Texas Constitution:Article I, Section 28

Adopted February 15, 1876:

No power of suspending laws in this State shall be exercised except by the Legislature.

Editor Comments

The Republic of Texas constitution (1836) did not have a provision concerning the suspension of laws. However, the State of Texas's first constitution (1845) did. Section 20 of the Bill of Rights read: "No power of suspending laws in this State shall be exercised, except by the Legislature or its authority." The state's next three constitutions (1861, 1866, & 1869) each contained the same exact provision as the state's first constitution.

The Legislature, in June 1873, passed a joint resolution proposing a constitutional amendment that eliminated the words "or its authority" from Section 20 of the Bill of Rights. Texans, in December 1873, voted overwhelmingly in favor of the amendment. The Legislature, in January 1874, in compliance with the amendment provision contained in the Texas Constitution of 1869, ratified the amendment and thereby made it effective.

The substance of this section has its historical roots in the English Bill of Rights of 1689. Cf. English Bill of Rights 1689 at 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.").

Approximately thirty states currently have a constitutional provision that specifically addresses the suspension of laws. Cf. Howell v. McAuliffe, 788 S.E.2d 706, 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.'").

In Texas, due to the 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, 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 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 17 ("Davis was not exaggerating when he reported Texas as being in a state of lawlessness.").

The militia 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 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 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 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, 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 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 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 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, 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.

—Attorney Steve Smith

Recent Decisions

• In re Hotze, 629 S.W.3d 146, 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.")

• In re Hotze, 627 S.W.3d 642, 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.")

• Deleon v. District Clerk, 187 S.W.3d 473, 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.")

• Satterwhite v. State, 979 S.W.2d 626, 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.)")

Historic Decisions

• Houston Chronicle Pub. Co. v. Mattox, 767 S.W.2d 695, 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.")

• State v. Jackson, 376 S.W.2d 341, 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, 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, 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.")

• Constantin v. Smith, 57 F.2d 227, 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.")

• Scoggin v. State, 38 S.W.2d 592, 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.")

• Trimmier v. Carlton, 296 S.W. 1070, 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.")

• Dockery v. State, 247 S.W. 508, 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.")

• Zucarro v. State, 197 S.W. 982, 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.")

• Lyle v. State, 193 S.W. 680, 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.")

• Spence v. Fenchler, 180 S.W. 597, 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.")

• Brown Cracker & Candy Co. v. City of Dallas, 137 S.W. 342, 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.'")

• McDonald v. Denton, 132 S.W. 823, 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.")

• Ex parte Smythe, 120 S.W. 200, 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.")

• Missouri, K. & T. Ry. Co. of Texas v. Shannon, 100 S.W. 138, 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.")

• Arroyo v. State, 69 S.W. 503, 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.")

• Coombs v. State, 44 S.W. 854, 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.")

Library Resources

• Vernon's Annotated Constitution of the State of Texas (this multi-volume and up-to-date resource is available at all law libraries and many municipal libraries)

• The Texas State Constitution: A Reference Guide (this one-volume resource is available at most law libraries and some municipal libraries)

• The Constitution of the State of Texas: An Annotated and Comparative Analysis (this two-volume resource is available at most law libraries and some municipal libraries)

Online Resources

• Constitution of the State of Texas (1876) (this resource is published and maintained by the University of Texas School of Law)

• Amendments to the Texas Constitution Since 1876 (this resource is published and regularly updated by the Legislative Council)

• Reports Analyzing Proposed Amendments (this resource is published and regularly updated by the Legislative Reference Library)