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

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).

* ''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."