Texas Constitution:Article II, Section 1: Difference between revisions

{{DISPLAYTITLE:Article II, Section 1 of the Texas Constitution (''<small>"Separation of Powers Among Three Departments"</small>'')}}{{Texas Constitution|text=Adopted February 15, 1876:

This fundamental section informs the operation of each part of Texas government. The Republic of Texas constitution (1836) and each of the state's first four constitutions (1845, 1861, 1866, & 1869) contained a section with the same substantive language as this section. In contrast, the federal constitution and roughly twenty percent of state constitutions do not contain an express separation-of-powers provision.

The opening paragraph of a 1990 law review article written by a University of Texas law professor accurately states: "The constitutional law of Texas, mirroring the state's history, is rich, unique, and sometimes perplexing. A strong separation-of-powers tradition is a prominent feature of this law. In both the state and the federal contexts, everyone favors separation of powers as an abstract principle, but few understand its application to modern government. In particular, the 'fourth branch' of government—administrative agencies—rests uncomfortably in the classical tripartite scheme. Texas courts, like those elsewhere, have struggled with separation-of-powers issues and have produced a body of case law that resists confident application to new controversies." Harold Bruff, ''Separation of Powers Under the Texas Constitution'', 68 Tex. L. Rev. 1337, [https://lawweb.colorado.edu/profiles/pubpdfs/bruff/BruffTLR.pdf 1337] (1990) (footnote omitted).

* ''Friedman v. American Surety Co.'', 151 S.W.2d 570, [https://texaslegalguide.com/images/151_SW2_570.pdf#page=11 580] (Tex. 1941) ("The very life of our republican form of government demands that each of the three co-ordinate branches thereof shall operate within its constitutional limitations. It is the exclusive right and duty of the legislative branch of government to determine the wisdom of legislation. . . . It is not only the right, but it is the duty of the judicial branch to determine whether or not a legislative Act contravenes or antagonizes the fundamental law; and in determining such we are unalterably wedded to the principle that the Constitution means what it meant when it was written.")

 

* ''Housing Authority of Dallas v. Higginbotham'', 143 S.W.2d 79, [https://texaslegalguide.com/images/143_SW2_79.pdf#page=9 87] (Tex. 1940) ("Considering the broad policy and purpose of the Housing Authorities Law and taking into consideration the varying conditions throughout the state to which the law must apply, we conclude that the legislature has furnished a sufficient guide for the housing authority. Our decisions from our own jurisdiction . . . . Applying the principles announced in the cases cited, we are of the opinion that the housing law under attack is not violative of Section 1 of Article 2 of the Constitution of Texas. Moreover, like attacks have been made in other jurisdictions and in each instance overruled.")

* ''Brown v. Humble Oil & Refining Co.'', 83 S.W.2d 935, [https://texaslegalguide.com/images/083_SW2_935.pdf#page=6 940-41] (Tex. 1935) (citations omitted) ("Certain Acts were passed which specifically declare the public policy of this State with respect to the development and protection of oil and gas, and established primary standards relating to such policy, and placed the duty upon the Railroad Commission to carry out the details under the general provisions of the statutes. That this is a valid exercise of power is now definitely settled. In the absence of a well defined standard . . . . The power to pass laws rests with the Legislature, and that power cannot be delegated to some commission or other tribunal.")

* ''Trimmier v. Carlton'', 296 S.W. 1070, [https://texaslegalguide.com/images/296_SW_1070.pdf#page=10 1079] (Tex. 1927) ("Article 2 of the state Constitution, originating with the Constitution of 1845, and continuing in substance the same language throughout the constitutional history of the state, provides that the powers of government shall be divided into three distinct departments . . . . It may therefore be said that the general principles of constitutional law, as declared by the various states of the Union, and by the Supreme Court of the United States, on the subject of delegation of legislative power, are applicable and may be examined in determining the meaning of our own constitutional provisions.")

* ''Robbins v. Limestone County'', 268 S.W. 915, [https://texaslegalguide.com/images/268_SW_915.pdf#page=6 920] (Tex. 1925) ("Formerly, under 'the laws of the State', these powers were exercised by the county commissioners courts, but, as it was constitutionally authorized to do, the Legislature created another [] the State Highway Commission, and invested it with certain powers and functions, same to be performed and executed in conjunction with other agents and agencies of the State. The powers here bestowed by the Legislature are not different from those formerly vested in Commissioners Courts, which are in no sense a delegation of legislative authority, or a delegation of the power to suspend laws.")

* ''Board of Water Engineers v. McKnight'', 229 S.W. 301, [https://texaslegalguide.com/images/229_SW_301.pdf#page=7 307] (Tex. 1921) ("An inquiry involving such questions and resulting in the binding adjudication of property rights is strictly judicial, and we would not uphold the Constitution as it is plainly written were we to sanction the delegation of the power to conduct and to finally determine such an inquiry to any other tribunal than the courts. . . . The Legislature having attempted by the statutes in question to confer on persons belonging to the executive department powers which properly attach to another department, without express permission of the Constitution, the statutes are void.")

* ''Snyder v. Compton'', 28 S.W. 1061, [https://texaslegalguide.com/images/028_SW_1061.pdf#page=2 1062-63] (Tex. 1894) ("A legislature may not construe a former law so as to give such construction a retroactive operation. Such is an evasion of the province of the courts. Not so, however, when the act itself contains a provision declaring the mode in which it shall be construed. A notable instance of this is found in our Revised Statutes, which contain a chapter in which rules are laid down for the construction of all civil statutory enactments. These rules have frequently been applied in this court in construing the provisions of the Revised Statutes, and have ever been regarded as binding upon the court.")

* ''Milan County v. Bateman'', 54 Tex. 153, [https://texaslegalguide.com/images/054_Tex_153.pdf#page=15 167] (1880) ("[U]nder our system of government, unlike the parliament of Great Britain, [the Legislature] has no general judicial powers. As said by Mr. Cooley, 'the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a court of review, to which parties might appeal when dissatisfied with the rulings of the courts.'")

* ''Houston Tap & Brazoria Ry. Co. v. Randolph'', 24 Tex. 317, [https://texaslegalguide.com/images/024_Tex_317.pdf#page=20 336] (1859) ("It contemplates that the persons employed in each department, will be wise enough, and honest enough, to discharge the duties entrusted to them, without the aid or interference of the others. And it is a full warrant for each department to disregard and repel such volunteer and unauthorized aid and interference. For, as before said, each one of these departments acts under a delegated limited authority, and if one exceed its authority, by usurping powers not belonging to it, its act is a nullity, not binding upon the other departments, and may be totally disregarded by them.")

|seo_title=Article II, Section 1 of the Texas Constitution ("Separation of Powers Among Three Departments")

|seo_keywords=Article 2 Section 1, separation of powers, three government branches

|seo_description=This section declares: "The powers of the Government of the State of Texas shall be divided into three distinct departments."