Texas Constitution:Article I, Section 28 and Texas Constitution:Article I, Section 19: Difference between pages

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[[Category:Featured Article]]<indicator name="featured">[[File:Featured_article_star.svg|25px]]</indicator>{{DISPLAYTITLE:Article I, Section 28 of the Texas Constitution (''<small>"Suspension of Laws"</small>'')}}{{Texas Constitution|text=Adopted February 15, 1876:
[[Category:Featured Article]]<indicator name="featured">[[File:Featured_article_star.svg|25px]]</indicator>{{DISPLAYTITLE:Article I, Section 19 of the Texas Constitution (''<small>"Deprivation of Life, Liberty, Property, etc. by Due Course of Law"</small>'')}}{{Texas Constitution|text=Adopted February 15, 1876:


'''No power of suspending laws in this State shall be exercised except by the Legislature.'''
'''No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.'''


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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, 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.
This section is similar to the due-process clause contained in the Fourteenth Amendment to the federal constitution ("nor shall any State deprive any person of life, liberty, or property, without due process of law"). Cf. ''Zucht v. King'', 260 U.S. 174, [https://scholar.google.com/scholar_case?case=17474784919803032884#p176 176] (1922) ("Long before this suit was instituted, ''Jacobson v. Massachusetts'', 197 U.S. 11, had settled that it is within the police power of a State to provide for compulsory vaccination. . . . And still others had settled that the municipality may vest in its officials broad discretion in matters affecting the application and enforcement of a health law.").


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 fundamental precept declared by the section has its origin in chapter twenty-nine of ''Magna Carta''. See Cooley, ''A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union'' [https://texaslegalguide.com/images/Cooley_Constitutional_Limitations_1874_due_course.pdf#page=17 351-53] (1874) (citations omitted) ("In some form of words, it is to be found in each of the State constitutions . . . . Indeed, the language employed is generally nearly identical, except that the phrase 'due process (or course) of law' is sometimes used, sometimes 'the law of the land,' and in some cases both; but the meaning is the same in every case.").


The substance of this section has its historical roots in the English Bill of Rights of 1689. Cf. ''English Bill of Rights 1689'' at [https://avalon.law.yale.edu/17th_century/england.asp 1] ("And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections . . . asserting their ancient rights and liberties declare [t]hat the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.").
Note that the Texas Attorney General, in Tex. Att'y Gen. Op. [https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0308.pdf#page=2 KP-308] (2020), opined that: "While the Texas and federal Constitutions differ in that Texas refers to 'due course' rather than 'due process,' Texas courts regard these terms as without substantive distinction unless and until a party demonstrates otherwise." The foregoing assertion by the Texas Attorney General is correct concerning "procedural" due process. However, as reflected by several of the decisions referenced below, the state's "substantive" due process jurisprudence has sometimes differed from its federal counterpart.


Approximately thirty states currently have a constitutional provision that specifically addresses the suspension of laws. Cf. ''Howell v. McAuliffe'', 788 S.E.2d 706, [https://scholar.google.com/scholar_case?case=14883908933778434974#p720 720] n.12 (Va. 2016) ("Other states included similar constitutional provisions. The Delaware Declaration of Rights and Fundamental Rules of 1776 provided '[t]hat no Power of suspending Laws, or the Execution of Laws, ought to be exercised unless by the Legislature.'").
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In Texas, due to the [https://lrl.texas.gov/scanned/statutes_and_codes/paschal_vol2.pdf#page=117 amendment] ratified in 1874 and carried over into the current constitution, it was held in a number of cases decided in the first third of the twentieth century that this section flatly prohibits the Legislature from delegating its power to suspend laws. Cf. ''Reed v. Buck'', 370 S.W.2d 867, [https://scholar.google.com/scholar_case?case=11576326271401640517#p870 870-71] (Tex. 1963) ("[T]he Court of Civil Appeals was of the opinion that these ancient cases, like old soldiers, had just faded away.").
 
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.").
 
The militia [https://texashistory.unt.edu/ark:/67531/metapth6734/m1/196/ law], enacted in June 1870, provided in part: "Sec. 26. It shall be the duty of the Governor, and he is hereby authorized, whenever in his opinion the enforcement of the law of this State is obstructed, within any county or counties, by combinations of lawless men too strong for the control of the civil authorities, to declare such county or counties under martial law, and to suspend the laws therein until the Legislature shall convene and take such action as it may deem necessary. . . . Sec. 27. Whenever the laws may be suspended, as provided for in last preceding section, it shall be the duty of the Governor to provide for the trial and punishment of offenders; and the Governor shall make all details of officers for this purpose, and prescribe all necessary regulations for the formation and government of courts martial and military commissions for this purpose."
 
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.
 
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* ''Texas Dep't of State Health Servs. v. Crown Distributing LLC'', 647 S.W.3d 648, [https://scholar.google.com/scholar_case?case=17653902673364512620#p664 664-65] (Tex. 2022) (J. Young, concurring) ("The Court today 'conclude[s] that the due-course clause does not protect the interest that the plaintiffs assert,' ''ante'' at 2, 125 S.Ct. 2195, and I agree. But what ''does'' that clause protect—and how does it do so? We still do not really know, even as we approach . . . . To that end, in Part II, I explain why I believe that our precedents do not go much beyond what has permeated most of our jurisprudence: the unadorned assertion that the Texas due-course clause is essentially the twin (the junior twin, to be sure) of the federal due-process clause.")


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* ''Mosley v. Texas Health & Human Services Comm'n'', 593 S.W.3d 250, [https://scholar.google.com/scholar_case?case=15370415983701477665#p265 265] (Tex. 2019) ("We measure what process is due under a 'flexible standard' that depends on 'the practical requirements of the circumstances.' ''Id''. This standard includes three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. ''Id''.")


* ''In re Hotze'', 629 S.W.3d 146, [https://scholar.google.com/scholar_case?case=9645594308312450856#p148 148] (Tex. 2020) (J. Devine, concurring) ("This provision means what it says. The judiciary may not suspend laws. Nor may the executive. Only the Legislature. Despite this clear constitutional exhortation, we review orders from the Governor that purport to be made under the Texas Disaster Act of 1975, which says that the 'governor may suspend provisions of any regulatory statute prescribing the . . . . The State does not contend why [''Brown Cracker & Candy Co. v. City of Dallas''] was wrongly decided or why we should otherwise overrule that decision. The State's failure to address this precedent is troubling.")
* ''Patel v. Texas Dep't of Licensing & Reg.'', 469 S.W.3d 69, [https://scholar.google.com/scholar_case?case=7017811002225614343#p91 91] (Tex. 2015) (citation omitted) ("[T]he Chief Justice refers to rediscovering and unleashing 'the ''Lochner'' monster' if legislative enactments are measured against a standard other than the rational relationship standard. But as discussed above, Texas courts, including this Court, have expressed and applied various standards for considering as-applied substantive due process claims for over a century. And it is those decisions on which the standards we set out today are based. Surely if those cases represented a 'monster' running amuck in Texas, this Court would have long ago decisively dealt with it.")


* ''In re Hotze'', 627 S.W.3d 642, [https://scholar.google.com/scholar_case?case=13898575528214719134#p644 644] (Tex. 2020) (footnotes omitted) ("Relators argue that the [Governor's] proclamation was not authorized by the Act, or if it was, that the Act violates Article I, Sections 19 and 28 of the Texas Constitution. The State responds that relators have not identified a justiciable interest and therefore lack standing; that the Secretary of State has no power to enforce the two statutory provisions at issue, let alone a ministerial duty that could be compelled by mandamus; that the Act is not unconstitutional; and that relators have delayed too long since the Governor issued the proclamation to seek mandamus relief.")
* ''Klumb v. Houston Mun. Emps. Pension Sys.'', 458 S.W.3d 1, [https://scholar.google.com/scholar_case?case=5024006811308680141#p15 15] (Tex. 2015) (citations omitted) ("Before any substantive or procedural due-process rights attach, however, the Petitioners must have a liberty or property interest that is entitled to constitutional protection. A constitutionally protected right must be a vested right, which is <nowiki>'</nowiki>'something more than a mere expectancy based upon an anticipated continuance of an existing law.'<nowiki>'</nowiki> The court of appeals held, and we agree, that the Petitioners' due-course claims are facially invalid because the Petitioners have no vested property right to the pension-plan contributions and future retirement benefits at issue.")


* ''Deleon v. District Clerk'', 187 S.W.3d 473, [https://scholar.google.com/scholar_case?case=15820511839908992678#p474 474] (Tex.Crim.App. 2006) ("The respondent, the District Clerk of Lynn County, advised this Court that approximately three to four years ago the clerk's office stopped accepting inmate correspondence that had not been inspected for the presence of anthrax. . . . An applicant for habeas corpus relief has a constitutional right to access to courts as well as a statutory right to file an application for writ of habeas corpus with the district clerk. Tex. Const., art. I, § 12; Tex. Code Crim. Proc., art. 11.07, § 3(b). Furthermore, only the legislature has the right to suspend statutory laws. Tex. Const., art. I, § 28.")
* ''Perry v. Del Rio'', 67 S.W.3d 85, [https://scholar.google.com/scholar_case?case=7715699698971836172#p92 92] (Tex. 2001) (citations omitted) ("The Texas Constitution . . . . We have recognized that our due course of law provision at a minimum requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. And, under certain circumstances, the right to be heard assures a full hearing before a court having jurisdiction over the matter, the right to introduce evidence at a meaningful time and in a meaningful manner, and the right to judicial findings based upon that evidence. This right also includes an opportunity to cross-examine witnesses, to produce witnesses, and to be heard on questions of law.")
 
* ''Satterwhite v. State'', 979 S.W.2d 626, [https://scholar.google.com/scholar_case?case=6667468126883263870#p629 629] (Tex.Crim.App. 1998) ("Appellant is still subject to prosecution . . . and any attempt by the State Bar to enact a rule which would alter or negate the Legislature's creation of a criminal offense would be unconstitutional. ''See'' ''McDonald v. Denton'', []; ''Brown Cracker & Candy Co. v. City of Dallas'', [] (If an executive agency or a local government should take action in the suspension of a law, independently of any delegation by the Legislature, that action could be nullified under Article 1, Section 28 of the Texas Constitution without a consideration of the question of legislative declaration of power.)")


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* ''Houston Chronicle Pub. Co. v. Mattox'', 767 S.W.2d 695, [https://scholar.google.com/scholar_case?case=15631897603523237130#p698 698] (Tex. 1989) ("The August 15, 1988, agreed order clearly violates this constitutional prohibition by prohibiting the Attorney General from rendering an open records decision regarding professional school employee transcripts until completion of the regular session of the 71st Texas Legislature. The Attorney General has a mandatory duty under section 7 of the Open Records Act to . . . . While it is possible that the legislature may decide to exempt such transcripts from disclosure under the Open Records Act, the Attorney General must apply the law as it is currently written.")
* ''University of Texas Medical School at Houston v. Than'', 901 S.W.2d 926, [https://scholar.google.com/scholar_case?case=15343094571363495286#p929 929] (Tex. 1995) (citations omitted) ("While the Texas Constitution is textually different in that it refers to 'due course' rather than 'due process,' we regard these terms as without meaningful distinction. As a result, in matters of procedural due process, we have traditionally followed contemporary federal due process interpretations of procedural due process issues. Although not bound by federal due process jurisprudence in this case, we consider federal interpretations of procedural due process to be persuasive authority in applying our due course of law guarantee.")
 
* ''State v. Jackson'', 376 S.W.2d 341, [https://scholar.google.com/scholar_case?case=682980273690784848#p344 344-45] (Tex. 1964) ("When the Legislature acts with respect to a particular matter, the administrative agency may not so act with respect to the matter as to nullify the Legislature's action even though the matter be within the agency's general regulatory field. There is little case law announcing the rule last stated, no doubt because it is self-evident. The rule is thus stated in . . . : 'The rulemaking power of administrative agencies does not permit the enactment of regulations which are inconsistent with the expression of the lawmakers' intent in statutes other than those under which the regulations are issued.'")
 
* ''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.")


* ''State v. Ferguson'', 125 S.W.2d 272, [https://texaslegalguide.com/images/125_S.W.2d_272.pdf#page=5 276] (Tex. 1939) ("To state the nature of this order is to reveal the lack of power in a judge or court to enter it. Section 28 of Article 1 of our State Constitution prescribes that: 'No power of suspending laws in this State shall be exercised except by the Legislature.' That is an express denial to the judicial branch of government of any power to suspend any valid statute. Not only may judges and courts not suspend a statute, but neither may they supervise and direct the manner and method of its enforcement by the officers of the executive department of government charged with the duty of enforcing same.")
* ''In re J.W.T.'', 872 S.W.2d 189, [https://scholar.google.com/scholar_case?case=16303537001961127537#p221 221] (Tex. 1994) (J. Cornyn, dissenting) ("An appellate court's identification in its opinion of an established . . . . In this case, however, under the guise of an independent state constitutional interpretation, the court 1) disregards contrary precedent by the United States Supreme Court; 2) eschews our traditional constitutional analysis and creates a new constitutional right nowhere found in the text of the Texas Constitution or its history; 3) revives substantive due process in a particularly arbitrary new form; and 4) fails to identify and consider any of the substantial countervailing state interests reflected in these statutes.")


* ''Constantin v. Smith'', 57 F.2d 227, [https://texaslegalguide.com/images/Fed2_227.pdf#page=11 237] (E.D.Tex. 1932) ("They were written into the fundamental law as direct inhibitions upon the executive, by men who had suffered under the imposition of martial law . . . . In every convention, in every gathering assembled, protesting the suppression of free speech, the interference with the processes, the judgments, the decrees of courts, these men had denounced martial tyranny, and sought relief against it, and, when they met to adopt the Constitution of 1876 which still obtains, they determined to, and they did, so write the fundamental law that such deprivations of liberty might never again occur.")
* ''Itz v. Penick'', 493 S.W.2d 506, [https://scholar.google.com/scholar_case?case=653538298795690003#p509 509] (Tex. 1973) ("A much more enlightened view of the necessity for immunization of students attending elementary and secondary schools and institutions of higher education in order to lessen the spread of communicable diseases has been adopted by the legislatures and approved by the courts of Texas and a majority of the other states during the past half century. All of appellants' points of error have been heretofore assigned in challenging the constitutionality of compulsory immunization statutes, city ordinances or school district regulations and overruled in one or more of the following Texas cases: . . . .")


* ''Scoggin v. State'', 38 S.W.2d 592, [https://texaslegalguide.com/images/038_S.W.2d_592.pdf#page=4 595-96] (Tex.Crim.App. 1931) ("Many examples of the application of article 1, § 28, of the Constitution are found in the reports in this state, both of the Supreme Court and this court. The restriction against the suspension of laws rendered void . . . . The subject before this court is not the authority, by proper regulation, to require peace officers to wear on their person some insignia of office. The vice in the law is referable to the fact that the terms in which the Legislature has expressed its will offend against the mandate of the Constitution which declares that no law can be suspended save by the Legislature.")
* ''Texas Power & Light Co. v. City of Garland'', 431 S.W.2d 511, [https://scholar.google.com/scholar_case?case=9341782243928193175#p527 527] (Tex. 1968) (C.J. Calvert, dissenting) ("Pervading the majority opinion dealing with these sections is a basic philosophy that when a municipality puts in a public utility of its own, with a private utility franchise then outstanding or thereafter granted, the two enterprises must be permitted to enter into a dog-eat-dog, survival of the fittest competition for customers, with the prize of survival going to the one with the greater resources and ability to absorb losses for a longer period of time. In my opinion, the philosophy is unsound. It was condemned long ago by the United States Court of Appeals, [].")


* ''Trimmier v. Carlton'', 296 S.W. 1070, [https://texaslegalguide.com/images/Vol_296_SWR_1070.pdf#page=13 1082] (Tex. 1927) ("Again, there is strong support for our conclusion . . . that it is not a delegation of legislative power in violation of the Constitution to grant to some designated body powers which the Legislature cannot itself practically and efficiently exercise. Authorities, supra. In other words, that the exercise of that particular type of authority is read as an exception into the general language of limitation of the Constitution. It is merely tantamount to saying that the Constitution itself does not require the impracticable or the impossible. The case of Kinney v. Zimpleman, 36 Tex. 554, states the principle.")
* ''Board of Firemen's Relief and Retirement Fund Trustees of Texarkana v. Hamilton'', 386 S.W.2d 754, [https://scholar.google.com/scholar_case?case=10592628077712497873#p755 755] (Tex. 1965) ("[S]he contends that since her claim for compensation as provided by statute involves a property right and that even though the statute made no provision for an appeal, that under the due process clauses of both the State and United States Constitutions she is entitled to an inherent right of appeal. . . . What the Constitution guarantees her is a judicial review of an order of an administrative agency affecting her property rights. Such a review must be sought in a court of competent jurisdiction, not to some other administrative agency.")


* ''Dockery v. State'', 247 S.W. 508, [https://texaslegalguide.com/images/Vol_247_SWR_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.")
* ''State v. Richards'', 301 S.W.2d 597, [https://scholar.google.com/scholar_case?case=1473384419797643914#p602 602] (Tex. 1957) ("The line where the police power of the state encounters the barrier of substantive due process is not susceptible of exact definition. As a general rule the power is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort and convenience as consistently as may be with private property rights. The guarantee of due process does not deprive . . . . A large discretion is necessarily vested in the Legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests.")


* ''Zucarro v. State'', 197 S.W. 982, [https://texaslegalguide.com/images/Vol_197_SWR_982.pdf#page=5 986-87] (Tex.Crim.App. 1917) ("The state law (article 302, P. C.) prohibiting the conduct of the business for which appellant is prosecuted, the ordinance of the city of Ft. Worth could not have the effect of suspending the operation of the state law. This was held by the Court of Civil Appeals at Austin in an opinion by Judge Key in the case of Burton v. Dupree, [] 46 S.W. 272, and by the Supreme Court in an opinion by Chief Justice . . . . Other authorities in point are: Arroyo v. State, 69 S.W. 504; Ex parte Ogden, [] 66 S.W. 1100; Denton v. McDonald, [] 135 S.W. 1148, 34 L.R.A. (N.S.) 453; Fay v. State, [] 71 S.W. 603.")
* ''Ex parte Sizemore'', 8 S.W.2d 134, [https://texaslegalguide.com/images/008_SW2_134.pdf#page=2 135-36] (Tex.Crim.App. 1928) ("Section 19 of our Bill of Rights . . . . Provisions similar to those quoted in our state Constitution have been a part of Anglo-Saxon jurisprudence since there was wrung from the unwilling hands of King John at Runnymede in 1215 the Magna Charta, which itself provides that a freeman shall not be passed upon or condemned but 'by the lawful judgment of his peers and the law of the land.' 'Law of the land' has the same legal meaning as 'due process of law,' and one of its accepted meanings is that quoted above. In re Jilz, 3 Mo. App. 243; 3 Words and Phrases, First Series, pp. 2227-2232.")


* ''Lyle v. State'', 193 S.W. 680, [https://texaslegalguide.com/images/Vol_193_SWR_680.pdf#page=7 686] (Tex.Crim.App. 1917) ("They so definitely establish the rule of construction in this state applying to the section of the Constitution mentioned . . . . The framers of the Constitution when they wrote section 28 of article 1 of the Constitution, abandoning the provision theretofore existing that laws might be suspended by the authority of the Legislature, and asserted in the new Constitution that they could be suspended alone by the Legislature, were not without foresight as to the mischievous consequences that might flow from extending to the Legislature the power to delegate its authority to suspend laws.")
* ''Stockwell v. State'', 221 S.W. 932, [https://texaslegalguide.com/images/221_SW_932.pdf#page=4 935] (Tex. 1920) ("Viewing the powers given the Commissioner by this statute and his attempted exercise of them here, the inquiry naturally arises as to what are the rights of the defendant if the Commissioner was mistaken in his judgment that citrus canker was . . . . Under the contest made by his pleading, before the property of the defendant could be summarily destroyed, he was entitled to a judicial hearing and decision as to whether it ought to be destroyed. As applied to such a case, nothing less would amount to due process of law, without which the Bill of Rights declares no citizen shall be deprived of his property.")


* ''Spence v. Fenchler'', 180 S.W. 597, [https://texaslegalguide.com/images/Vol_180_SWR_597.pdf#page=10 606] (Tex. 1915) ("It follows that, while the proviso here under consideration is not unconstitutional in the sense of attempting, directly and affirmatively, to authorize or validate an ordinance which is repugnant to article 500 of the Penal Code—for it does not attempt to do either—it is unconstitutional in the sense that, with both section 28 of article 1 of our state Constitution, and article 500, P. C., in force, it does undertake to constitute the existence of an ordinance of that character, under a special charter, a conditional territorial limitation or restriction upon the operation of this injunction statute itself.")
* ''City of New Braunfels v. Waldschmidt'', 207 S.W. 303, [https://texaslegalguide.com/images/207_SW_303.pdf#page=2 304-305] (Tex. 1918) ("The contention that this ordinance is inconsistent with the liberty guaranteed by the federal and state Constitutions has been too completely repelled by the opinion of the Supreme Court of the United States in Jacobson v. Massachusetts, 197 U.S. 22, 25 Sup.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765, to justify further discussion. . . . However, if defendants in error, or any of them, had a right with respect to the children's school attendance, which could properly be considered a property right, the same was held subject to a valid exercise of the police power of the state.")


* ''Brown Cracker & Candy Co. v. City of Dallas'', 137 S.W. 342, [https://texaslegalguide.com/images/Vol_137_SWR_342.pdf#page=2 343] (Tex. 1911) ("In Burton v. Dupree, 19 Tex.Civ.App. 275, 46 S.W. 272, Judge Key . . . . Quoting the present section 28 of article 1 of the Constitution, that learned judge says: 'This section restricts the power to suspend laws to the Legislature, and expressly prohibits the exercise of such power by any other body. In view of this provision of the Constitution, it must be held (whatever may have been the power of the Legislature under former Constitutions) that that body cannot now delegate to a municipal corporation or to any one else authority to suspend a statute law of the state.'")
* ''Griner v. Thomas'', 104 S.W. 1058, [https://texaslegalguide.com/images/104_SW_1058.pdf#page=3 1060] (Tex. 1907) ("To the contention that suspension without notice is a deprivation of property without due process, the answer is that such property right in an office as the holder has is qualified by all pre-existing valid laws which provide for its suspension or termination, and hence the application of remedies so provided for does not unduly deprive him of any property. Trigg v. State, 49 Tex. 669. Whether the suspension of the relator's functions took effect at once upon the making of the order, or, as contended by him, only when he received notice of it, is a question which cannot affect this proceeding to vacate the order.")


* ''McDonald v. Denton'', 132 S.W. 823, [https://texaslegalguide.com/images/Vol_132_SWR_823.pdf#page=2 824-25] (Tex.Civ.App. 1910, denied) ("Article 1, § 28, Const. 1876. If the change had any significance, it evinced a desire upon the part of the makers of our present Constitution to restrict the power to suspend laws to direct action upon the part of the Legislature. . . . Judge Cooley says this is the test for the authority and binding force of legislative enactments. Under that test, the Legislature would not have the authority to do directly what appellees contend it has attempted to do by delegating authority to the city of Houston to suspend certain laws of Texas as to certain individuals in certain localities.")
* ''Armstrong v. Traylor'', 30 S.W. 440, [https://texaslegalguide.com/images/030_SW_440.pdf#page=2 441] (Tex. 1895) ("Under the provisions of these articles, the interested party is authorized to determine the question of a trespass having been committed by the stock. It is not provided that this question shall be inquired into by any other person or officer. . . . There is no hearing, no inquiry, and no trial before judgment; no officer to sell the property, nor process under which sale is to be made; nothing that bears the faintest resemblance to a judicial proceeding. Such a law affords no security to the owner of the stock. It is not due process of law, and the property is not sold 'by the due course of the law of the land.'")


* ''Ex parte Smythe'', 120 S.W. 200, [https://texaslegalguide.com/images/Vol_120_SWR_200.pdf#page=2 201] (Tex.Crim.App. 1909) ("Section 28, art. 1, of the state Constitution [] : 'No power of suspending laws in this state shall be exercised except by the Legislature.' The clause of the statute under consideration, last cited, clearly authorizes the county judge to suspend the law in that he suspends the punishment. A law without a punishment, especially a penal law, has no validity or force whatever, and when one suspends the penalty he suspends the law. Therefore we hold that this section of the act in question violates the section of the Constitution last quoted. . . . Relator is accordingly discharged.")
* ''Union Cent. Life Ins. Co. v. Chowning'', 26 S.W. 982, [https://texaslegalguide.com/images/026_SW_982.pdf#page=3 984] (Tex. 1894) ("Mr. Cooley, in his work on Constitutional Limitations, adopts, as the best definition, that given by Mr. Webster in the Dartmouth College Case, of the term 'due course of the law of the land,' which is: 'By the 'law of the land' is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.' A law which is enacted by the legislature in the exercise of its constitutional powers, and which affords a hearing before it condemns, and renders judgment after trial, is not in violation of this provision of the constitution.")


* ''Missouri, K. & T. Ry. Co. of Texas v. Shannon'', 100 S.W. 138, [https://texaslegalguide.com/images/Vol_100_SWR_138.pdf#page=8 145-46] (Tex. 1907) ("We are of opinion that the provision does not apply to the matter here in question. . . . The suspension of a statute is different from a provision which declares that its operation shall cease at a special time, or upon the happening of a contingency. Brown v. Barry, 3 Dall. 365, 1 L.Ed. 638. The purpose of section 28, art. 1, of our state Constitution (quoted above), was to prohibit the Legislature from delegating to its officers the power of suspending the laws, and not to prohibit it from providing that a law may cease wholly to operate upon the happening of an event.")
* ''Mellinger v. City of Houston'', 3 S.W. 249, [https://texaslegalguide.com/images/003_SW_249.pdf#page=5 253] (Tex. 1887) ("[I]t must be held that the people intended, by [Article I, Section 19], in so far as it is identical with the fourteenth amendment, to place thereby just such restrictions on the powers of the legislature as the highest court in the nation has declared is the true construction of like language made a part of the constitution of the United States for the purpose of placing a limitation on the power of the legislatures of the several states. As construed, that section of the constitution only forbids the making of laws retroactive in effect, whereby title to property which had vested under former laws would be divested.")


* ''Arroyo v. State'', 69 S.W. 503, [https://texaslegalguide.com/images/Vol_069_SWR_503.pdf#page=2 504] (Tex.Crim.App. 1902) ("Prior to 1874 this section was as follows: 'No power of . . . . It is not necessary to go into the history of the reasons for this change in the constitution, for it is too well known and too fresh to be easily forgotten. Without reviewing the history of the oppressions which grew out of the suspension of laws by reason of such delegation of legislative authority and the declaration of martial law scarcely more than a quarter of a century in the past, it is sufficient to state the fact of such occurrences, and that this change in the organic law swiftly followed, prohibiting such action by the legislature.")
* ''Manning v. San Antonio Club'', 63 Tex. 166, [https://texaslegalguide.com/images/063_Tex_166.pdf#page=6 171] (1884) ("Appellant does not pretend that, in his expulsion, the board of directors violated in any way the by-laws of the club. But he insists that . . . . These guaranties were mainly intended to protect the citizen against oppression by the government; but they do not protect him against himself or against his own agreements. When, therefore, persons enter into organizations for purposes of social intercourse or pleasure or amusement, and lay down rules for their government, these must form the measure of their rights in the premises, and it is vain to appeal to the Bill of Rights against their own agreements.")


* ''Coombs v. State'', 44 S.W. 854, [https://texaslegalguide.com/images/Vol_044_SWR_854.pdf#page=6 859-60] (Tex.Crim.App. 1898) ("By the terms of section 28 of article 1 of the present constitution, this was changed, and said section amended . . . . By such omission the authority of the legislature to delegate its power to suspend laws was repealed, and that body was inhibited from delegating authority to suspend laws in whole or in part. If, under former constitutions, the legislature could delegate authority to municipal corporations to suspend articles of the Penal Code, it would hardly be denied that such authority was withdrawn by not carrying the provision 'or its authority' forward in our present constitution.")
* ''Janes v. Reynolds' Adm'rs'', 2 Tex. 250, [https://texaslegalguide.com/images/002_Tex_250.pdf#page=2 252] (1847) ("They are now, in their most usual acceptation, regarded as general public laws . . . . Whatever may be the meaning of the terms 'laws of the land,' or 'due course of the law of the land,' they have never been held to enjoin in all cases a trial by jury as a requisite indispensable to the validity of a judgment. That a party should have notice and an opportunity of being heard in his defense, and the right of trying disputed facts by a jury, are cardinal principles of the common law; but there are many exceptions in which one or two of these privileges were never enjoined, or may be regarded as renounced by the defendant.")


|seo_title=Featured Article: Article I, Section 28 of the Texas Constitution ("Suspension of Laws")
|seo_title=Article I, Section 19 of the Texas Constitution ("Deprivation of Life, Liberty, Property, etc. by Due Course of Law")
|seo_keywords=suspension of laws, coronavirus pandemic, Governor Greg Abbott
|seo_keywords=Article 1 Section 19, procedural due process, substantive due process
|seo_description=It was held in a number of cases decided in the first third of the twentieth century that Article I, Section 28 flatly prohibits the Texas Legislature from delegating its power to suspend laws.
|seo_description=No citizen of this State shall be deprived of life, liberty, property . . . except by the due course of the law of the land.
|seo_image_alt=Texas Bill of Rights
|seo_image_alt=Texas Bill of Rights


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[[Category:Texas Bill of Rights]]
[[Category:Texas Bill of Rights]]
[[Category:Criminal Procedure]]
[[Category:Civil Procedure-Texas]]
[[Category:TxCon ArtI Sec]]
[[Category:TxCon ArtI Sec]]

Revision as of 11:27, July 17, 2023

Adopted February 15, 1876:

No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

Editor Comments

This section is similar to the due-process clause contained in the Fourteenth Amendment to the federal constitution ("nor shall any State deprive any person of life, liberty, or property, without due process of law"). Cf. Zucht v. King, 260 U.S. 174, 176 (1922) ("Long before this suit was instituted, Jacobson v. Massachusetts, 197 U.S. 11, had settled that it is within the police power of a State to provide for compulsory vaccination. . . . And still others had settled that the municipality may vest in its officials broad discretion in matters affecting the application and enforcement of a health law.").

The fundamental precept declared by the section has its origin in chapter twenty-nine of Magna Carta. See Cooley, A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union 351-53 (1874) (citations omitted) ("In some form of words, it is to be found in each of the State constitutions . . . . Indeed, the language employed is generally nearly identical, except that the phrase 'due process (or course) of law' is sometimes used, sometimes 'the law of the land,' and in some cases both; but the meaning is the same in every case.").

Note that the Texas Attorney General, in Tex. Att'y Gen. Op. KP-308 (2020), opined that: "While the Texas and federal Constitutions differ in that Texas refers to 'due course' rather than 'due process,' Texas courts regard these terms as without substantive distinction unless and until a party demonstrates otherwise." The foregoing assertion by the Texas Attorney General is correct concerning "procedural" due process. However, as reflected by several of the decisions referenced below, the state's "substantive" due process jurisprudence has sometimes differed from its federal counterpart.

Attorney Steve Smith

Recent Decisions

  • Texas Dep't of State Health Servs. v. Crown Distributing LLC, 647 S.W.3d 648, 664-65 (Tex. 2022) (J. Young, concurring) ("The Court today 'conclude[s] that the due-course clause does not protect the interest that the plaintiffs assert,' ante at 2, 125 S.Ct. 2195, and I agree. But what does that clause protect—and how does it do so? We still do not really know, even as we approach . . . . To that end, in Part II, I explain why I believe that our precedents do not go much beyond what has permeated most of our jurisprudence: the unadorned assertion that the Texas due-course clause is essentially the twin (the junior twin, to be sure) of the federal due-process clause.")
  • Mosley v. Texas Health & Human Services Comm'n, 593 S.W.3d 250, 265 (Tex. 2019) ("We measure what process is due under a 'flexible standard' that depends on 'the practical requirements of the circumstances.' Id. This standard includes three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id.")
  • Patel v. Texas Dep't of Licensing & Reg., 469 S.W.3d 69, 91 (Tex. 2015) (citation omitted) ("[T]he Chief Justice refers to rediscovering and unleashing 'the Lochner monster' if legislative enactments are measured against a standard other than the rational relationship standard. But as discussed above, Texas courts, including this Court, have expressed and applied various standards for considering as-applied substantive due process claims for over a century. And it is those decisions on which the standards we set out today are based. Surely if those cases represented a 'monster' running amuck in Texas, this Court would have long ago decisively dealt with it.")
  • Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 15 (Tex. 2015) (citations omitted) ("Before any substantive or procedural due-process rights attach, however, the Petitioners must have a liberty or property interest that is entitled to constitutional protection. A constitutionally protected right must be a vested right, which is ''something more than a mere expectancy based upon an anticipated continuance of an existing law.'' The court of appeals held, and we agree, that the Petitioners' due-course claims are facially invalid because the Petitioners have no vested property right to the pension-plan contributions and future retirement benefits at issue.")
  • Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001) (citations omitted) ("The Texas Constitution . . . . We have recognized that our due course of law provision at a minimum requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. And, under certain circumstances, the right to be heard assures a full hearing before a court having jurisdiction over the matter, the right to introduce evidence at a meaningful time and in a meaningful manner, and the right to judicial findings based upon that evidence. This right also includes an opportunity to cross-examine witnesses, to produce witnesses, and to be heard on questions of law.")

Historic Decisions

  • University of Texas Medical School at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (citations omitted) ("While the Texas Constitution is textually different in that it refers to 'due course' rather than 'due process,' we regard these terms as without meaningful distinction. As a result, in matters of procedural due process, we have traditionally followed contemporary federal due process interpretations of procedural due process issues. Although not bound by federal due process jurisprudence in this case, we consider federal interpretations of procedural due process to be persuasive authority in applying our due course of law guarantee.")
  • In re J.W.T., 872 S.W.2d 189, 221 (Tex. 1994) (J. Cornyn, dissenting) ("An appellate court's identification in its opinion of an established . . . . In this case, however, under the guise of an independent state constitutional interpretation, the court 1) disregards contrary precedent by the United States Supreme Court; 2) eschews our traditional constitutional analysis and creates a new constitutional right nowhere found in the text of the Texas Constitution or its history; 3) revives substantive due process in a particularly arbitrary new form; and 4) fails to identify and consider any of the substantial countervailing state interests reflected in these statutes.")
  • Itz v. Penick, 493 S.W.2d 506, 509 (Tex. 1973) ("A much more enlightened view of the necessity for immunization of students attending elementary and secondary schools and institutions of higher education in order to lessen the spread of communicable diseases has been adopted by the legislatures and approved by the courts of Texas and a majority of the other states during the past half century. All of appellants' points of error have been heretofore assigned in challenging the constitutionality of compulsory immunization statutes, city ordinances or school district regulations and overruled in one or more of the following Texas cases: . . . .")
  • Texas Power & Light Co. v. City of Garland, 431 S.W.2d 511, 527 (Tex. 1968) (C.J. Calvert, dissenting) ("Pervading the majority opinion dealing with these sections is a basic philosophy that when a municipality puts in a public utility of its own, with a private utility franchise then outstanding or thereafter granted, the two enterprises must be permitted to enter into a dog-eat-dog, survival of the fittest competition for customers, with the prize of survival going to the one with the greater resources and ability to absorb losses for a longer period of time. In my opinion, the philosophy is unsound. It was condemned long ago by the United States Court of Appeals, [].")
  • Board of Firemen's Relief and Retirement Fund Trustees of Texarkana v. Hamilton, 386 S.W.2d 754, 755 (Tex. 1965) ("[S]he contends that since her claim for compensation as provided by statute involves a property right and that even though the statute made no provision for an appeal, that under the due process clauses of both the State and United States Constitutions she is entitled to an inherent right of appeal. . . . What the Constitution guarantees her is a judicial review of an order of an administrative agency affecting her property rights. Such a review must be sought in a court of competent jurisdiction, not to some other administrative agency.")
  • State v. Richards, 301 S.W.2d 597, 602 (Tex. 1957) ("The line where the police power of the state encounters the barrier of substantive due process is not susceptible of exact definition. As a general rule the power is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort and convenience as consistently as may be with private property rights. The guarantee of due process does not deprive . . . . A large discretion is necessarily vested in the Legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests.")
  • Ex parte Sizemore, 8 S.W.2d 134, 135-36 (Tex.Crim.App. 1928) ("Section 19 of our Bill of Rights . . . . Provisions similar to those quoted in our state Constitution have been a part of Anglo-Saxon jurisprudence since there was wrung from the unwilling hands of King John at Runnymede in 1215 the Magna Charta, which itself provides that a freeman shall not be passed upon or condemned but 'by the lawful judgment of his peers and the law of the land.' 'Law of the land' has the same legal meaning as 'due process of law,' and one of its accepted meanings is that quoted above. In re Jilz, 3 Mo. App. 243; 3 Words and Phrases, First Series, pp. 2227-2232.")
  • Stockwell v. State, 221 S.W. 932, 935 (Tex. 1920) ("Viewing the powers given the Commissioner by this statute and his attempted exercise of them here, the inquiry naturally arises as to what are the rights of the defendant if the Commissioner was mistaken in his judgment that citrus canker was . . . . Under the contest made by his pleading, before the property of the defendant could be summarily destroyed, he was entitled to a judicial hearing and decision as to whether it ought to be destroyed. As applied to such a case, nothing less would amount to due process of law, without which the Bill of Rights declares no citizen shall be deprived of his property.")
  • City of New Braunfels v. Waldschmidt, 207 S.W. 303, 304-305 (Tex. 1918) ("The contention that this ordinance is inconsistent with the liberty guaranteed by the federal and state Constitutions has been too completely repelled by the opinion of the Supreme Court of the United States in Jacobson v. Massachusetts, 197 U.S. 22, 25 Sup.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765, to justify further discussion. . . . However, if defendants in error, or any of them, had a right with respect to the children's school attendance, which could properly be considered a property right, the same was held subject to a valid exercise of the police power of the state.")
  • Griner v. Thomas, 104 S.W. 1058, 1060 (Tex. 1907) ("To the contention that suspension without notice is a deprivation of property without due process, the answer is that such property right in an office as the holder has is qualified by all pre-existing valid laws which provide for its suspension or termination, and hence the application of remedies so provided for does not unduly deprive him of any property. Trigg v. State, 49 Tex. 669. Whether the suspension of the relator's functions took effect at once upon the making of the order, or, as contended by him, only when he received notice of it, is a question which cannot affect this proceeding to vacate the order.")
  • Armstrong v. Traylor, 30 S.W. 440, 441 (Tex. 1895) ("Under the provisions of these articles, the interested party is authorized to determine the question of a trespass having been committed by the stock. It is not provided that this question shall be inquired into by any other person or officer. . . . There is no hearing, no inquiry, and no trial before judgment; no officer to sell the property, nor process under which sale is to be made; nothing that bears the faintest resemblance to a judicial proceeding. Such a law affords no security to the owner of the stock. It is not due process of law, and the property is not sold 'by the due course of the law of the land.'")
  • Union Cent. Life Ins. Co. v. Chowning, 26 S.W. 982, 984 (Tex. 1894) ("Mr. Cooley, in his work on Constitutional Limitations, adopts, as the best definition, that given by Mr. Webster in the Dartmouth College Case, of the term 'due course of the law of the land,' which is: 'By the 'law of the land' is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.' A law which is enacted by the legislature in the exercise of its constitutional powers, and which affords a hearing before it condemns, and renders judgment after trial, is not in violation of this provision of the constitution.")
  • Mellinger v. City of Houston, 3 S.W. 249, 253 (Tex. 1887) ("[I]t must be held that the people intended, by [Article I, Section 19], in so far as it is identical with the fourteenth amendment, to place thereby just such restrictions on the powers of the legislature as the highest court in the nation has declared is the true construction of like language made a part of the constitution of the United States for the purpose of placing a limitation on the power of the legislatures of the several states. As construed, that section of the constitution only forbids the making of laws retroactive in effect, whereby title to property which had vested under former laws would be divested.")
  • Manning v. San Antonio Club, 63 Tex. 166, 171 (1884) ("Appellant does not pretend that, in his expulsion, the board of directors violated in any way the by-laws of the club. But he insists that . . . . These guaranties were mainly intended to protect the citizen against oppression by the government; but they do not protect him against himself or against his own agreements. When, therefore, persons enter into organizations for purposes of social intercourse or pleasure or amusement, and lay down rules for their government, these must form the measure of their rights in the premises, and it is vain to appeal to the Bill of Rights against their own agreements.")
  • Janes v. Reynolds' Adm'rs, 2 Tex. 250, 252 (1847) ("They are now, in their most usual acceptation, regarded as general public laws . . . . Whatever may be the meaning of the terms 'laws of the land,' or 'due course of the law of the land,' they have never been held to enjoin in all cases a trial by jury as a requisite indispensable to the validity of a judgment. That a party should have notice and an opportunity of being heard in his defense, and the right of trying disputed facts by a jury, are cardinal principles of the common law; but there are many exceptions in which one or two of these privileges were never enjoined, or may be regarded as renounced by the defendant.")

Library Resources

Online Resources