Texas Transfer on Death Deed 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>[[File:TRPTODA.jpg|150px|border|right|Senate Bill 462]]''Summary: Article, targeted to non-lawyers, provides general information regarding the Texas Transfer on Death Deed.''
{{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:


In 2015, Texas approved legislation authorizing a new method of transferring real property that is located within the state.
'''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.'''


The [[Texas Real Property Transfer on Death Act]] (TRPTODA) allows an owner to name a beneficiary to receive the property.
|editor=


The property passes to the beneficiary outside the regular probate process by means of a transfer on death deed (TODD).
The fundamental precept declared by this section has its origin in the twenty-ninth chapter of Magna Carta. See ''A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union'' Cooley (1874) [351-53] (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.").


Until death, the owner retains the absolute right to revoke the deed or sell, mortgage or otherwise encumber the property.
The 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.").


This article, in question-answer format, addresses some of the various legal and practical issues raised by the TRPTODA.
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.


Its purpose is to assist non-lawyers investigating whether a Texas TODD is an appropriate estate planning device for them.
|recent=


The information is necessarily general and not a substitute for advice from an attorney concerning a particular fact situation.
* ''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.")


&mdash;[[Attorney Directory:Steve Smith-Pflugerville|Attorney Steve Smith]]
* ''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''.")


* ''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.")


''<big>Why is a Texas TODD a popular estate planning device?</big>''
* ''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.")


Because it is a statutorily authorized method of bypassing Texas probate. Avoiding probate saves legal fees and court costs.
* ''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.")


A Texas TODD can also be useful for Medicaid. For example, it is disregarded for purposes of determining program eligibility.
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But note that a transfer on death deed has a few serious limitations. For example, it often doesn't handle contingencies well.
* ''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.")


* ''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.")


''<big>What is real property for purposes of the TRPTODA?</big>''
* ''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: . . . .")


The "real property" that can be conveyed with a transfer on death deed includes land, buildings, fixtures, and mineral rights.
* ''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, [].")


A Texas TODD cannot be used to transfer "personal property" such as household items, motor vehicles, or financial assets.
* ''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.")


* ''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.")


''<big>Can I use a Texas TODD for property located in another state?</big>''
* ''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.")


No. The TRPTODA applies only to Texas property. Note that non-residents may use a Texas TODD for land they own in Texas.
* ''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.")


Texas residents who own real property in another state must research the law in that state to determine if it has a similar deed.
* ''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.")


* ''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.")


<big>''Can any individual or legal entity make a Texas TODD?''</big>
* ''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.'")


Only individuals (i.e., natural persons) can make a Texas TODD. Legal entities like corporations cannot use this will substitute.
* ''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.")


An individual who owns real property jointly can make a Texas TODD. However, such deeds raise some additional legal issues.
* ''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.")


* ''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.")


<big>''What, in general terms, is the legal effect of a Texas TODD?''</big>
* ''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.")


At the owner's death, a transfer on death deed conveys the real property subject to any mortgages, liens or other encumbrances.
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|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.
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It has no effect until the owner's death. The owner can revoke it for any reason. The owner is also free to encumber the property.
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A fundamental feature of a Texas TODD is that, like a will, it has no effect during the owner's life on the legal rights of any person.
 
 
<big>''Does a Texas TODD affect the rights of unsecured creditors?''</big>
 
With one key exception, no. Under the TRPTODA, the property is secondarily liable for various claims against the owner's estate.
 
However, because the property is not deemed part of the estate, it is not liable for a [https://www.hhs.texas.gov/laws-regulations/legal-information/your-guide-medicaid-estate-recovery-program Medicaid Estate Recovery Program] claim.
 
 
<big>''What are the state and federal tax consequences of a Texas TODD?''</big>
 
A transfer on death deed has no legal effect during the owner's life so state ad valorem property tax exemptions are not affected.
 
Property conveyed by a Texas TODD is treated the same as probate property so beneficiaries receive a stepped-up federal basis.
 
 
''<big>Is a statutory Texas TODD form available for the public?</big>''
 
No. The transfer on death deed form enacted in 2015 was completely repealed in 2019. See [[Estates Code:Section 114.151|Section 114.151]] for the details.
 
The legislation that repealed the statutory form also tasked the Texas Supreme Court with promulgating a new official form.
 
The matter was delegated to a forms committee but reliable sources report that limited progress has been made at this time.
 
A basic Texas TODD [[Media:Texas_TODD-free_transfer_form.pdf|form]] is available on this website. If you have questions or concerns about its use, [[Special:Contact/18685873|contact]] the author.
 
 
''<big>What are the minimum requirements for a Texas TODD?</big>''
 
To be effective, a transfer on death deed must:
 
* contain a sufficient legal description of the real property;
 
* designate one or more beneficiaries to receive the property;
 
* state that the conveyance will occur at the owner's death;


* be in English and subscribed (i.e., signed) by the owner;
[[Category:Texas Bill of Rights]]
 
[[Category:Criminal Procedure]]
* be acknowledged before an authorized officer; and
[[Category:Civil Procedure-Texas]]
 
[[Category:TxCon ArtI Sec]]
* be recorded in the deed records before the owner's death.
 
 
''<big>Do beneficiaries or witnesses have to sign a Texas TODD?</big>''
 
No. A transfer on death deed does not have to be signed by or delivered to beneficiaries and it does not require consideration.
 
Moreover, a Texas TODD does not require the execution formalities of a will or have to be filed and proven valid in probate court.
 
But because secrecy can create practical problems, it is recommended that the owner inform someone of the deed's existence.
 
 
<big>''What is the hardest step in completing a Texas TODD?''</big>
 
Obtaining the property description. This information is different from both the physical and the mailing address for the property.
 
Because it is usually incomplete, do not use the description of the subject real property listed on your county property tax bill.
 
A description is sufficient if it furnishes the means or data by which the real property may be identified with reasonable certainty.
 
The deed will fail if the description is insufficient. If you are not absolutely sure, do additional research and/or consult a lawyer.
 
 
''<big>Where can I find the required legal description of the property?</big>''
 
This information would be on a deed of conveyance that you received when you became an owner of the subject real property.
 
If you did not receive such a deed or have misplaced it, the required legal description may be found in the county deed records.
 
 
''<big>What types of real property description are common in Texas?</big>''
 
Urban property is usually described by "lot and block" (e.g., Lot 2, Block J, Section 1, of Westwood Ranch, a subdivision in ....).
 
For an example of how that type of property description appears on an actual Texas deed, see [[Media:Sample_L&B_Description_Deed.pdf|Sample L&B Description Deed]].
 
Rural property is usually described by "metes and bounds" (e.g., Being 5 acres of the Jim Fox Survey, Abstract No. 234, in ....).
 
For an example of how that type of property description appears on an actual Texas deed, see [[Media:Sample_M&B_Description_Deed.pdf|Sample M&B Description Deed]].
 
 
<big>''Who can be designated a beneficiary under a Texas TODD?''</big>
 
There is no legal restriction under the TRPTODA on who may be a beneficiary. You can designate any individual or legal entity.
 
But a conveyance to a minor (or other contractually incompetent person) or to multiple beneficiaries creates practical problems.
 
 
''<big>Is a Lady Bird Deed the same thing as a Texas TODD?</big>''
 
No. A Lady Bird Deed (a.k.a. Enhanced Life Estate Deed) conveys the property interest immediately upon execution and delivery.
 
A transfer on death deed does not convey the property interest until the owner's death. See [[Estates Code:Section 114.004|Section 114.004]] for more information.
 
 
''<big>Can I sign a Texas TODD for another person using a power of attorney?</big>''
 
No. The owner must sign. The TRPTODA prohibits the creation of a transfer on death deed "through use of a power of attorney."
 
The Act also provides that the capacity required to make a Texas TODD is the same as the capacity required to make a contract.
 
 
''<big>How do I acknowledge a legal instrument like a Texas TODD?</big>''
 
To acknowledge a legal instrument, you appear before an authorized officer (e.g., a notary public) and state that you executed it.
 
Local financial institutions normally provide notary services. A notary public may or may not be available at the county courthouse.
 
 
''<big>How do I record a Texas TODD in the deed records?</big>''
 
File the Texas TODD in the county clerk's office of each county in which any part of the property is located. There will be a filing fee.
 
After recording it, the county clerk's office will return the original to you. Retain it among your important papers for future reference.
 
The transfer on death deed must be recorded in the deed records before your death. If not properly recorded, it will be null and void.
 
 
''<big>Does an inconsistent will prevail over a Texas TODD?</big>''
 
No. And the order is irrelevant. The TRPTODA expressly states that "[a] will may not revoke or supersede a transfer on death deed."
 
The Act provides several effective ways to revoke a Texas TODD. The most straightforward is to record an instrument of revocation.
 
 
''<big>What happens if a beneficiary dies before or soon after the owner?</big>''
 
The answer depends on the complex interplay between the text of the Texas TODD, the TRPTODA, and general Texas probate law.
 
By default, the real property passes according to the Texas antilapse statute if a beneficiary fails to survive the owner by 120 hours.
 
Many of the numerous rules governing the effect of a transfer on death deed at the owner's death are subject to the text of the deed.
 
For example, the survival rule can be modified and alternate beneficiaries can be added. See [[Estates Code:Section 114.103|Section 114.103]] for more information.
 
 
''<big>What paperwork must a beneficiary record after the owner's death?</big>''
 
As a legal matter, none. The conveyance is automatic. But it is recommended that the beneficiary record the owner's death certificate.
 
The beneficiary should also notify the county tax office. This will ensure that property tax statements are issued to the proper person.
 
Note that a beneficiary is not required to accept. For various reasons, the beneficiary may choose to execute and record a disclaimer.
 
 
''<big>Do beneficiaries have to wait two years before their title is clear?</big>''
 
For two years after the owner's death, the property is liable for various claims against the estate to the extent the estate is insufficient.
 
Nevertheless, a beneficiary may be able to assemble information demonstrating that the estate has the assets to pay all valid claims.
 
In that circumstance, most Texas title companies have been willing to insure transactions occurring within the two-year liability period.
 
 
''<big>Should I consult with a lawyer before using a Texas TODD?</big>''
 
There are a variety of estate planning devices, from a transfer on death deed to a will to a trust to a life estate or a survivorship estate.
 
Each has its own advantages and disadvantages. For example, a trust typically handles contingencies better but it is more expensive.
 
A Texas TODD may or may not be the best choice, so you should consult with a knowledgeable lawyer before making a final decision.
 
[[Category:TRPTODA]]
[[Category:Estates Code]]
[[Category:Probate Law]]
[[Category:Legal Self-Help]]
[[Category:By Steve Smith]]
[[Category:WikiSEO Extension]]
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Revision as of 10:41, 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

The fundamental precept declared by this section has its origin in the twenty-ninth chapter of Magna Carta. See A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union Cooley (1874) [351-53] (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 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.").

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.")

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