 3, art. 1): . . . . Mr. Cooley says on this subject (Cooley, Const. Lim. 485): 'Equality of rights, privileges, and capacities unquestionably should be the aim of the law; and if special privileges are granted or special burdens or restrictions imposed, in any case, it must be presumed that the legislature designed to depart as little as possible from this fundamental maxim of government. The state, it is to be presumed, has no favors to bestow, and designs to inflict no arbitrary deprivation of rights. Special privileges are always obnoxious, and discrimination against persons or classes is still more so.'")
  • Union Cent. Life Ins. Co. v. Chowning, 26 S.W. 982, 984 (Tex. 1894) ("Appellant's counsel assert that the article in question is in conflict with article 1, § 3, of the constitution of the state of Texas, which is in these words: '. . . .' It is not shown just how the law violates this section, and, indeed, it would be difficult to imagine how a corporation which has no natural rights could be said to be entitled to such rights and privileges as grow out of the formation of a social compact. It is the creature of law, and entitled to just such rights as the law grants to it. When granted, such rights are protected from invasion the same as the rights of any natural person.")
  • Francois v. State, 9 Tex.Ct.App. 144, 146 (1880) ("Sect. 3, Art. I., of the Constitution of 1876 is a literal copy of sect. 2 of Art. I. of the Constitution of 1869, as quoted above, and sect. 29 of the same Constitution is a literal copy of the twenty-third section of the Constitution of 1869, also quoted above. These provisions, it is contended, abrogate art. 386 of the Penal Code, which was passed previously—on the twelfth day of February, 1858. It is also contended that art. 386 is in contravention of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution of the United States. We do not propose to discuss anew these questions.")

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