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Texas Politics - The Constitution
Mark White discusses separation of powers in government. Mark White discusses separation of powers in government.
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State Rep. Morrison on the part-time legislature State Rep. Morrison on the part-time legislature
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checks and balances
separation of powers
4.3    Powers and Organization of Government (Articles II - V)

The members of the 1875 convention placed the powers and organization of government next in the Constitution, providing first a general overview of the division of governmental authority into three branches (Article II), followed by three articles each dedicated to one of the three branches (Articles III - V).

The framers dedicated an entire article to the concept of separation of powers among three branches of government. Article II succinctly establishes legislative, executive, and judicial branches, and then explicitly prohibits the exercise of powers of more than one branch by a single individual:

The powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy; to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

In this way, the Texas framers established more explicitly than the framers of the U.S. Constitution the separation of powers. They were no doubt aided by almost ninety years of experience with the national plan of government, the particular genius of which was not fully and immediately evident at the time of its writing.

The first and longest of the three articles dealing with the branches of government focuses on the legislative branch, reflecting the primacy given that branch in the U.S. Constitution. This article originally spanned fifty-eight sections. It now has sixty-five sections, with numerous added subsections, but with a number of original sections that have been repealed.

Like the U.S. and other states' constitutions, the legislative article is composed of three main areas of coverage:

  1. organization, apportionment of seats and qualifications for office (Sections 1 - 28)
  2. proceedings (Sections 29 - 41)
  3. powers, requirements, and restrictions on powers (Sections 42 - 58)

The sections on the organization, apportionment and qualifications are largely unremarkable. They include such reasonable and expected provisions as the specification of a bicameral legislature, the number of seats in each chamber, terms of office, duration and frequency of the legislative session, and more.

The same holds true for the sections on proceedings. These require that no law can be passed which is not first a formal bill that goes through the processes for proposal, deliberation and approval specified by the Constitution.

Section 37 explicitly requires that proposed bills be referred to a committee and reported on by that committee before being considered by the general membership. While the Texas Constitution does not specify how committees should be structured, it is still notable that it requires such internal legislative structures at all.

Other noteworthy sections of Article II are related to powers, requirements, and restrictions on legislative powers. Here we see the framers penchant for dwelling on details. For instance, Section 46 states: "The Legislature shall, at its first session after the adoption of this Constitution, enact effective vagrant laws."

Perhaps more important to governance, Article 48 specified a list of items for which the Legislature may raise money through taxation. Repealed in 1969, this section listed permissible spending items like erection of public buildings and protection of the frontier. Also related to fiscal policy is the limitation on total public debt, originally capped at only $200,000, in Section 49. This section has needed to be amended twenty-one times since.

On matters concerning local authority in counties and municipalities, the conventioneers provided a considerable list of areas in which the Legislature was prohibited from passing laws. These included regulating the affairs of local government, locating or changing county seats, and specifying the location of elections. These restrictions may seem at odds with the Constitution's extensive regulation of counties and municipalities. However, they are consistent with a broader distrust of elected representatives at all levels.

Article IV on the Executive Department is notable for its careful outlining of seven executive offices, all but one of which were to be filled through popular election. The very first section (Section 1) reads:

The executive department of the State shall consist of a governor, who shall be the chief executive officer of the State, a lieutenant-governor, secretary of State, comptroller of public accounts, treasurer, commissioner of the general land office and attorney general.

Most of Article IV (Sections 4-16) is devoted to the powers and duties of the governor. Many of the remaining sections briefly cover the other six executive offices. By making six of these senior executive authorities separately elected (the Secretary of State is appointed by the Governor), the framers consciously divided and dispersed this branch's authority - and, hence, its ability to govern actively. In essence, it created six points of possible obstruction and checks to the activities, programs, or plans of each of the executive department officials. (The office of Treasurer was abolished in 1996, reducing to five the number of elected executive offices.)

The article on the Judicial Department (Article V) also created a more extensive structure than just the highest state court. It created six levels or types of courts:

The judicial power of this State shall be vested in one Supreme Court, in a Court of Appeals, in District Courts, in County Courts, in Commissioners' Courts, in Courts of Justices of the Peace, and in such other courts as may be established by law [Section 1].

The courts listed in Section 1 are referred to as constitutional courts because of the source of their authority. Other courts not listed here (see the chapter on the Justice System) are sometimes referred to as statutory courts because they were created by legislative statutes.

The twenty-seven sections that follow specify the mode of selection (popular election for all courts), the terms of office, and jurisdictions of each of the courts. These sections include detailed specification of three types of local courts: County Courts, Commissioners' Courts, and Courts of Justice of the Peace. Because of sparse settlement in much of the state at the time, these courts effectively constituted the local government for many counties and localities.

Texas Politics:
© 2009, Liberal Arts Instructional Technology Services
University of Texas at Austin
3rd Edition - Revision 115
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