What is a constitution? What is constitutionalism?
What are the three elements of constitutionalism?
What are the three pillars of the U.S. Constitution?
500 words
Federalism Chapter 2
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Welcome to Texas Government Introduction to Texas Government is an open educational resource for anyone who wants to
learn more about the operation of the Texas Government. This course's design meets the Texas
legislature's requirements for a higher education course in Texas Government. Chapters are
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Each chapter begins with an introduction where the student will find a brief synopsis and outline
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and pointers to supplementary learning if the instructor or student wants to delve more deeply
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A sample outline of the chapter organization for the Legislative chapter demonstrates this organization.
In this chapter, you will: • Learn the basics of how the Texas legislature works • Learn how legislators are elected • Learn who the Texas legislators are • Acquire knowledge about the organization of the Texas legislature • Gain an understanding of the Texas legislature legislative process
Introduction Critical Thinking Legislative Elections Personal Responsibility Legislative Representation Social Responsibility House and Senate Organizations Critical Thinking The Legislative Process
Communication Skills If you want to know more….
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contact us at Angelo State University.
Brenda J. Norton and Matthew Gritter.
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Table of Contents Introduction
1 Welcome to Texas!
2 Federalism
3 Texas Constitution
4 Elections and Special Interest Groups in Texas
5 Legislative Branch
6 Executive Branch
7 Budget, Finances, and Policy
8 Local Government
9 Judicial Branch
10 Criminal Law
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Chapter 1 Welcome to Texas!
Introduction In this chapter, you will:
• Learn the basics of Texas history, demographics, culture
• Learn the origins of Texas
• Learn Texas demographics and economy
• Acquire knowledge about Texas Political Culture
Which state is the only one to have been under six flags?1 Which state was the first to have an all-woman Supreme Court?2 Which state has its own power grid?3 Which domed state capitol building is the largest of all domed state capitol buildings?4 Which state is considered the helium capital of the world? 5
Yes, all of these are Texas! Texas has many unique elements seen in the demographics
of the population and its government's organization. Many people see government as something
apart from themselves, but the people create the government, so we need to understand how our
government operates to be good stewards.
1 https://www.tsl.texas.gov/ref/abouttx/sixflags.html 2 In 1925, the Texas Supreme Court consisted of three judges. In 1925, a case came to the court in which all three
elected Supreme Court justices were recused. The sitting court appointed three women to hear this one case. This
marked the nation’s first all-woman supreme court. This was 30 years before women served on juries in Texas and
57 before another woman would serve full-time on the Court. In 1997, Gov. George W. Bush appointed Deborah
Hankinson to the Court. With elected justices Rose Spector and Priscilla Owen, there were now again three women
on the court. The court at this time, and now consists of nine elected justices. Not until Justice Rebeca Aizpuru
Huddle’s appointment in October 2020 did the Court get to four women. https://www.txcourts.gov/supreme/about-
the-court/court-history/all-woman-supreme-court/ 3 http://www.ercot.com/about 4 https://house.texas.gov/about-us/capitol-history/ 5 https://www.tshaonline.org/handbook/entries/helium-production. Specifically, the area around Amarillo Texas is the largest production area.
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Pre-Columbian Pre-Columbian refers to the time before European settlement in an area. In the area, you
would find indigenous, native people, plants, and animals. For example, in the area now known
as Texas, there were many indigenous people referred to as Native Americans. These people
were divided into several different tribes, with each having its own culture and customs.
(http://www.native-languages.org/texas.htm)
Figure 1Tribal map http://www.native-languages.org/texas.htm
Age of Exploration
The Age of Exploration was a period from the 15th century to the 17th century. This is a
period of technological innovations in sailing vessels so explorers could travel farther from
home. These explorers claimed lands where they did not find European settlements for their
home countries. In addition, they did not count the indigenous peoples as having a claim to the
land.
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The Six Flags of Texas
Figure 2 Decorative Picture of the Six flags which have flown over Texas Ima By JW1805 – en.Wikipedia, Public Domain, https://commons.wikimedia.org/w/index.php?curid=3172252
Flags 1 and 2: Spain and France Spain (1519–1685; 1690–1821), France (1685–1690) claimed the area. Now known as
Mexico and the southwestern United States, the area was called New Spain and became an
important buffer between Spanish interests in Mexico and French interests in Louisiana until the
Louisiana purchase in 1803. Spanish explorers first claimed the land beginning in the 1530s.
They set up settlements and Catholic missions to indoctrinate the indigenous people in European
culture and religion. Spain and France traded control of the territory depending on the outcome
of wars between the two in Europe, with Spain seizing control and keeping it until Mexican
independence in 1821.
Religious missions and government posts were settled together, and each supported the
other's efforts to bring the native people to Spanish culture and religion. At first, relations
between the native peoples and Spanish settlers were cordial. The word Texas is from the Caddo
tribal language word for friend. The settlers were referred to as Tejanos. While Spanish
citizens, they were far from the Spanish rule in Mexico and became more independent. After a
while, tension rose due to the indigenous people resenting European authority and religion's
intrusion.
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Figure 3 Mission and settlement map
https://tpwd.texas.gov/education/resources/keep-texas-wild/vaqueros-and-cowboys/images- 1/Spanish_Missions_in_Texas.jpg/view
In 1820, Spain began making land grants to entice Americans to move to Texas. At the
time there were only three permanent settlements in the Spanish province of Texas:
Nacogdoches, San Antonio de Bexar, and La Bahía del Espíritu Santo (later Goliad). Moses
Austin, the father of Stephen F. Austin, was the first to receive the grant as an empresario to
bring American settlers to Texas. At the same time, Mexico was fighting for independence from
Spain. It won that independence in 1821.
Flag number 3: Mexico: Mexico (1821–1836)
Mexico gained its independence from Spain in 1821. Texas thus became part of Mexico.
However, independent Mexico continued to encourage American settlers, and by the time of the
war for Texas Independence in 1836, these settlers outnumbered Mexican settlers by more than 4
to 1.
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Slavery was illegal in Mexico, but to entice the American colonists, officials turned a
blind eye to the importation of slaves. Several issues began to surface with the new settlers
because of Mexico's changing policies on land rights, taxes, religion, and slaves. Also, Mexico
was facing a civil war. The changing attitudes toward American settlers and American's
frustration with turmoil in Mexican politics added to the desire for independence.
Flags number 4 and 5: Republic of Texas (1836–1845) and U.S. state
(1845-1861) (1865-present day) Texas won independence from Mexico in 1836 and became an independent nation.
However, Texas was only an independent nation for nine years. There was much speculation
about the United States' hand in Texas's independence and the annexation of Texas when it
appeared Mexico would retake the country. Texas became the 28th state in the United States in
December 1845.
In April 1846, the U.S. declared war on Mexico to cement its claim to Texas and all areas
now known as the southwestern U.S. At the end of the war, the US.'s claim to Texas as a state
and all of the territory now known as the Southwestern U.S. was ceded to the U.S. to become the
Utah, Nevada, Arizona, and California territories. The cessation also included part of what is
now New Mexico, Colorado, and Wyoming. Thus, this war completed the expansion of the
continental U.S. to all the territory it still claims today. As part of the treaty ending the war, the
U.S. agreed to pay compensation to Mexico for the territory and damages caused by U.S. troops.
However, given the vast territory the U.S. received, the fact that this territory created the large
contiguous landmass we have in the U.S., and all of the resources in the new territories, most
agree that the result was worth the price.
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Figure 4 Map of the U.S. after the War with Mexico https://tile.loc.gov/image- services/iiif/service:gmd:gmd370m:g3701m:g3701sm:gct00482:cs000031/full/pct:12.5/0/default.jpg
Flag number 6: and the Confederate States of America (1861–1865) When Texas became a state, it did so as a slave state and became embroiled in the
controversy in the U.S. Texas joined the confederacy in 1861 after removing Governor Sam
Houston, one of the founders of the Republic and the State of Texas, because he refused to
approve Texas seceding from the union. (https://www.tsl.texas.gov/ref/ abouttx/secession
/index.html) The removal of the Governor and the vote for secession were highly questionable
even under the law at the time.
At the end of the civil war and defeat of the confederacy, the U.S. imposed a
reconstruction period on the seceding states from 1865-1877 before returning them to full
statehood. The reconstruction period was one of advancement in civil rights in the U.S. through
ratification of the 13, 14, and 15 amendments to the U.S. Constitution and passage of civil rights
laws by Congress. During reconstruction, the former confederate states were subject to Union
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military oversight and control of the executive branch of government. Texas formally returned
as a state on March 30, 1870, but remained under some reconstruction restrictions.
Unfortunately, immediately upon the end of the reconstruction period, the Southern states began
imposing discriminatory segregation practices within their borders, which lasted until the 1960s.
Texas economy Texas has the second-largest economy in the U.S. Before 1901, the economy of Texas
centered on cattle and cotton. Then, in 1901, oil was discovered at Spindletop in eastern Texas,
and it soon became a significant part of the Texas economy. Today, Texas's diversified economy
includes oil and gas, information technology, aerospace, defense, and biomedical research.
Figure 5 Graphic of the Texas economy https://gov.texas.gov/uploads/images/business/TXataGlance.jpg
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Texas political culture Individualistic Traditionalistic Moralistic
Individual choice; self-
sufficiency
Maintain the existing social
order
A continual movement to better society
Strong support private
business; minimal
business regulation
Strong support private
business
Support of business but regulation for
the good of society
Small government: only
needed to keep the peace
Strict enforcement of law and
order
Government social programs;
Government a member of the
community, so works with all to
improve equality
Little to no government
social programs
Not concerned with
citizen participation
Government should be left to
elites, party control by family
dynasty or wealth. Minimal
citizen participation
Maximize citizen education and
participation
Figure 6 Table based on Elazar's political culture classifications for states
Daniel Elazar defined political culture as the shared values, attitudes, and beliefs that define the
relationship between individuals and the group in a given area. (Elazar, Daniel J. 1966. American
Federalism: A View from the States. New York: Thomas Y. Crowell Company.) In Texas, the
political culture has changed a lot through the years. Elazar divided political cultures into three
types individualistic, moralistic, and traditionalistic. We can find people in Texas of each type.
Which type are you?
Individualistic political culture is marked by an emphasis on business and small
government to thrive unrestrained. Government bureaucracy should be kept small, and people
have a negative opinion of government workers and actions. Politicians are seen as self-serving,
and corruption is seen as inevitable. Politics is intensely partisan and seen as adversarial.
Moralistic political culture is the opposite of individualistic and sees government as an
aid to a better society. Government is a community member, so it shares a role with all
individuals and groups to create the best society. Politics is seen as a public service, and all
citizens should be involved at least by being educated about the government and voting.
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Traditionalistic political culture is a middle ground. Government is a part of society
and has a role in fostering the common good but should minimize its restrictions on business.
Political views revolve around specific issues. Politicians and bureaucrats can be helpful under
the right circumstances. Any corruption or self-serving conduct is not tolerated, but they do need
to get out of the way of business. Changes to the social or economic status quo are resisted.
Ordinary citizens are too uneducated to participate in politics, so the elite, determined by family
dynasty or high wealth, should be left to rule.
Elazar asserted that in its history, Texas has elements of traditionalistic and
individualistic culture. In Texas, the traditionalistic aspects are seen in the state's long history of
one-party dominance in state politics, low voter turnout, and conservative social and economic
attitudes. On the other hand, elements of the individualistic culture are seen in Texas due to
strong support for private business and opposition to big government.
Texas demographics today
As we saw with the six flags over Texas, different settler immigrant groups have shaped
the state. The population of Texas is growing. Texas grew by about 4 million in ten years in the
recent census, more than any other state. (https://www.census.gov/programs-surveys/decennial-
census/decade/2020/2020-census-results.html ) Nearly half of the population growth is Latino,
and this is projected to continue. (https://demographics.texas.gov/Resources/publications
/2019/20190925_PopProjectionsBrief.pdf )
As a result of this increase in population, Texas added two seats to its congressional
delegation and electoral college representatives. As you learned in the federal government, the
U.S. House of Representatives is based on population, and Texas now holds 38 seats. As you
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also learned, the electoral college representatives for a state are based on the total number of
members of Congress from the state, the total number of representatives in the house, + the two
senators, so Texas now holds forty votes in the electoral college. Texas is now the second-largest
delegation in the House of Representatives and the electoral college. This growth is projected to
continue while the one state with more representatives than Texas, California has been losing
population.
However, the population growth in Texas is not evenly spread throughout the state. Since
the 1900s, Texas has experienced urbanization, a move of residents from rural areas to cities.
As a result, most people moving into the state have moved to urban and not rural areas. This has
also resulted in suburbanization in Texas. Rather than moving downtown in a city, many
people prefer to move to the suburbs, adjacent to a town. This move has led to urban sprawl,
expansion of auto-dependent development with long distances between residential areas, and
shopping or work. This sprawl has led Texas to have some of the most congested roadways and
issues with pollution in the large cities.
The move to urbanization and suburbanization has not been equally distributed in all of
Texas's 254 counties. Most of the population in Texas lives in urban and suburban areas in only
six of the state's 254 counties. Harris, Bexar, Dallas, Tarrant, Travis, and El Paso, hold over half
the entire state's population. This large population has more influence in politics and state
government than the rest of the states and takes up more of the resources of the government
Infrastructure. Roads. Because of sprawl, the construction of highways and feeder roads is ongoing in
urban and suburban areas. Roads are expensive to build and maintain; thus, the state has to
spend more money each year to keep the roads open. The Texas Department of Transportation
(TxDOT) maintains over 197,000 miles of road and more than 54,000 bridges in the state, more
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than any other state. ( https://www.txdot.gov/government/reports/progress-report.html). Most of
these roads and bridges are east of I35, which is also the state's most populated area.
Housing. One result of the influx of people to Texas is a housing shortage and an
increasing cost of housing in the urban and suburban areas. In addition, Texas's traditionalistic
and individualistic political culture means that there is low support for housing and income
assistance programs. For example, the Austin area's explosive growth has led to housing
shortages, high prices, and increasing homeless problems for those who cannot afford the high
housing prices even though many of the homeless are employed.
Water. The population growth and sprawl also present problems by increasing
competition for the state's limited water resources. The Texas Water Development Board keeps
an eye on water use and the weather to monitor water availability for the increasing population.
(https://texasstatewaterplan.org/statewide ) Many areas of the state depend on surface water,
reservoirs as a water resource. These reservoirs are dependent on good rainfall, so climate
change and increasing periods of drought are causing issues in these areas. Other areas of the
state rely on underground water aquifers for their water. Urban sprawl must be controlled in
these areas so that the recharge area is left undeveloped so the rainwater can seep into the
aquifer.
Energy. Texans like their air conditioning. They also want to have heat and light during
a winter storm. The increasing population also means that energy consumption is increasing. In
2018 Texas used about one-seventh of the country's energy output, more than any other state.
https://www.eia.gov/state/analysis.php?sid=TX However, Texas is also the country's third-
largest energy supplier. Texas leads all states in crude oil production. "The state accounts for
about two-fifths of the nation's crude oil proved reserves and crude oil production. Texas
produces more crude oil than any other state but usually more than all the federal offshore
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producing areas combined. More than one-fourth of the nation's 100 largest oil fields by reserves
are in Texas. Most of those are in the Permian Basin of West Texas and in the south-central part
of the state." https://www.eia.gov/state/ analysis.php?sid=TX
Texas is the only state with a separate power grid, meaning that it is not connected to any
other state for sharing electricity. This was a point of pride until the winter storm of 2021. Then,
cascading failures in the Texas system left many Texas in the cold and dark for many days.
Because the Texas grid is not connected to the other power grids in the U.S., the other power
grids could not assist Texas by supplying power to it in the hour of need. The only area of Texas
not affected was El Paso County because it is not on the Texas grid. Instead, it is on a power grid
shared with Arizona and New Mexico and receives most of its power from a nuclear power plant
near Phoenix, Arizona.
Studying Texas While it is terrific to learn about Texas's unique things, one of the best ways to learn
about how states operate is to compare them. The closest state in economy and population to
Texas is California. (https://www.indexmundi.com/facts/united-states/quick-facts/ compare/
California.texas ) Yes, we know that you feel it is too different from Texas to learn anything
from it. But because our demographics are similar and our political cultures so different, it is an
excellent state to use for comparison. States face similar problems but react to them differently,
so studying the different reactions and solutions can help us learn how to react to and review
solutions to problems in the future. You will find these comparison resources helpful in your
studies.
National Conference of State Legislatures: https://www.ncsl.org/ National Governors Association https://www.nga.org/ National Center for State Courts https://www.ncsc.org/
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If you want to know more . . .. The Texas State Archive contains extensive information about the history of Texas
https://www.tsl.texas.gov/collections
The Texas Tribune is an online news site dedicated solely to Texas news. It is a nonprofit
supported by many state colleges and universities in Texas. https://www.texastribune.org/
Vocabulary Urbanization: a move of residents from rural to urban areas.
Suburbanization is when many people move to areas close to a city, thus changing the area from rural to urban
Political culture is the shared values, attitudes, and beliefs that define the relationship between individuals and the group in a given area; here, the State of Texas
Individualistic political culture is marked by an emphasis on business and small government in which government bureaucracy should be kept small. The people have a negative opinion of government workers and actions. Politicians are seen as self-serving, and corruption is seen as inevitable. Politics is intensely partisan and seen as adversarial.
Moralistic political culture is the opposite of individualistic and sees government as an aid to a better society. Government is a community member, so it shares a role with all individuals and groups to advance society. Politics is seen as a public service, and all citizens should be involved at least by being educated about the government and voting.
Traditionalistic political culture is a middle ground between moralistic and individualistic political culture. Government has a role in fostering the common good but should minimize its restrictions on business. Political views revolve around specific issues. Politicians and bureaucrats can be helpful under the right circumstances. Any corruption or self-serving conduct is not tolerated, but they do need to get out of the way of business. Changes to the social or economic status quo are resisted. Ordinary citizens are too uneducated to participate in politics, so the elite, determined by family dynasty or high wealth, should be left to rule.
Review Questions Explain the six flags over Texas
Explain what is political culture and the three types
Explain urbanization and suburbanization and issues created by each
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Bibliography Buenger, Walter L, Secession, and the Union in Texas University of Texas Press, 2013
Buenger, Walter L., "Unionism on the Texas Frontier: 1859-1861." Arizona and the West 22, no. 3 (1980): 237-54.
Accessed May 7, 2021. http://www.jstor.org/stable/40168947. Elazar, Daniel J. 1966. American Federalism: A View from the States. New York: Thomas Y. Crowell Company. Foner, Eric Reconstruction Americas Unfinished Revolution 1863-1877 Harper & Row NY 1988 Manchaca, Martha, Recovering History, Constructing Race: The Indian, Black, and White Roots of Mexican Americans, (2001)The Joe R. and Teresa Lozano Long Series in Latin American and Latino Art and Culture, Austin: University of Texas Press,
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Chapter 2 Federalism
Introduction
In this chapter, you will learn
• What the rule of law means
• Learn what is a constitution and constitutionalism
• Learn the authority of the federal government under the U.S. Constitution
• Learn the authority of the State of Texas under the U.S. Constitution
✓ You will find it helpful to have a copy of the U.S. Constitution available while
studying this chapter. You can find copies at https://www.archives.gov/founding-
docs/constitution-transcript or https://constitutioncenter.org/interactive-
constitution/the-constitution
Texas is part of the United States of America, so before we can study the operation of the
Texas government, we must first understand what a State in the United States is. The United
States of America is a federalist constitutional government. But what does that mean? To
understand, we must consider how we live. We live in a community, a group of people with
shared interests and values. We live in many different communities –families, ethnicities,
religions, towns, nations. Today's state and national communities may include people of
different ages, races, educational backgrounds, and incomes. Within these communities, we
must accommodate what we can do as individuals and what restrictions we will accept for the
common good. We enact these restrictions as enforceable laws through the government. How
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do we decide when the government can restrict individual action for the good of the community?
We do this by determining our community responsibilities.
Community responsibilities are an individual's duties or obligations to the community and
include cooperation, respect, and participation. The concept goes beyond thinking and acting as
individuals to common beliefs about society's order and the treatment of others. In the U.S., we
show this order through the U.S. Constitution.
A constitution is a framework, blueprint, or foundation for the operation of a government.
The constitution need not be in writing, in one document, or even labeled a constitution. But, it
must have the elements of a constitution. A constitution shows the underlying principles of the
people and government, the structure of the branches of government and their duties, sets forth
limits on government with a list of freedoms or rights reserved to the people and must be more
difficult to amend, change, than ordinary laws. A constitution is a law, and our U.S. constitution
declares itself the supreme law of the U.S. and that all states must follow it. (Article VI)
However, it is not enough to have a document entitled constitution; we must practice
constitutionalism.
Constitutionalism has three elements:
1. the rule of law—there is a higher law than majority rule, there is a philosophy of how we should order ourselves, all leaders are held accountable to the law; 2. limited government 3. an element of individualism –belief that each individual has some worth, human dignity and rights liberties and duties
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Figure 7graphic of constitutionalism
First, constitutionalism requires that the people follow the rule of law. The rule of law has four
principles:
1. Accountability The government, as well as private actors, are accountable under the law. NO ONE IS ABOVE THE LAW
2. Just Laws The laws are clear, publicized, stable, and applied evenly and protect fundamental rights, including protecting persons and property and certain core human rights.
3. Open Government The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient
4. Accessible & Impartial Dispute Resolution Justice is delivered timely by competent, ethical, and independent representatives and neutrals accessible, have adequate resources and reflect the communities they serve.
The rule of law first requires that no one, no matter their wealth or office, is above the
law, including following the supreme law, the constitution. Second, it requires that laws are
published and accessible to all to review. The process of creating the laws is transparent. Third, it
provides a limit to the government, guaranteeing the people a level of individual privacy and
freedom. Finally, the law's application is delivered timely by competent, ethical, and
independent neutral representatives.
Constitutionalism recognizes a limitation of government that is balanced with the
fundamental worth of each individual. The government is limited because people have some
Rule of Law
Limited Government
Individual Rights
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right to make their own life decisions. The fundamental worth of each individual means that you
have some right to self-determination, as shown in a bill of rights in a constitution. The
balancing between government authority and individual freedom is a challenging one.
We each have different ideas of how best to live by the principles of the rule of law and
constitutionalism. Some think that we should have an individualist system, wherein individuals
take precedence over the government. They believe that society forms from the principle that
individuals inherently possess rights which government should preserve and promote. They view
government as minimalist as it exists to provide a means to assist individuals in achieving their
private interests. They do not think that political involvement is essential and that politicians are
not valued members of society.
On the other hand, those who believe in a communitarian worldview emphasize the
positive role that government plays in the lives of citizens. They emphasize the need for
community and its values. The government exists to protect rights but also to form a political
community to solve public problems. They view political participation with fellow citizens as a
virtue and government officials as providing a service to the public.
Both styles exist in the U.S., and you may align differently depending on the topic. For
example, you may be individualistic regarding business regulation but communitarian when
considering K-12 education. Let us now look at how the U.S. Constitution carries out the
principles of constitutionalism.
Pillars of the U.S. Constitution
There are three key pillars to the U.S. Constitution. The first is a separation of powers
into three branches, Article 1 – Legislative, Article 2 – Executive, and Article 3 – Judicial. Each
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branch has checks and balances over the work of the other branches. Only a few actions are
granted to the branches in the U.S. constitution where one branch can act without coordinating
their work with another branch. The second pillar is the implementation of the rule of law
through judicial review, which is the judicial branch's power to review and, if necessary,
invalidate legislation and executive action when inconsistent with the Constitution ("to declare
unconstitutional"). Finally, it enacts federalism, a constitutional division of powers between two
different levels of government, national and state.
Can v. Should One of the major issues between the states and the federal government is who can take a
particular action. Unfortunately, many people confuse what the federal government can do under
the U.S. Constitution with what they think it should do. As we will learn in this chapter, the U.S.
Constitution grants the federal government extraordinary power over all aspects of society in the
U.S. This means that it can take most actions it wants. However, even if the federal government
can act, we can still disagree that it should take that action.
A simple example is that the federal government can ban lotteries for money throughout
the U.S., we have had laws doing this in the past. However, there was a change in society's
opinion on whether this should be a national or a state issue, and the federal law was repealed.
Each state now decides if they will allow their residents to participate in a lottery, and each state
regulates the lottery in their state. So, remember, whenever you are considering the federal
government's action, you must first ask if they can do this and then ask if they should do this.
The answer to the first question is usually yes. The second is more challenging to answer and is
what leads to so many debates in our country.
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Supremacy Clause
The Supremacy Clause found in Article VI of the constitution states the U.S.
Constitution, "and the Laws of the United States…and all Treaties shall be the supreme Law of
the Land." The clause binds the judges in every state and provides that nothing in the constitution
or laws of any state can alter this supremacy. This clause puts the federal government over the
states. Thus, it is a fallacy that the states are equal to or above the federal government. This may
have been true under our system of government before the U.S. Constitution went into effect in
1789. When the states accepted the U.S. Constitution, they agreed to be bound by the supremacy
clause and that the U.S. Constitution and federal laws are supreme over the states.
Delegation of power to the federal government
The U.S. Constitution delegates powers to the national government in three ways,
expressly stated, also called enumerated, implied, and inherent. Expressed or enumerated
powers are those expressly stated in the constitution. There are enumerated powers for each of
the branches. Congress's seventeen enumerated powers are found in Article I of the constitution.
These powers include regulating commerce between the states and foreign countries, declaring
war, coining money, etc. The final power granted to Congress is to "make all Laws which shall
be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any Department or
Officer thereof." This clause is called the necessary and proper clause, the basket clause, or the
elastic clause. You can see that this clause grants Congress wide latitude in exercising its powers
under the constitution.
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To understand enumerated and implied powers, we will look at the case of McCulloch v.
Maryland (1819), decided by the Supreme Court of the United States (SCOTUS) shortly after
our country's founding. Congress created a national bank to hold the federal government's
money. The state of Maryland argued that Congress could not do this because the congressional
powers in the Constitution do not expressly authorize the creation of a national bank. However,
the federal government pointed out, and the court agreed that the necessary and proper clause
allowed Congress to imply the power to create a bank to hold its money as necessary and proper
to carry out the federal government's operations.
As you read through the constitution, note how the words used are vague enough to have
different interpretations of activities allowed—for example, Congress's power to regulate
commerce between the states. When the U.S. formed, there was not much trade between states.
A local artisan or farmer sold his wares in the closest town. Port cities traded with other states,
and a few wagons crossed state lines. Because of the industrial revolution today, it is rare for
any good or service not to have some action that crosses state lines.
For example, I may raise cattle in Texas, tan their leather in Texas, and craft leather
goods to sell in a shop in Texas. But where do the supplies I use in each task come from? Do I
use a bank with branches across the U.S. to pay my bills? Do I accept credit cards from
purchasers? Do purchasers travel interstate? Do I have a website that is open to everyone
everywhere? So, you can see that the rise of the ability of the federal government to regulate
business activities today is a natural result of our intertwined global economy. But that does not
end our debate about federal government activity. Congress can indeed enact many business
regulations. The question is do we think they should do so.
24
Concurrent federal and state authority
Some of these debates about whether the federal government should take a particular
action result from our view of the purpose of government discussed above. However, other
questions arise from the constitution's words and the authority granted to the federal and state
governments. These occur because many parts of the constitution grant both levels of
government authority to act.
This sharing of authority is called a concurrent power—one of the easiest ways to
remember what concurrent power is to consider taxes. The constitution allows both federal and
state governments to enact taxes, and they often do so! However, sometimes the actions of the
state and federal government in using their concurrent powers conflict. When this happens, the
constitution's supremacy clause allows the federal government to usurp the state's authority if
there is a direct conflict.
Preemption and nullification The removal of state authority by federal authority is called preemption. As the supreme
authority, the federal government can enact comprehensive laws that leave no room for state
action, thus preempting their jurisdiction. Let's look at one example common today, which will
also help us look at another issue, nullification.
Federal law prohibits any growing, selling, possession, or use of marijuana throughout
the U.S. The federal law is so comprehensive SCOTUS has held it to preempt any state
authority to allow the use of marijuana in the state under any circumstances. https://www.law.
cornell.edu/supct/html/03-1454.ZS.html However, states have pushed back on this preemption
by enacting laws that directly contradict the federal law, thus nullifying the complete prohibition
of marijuana in their state. They do not deny that the federal government can make use of
25
marijuana a violation of federal law. Still, they assert that if it is grown, sold, and used within
their state; they have the authority to regulate it, not the federal government. People must
comply with the state regulations, or they will be charged with a state crime. The federal law is
enforceable in every state. Even in states that allow marijuana use within the state, the person can
still be charged with a violation of federal law. The state's attempt to nullify the reach of the
federal law into their state puts their residents at risk of violating federal law.
Whether or not you support nullification regarding marijuana, think about the possibility
of nullification in other contexts. What if states refused to recognize federal laws prohibiting
racial and sexual discrimination? Would you support nullification in this example? Thus, we can
see that nullification can be damaging to the rule of law. Nullification damages the strength of
the rule of law because states and individuals decide they do not have to obey a law, thus
declaring themselves above the law. We can follow the rule of law and change laws we disagree
with by asking the legislature to change the law. Therefore, we can respect the rule of law and
our system of government and still make our voice heard on issues that concern us. In this text,
you will learn many ways to make your voice heard with the Texas government.
Constitutionally required or prohibited conduct of
states The constitution expressly prohibits states from taking certain actions. Many of these
prohibitions are found in article I, section 9. A state cannot coin money, impose any import or
export duties on goods, etc.
Other parts of the constitution require the states to act in a certain way toward each other
and persons within their state even if they are not residents. Remember, we are the United
26
States, and one of our economic strengths is that we encourage people and goods to move freely
about the country and to know that they will be treated equally and fairly everywhere they go.
Article IV The first group of these requirements is Article IV of the constitution, collectively called
the comity, friendship, clauses. There are three comity clauses, full faith and credit, privileges
and immunities, and extradition. The full faith and credit clause requires each state to
recognize court orders and judgments from another state. Thus, if I take a judgment against you
for damages in Texas, you cannot move to New Mexico to avoid paying me the money owed.
An issue with full faith and credit is that it does not apply to licenses to do certain
activities. Thus, if you move to New Mexico, you have to get a new driver's license. Each state
has rules about how long you can be in their state without getting a new driver's license. Some
people argue that the U.S. should join most countries globally and have a national driver's
license, so you do not have to get a new one each time you move. You just update your address.
Another issue where variances in state rules is a controversy is voter registration. You must re-
register to vote if you move states. Most countries have national voter registration, so like the
national driver's license, you only update your address. Texas makes voter registration and
moving even harder than many states as it requires you to re-register if you move counties within
the state. https://www.ncsl.org/research/elections-and-campaigns/voter-registration.aspx
Privileges and Immunities in Article IV means that the state government has to treat
visitors to the state the same way they treat their residents. For example, if I am visiting
Oklahoma, the speed limit must be the same for me as for Oklahoma residents. Extradition is
the ability of law enforcement to find and arrest an accused person anywhere in the U.S. The
different law enforcement agencies are supposed to work together to prevent someone within the
U.S. from evading arrest and returning the accused for trial. This extradition rule does not apply
27
if the person escapes across an international border. Treaties between the U.S. government and
the other country regulate extradition. There are many countries in the world with which the U.S.
does not have extradition, so there is no legal way to return the person to the U.S. to face trial.
Fourteenth Amendment The fourteenth amendment to the U.S. Constitution places restrictions on how a state may
act toward persons within their state. You do not have to be a state resident or even a U.S.ctizen
for the fourteenth amendment to apply as it expressly states that it applies to all persons. Also,
the last sentence of the fourteenth amendment grants Congress the power to enact laws to
enforce the amendment, thus increasing Congress's power over the states.
The amendment requires states to treat all persons with equal protection of the law and
grant all persons due process of law before depriving them of life, liberty, or property. There is a
third part of the fourteenth amendment, a privilege, and immunities clause, which we will not
discuss due to a long-standing tradition of using the other two clauses to regulate state conduct.
Equal protection means that the state government must treat all similarly situated persons
equally. For example, Texas can set licensing requirements for a person to practice law in the
state, but they must apply them to every applicant. Congress's enactment of non-discrimination
laws emanates from the last sentence of the fourteenth amendment, which grants Congress the
power to enforce the amendment, including the equal protection clause. The federal
government's authority to enact and implement non-discrimination laws on the states emanates
from the equal protection clause of the fourteenth amendment.
The due process clause requires the states to treat all persons fairly and equally when
dealing with the government. This clause is used to apply all of the protection of the U.S.
Constitution's bill of rights to the states, so it is an integral part of our government. We will
consider some parts of the bill of rights later when we discuss criminal law in Texas.
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10th amendment Reserved Powers The Tenth Amendment provides that "[t]he powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
the people." As we have seen, the federal government's power is immense; thus, this clause
does not grant much additional authority to the states. States usually rely on their authority to act
under the U.S Constitution through one of the concurrent powers granted to them. One aspect of
the reserved powers clause, which is practical for the states, is the anti-commandeering rule. If
the federal government wants to enact a statute prohibiting a particular type of conduct, it must
pass it as a federal regulation. The federal government cannot tell the state legislatures how to
carry out their duties. For example, if the federal government wants to ban sports betting in the
U.S., it can pass a statute prohibiting it everywhere, and the states must comply. However,
federal law cannot limit a state legislature to one year to approve sports betting and then prohibit
them from doing so after that time.
This anti-commandeering does not apply if the requirement for the state to act in a certain
way when carrying out its state activities is tied to the spending of federal money by the state
government. It is the federal government's money. They can spend it and put whatever
restrictions they want on it; so long as the conditions apply across the U.S., about one-third of the
total Texas budget is money received from the federal government. We will look at how this
money is allocated and spent in chapter 7.
Sovereign Immunity Sovereign Immunity means the government cannot be sued unless special provisions are
met. This is an ancient legal concept that applies to government at all levels, federal, state, and
local. A person cannot sue any level of government unless (1) the government expressly
consents to be sued or (2) the Constitution abrogates, takes away, government immunity or (3)
29
the action is for a violation of the Constitution. This is a complicated area of the law, and for
purposes of this course, all you need to know is that you cannot sue any part of the government
unless it consents or you are suing for a violation of the U.S. or Texas Constitution.
Police Powers Police powers have nothing to do with law enforcement. Instead, it is the power of the
government to make and enforce laws protecting the public's health, safety, welfare, and morals.
It is why we have laws against prostitution, regulating drug use, requiring safety inspections of
restaurants, and picking up after your dog in the city park. The government is given wide
latitude to enact laws using its police powers. Your views of government as individualistic or
communitarian can affect your view of many of these laws.
If you want to know more. . . The national constitution center website has an interactive U.S. Constitution. When you click on
different parts of the constitution, there are explanations, debates, and podcasts available to help
you understand the U.S. Constitution https://constitutioncenter.org/interactive-constitution
There is a complete annotated U.S. Constitution available from the U.S. government. This
annotation includes every change and interpretation of every clause of the constitution since it
went into effect in 1789. https://constitution.congress.gov/browse/
Review Questions Explain what is a constitution and constitutionalism
Explain the three pillars of the U.S. Constitution.
Define sovereign immunity, preemption, nullification, and police powers
30
Vocabulary Constitutionalism has three elements: the rule of law, limited government, and an element of
individualism
Extradition is the ability of law enforcement to find and arrest an accused person anywhere in
the U.S.
Full faith and credit is a clause that requires each state to recognize court orders and judgments
from another state.
Individualism –belief that each individual has some worth, human dignity and rights, liberties
and duties
Police Power power of the government to make and enforce laws protecting the public's health,
safety, welfare, and morals.
Privileges and Immunities in Article IV means that the state government has to treat visitors to
the state the same way they treat their residents.
Rule of law—there is a higher law than majority rule, there is a philosophy of how we should
order ourselves, all leaders are held accountable to the law
Sovereign Immunity means the government cannot be sued unless special provisions are met.
Bibliography American Government 2d edition, OpenStax. https://openstax.org/details/books/american-
government-2e
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Chapter 3 The Texas Constitution
Introduction
In this chapter, you will learn,
• Learn about the constitutions Texas has had over the years
• Learn about some of the issues with the current Texas Constitution
Texas is currently using its sixth constitution. We had new constitutions in 1836, 1845,
1861, 1866, 1869, and 1876. One reason for Texas having so many constitutions is the history
of Texas and the six flags that have flown over it. Each time the flag changed, we changed the
constitution. Additionally, in the reconstruction years, Texas was reforming to seek readmission
to the U.S., and Texas had two constitutions in this period.
1836 Constitution When Texas achieved independence from Mexico, it had to set up a new government, so
the leaders crafted the constitution of 1836. This constitution and all constitutions since borrow
heavily from the U.S. Constitution. We have maintained this same basic structure of three
separate branches of government throughout our history. This constitution also shows Texas's
tradition of decentralized government.
1845 Constitution When Texas became a state, it had to create a constitution that met the requirements of
the U.S. Constitution. The 1845 constitution is similar to the 1836 one. However, while the 1836
independence constitution followed the format of the U.S. Constitution, the 1845 constitution
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had to comply with all the rights and prohibitions on states in the U.S. Constitution. One
development in the 1845 constitution is that suffrage, the right to vote in elections, was extended
to non-land-owning white males.
The 1845 constitution expanded the judicial system to reflect issues seen under the 1836
constitution with a lack of court accessibility and authority. Another significant change is the
creation of the office of Lieutenant Governor. The Lieutenant Governor worked with the
Governor similarly to how the Vice-President works with the President. We will see a drastic
change in this relationship with the 1876 constitution.
A notable change for the people under the 1845 constitution was the introduction of the
homestead law. Homestead law is a rule which gives special protection to a person's home from
seizure for payment except for specified debts. Even today, Texas has some of the most
substantial homestead protections of any state. Unusually for the time, the 1845 constitution also
granted women some property rights. In many states, when a woman married, she lost control of
any property she owned before marriage. In Texas, she maintained ownership.
Constitutions of 1861, 1866, and 1869 Texas secession from the Union and joining the confederate states led to a series of
constitutions. In 1861 when Texas joined the confederacy, it had to draft a new constitution.
The 1861 constitution is similar to the 1845 one but declares loyalty to the Confederate States.
Notably, it adds a clause that "no government or authority applies in the state unless consented to
by the people." Thus, it denounces the U.S. Constitution's supremacy clause. In addition, it
protected slavery and forbade a slave owner from freeing his slaves without government
permission.
33
The 1866 constitution began Texas's road to recognition as a state after the civil war.
Congress required all confederate states to rewrite their constitutions, recognize the U.S.
Constitution's authority, and declare allegiance to the U.S. The constitution also increased the
centralization of government power in the Governor. While the 1866 constitution granted some
rights to African-Americans, they were few. They could own property, enter into contracts,
defend their rights in court, run for public office, and serve on a jury. However, they were not
allowed to vote and had restrictions on personal freedoms, which did not apply to whites.
The 1869 constitution, often called the reconstruction constitution, was drafted to
complete readmission as a state to the United States. Perhaps because all males of whatever race
were allowed to vote for delegates to the convention, the 1866 constitution extended the right to
vote to African Americans. African Americans served as elected officials in Texas during the
reconstruction era, and some civil rights measures were achieved. However, segregation
continued and increased as federal oversight came to an end.
The 1869 constitution includes provisions for the creation of a public school system in
the state. In addition, the Governor's powers were expanded from the 1866 constitution, allowing
him to appoint local city officials, not just state officials. This consolidation of power in the
Governor meant that the constitution was controversial from the beginning. There were
instances of violence throughout the state, with each side blaming the other for their supporters'
criminal conduct and arguing that reforms to meet their demands would create law and order.
Governor Davis even imposed martial law in a few counties to restore peace. This
backfired, and opponents further vilified him, and some who previously supported him turned
against him for his heavy-handed tactics. Additionally, the Davis administration was corrupt and
awarded state jobs and contracts to friends and not based on sound business. Governor Davis
was defeated by a slight margin in the next election. He refused to leave the office, barricading
34
himself in the Capitol building. Opponents snuck into the building with a local militia's
assistance. After a standoff, Davis finally agreed to leave and allow his successor to take office.
(https://www.tshaonline.org/handbook/entries/davis-edmund-jackson)
1876 Constitution As a result of the backlash to reconstruction and Davis administration issues, Texas
drafted a new constitution in1876. This is the current constitution. (https://statutes.capitol.
texas.gov/Docs/SDocs/THETEXASCONSTITUTION.pdf ) It contains seventeen articles and
emphasizes popular sovereignty, a limited state government with an increase in local control
from the 1866 constitution, a strong separation of powers, and a bill of rights. We will only
briefly discuss this constitution since we will study it in depth for the remainder of this course.
Articles 2-5, 9, 15, and 16 outline the government branches and their powers. Article I contains
the bill of rights for Texas residents. The bill of rights in Texas follows many of the rights listed
in the U.S. Constitution.
One of the issues with the current constitution is how often it has been amended. Since
its inception, about 700 amendments have been proposed to the constitution, and about 500
approved. This leads to a lengthy document of about 90,000 words. It is the second-longest
state constitution. In comparison, the U.S. Constitution is about 5,00 words. (https://tlc.
texas.gov/docs/amendments/Constamend1876.pdf )
35
https://texaspolitics.utexas.edu/educational-resources/look-sizes-state-constitutions
Amending the constitution begins with both chambers of the Texas legislature approving
a proposed amendment. The Governor is not officially involved in the process of proposing an
amendment. The secretary of state and the attorney general then have to approve the proposal.
The state's proposal is then placed on the ballot for a vote by the people. A simple majority must
approve the amendment, except in the case of one concerning income tax. Voters approve most
amendments; however, it is deceptive to say that this shows most Texans agree with most
amendments since the turnout of voters is low. Unless the amendments are included a ballot for
an election for President or statewide office, voter turnout is 10% or less of those eligible to vote.
https://texaspolitics.utexas.edu/educational-resources/comparing-turnout-constitutional-elections;
https://www.sos.state.tx.us/elections/historical/70-92.shtml
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If you want to know more . . . Check out all the Texas constitutions https://guides.sll.texas.gov/historical-texas-
statutes/constitutions
Vocabulary Homestead law is a special law protecting your residence from being seized from certain types
of debts.
Suffrage is the right of a person to vote.
Review Questions Explain why Texas has had so many constitutions
Explain something of importance in each of Texas's constitutions
Discuss some of the issues surrounding the current constitution.
Bibliography
May, Janice. The Texas State Constitution (Oxford Commentaries on the State Constitutions of
the United States) Oxford University Press, 2011
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Chapter 4 Political Participation, Elections
and Interest Groups
Introduction
In this chapter you will learn:
● What Political participation is
● How political parties in Texas work
● How elections in Texas work
● The role of interest groups in Texas
In this chapter the role of individual people and organized groups is explored. While
other chapters explore institutional development this chapter looks at how people participate in
politics. People vote in elections, volunteer for campaigns and lobby their elected officials.
While Texas has traditionally had low voter turnout compared to the rest of the United States it
also has a long history of involvement at various levels of governance. In addition, the role of
interest groups will be explored. How people become involved in politics and how political
parties, elections, interest groups and the media shape Texas government and politics will be
explored. While Texas has much in common with the United States as a whole, some of the
unique aspects of Lone Star state politics will be profiled and discussed.
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Public Opinion and Political Participation
Public opinion provides a basis for political participation. As people form opinions about
the world around them, it can lead to political participation in addition to a choice not to become
involved politically. Political socialization is a term that explores the factors that shape people's
political views. Traditionally the views of people's parents have been a strong predictor of
political views. Other important factors can include education, race and ethnicity. Many who
participate in politics have a sense of political efficacy, which is a sense that their involvement
can influence the political system whether through voting or through a myriad of other activities.
A variety of political ideologies are present in Texas. Those with more liberal views are
usually members of the Democratic Party while those that are more conservative tend to be
attracted to the Republican Party. In the past in Texas many conservatives were members of the
Democratic Party but that has changed over time with the rise of the Republican Party and
increased ideological polarization.
Political participation is the way that people express their ideas and can encompass many
different ways and methods. While some people see voting as the only way of participating in
politics there are many other ways to become involved politically. People can volunteer for a
political campaign, donate to a candidate running for office, attend a campaign rally, call an
elected official to state a point of view or even post a political opinion on social media. Social
media platforms have become a contentious area for political participation. People also
sometimes boycott or frequent particular businesses because of their political leanings.
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Table 1: Examples of Political Participation
Examples of Political Participation
Voting
Contacting an elected official by mail, phone or e-mail
Volunteering for a political campaign
Donating funds to a political campaign
Attending a campaign rally
Posting a political opinion on social media
Run for a political office
Circulate a petition regarding a political issue
Boycott or frequent a business because of their political leanings
Social Responsibility
Texas has a long history of political participation. There was an active civil rights movement
with African Americans and Latinx peoples organizing for a more equal role in society and
greater participation in the political process. Groups have also organized around such
contentious social issues as abortion. With a State Board of Education selected through partisan
elections, even the process for forming the K-12 curriculum and selecting textbooks has become
a venue for political participation. The 2012 documentary The Revisionaries explored efforts to
40
shape the science and social studies curriculum in Texas. What are some issues that would
engage you politically and how would you participate in the political process to advance your
ideas.
Political Parties
Currently, the two main political parties in Texas are the Republican Party and the
Democratic Party. While Texas was historically dominated by the Democratic Party, the
Republican Party has steadily gained strength and since 2003 controlled both the Legislature and
the governorship. There are also third parties such as the Green Party and the Libertarian Party
that have less influence. Texas Democrats have not won a statewide election since 1994 despite
holding local offices in major cities and a variety of judgeships, seats on the Texas State Board
of Education, serving as state legislators and as members of the United States House of
Representatives.
Texas was long dominated by the Democratic Party with Republicans slowly making
gains beginning in the mid twentieth century. The Republican Party's rise began in earnest with
the 1961 election of John Tower to the United States Senate. George H.W. Bush twice
unsuccessfully sought a United States Senate seat as a Republican in 1964 and 1970 and was
elected to the United States House of Representatives for two terms beginning in 1966. In 1978,
William P. Clements was elected as governor of Texas. Clements served two non-consecutive
terms as governor and helped set the stage for further expansion of the Republican Party in
Texas.
The election of Republican George W. Bush as Governor in 1994 helped to further expand the
reach of Republican rule in Texas. Subsequent Republican governors Rick Perry and Greg
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Abbott helped to consolidate Republican control which extended to other statewide offices and
the state legislature.
Differences between the political parties are also evident in their bases of support.
Republicans gain much of their support from Anglo voters and perform extremely well in rural
areas. Democrats are increasingly strong in urban areas and gain support from people of color. In
the 2018 election, then Congressman Beto O’Rourke performed strongly against Republican
Senator Ted Cruz and Democrats made gains in the State Legislature. However, the 2020
election appeared to affirm Republican control in Texas.
Within political parties there have been differences. The Republican Party has had
conflict between economic conservatives supporting a pro-business agenda and social
conservatives interested in issues such as abortion and gun rights. The Texas Democratic Party
has sometimes struggled to differentiate itself from a national Democratic Party sometimes
characterized as too liberal for the unique political composition of Texas.
Third parties have long existed in Texas but have struggled to gain office and influence.
During the civil rights movement of the 1960s and 1970s, the Raza Unida party was formed by
activists in South Texas seeking improved representation for Hispanics, particularly in South
Texas. More recently in Texas the Green and the Libertarian.Party have fielded candidates for
office. Despite these efforts, Texas has remained dominated by the traditional two party system.
Critical Thinking
The Democratic Party had tried several different strategies to regain political power including
large scale fundraising and a variety of different candidates for statewide office. What could be
two reasons that the Democratic Party has failed to win statewide elections in Texas?
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Elections
Elections are held for statewide elected officials, the Texas Supreme Court, the Texas
Court of Criminal Appeals, different levels of judges, the Texas State Board of Education and for
the houses of the Texas State Legislature. Elections are also held for local government offices.
Texas has a large number of elected officials at various levels of government.
Elections in Texas have often suffered from low turnout, especially compared to other
states. In addition, in the past African Americans were often subject to discrimination in voting
and were often disenfranchised, deprived of the right to vote. People of Mexican origin and
other Latinx people had more opportunities to vote but also had barriers to overcome. The
landmark Voting Rights of 1965 attempted to ease barriers to voting and focused a great deal of
attention on the states of the former confederacy where it was difficult for many African
Americans to vote. The 2013 Shelby County vs. Holder Supreme Court decision limited the
Voting Rights Act and allowed states to pass more voter restriction legislation such as laws
requiring voter identification in order to be able to vote. Texas passed such a law which was
subject to legal challenges. Voter restriction legislation has become a subject of debate in Texas
in recent years.
To register to vote in Texas as noted on the official website: “You are eligible to register to
vote if:
● You are a United States citizen;
● You are a resident of the county where you submit the application;
● You are at least 17 years and 10 months old, and you are 18 years of age on
Election Day.
43
● You are not a convicted felon (you may be eligible to vote if you have completed your
sentence, probation, and parole); and
● You have not been declared by a court exercising probate jurisdiction to be either totally
mentally incapacitated or partially mentally incapacitated without the right to vote”
(https://www.votetexas.gov/register/index.html).
Those excluded from voting are often described as being disenfranchised. While the states of
Maine and Vermont allow prisoners to vote every other state has some sort of restrictions on
felons voting. This has become controversial in recent years.
There are several different types of elections. Primary elections determine the nominee
of a particular political party for a particular office. Runoff elections are held if no candidate in a
primary gets a majority of the vote to select a nominee from the top two candidates in the
primary election. General elections are held to determine who actually is elected to an office. In
case of a resignation, death or removal from office a special election can be called for a
particular office.
For many years in Texas there was straight ticket voting where a voter could decide to
vote for each of the candidates of one political party. Many voters either voted a straight
Democratic or Republican ticket, meaning they supported all of the candidates for one political
party. A 2017 law ended that practice and that option is no longer available in Texas. How that
change will affect Texas politics is not yet clear.
Texas allows a period of early voting where registered voters can go to designated
locations and complete their ballot prior to election day. There are also procedures for absentee
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voting. Many counties utilize electronic voting machines. Voters also have the option of voting
on election day.
While many other states have systems of direct democracy where elected officials can be
recalled and ballot initiatives are placed on the ballot, Texas does not have these elections at the
statewide level. While Texas does not have ballot initiatives, Texas voters do approve
constitutional amendments that have been approved by the state legislature. Amendments are
often fairly technical in nature but sometimes do address broader issues such as in 2005 when an
amendment banning same sex marriage in Texas was passed with 76% of the vote. That
amendment was superceded by the 2015 United States Supreme Court decision allowing same
sex marriage in all fifty states.
Election campaigns in a state as large in size and population as Texas require a large
amount of money to run effective campaigns. State level campaign contributions are not heavily
regulated in Texas. Elected officials and candidates often raise money from powerful interests
such as the oil and gas industry. More recently candidates have raised large sums of money
through the internet. Governor Greg Abbott and Senatorial candidate Beto O'Rourke were
particularly successful in raising large sums of money in campaign contributions.
The Texas Ethics Commission is an excellent resource for observing campaign
contribution filings. Consisting of four commissioners appointed by the governor and two
commissioners appointed by the Lieutenant Governor and the Speaker of the House, the Texas
Ethics Commission is the main regulating body for elected officials, campaigns, Political Action
Committees and lobbyists to name some of their responsibilities. It also is a place where
political action committees (PACS) can go to start operations. PACs represent various interests
45
and often contribute to candidates’ campaigns. The 2010 United States Supreme Court Citizens
United decision helped to open the door to increased campaign spending at a variety of levels.
In presidential elections, Texas has become a solidly Republican state. The last
Democrat to carry the state of Texas was Georgian Jimmy Carter in 1976. While the margin of
victory for Republicans declined in 2016 and 2020, attempts by the Democratic Party to reclaim
the state of Texas remained unsuccessful. While native Texan H. Ross Perot made a strong
showing in his independent bid for president in 1992, Republican George H.W. Bush still carried
that state of Texas despite losing reelection in the nation as a whole.
Tables 2 and 3 illustrate several trends regarding voting and elections and Texas. Texas
has a voter turnout rate that is persistently behind the national average. In addition, no
Democratic presidential candidate has won the state of Texas since Jimmy Carter in 1976. The
victories in the presidential elections for the Republican Party were eventually matched by
victories for Republicans in elections throughout the state.
Table 2: United States and Texas Voter Turnout
2008-2020
Year Texas Voter Turnout United States Voter Turnout
2008 54.1% 61.6%
2010 32.1% 41.0%
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Year Texas Voter Turnout United States Voter Turnout
2012 49.6% 58.0%
2014 28.3% 36.0%
2016 51.4% 59.2%
2018 45.6% 49.4%
2020 60.4% 66.7%
Source: http://www.electproject.org
These results are Voting Eligible Population (VEP) for highest office
Table 3: Texas Presidential Election Results 1976-
2020
Election Year Democratic Party Republican Party Major Third Party
1976 Jimmy Carter/Walter
Mondale- 2,082,319
Gerald Ford/Bob
Dole- 1,953,300
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Election Year Democratic Party Republican Party Major Third Party
1980 Jimmy Carter/Walter
Mondale- 1,881,147
Ronald
Reagan/George H.W.
Bush- 2,510,705
1984 Walter
Mondale/Geraldine
Ferraro- 1,949,276
Ronald
Reagan/George H.W.
Bush- 3,433,428
1988 Michael
Dukakis/Lloyd
Bentsen- 2,352,748
George H.W.
Bush/Dan Quayle-
3,036,829
1992 Bill Clinton/Al Gore-
2,281,815
George H.W.
Bush/Dan Quayle-
2,496,071
H. Ross Perot/James
Stockdale- 1,354,781
1996 Bill Clinton/Al Gore-
2,459,683
Bob Dole/Jack
Kemp- 2,736,167
2000 Al Gore/Joe
Lieberman- 2,433,746
George W. Bush/Dick
Cheney- 3,799,639
2004 John Kerry/John George W. Bush/Dick
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Election Year Democratic Party Republican Party Major Third Party
Edwards- 2,832,704 Cheney- 4,526,917
2008 Barack Obama/Joe
Biden- 3,528,633
John McCain/Sarah
Palin- 4,479,328
2012 Barack Obama/Joe
Biden- 3,308,124
Mitt Romney/Paul
Ryan- 4,569,843
2016 Hillary Clinton/Tim
Kaine-3,877,468
Donald Trump/Mike
Pence- 4,685,047
2020 Joseph Biden/Kamala
Harris- 5,259,126
Donald Trump/Mike
Pence- 5,890,347
Source: https://www.sos.state.tx.us/elections/historical/presidential.shtml
Personal Responsibility
Texas has traditionally had low voter turnout. Discuss why voting is important and think of at
least two pieces of supporting evidence to back up your argument.
Interest Groups
Interest groups are organized groups of people that advocate for specific groups or
specific issues. The first amendment to the United States Constitution guarantees freedom of
association and a variety of groups seek to influence various parts of the policy process.
49
Examples of influential interest groups include the National Rifle Association (NRA) which
advocates for gun rights and Planned Parenthood which advocates for reproductive rights.
Prominent Texas based interest groups such as Texas Alliance for Life which advocates for pro
life causes and the Texas Freedom Network which works to provide a counterpoint for many of
the socially conservative groups that are influential focus particular attention on institutions such
as the Texas Legislature. The Texas Freedom Network has also been very active in advocating
before the Texas State Board of Education for science and social studies standards. Interest
groups engage in such activities as educating the public and elected officials regarding their
particular cause, conducting campaigns and participating in electioneering activities.
Many interest groups conduct lobbying activities. Lobbyists participate in direct
communications with elected officials. During the legislative session in particular many lobbyists
converge upon the Texas capital. Lobbyists engage in such activities as meeting with legislators,
testifying in hearings, providing information and education regarding their areas of expertise and
assisting in the development of rulemaking and regulation. While lobbyists are sometimes
portrayed as corrupt, they are often crucial in providing information regarding their fields of
expertise.
The Texas Ethics Commission provides rules and regulations regarding lobbying.There
are thresholds for expenditures and compensation that require people to register as lobbyists. The
lobby law in Texas applies to members of the state legislative and executive branches and their
employees. Texas does not have a waiting period before former elected officials may register as
lobbyists. (https://www.ncsl.org/research/ethics/50-state-table-revolving-door-prohibitions.aspx).
Groups also participate in many aspects of political participation. They contact their state
representatives and other elected officials in order to lobby and advocate for their positions.
50
Many different groups organize coalitions that plan “lobby days” where people throughout the
state of Texas either virtually or in person seek to influence and lobby their elected officials,
their state legislators in particular. Groups such as retired teachers, supporters and opponents of
legalized abortion, labor union groups and professions such as realtors each attempt to influence
their elected officials, particularly during a legislative session.
Grassroots activism also occurs in Texas. It encompasses many of the aspects of political
participation and generally includes organized groups of citizens supporting a particular issue.
During the Texas legislative session many interest groups hold lobby days where groups of
activists and interested citizens visit the capital and the offices of their senators and
representatives. Groups organize at the local level and perform many of the acts of political
participation that are discussed earlier in this chapter. They write, call and visit their
representatives and also often make use of social media and other new methods of Political
Participation.
The state and federal court system have become a place where interest groups become
involved. When a bill is passed by the legislature is signed by the governor it is often challenged
in the courts by interest groups. Interest groups will also often file an amicus curiae or friend of
the court brief that outlines a preferred legal rationale.
Political Scientists have often referred to the concept of an iron triangle. At the state
level an iron triangle refers to a triangle where the state legislature, executive branch officials
and lobbyists/interest groups together control the policy process with a great deal of inter-
relation between each part of the triangle. More recently political scientists have discussed the
concept of issue networks which are broader and include groups such as think tanks and
academics. (Kamarck)
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Communication Skills
Interest groups need to frame effective messages to build support for their particular issues and
causes. Pick a cause or issue that interests you and construct a one or two sentence rationale
why people should support your point of view. Consider the ways you make your point of view
attractive to politicians.
Media in Texas
The media also plays an important role in politics. People turn to various methods to access
political information. Some turn to traditional print newspapers or local television sources.
People also increasingly turn to social media and niche media sources. There are specific Texas
media sources such as the nonprofit Texas Tribune web page In Texas politicians such as
Governor Greg Abbott, Senator Ted Cruz and former congressman, Senatorial candidate and
presidential candidate Beto O'Rourke have made successful use of platforms such as Twitter and
Facebook to gain attention.
Conclusion
There are many ways to participate politically in Texas. While Texas traditionally has a lower
voter turnout than the national average, there is political participation at several levels ranging
from elections to grassroots activism. The future of the dominant Republican Party in Texas will
be a key issue in the next decade.
52
If you want to know more…
Texas Tribune www.texastribune.org.
Texas State Ethics Commission
https://www.ethics.state.tx.us/
Texas Democratic Party
Texas Republican Party
Vocabulary List
General Elections-General Elections are held to elect candidates for particular political offices
and generally include the nominees of political parties selected in primary elections.
Interest Groups-Interest groups are organized groups of people that advocate for specific groups
or specific issues.
Lobbyists-Lobbyists engage in such activities as meeting with legislators, testifying in hearings,
providing information and education regarding their areas of expertise and assisting in the
development of rulemaking and regulation.
Political Socialization-Political socialization constitutes the factors that influence the political
views of people. The views of people's parent's have traditionally been very influential
Primary Elections- Primary elections are partisan elections that select candidates to be the
nominees for political parties in general elections
53
Voter Turnout is the percentage of eligible people who vote in an election. There are a variety of
metrics to determine voter turnout.
Voting Eligible Population includes people who are eligible to register to vote and vote in an
election. People can be excluded from the Voting Eligible Population .
Review Questions
What are three different types of political participation?
What political party is dominant in Texas?
What are two characteristics of voter turnout in Texas?
When do lobbyists have to register?
What are iron triangles and issue networks?
Bibliography:
Kamarck, Elaine. How Change Happens or Doesn't.
https://www.sos.state.tx.us/elections/historical/presidential.shtml
54
Chapter 5 Texas Legislature: Policy and
Process
Introduction
In this chapter you will learn:
● Learn the basics of how the Texas legislature works
● Learn how legislators are elected
● Learn who the Texas legislators are
● Acquire knowledge about how the Texas legislature is organized
● Gain an understanding of the Texas legislature legislative process and the Powers of the
Texas legislature
The Texas legislature convenes in odd numbered years for a 140 day session. One of
four states without an annual yearly legislative session, Texas continues to have a part-time
legislature despite being one of the largest and most complex states in the country. Like every
state but Nebraska, Texas has two legislative bodies that are elected through partisan elections.
The 150 member Texas House of Representatives and the 31 member Texas Senate can also be
called into 30 day special sessions by the Governor of Texas. The Texas legislature adopts a
budget and has the opportunity to review and pass legislation in addition to powers of oversight
and impeachment. During the 140 day regular sessions, special sessions called by the Governor
and throughout the year in other duties the Texas Legislature is an integral part of the governance
55
of Texas. Like many government institutions, continuity and change are two key themes of the
Texas legislature. Representing an increasingly diverse state the Texas Legislature remains
governed by long standing rules and traditions.
As noted above, Texas joins Montana, Nevada and North Dakota in having legislatures
that meet every two years. While the other three states are comparatively small in population,
Texas has the second largest population of any state in the country. As a comparison, the
California and New York legislatures meet every year for a more lengthy session while the
Florida state legislature meets every year for 60 days. While there have been attempts to change
the structure of the Texas legislature so that it meets every year they have not been successful
and Texas continues to have a part-time legislature. However, even when the legislature is not
formally in session members of the Texas legislature continue to perform duties such as
constituent service and unlike some legislators in smaller states they have a staff to assist them.
Article III of the Texas Constitution determines the makeup and structure of the Texas
legislature. Characteristic of the Texas Constitution, Article III goes into a great deal of detail
regarding various aspects of what it terms “the Legislature of the State of Texas.” There are also
sections regarding areas such as the Texas Ethics Commission. The frequently amended Texas
Constitution provides a great deal of guidance regarding the powers and responsibilities of the
Texas legislature.
The National Council of State Legislatures identifies different types of legislatures based
on whether they are full or part time, how much they are paid and how much staff they have.
(https://www.ncsl.org/research/about-state-legislatures/full-and-part-time-
legislatures.aspx).Texas is in the middle of the states regarding resources. Texas legislators are
part-time and relatively low paid but have more staffing resources than other legislators,
56
particularly those in small rural states. As with so much in Texas government and politics, the
Texas legislature belies easy description.
Critical Thinking
Texas is one of four states with a part-time legislature and is much larger and more complex
than the other states. What are some strengths and weaknesses of this approach? What would be
accomplished with a full time legislature?
Legislative Elections
The Texas State Legislature at the beginning of the 2021 legislative session on January
12, 2021 consisted of 82 Republicans and 67 Democrats in the Texas House of Representatives
and 18 Republicans and 13 Democrats in the Texas Senate.
(https://lrl.texas.gov/legeLeaders/members/partyListSession.cfm?leg=87). Members of the Texas
House of Representatives are elected every two years while members of the Texas Senate serve
four year terms. There are specific requirements to be a member of the Texas House and the
Texas Senate. To become a member of the Texas House of Representatives a person must be a
United States citizen, at least 21 years of age, have been a Texas resident for at least two years
and a resident of their district for at least one year. To become a member of the Texas Senate a
person must be a United States citizen, at least 26 years of age, a Texas resident for at least five
years and a resident of their district for at least one year.
(https://www.sos.state.tx.us/elections/candidates/guide/2020/qualifications2020.shtml).
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Every ten years, following the United States census the 150 House and 31 Senate districts
are redrawn in addition to the House of Representatives seats in Texas. At the federal level
reapportionment is performed where the number of states in the United States House of
Representatives that each state has is determined. Redistricting is the process of redrawing the
districts based on population changes. If the Texas legislature cannot agree on new district maps,
they go to the Legislative Redistricting Board. The party controlling the legislature has a strong
influence on the redistricting process.
Traditionally when states have redrawn their maps members of political parties have
participated in the practice of gerrymandering. Gerrymandering is the drawing of districts to
benefit a particular group, often a political party. Gerrymandered districts often have odd shapes
and are meant to create districts that are constituted of a particular group of voters. Political
parties have an interest in drawing districts that will enable them to win the largest number of
elections possible. Redistricting has also been used to create districts where a particular racial or
ethnic group forms the majority. This practice has also generated a great deal of controversy.
Many districts are drawn in a way that will be a “safe” district for a particular political party.
In March of even-numbered years Texas holds primary elections for the Texas
Legislature. Candidates run in partisan elections to gain the nomination of a particular political
party. The victors in the primary go on to compete in the general election. While the Texas
legislature was traditionally dominated by the Democratic Party, the Republican Party has
controlled both the House and the Senate since 2003.
Given the dominance of the Republican Party in many parts of Texas, the Texas
Republican Primary is the key election for many districts. Primary elections in Texas also have
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run-off elections if no candidate receives a majority of the vote. Run-off elections are often held
in May but were postponed until July in 2020 because of the Covid-19 pandemic.
Following the March primary elections and the runoff elections, the next step is the
general election held on the first Tuesday following a Monday in November. Every four years
the Texas state legislature elections occur at the same time as the presidential election. The other
elections occur when the Texas Governor and other statewide elected officials are elected. While
state legislative elections do not receive the same amount of attention they are crucial for shaping
the makeup and potential agenda of the Texas legislature.
Political scientists and other scholars have long debated how much a representative
should represent their constituents and how much they should rely on their own judgment. In the
delegate model of representation elected representatives reflect the view of their constituents.
The trustee model calls for the elected representatives to use their own judgment, even if it goes
against the majority opinion of those they represent. More recently scholars have turned to what
is called the politico model which combines aspects of the delegate and the trustee model. For
example, on issues regarding a major industry in a district a representative may serve as a
delegate and vote for the interests and opinions of their constituents while on an issue that is a
matter of conscience for the elected official they will vote in a way that may be different from
the prevailing public opinion.
Personal Responsibility
59
Political participation and knowledge of state legislative elections tends to be lower than that of
Presidential or Congressional elections. What are two reasons it is important to participate in
state legislative elections?
Legislative Representation
Traditionally elected office in Texas and the rest of the United States has been dominated
by Anglo males. In Texas that began to change during the 1960s as women and people of color
began to be elected in greater numbers. In 1966 Barbara Jordan was elected as the first Black
woman to the Texas State Senate, helping to begin an era of increased diversity. Jordan went on
to serve in the United States House of Representatives and gave moving speeches during the
1974 Watergate scandal and as a keynote speaker at the 1976 and 1992 Democratic Conventions.
That diversity was also reflected in changes in the partisan makeup of the Texas legislature. In
addition to Jordan, prominent women and people of color who have served in the Texas
legislature include veteran House member Senfronia Thompson, Senator Wendy Davis and
Senator Sylvester Turner. Davis gained national attention during a filibuster against legislation
that restricted abortion that helped lead to an unssuccessful run for governor and Turner went on
to serve as the Mayor of Houston. While demographics have changed women and people of
color continue to be underrepresented, the Texas Legislature has become more diverse. The
Democratic Party tends to have greater representation of female legislators and people of color.
Social Responsibility
The Texas State Legislative resembles the gender and racial demographics of the state of Texas
more than in past decades but women and people of color continue to be underrepresented. How
60
important is it for elected bodies to resemble the demographics of the populations they
represent?
House and Senate Organizations
The Texas House and Senate are led by the Speaker of the House and the Lieutenant
Governor who serves as leader of the Senate. Each body also has standing and select committees
in addition to conference committees which are formed to resolve differences in bills. There are
also Joint committees that include members from each house as do conference committees.
Committees are often where much of the work is conducted in the legislature.
The Lieutenant Governor has historically been a very powerful figure in Texas politics.
Lieutenant Governors such as Bob Bullock (1991-1999) and Dan Patrick (2015-Present) have
exercised power in different ways. The Lieutenant Governor presides over the Texas Senate and
refers legislation to relevant committees. The Lieutenant Governor appoints chairs and members
of committees and presides over the Senate. Many Lieutenant Governors have had a strong
influence on the policy process.
The Speaker of the House is another powerful figure. Leading the House of
Representatives,“The speaker is the presiding officer of the house of representatives. The Texas
Constitution requires the house of representatives, each time a new legislature convenes, to
choose one of its own members to serve as speaker.”
(https://house.texas.gov/members/speaker/#powers). Other major powers of the speaker include
appointing members to standing committees, appointing committee chairs, referring legislation
to the appropriate committee and appointing conference committees that resolve differences in
legislation. (https://house.texas.gov/members/speaker/#powers).
61
The Legislative Budget Board is an important part of the budget process and another area
in which legislative leaders exercise power. The Legislative Budget Board “was created by
statute in 1949. The primary purpose of the Board is the development of recommended
legislative appropriations for all agencies of state government. The Board provides the Texas
Legislature with the recommended state budget, prepared by the LBB staff, at the beginning of
each legislative session, which occurs in early January of odd-numbered years.”
(https://www.lbb.state.tx.us/Current_Board_Members.aspx). The Legislative Budget Board is
chaired by the Lieutenant Governor and the Speaker of the House and helps to set policy and
priorities regarding the budget.
The committee system represents the place where much of the work of the Texas
legislature is accomplished. Standing Committees are established by the Texas House and
Senate. Texas differs from many states in that traditionally Senators and Representatives from
both parties have served as committee chairpersons. Despite the Republican control of the state
legislature since 2003, Democratic Representatives and Senators have continued to serve as
committee chairs.
There are several different types of committees including standing committees and
conference committees. There are House committees, Senate committees and joint committees.
Committees conduct hearings, debate legislation and approve bills that are then sent to the full
House or Senate.
Outside of the regular 140 day session, the governor can call 30 day special sessions
where specific legislation is considered. For example, in the summer of 2017 Governor Greg
Abbott convened a special session with 20 proposed items including controversial legislation
62
regarding transgender people and bathroom access. The governor designates specific items to be
considered in a special session but that does not ensure that those measures will be passed
through the Texas House and Texas Senate. Special sessions are sometimes called to deal with
budgetary matters or for important issues such as education and redistricting.
The Legislative Process
The vast majority of legislation introduced in the Texas House and Texas Senate is never
signed into a law. A lengthy process in each house is required for legislation to be passed after
which the legislation is passed on the governor. It is often noted that the only piece of legislation
the Texas legislature is required to pass during a regular session is the state budget. However
legislation is also passed regarding a variety of issues. Sometimes legislation is passed regarding
major issues such as education, health care and the budget.
The governor, when they give their State of the State Address, can designate items as
emergency, meaning that they can be debated during the first 60 days of the session. That allows
the governor a bit of leverage in determining what legislation can be debated during the
relatively brief 140 day session. The emergency items are often the key policy priorities of the
governor. The governor also often meets weekly with the Lieutenant Governor and the Speaker
of the House to discuss the issues ongoing in the legislative session.
The first step for a piece of legislation is for it to be introduced in either the Texas House
of Representatives or the Texas Senate. All legislation must be passed by both houses of the
Texas legislature before being sent on to the governor. The governor can then sign the bill, veto
the bill or allow it to become law without their signature.
63
Representatives and Senators author bills for a variety of reasons. Bills sometimes deal
with the local needs of the people they represent. Other bills are much larger in scale and deal
with large issues such as education, water and economic development. Bills have also been
introduced in recent years that deal with contentious social issues such as abortion, LGBTQ+
issues and issues regarding gun owndership and gun control. The lengthy process and
procedures of passing a bill in the Texas legislature prevent the majority of legislation before
becoming law.
In the House of Representatives after a bill has been introduced it is referred to a
committee by the Speaker of the House. Committees can amend the legislation, sometimes in
fairly drastic ways. Many bills die in committee and are never voted on by the full house. If
approved by that committee it then goes to the Calendars committee to be scheduled for debate
on the floor of the House. During floor debate the legislation can be amended. If the bill passes
with a majority it is then sent on to the Texas Senate.
The legislative process in the Texas Senate is similar to that of the Texas House. Once a
senator has introduced a piece of legislation, the Lieutenant Governor refers it to an appropriate
committee. The committee often holds hearings and can amend the legislation. If the committee
approves the legislation, three fifths of the senators must vote to debate the legislation. If the bill
is approved for debate it can be amended. If the bill is passed it is then sent on to the Texas
House.
The House and Senate must agree on an identical version of the bill for it to be passed.
Conference committees are formed to resolve differences between the two versions of legislation
passed by each house of the Texas legislature. Conference committees include conferees from
64
both the Texas House and the Texas Senate. The governor has ten days to take action on a bill
except in the last ten days of the session when the governor has twenty days.
After legislation is passed by each house of the Texas legislature it is then sent to the
governor who can either sign the legislation, veto the legislation or allow it to become law
without their signature. The Texas governor is also one of the governors who has the line item
veto, meaning the ability to veto specific expenditures in a budget bill without vetoing the entire
legislation. Vetoes can be overridden by a two thirds vote of the House and Senate but this rarely
happens in the state of Texas.
Legislation varies from minor pieces of legislation directed towards specific local matters
to the vast Texas state budget. One area of legislation has been education. As Texas has grown
and changed, the Texas legislature has worked to create an educational system for an
economically, racially and ethnically diverse state. For example, in 1984 Governor Mark White
called a special session of the Texas legislature that passed House Bill 101. White's education
proposal was based in part on efforts conducted by future presidential candidate H. Ross Perot.
House Bill 101 reformed several aspects of the educational system. House Bill 101 also
contained the famous (and to some infamous) provision that has been dubbed the “no pass, no
play rule.” This provision requires that students be passing each of their classes in order to
participate in extracurricular activities. Extracurricular activities included high school football,
which is a very important part of many Texas communities. Other parts of the legislation
required teachers to take tests. Future education legislation attempted to deal with the continuing
problem of educational financing including legislation passed in 1993 and 2019. Education is an
example of the complex and life changing issues that the Texas legislature must consider.
65
Oversight
In addition to crafting legislation, the Texas legislature also performs oversight of Texas
state agencies. Oversight can be performed through the myriad of committees and through
entities such as the aforementioned Legislative Budget Board. The Texas legislature must
conduct oversight of a complex state government. In addition, the Texas Senate must approve
appointments to many boards and commissions with a two thirds majority.
The Sunset process is another area where the Texas legislature has extensive
responsibility. The Texas Sunset Commission works in the following way: “Sunset works by
setting a date on which an agency is abolished unless the Legislature passes a bill to continue it.
Sunset staff evaluates the agency and issues recommendations for positive change. The
Commission considers the recommendations, hears public testimony, and decides on a package
of changes to bring to the full Legislature.” (sunset.texas.gov). The Commission consists of “The
Commission has five senators, five representatives, and two members of the public, appointed by
the Lieutenant Governor and the Speaker of the House. The Sunset staff is composed of
evaluation and administrative professionals that support the Commission by performing agency
reviews and assisting in the legislative process.” (sunset.texas.gov). The Sunset reviews often
result in changes to particular agencies.
Impeachment
The Texas State legislature also plays a role in the impeachment process, which can
result in the removal of state officials from office. Article 15 of the Texas Constitution outlines
procedures for impeachment. Just as in the United States Congress the House of Representatives
must impeach an official and the Senate then holds a trial and can convict an official with a two
66
thirds vote. The Texas Constitution notes that, “Impeachment of the Governor, Lieutenant
Governor, Attorney General, Commissioner of the General Land Office, Comptroller and the
Judges of the Supreme Court, Court of Appeals and District Court shall be tried by the Senate.”
(https://statutes.capitol.texas.gov/Docs/CN/htm/CN.15.htm). In 1917, Governor James Ferguson
was impeached by the Texas legislature.
Communication Skills: Part of getting legislation passed is crafting legislation that is easy to
understand and can win support. Think of a piece of legislation you would like to be passed by
the Texas State Legislature and present it in a concise 3-5 sentence paragraph.
Conclusion
The Texas legislature is one of four state legislatures that meet regularly every other year
rather than having an annual session. Despite this status it deals with a variety of complex issues.
Texas legislators are elected in partisan elections and have become increasingly diverse. The
Texas House of Representatives and Texas Senate work through an extensive legislative process
to pass bills while also participating in other areas of governance such as the Legislative Budget
Board. Understanding the Texas legislature is crucial for understanding how governance in
Texas works.
If you want to know more…
Article III of the Texas Constitution
https://statutes.capitol.texas.gov/Docs/CN/htm/CN.3.htm#:~:text=No%20person%20shall%20be
67
%20a%20Representative%2C%20unless%20he%20be%20a,he%20shall%20be%20chosen%2C
%20and
Legislative Budget Board https://www.lbb.state.tx.us/
National Conference of State Legislatures www.ncsl.org
Texas House of Representatives https://house.texas.gov/
Texas Senate https://senate.texas.gov/
Texas Sunset Commission https://texas.sunset.gov
Texas Tribune: www.texastribune.org
Vocabulary List
Conference Committees- Conference Committees include members from both the Texas House
and the Texas Senate and are appointed to work out differences between each body’s version of
the same legislation.
Delegate model of representation-In the Delegate model of representation, elected officials
attempt to represent the views of their constituents.
House Bill 101 is an education reform bill passed in 1984 that included the “no pass, no play”
provision.
Joint Committees-Joint Committees are committees that include members from both the Texas
House of Representatives and the Texas Senate.
68
Legislative Budget Board-The Legislative Budget Board is a joint committee and consists of the
Speaker of the Texas House of Representatives, the Lieutenant Governor and others and helps to
set budget policy.
Lieutenant Governor-The Lieutenant Governor is the president of the Texas Senate.
Line Item Veto-The line item veto allows the governor to veto a specific spending item without
vetoing the entire appropriations bill.
Politico model of representation-The politico model of representation combines elements of both
the delegate and the trustee model of representation.
Redistricting-A process of redrawing legislative districts based on population changes.
Speaker of the House-The Speaker of the Texas House is elected by the Representatives at the
beginning of a legislative session
Standing Committees are committees set up in either the Texas House of Representatives or the
Texas Senate.
Trustee model of representation-The trustee model of representation is when an elected official
votes by their own opinions and conscience rather than the point of view of the people that they
represent.
Veto-The veto is the governor’s power to disapprove legislation.
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Review Questions
Texas is one of four states where the Texas legislature meets every other year, what are some
strengths and weaknesses of this approach?
What is the concept of gerrymandering?
How are the Texas Senate and the Texas House of Representatives organized?
What are three specific steps in the process of how a bill becomes a law in Texas?
Bibliography
Legislative Budget Board: https://www.lbb.state.tx.us/Current_Board_Members.aspx
Legislative Reference Library:
https://lrl.texas.gov/legeLeaders/members/partyListSession.cfm?leg=87
70
Chapter 6 Texas Executive Branch: Policy
and Process
Introduction
In this chapter you will:
● Learn the basics of how the Texas Executive Branch works
● Learn how Executive Branch officials are elected
● Learn the organization of the Texas Executive Branch
● Gain an understanding of the powers of the Texas Executive Branch
The Texas Executive Branch includes the Governor and other elected and appointed
officials. While in the federal executive branch the United States president nominates cabinet
officials subject to Senate confirmation, in Texas officials such as the Attorney General and the
Commissioner of the General Land Office are elected in their own right through partisan
elections. Texas has a plural executive where officials such as the governor, lieutenant governor
and attorney general are elected on their own with their own powers and power bases. Many
other states also elect a variety of statewide elected officials. As a result, the Texas governor
faces limitations on their power not faced by the United States president. The Texas plural
executive mirrors the structure of several other states and provides a marked contrast to the
federal executive branch. This chapter will explore all aspects of the unique Texas executive
branch.
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Article IV of the Texas Constitution determines the makeup, requirements and power of
the Executive Branch. One of the briefer articles of the quite extensive Texas Constitution,
Article IV provides the roadmap for the organization of the Texas executive branch. The Texas
Constitution defines the executive branch as including “Governor, who shall be the Chief
Executive Officer of the State, a Lieutenant Governor, Secretary of State, Comptroller of Public
Accounts, Commissioner of the General Land Office, and Attorney General.”
(https://statutes.capitol.texas.gov/Docs/CN/htm/CN.4.htm#:~:text=The%20Governor%20shall%
20have%20the,pardons%20in%20cases%20of%20treason.) The Commissioner of Agriculture,
the Texas State Board of Education and the Texas Railroad Commission will also be discussed in
this chapter.
How Executive Branch Officials are Selected
There are specific requirements to hold particular executive branch offices in the State of
Texas. To become governor of the state of Texas a person must be “at least 30 years old and a
resident of Texas for the five years immediately before the election.”
(https://gov.texas.gov/governor-
abbott/duties#:~:text=The%20constitutional%20and%20statutory%20duties,the%20Legislature
%20for%20specific%20purposes.) Governors are also required to be United States citizens.
Minimum ages vary by office for the remainder of the plural executive. The Governor and
Lieutenant Governor are required to be 30. The Attorney General, Comptroller of Public
Accounts, Commissioner of General Land Office and Commissioner of Agriculture are required
to be 18. Railroad Commissioners are required to be 25.
(https://www.sos.state.tx.us/elections/candidates/guide/2020/qualifications2020.shtml#).
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While the Secretary of State is appointed by the Governor subject to Senate confirmation,
other Executive branch officials are selected in partisan elections. Officials must prevail in the
primaries for their political party that are held in March and sometimes followed by runoff
elections if no one candidate receives a majority. General elections are held in November after
which the governor and other elected officials take office in January. There is no limit to how
many terms a governor can serve, making Texas different from other states that have term limits.
Term limits are legal restrictions on how many terms an elected official can serve. In some states
governors are limited in how many terms they can serve or in how many consecutive terms they
can serve. Like governors in every state except New Hampshire and Vermont, the Texas
governor serves a four year term.
Campaigns for the governorship have sometimes been contentious. In 1990 Republican
candidate Clayton Williams refused to shake the hand of Democratic candidate and future
governor Ann Richards in the midst of a campaign characterized by often bitter personal attacks.
In 2014 Democratic candidate State Senator Wendy Davis ran an ad with an empty wheelchair
criticizing Republican candidate and future governor Greg Abbott who was then serving as
Attorney General. Abbott sustained an injury in 1984 that left him confined to a wheelchair and
many saw this ad as going too far and being an inappropriate way to run against someone with a
disability. Indeed, despite impressive fundraising efforts Davis performed poorly as a candidate.
While Texas was traditionally a Democratic state, Republicans have won every governor's race
since 1994. There are few limits on campaign contributions and spending in Texas and
candidates such as Abbott and Davis have raised and spent very large sums of money.
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Personal Responsibility: In Texas there are few limits on campaign contributions. Have you ever
donated to a campaign? How does contributing to a preferred candidate help develop your
personal responsibility?
Organization of the Executive Branch
The Texas executive branch is organized as a plural executive in contrast to the United
States Executive branch where officials other than the Vice President are nominated by the
president subject to Senate approval. Texas is one of many states with a plural executive system.
For example in California the Lieutenant Governor, Secretary of State, Attorney General,
Treasurer, Controller, Insurance Commissioner and Superintendent of Public Instruction are
elected. As a result, rather than having executive branch officials who are accountable to them
Texas governors must work with officials who have their own powers, agendas and ambitions.
Powers of the Executive Branch
The governor has several important powers that are shown in the graphic below, powers
of the Texas governor. (https://gov.texas.gov/governor-
abbott/duties#:~:text=The%20constitutional%20and%20statutory%20duties,the%20Legislature
%20for%20specific%20purposes.) The 1876 Constitution sought to limit the powers of the
Texas governor and give power to the other branches and other members of the plural executive.
While many of these powers are symbolic, others allow the governor to have a strong influence
on the policy process.
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GRAPHIC: Powers of the Texas Governor
The constitutional and statutory duties of the Governor include:
● Signing or vetoing bills passed by the Legislature.
● Serving as commander-in-chief of the state's military forces.
● Convening special sessions of the Legislature for specific purposes.
● Delivering a report on the condition of the state to the Legislature at the beginning of
each regular session.
● Estimating of the amounts of money required to be raised by taxation.
● Accounting for all public monies received and paid out by him and recommending a
budget for the next two years.
● Granting reprieves and commutations of punishment and pardons upon the
recommendation of the Board of Pardons and Paroles and revoking conditional
pardons.
● Declaring special elections to fill vacancies in certain elected offices.
● Appointing qualified Texans to state offices that carry out the laws and direct the
policies of state government. Some of these offices are filled by appointment only.
Others are ordinarily elected by the people, but the governor must occasionally appoint
individuals to fill vacancies. The governor also appoints Texans to a wide range of
advisory bodies and task forces that assist him with specific issues.
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Source: https://gov.texas.gov/governor-
abbott/duties#:~:text=The%20constitutional%20and%20statutory%20duties,the%20Legislatur
e%20for%20specific%20purposes.
There are particular powers that allow the Texas governor to develop a power base. Two
of the most important powers of the Texas governor is the veto and the ability to appoint people
to boards and commissions. The governor has the ability to veto legislation. While a two thirds
vote of the Texas House and Senate can override a governor's veto, in practice this rarely occurs.
The Texas governor also has the line item veto, which enables them to veto specific programs in
a larger budget bill without vetoing the entire bill.
Governors in all fifty states have the power to veto legislation, although North Carolina did not
provide the governor with the ability to veto legislation until 1996. (https://www.ncsl.org ›
ILPPDF
The Veto Process – National Conference of State Legislatures). The Texas governor is one of
forty four governors with the line item veto, which allows specific spending items to be vetoed in
a spending bill. (https://www.ncsl.org/research/about-state-legislatures/separation-of-powers-
executive-veto-powers.aspx).
Another power that the Texas governor has through their State of the State Address is to
designate certain items as emergency items meaning they can be voted on in the first sixty days
of the legislative session. This allows the governor to play a role in shaping what legislation has
the best chance of passage.
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The ability to make appointments to boards and commissions is another key power of the
Texas governor. The longest serving governor of the state of Texas, Rick Perry was able to
establish power through these appointments throughout his 14 years as governor. The longer a
person is governor the more appointments they are able to make. An example of this are boards
of regents for university systems such as the Texas State and the Texas Tech University system.
Many appointments to boards and commissions require confirmation by a two-thirds vote of the
Texas Senate.
Calling special sessions of the Texas legislature is another key area of responsibility for
the governor. In 1984 Governor Mark White called a special session to pass House Bill 101, the
landmark piece of education legislation that create the “no pass, no play” rule. In 2019,
Governor Greg Abbott called a special session with twenty potential pieces of Legislation
contained in the call. Special sessions are sometimes called when there is a specific legislative
agenda the governor wishes to advance or when there is a specific problem to solve such as a
budget shortfall or a crisis.
Texas governors also play a role beyond their formal powers. They are often the public
face of the State of Texas and called upon to provide leadership in crises such as hurricanes,
mass shootings and pandemics. Here they must also often coordinate with local governments in
Texas and the federal government.
Texas governors often have national ambitions and prominent former governors have
even become figures in pop culture. George W. Bush was elected president during his second
term. Rick Perry ran for president and later served as Secretary of Energy. Before his service as
Secretary of Energy, a post that involves oversight of the nuclear arsenal, Perry competed on the
television show "Dancing with the Stars." Ann Richards, who gained a national profile after her
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1988 keynote address to the Democratic National Convention, appeared in ads for Doritos after
her defeat. As governor of the second most populous state, the Texas governor often has a
national profile.
Table 1: Recent Governors of Texas
Governor Years In Office Political Party
William P. Clements 1979-1983 Republican
Mark White 1983-1987 Democrat
William P. Clements 1987-1991 Republican
Ann W. Richards 1991-1995 Democrat
George W. Bush 1995-2000 Republican
Rick Perry 2000-2015 Republican
Greg Abbott 2015-Present Republican
Texas governors can be removed from office. They can be removed through the process
of impeachment. Article 15 of the Texas Constitution describes the criteria for impeachment for
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the governor in addition to other officials such as the Lieutenant Governor, Attorney General and
the Land Commissioner. The Texas House of Representatives by majority vote can vote for
impeachment. Governors are then tried by the State Senate which can remove officials from
office. In 1917 Governor Jim “Pa” Ferguson was impeached and removed from office. Unlike
states such as California, Texas governors cannot be removed by a recall process that is initiated
by voters. In a recall process in many states voters sign petitions that if sufficient numbers are
obtained can lead to a recall election that can remove a governor from office.
Texas Plural Executive
The Texas governor must work with a plural executive where officials can establish their
own power bases. Many future governors previously held statewide office. Republican Greg
Abbott and Democrat Mark White served as Attorney General, Republican Rick Perry served as
Agriculture Commissioner and Lieutenant Governor and Democrat Ann Richards served as
Treasurer, a position that no longer exists.
The Lieutenant Governor is another very powerful figure in the plural executive. As
noted in the legislative branch chapter in the Texas Senate the Lieutenant Governor refers
legislation to relevant committees and appointed members of committees. Leading the Senate
has allowed several Lieutenant Governors to develop a strong independent power base,
sometimes rivaling the governor in terms of influence.The Lieutenant Governor also serves as
acting Governor when the Governor is out of state. When a governor seeks higher office such as
when George W. Bush sought the presidency in 1999 and 2000, they can frequently be out of the
state leaving the Lieutenant Governor as acting governor.
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The Secretary of State differs from the other executive branch officials in that they are
appointed by the governor rather than being selected through partisan elections. The Secretary of
State plays a key role in organizing elections in the state of Texas. Since election laws have
become increasingly controversial this position has gained renewed attention through areas such
as conflicts over voter identification legislation. The Secretary of State is also steward of the
state records and plays an important role in international relations with other countries.
The Attorney General is another key figure that can exercise power and also be in a
position to receive extensive media attention. When future Governor Greg Abbott served as
Attorney General during the president of Barack Obama he noted that “"I go into the office, I sue
the federal government and I go home,"
(https://www.politifact.com/factchecks/2013/may/10/greg-abbott/greg-abbott-says-he-has-sued-
obama-administration-/). The Attorney General plays a key role in law enforcement and
implementation in Texas. The Attorney General can be described as the lawyer for the state of
Texas. Key responsibilities for the Attorney General outlined in the Texas Constitution include,
“The Attorney General shall represent the State in all suits and pleas in the Supreme Court of the
State in which the State may be a party, and shall especially inquire into the charter rights of all
private corporations, and from time to time, in the name of the State, take such action in the
courts as may be proper and necessary to prevent any private corporation from exercising any
power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized
by law.”
(https://statutes.capitol.texas.gov/Docs/CN/htm/CN.4.htm#:~:text=EXECUTION%20OF%20LA
WS%20AND%20CONDUCT,and%20with%20the%20United%20States) The large
responsibilities of the position of Attorney General have allowed many serving in the office to
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gain a large amount of public attention including future Governor Greg Abbott and future United
States Senator John Cornyn.
The Comptroller of Public Accounts plays a crucial role in the budget process.
Responsible for tax collection the Comptroller also certifies for the Legislature the amount that
can be spent when the budget is prepared. As a result, the parameters for the state budget are
dependent on the Comptroller.
The Commissioner of Public Lands is responsible for the state's lands. The Land
Commissioner is also responsible for the Permanent School Fund. The Land Commissioner is
also in charge of the Alamo, a prominent tourist attraction in San Antonio. Management of the
Alamo has occasionally generated controversy. When George P. Bush, the latest scion of the
Bush family and the nephew of former Texas governor and president George W. Bush attempted
to make changes to the management of the Alamo it created a great deal of controversy.
(https://www.politico.com/news/magazine/2021/04/27/the-185-year-old-battle-that-still-
dominates-texas-politics-484710). While the Land Commissioner is typically a low profile
office, it has been held by officials such as Bush who have higher political aspirations. Finding
ways to stand out in these offices is crucial for those elected who have broader political
ambitions.
There are other parts of the Texas plural executive. The Agriculture Commissioner leads
the Department of Agriculture which is a crucial part of the Texas economy. The Agriculture
Commission position has sometimes been a springboard for higher office and national attention.
Future Governor Rick Perry defeated populist Democrat Jim Hightower for Agriculture
Commissioner in 1990, beginning a career in statewide office that would lead to him becoming
the longest serving state governor in Texas.
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The Texas Railroad Commission and the Texas State Board of Education are also
influential. Despite its title, the Railroad Commission’s key area of responsibility is regulation
for the oil and gas industry. The Railroad Commission includes three commissioners who are
elected in partisan elections for six year terms.
The Texas State Board of Education is responsible for K-12 education and has generated
controversy when debating science and social studies curriculum. Overseeing the Texas
Education Agency is a 15 member Board of Education consisting of members elected in partisan
elections from single member districts for a term of four years. The Texas State Board of
Education plays a prominent role in influencing curriculum and textbooks. Like other areas of
Texas government, a majority of the members of the Board are Republicans.
Conclusion
The state of Texas has a plural executive in which the governor shares power with other
elected and appointed officials. The plural executive diffuses power among several officials.
These officials play an integral in forming and implementing public policy in Texas.
If you want to know more…
National Conference of State Legislators www.ncsl.org
Office of the Texas Governor https://gov.texas.gov/
Texas Tribune www.texastribune.org
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Vocabulary List
Line Item Veto-The line item veto allows the governor to veto a specific spending item without
vetoing the entire appropriations bill.
Plural Executive-The Texas Plural Executive includes statewide elected officials such as the
governor and the attorney general who share executive power in Texas.
Texas Railroad Commission-The Texas Railroad Commission serves as the primary regulator for
the oil and gas industry in Texas and consists of three commissioners.
Texas State Board of Education-A 15 member board board elected in partisan elections that sets
policy for K-12 education in Texas.
Veto-The veto is the governor’s power to disapprove legislation.
Review Questions
Describe the Texas plural executive?
What are the requirements to become Governor of Texas?
How are most of the members of the Texas plural executive selected?
What are two major powers of the Texas governor?
What are the key duties of two members of the Texas plural executive besides the governor?
Bibliography
https://www.politico.com/news/magazine/2021/04/27/the-185-year-old-battle-that-still-
dominates-texas-politics-484710
83
https://www.politifact.com/factchecks/2013/may/10/greg-abbott/greg-abbott-says-he-has-sued-
obama-administration-/
https://statutes.capitol.texas.gov/Docs/CN/htm/CN.4.htm#:~:text=EXECUTION%20OF%20LA
WS%20AND%20CONDUCT,and%20with%20the%20United%20States
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Chapter 7 Budget, Finances and Policy
Introduction
In this chapter you will:
● Learn what public policy is
● Learn about specific public policy areas in Texas
● Learn about the organization of the Texas state budget and finances
Public Policy and the Texas state budget and finances provide the visible face of the
Texas Government for many people and reflect the results of several areas of political
involvement. The policies formed by the government through acts such as passing laws and
creating regulations are put into place through public policy. The passage of the Texas State
Budget helps determine the choices and priorities of public policy in Texas. The long term ability
of the state of Texas to fund services and collect revenue is also determined by choices made
during the budget process. Schools, roads and rules and regulations stem from public policy and
budgeting at the federal, state and local levels of government. Texas is often characterized as a
low tax, low service state, meaning that the lack of an income tax in particular provides a trade-
off with a lower level of public services than would otherwise be available. (Grieder 2013: 23).
This idea of low tax and low service has sometimes been referred to as the Texas Model. Texas
has often sought to build a positive climate for the business community leading to policies that
make the state economically attractive through low taxes and a lack of regulation in areas such as
labor and the environment. Looking at various areas of public policy in Texas and the process
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and makeup of the Texas state budget can provide insight into the contemporary realities of
governance and life in Texas.
Public Policy
Public policy has varying definitions. As the scholars Volker Krause and Zachary Smith
note after considering various definitions, “although it looks like there is no single scholarly
definition of public policy, the definitions quoted from policy scholars converge in the following
synthesis: There is a problem of public concern that needs to be dealt with. A government, acting
on behalf of the public, creates a plan or program to solve the problem.” (Krause and Smith
2014). These plans can take various forms such as passing legislation at various levels or
creating regulations. The state of Texas has often been resistant to intervention from the federal
government and the Texas Constitution creates a fairly weak state government leading to plans
or programs that can be less sweeping than those of other states. As journalist and observer of
Texas politics Erica Grieder notes, there is a historic distrust of government intervention that
influences the development of public policy in Texas. (Grieder 2013).
The policy making process is when policies are thought of, designed and put into place.
Scholars have identified various stages of the policy making process. While scholars and
policymakers disagree about the exact number of stages, the following stages are generally
included when policy analysis is conducted: pre-policy development, policy adoption, policy
implementation and policy evaluation. (Bonsor, McGregor and Oster 2000). As the table shows,
these stages represent various parts of the policy making process that show how policy is formed
and implemented. Within these stages are different processes that help to shape public policy.
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Table 1: Stages of the Policy Making Process
Stages of the Policy Making Process
Pre-policy Development
Policy Adoption
Policy Implementation
Policy Evaluation
Pre-policy development includes areas such as problem recognition, agenda formulation
and setting. Problem recognition is the first stage. Someone at some level of government realizes
there is a problem. It could be the low performance of children in schools, the rise of a particular
criminal activity or even something like a problem with trash collection. Agenda setting or
formulation is a time when the specific response to a problem is framed. For example the
response to education policy could be an increase in resources such as increased funding or
larger teacher salaries.
Policy adoption is the stage when the policy is created through passing a law at various
levels of government or creating a regulation. Policy implementation is when the policy adopted
is put into effect. Complex pieces of legislation are often difficult to implement. States like
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Texas that value their independence often question federal policies with the Affordable Care of
2010 serving as a strong recent example. Policy evaluation is basically when the implemented
policy is evaluated using specific metrics. If a policy designed to improve students reading levels
is implemented, measuring reading test scores is one way to evaluate the policy.
Various groups are organized in Texas to both study and advocate for public policy
solutions. The Texas Public Policy Foundation advocates for conservative and libertarian policy
solutions in areas such as criminal justice reform. The Texas Freedom Network advocates
against legislation they feel undermines areas such as individual freedoms while supporting
legislation that supports their mission.
There are many different areas of public policy. Issues regarding criminal justice will be
fully addressed in the chapters regarding the judicial branch and law. In this chapter, brief
glimpses of several key public policy areas will be highlighted. Texas's tradition of limited
government and resistance to federal intervention is sometimes tested by the complex problems
of a fast growing state with a diverse population.
Critical Thinking
This chapter discusses several public policy areas. Is there a policy area in your life that is not
being addressed? Think of another policy area and offer specific evidence as to why it is
important.
Education Policy
Texas educates a very diverse population and must make choices in several key areas.
The Texas State Constitution in Article VII discusses education. K-12 education policy is largely
set by the Texas State Board of Education. The Texas State Board of Education, selected through
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partisan elections, also has a national influence in terms of curriculum since many textbook
companies tailor their offerings to the specifications of the board. Curriculum and funding have
been key areas of concern in education policy in Texas. The use of high stakes testing has been
another area of concern.
Funding of schools has long been a key issue for education in Texas. Since local property
taxes have served as a principle method of funding schools, independent school districts (ISDs)
in wealthier areas have more access to resources than those in poorer areas. Texas has attempted
to resolve this problem with the passage in 1993 of Robin Hood legislation designed to
redistribute resources and in 2019 attempts to better fund public education.
Shaping the curriculum in Texas is another area of public policy. The Texas State Board
of Education sets guidelines in areas such as science and social studies. The teaching of
evolution and the inclusion of specific historical figures have been areas of particular
controversy. As a large and fast growing state Texas has a national impact on curriculum. The
decisions made by the Texas State Board of Education have the potential to impact curriculum
across the nation.
Higher education is another part of education policy. The Texas Higher Education
Coordinating Board helps to set policy regarding public colleges and universities in Texas. Key
issues include tuition and curriculum. In 2003, Texas deregulated tuition giving individual
systems and institutions more autonomy in setting tuition rates. One area in which public policy
is also set is the establishment of a core curriculum. Indeed, requiring students to take the Texas
Government class that this resource is being used for is an example of public policy.
Another area that has become an important part of higher education policy is whether or
not to use race as a factor in admissions. During the mid-twentieth century universities across
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the United States set up programs generally described as affirmative action, that sought to
increase enrollment of underrepresented groups such as African Americans and Hispanics in
higher education institutions. These programs often caused controversy and legal challenges. In
1997, the state of Texas created a program, the Texas Ten Percent Plan, where if you were in the
top 10% of your class you would gain admission to a Texas public university. Several court
challenges have been heard to policies at the University of Texas-Austin regarding using race as
a factor in admissions decisions.
Personal Responsibility
The Texas legislature has mandated that students at Texas public universities take six hours of
political science. In taking these courses,what responsibility do individual students have?
Energy Policy
Oil and gas production has long been an integral part of the Texas economy. In recent
years areas such as wind and solar power have also gained increasing attention. Oil and gas
policy in Texas is largely set by the Texas Railroad Commission. The three Commissioners are
chosen in partisan elections and serve six year terms. The importance of the oil and gas industry
has often shaped public policy in Texas, particularly since it provides a large amount of tax
revenue and is a large source of employment particularly in areas such as Midland and Odessa.
When local jurisdictions have attempted to ban the practice of fracking, the state of Texas has
stepped in to prevent local governments from creating such legislation and regulations. More
recent developments have led to the promotion of alternative sources of power such as wind
power. During the 2021 legislative session attempts to change the way the electric grid is
regulated in the aftermath of a severe winter storm that caused a widespread loss of power.
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Health Care Policy
Health care has been a challenging policy area in Texas. Spencer Grubbs and Bruce Wright note
that, “Texans have long been proud of leading the U.S. in a variety of ways — our state is ranked
first in exports and energy production, to name just two. One distinction, however, isn’t
something to brag about: Texas has both the highest number and the highest percentage of
uninsured residents in the nation.” (https://comptroller.texas.gov/economy/fiscal-
notes/2020/oct/uninsured.php).
Despite these distinctions, Texas has resisted federal intervention in health care policy. While it
does participate along with all fifty states in the federal Medicaid program Texas declined to
participate in the Medicaid expansion outlined in the Affordable Care Act of 2010.
Social Responsibility
Texas has long had the highest rate of uninsured people in the United States. What
responsibility does the government and society have to provide health care? Write a short
paragraph stating if the government and society have that responsibility with two pieces of
supporting evidence.
Immigration Policy
While immigration policy is set largely at the federal level, state level action is
sometimes taken. As a state located on the United States-Mexico border, Texas has a large
amount of immigration. The policy response varies. For example, Texas allows undocumented
immigrants who meet certain criteria to pay the instate tuition rate at Texas public universities. In
2001, Texas became the first state in the nation to pass this legislation and it was signed by
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Republican Governor Rick Perry. However, Texas has also undertaken efforts to secure the
lengthy border with Mexico and passed immigration restriction legislation.
Social Policy
Social policy has often been contentious in Texas. Issues such as abortion, gun control
and the transgender community have emerged. Socially conservative groups have become more
influential in the state of Texas pushing for legislation restricting abortion rights for example.
Social policy is another area where comparison with the state of California is useful. California
has in recent decades adopted socially liberal legislation while Texas tends to consider more
conservative legislation. Legislation regarding transgender people has received particular
attention in the Texas legislature with transgender bathroom access being a key issue in the 2017
session and transgender participation in high school sports gaining attention in the 2021 session.
While contentious legislation is often constrained by the many legislative maneuvers possible it
does gain a lot of attention.
Social policy is often shaped by action at the national level. For example in the 2015
Obergefell vs. Hodges decision, the United States Supreme Court ruled that same sex marriage
was legial in all fifty states including Texas. In addition, laws passed by the Texas legislature and
signed by the governor are often challenged in the federal court system, especially in contentious
social issues such as abortion.
Water Policy
Water has become an increasingly important issue in the state of Texas. As a fast
growing state with a vast territory, availability of water has become a very important issue.
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Some regions of Texas such as parts of West Texas have faced drought and managing the
availability of water will continue to be an important public policy area. Water is also an area
influenced by local government through the actions and oversight of Special Purpose Districts
Texas State Budget and Financing
When the Texas legislature meets every two years their key task is to adopt a budget for
the next two years. Financed in large part by sales tax revenue, the Texas state budget funds
areas such as education, health care, law enforcement and infrastructure. The budget represents
an important set of choices and reflects the “low tax, low service,” ethos of Texas government.
Texas has long promoted a positive climate to attract and grow businesses which influences the
budget process.
Like every state but Vermont, the state of Texas is required to have a balanced budget.
While the United States federal government can have a deficit where spending exceeds revenue,
the state of Texas cannot spend more than it receives in revenue. During times of economic
recession this can create an environment where spending cuts need to be implemented.
Texas also has an Economic Stabilization Fund, often referred to as a “rainy day” fund.
The collapse of oil price in the mid-1980s had a dire impact on the Texas economy and the Texas
state budget and that helped to lead to steps to prevent future crises from having such a disparate
impact on the Texas state budget. In 1988 Texas adopted a constitutional amendment that created
the rainy day fund. Texas has one of the largest rainy day funds of any state and has historically
been very reluctant to use it, a sign of the fiscal conservatism evident in Texas state budget
politics and policy.
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Texas political observer Erica Grieder describes the structure of the Texas tax system
noting that, “Texas is one of the seven states that don’t collect an individual income tax (the
others are Alaska, Florida, Nevada, South Dakota, Wyoming and Washington). It’s also one of
four that don’t collect a corporate income tax; it has a gross receipts tax instead, meaning that
most businesses pay a small tax on all of their sales, rather than only on their profits. About two-
thirds of the state’s general revenue funds come from the sales tax.” (Grieder 2013: 23).Texas’s
source of revenues are in marked contrast to states such as California that depend on income
taxes with high rates for wealthier residents.
A progressive tax structure is characterized by higher rates of taxation for those with
higher incomes. States such as California and New York have a tax structure based on higher
rates for higher income people. States that rely heavily on a graduated income tax with higher
rates on higher incomes can be described as having a progressive income tax structure.
A regressive tax structure falls more heavily on those with lower incomes. Texas has a
regressive system in that it relies heavily on a sales tax. While sales tax is paid by everyone,
lower income people tend to have less disposable income and therefore spend a larger portion of
their income in taxes.
The figures below show the revenue taken in by the state of Texas and the expenditures
in the Texas State Budget of 2020-21. The figure for revenues does not include the money that
Texas receives from the federal government. Exploring these figures creates the opportunity to
make some conclusions about the choices made that shape the Texas state budget.
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Texas State Budget 2020-21
Source: comptroller.texas.gov
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Source: Legislative Budget Board http://sbp.lbb.state.tx.us/
As is evident above the Sales Tax supplies over half of the state tax revenue in Texas.
The oil and gas industry also contributes to the state revenue through sources such as the oil
production tax. Texas is heavily dependent on consumer spending for revenue. The price of oil
and natural gas also influences Texas state revenue. During periods when energy prices decline,
the state of Texas can be impacted negatively. Local governments often rely primarily on
property taxes.
The state of Texas also receives money from fees and other forms of revenue. Fees are
payments for services. In 1991 Texas established a lottery, the lottery began operating in 1992.
While many funds raised are paid out in prizes, the Texas Education Agency also receives
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support from the lottery. Texas joins many other states across the country in having a lottery that
provides support for education.
The large expenditure items in Texas are seen above as well. K-12 Education and Health
Care are two of the biggest items. There is also a need to update infrastructure for a vastly
growing state, support higher education and other important areas. As shown in the public
policy section, the state of Texas faces several unique challenges.
Communication Skills
What do you think should be the top priority for the Texas State Budget? After viewing the
graphic of the Texas state budget, write a short paragraph explaining your top priority with
explicit supporting evidence.
Conclusion
As a fast growing state with a large population, Texas has the potential to influence
public policy throughout the nation. As a low tax, low service state it provides a counterpoint to
states such as California and New York that have higher taxes and enhanced public services in
areas such as health care. Texas is an increasingly diverse state that must confront a set of very
complicated issues and problems.
If you want to know more…
Legislative Budget Board https://www.lbb.state.tx.us/
Texas Comptroller’s Office https://comptroller.texas.gov/
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Texas Freedom Network www.tfn.org
Texas Public Policy Foundation https://www.texaspolicy.com/
Vocabulary List
Income Tax-A tax on income. Income taxes are present in the United States at the federal, state
and local level.
Progressive Taxes-A tax system that disproportionately taxes higher income people often
through an income tax where higher income people face higher tax rates.
Regressive Taxes-A tax system that disproportionately taxes lower income people. A sales tax
that taxes lower and higher income people equally can have a disproportionate impact on low
income people who must use a larger proportion of their income for basic necessities.
Sales Tax-A tax on purchased goods and services. The sales tax is the largest source of revenue
for the state of Texas.
Texas Higher Education Coordinating Board-A board appointed by the governor that sets policy
for higher education in Texas.
Texas Railroad Commission-A board elected in partisan elections that is primarily responsible
for oil and gas regulation in Texas.
Texas State Board of Education-A board elected in partisan elections that sets policy for K-12
education in Texas.
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Review Questions
What are the stages of the policy making process?
What are some key aspects of one policy area such as education?
What is the difference between progressive and regressive taxes?
What is the main source of revenue for the Texas State Budget?
Bibliography
Bonsor, Charles; Eugene McGregor and Clinton Oster. 2000. American Public Policy Problems:
An Introductory Guide. Indiana University Press.
Grieder, Erica. 2013. Big, Hot, Cheap and Right: What America Can Learn from the Strange
Genius of Texas.
Krause, Volker and Zachary A. Smith. 2014. U.S. Public Policy in an International Context.
Pearson.
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Chapter 8 Local Government in Texas
Introduction In this chapter you will learn:
● Learn what local Government is
● Learn about the organization of Local Government in Texas
● Learn the functions of Local Government in Texas
Local Government Below the level of federal and state government are local governments. Since local
government is not mentioned in the United States Constitution, the power of local governments
depends largely on the state. States decide the scope of the powers local governments hold. In the
federalism chapter, the powers designated to the federal government and the states are explored.
This chapter explores the structure and powers of local government. Local governments exercise
a wide variety of powers. However, local governments are often restricted. For example when
the city of Denton Texas attempted to ban the practice of fracking, the state of Texas passed a
law restricting local government from banning fracking. This action by the state shows the
power of the oil industry and the ability of states to limit the ability of local government to make
policy.While local governments are constricted, they provide a great deal of services and form a
crucial part of the governing structure of Texas.
Local governments include the 254 counties of Texas, cities, special purpose districts,
independent school districts and other specific government entities. Local governments are in
charge of services such as fire departments, police departments and K-12 education. When
people get a speeding ticket, visit their local park or send their child to a public K-12 school they
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are interacting with the local government. With special purpose districts for specific government
purposes such as water and libraries local government is diverse and diffuse. Local governments
have traditionally relied on property taxes which has sometimes created an environment where
wealthier communities have more access to resources.
Despite the fact that local government is the level of government closest to the people,
voter turnout in local elections is traditionally very low. Elections for offices such and mayor
and independent school board member in Texas are nonpartisan even though the partisan
affiliation of candidates is often known and elected officials are often members of the political
party that is dominant in their area. Elections for offices such as mayor and Independent School
District School board are often held in May in Texas on a different election cycle than those for
more prominent offices such as governor or the president. Some cities are organized into single
member districts (SMDs) where candidates run for office in a specified area while others have
at-large elections where the city as a whole elects officials. Cities also sometimes have
referendums where they vote on particular issues. The City of Denton held a referendum that
banned the practice of fracking that was later overturned by a law passed by the Texas
legislature. The City of Lubbock in 2021 held a referendum that identified the city as a sanctuary
city for the unborn. Local elections often include candidates who face very little opposition.
Low turnout also allows small groups of well organized voters to have a disproportionate impact.
While there is a lack of engagement in local elections they do have a profound impact on people
and their communities.
Critical Thinking
Local government is often the area people have the most direct contact with yet it is the area
with the lowest voter turnout. What are two reasons why this could possibly be the case?
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Organization and Functions of Local Government As previously mentioned, there are different levels of local government. This chapter will
explore the organizational structure of county government, city government and special purpose
districts such as independent school districts. These levels of government perform many of the
basic functions that people rely on yet their governance often received the least attention.
There are 254 counties in Texas ranging from very large counties such as Harris County
(which includes Houston) to small isolated rural counties throughout the state. Counties perform
many important functions in the state of Texas. There are elected officials at the county level
who perform several key tasks.
Article V of the Texas Constitution specifies that each county have a County Court and a
County Judge. (https://statutes.capitol.texas.gov/Docs/CN/htm/CN.5.htm). County judges are
elected in Texas along with the four members of the Commissioners Court in counties. County
judges hold several key responsibilities including the following:
● Presiding officer of the commissioners court
● Represents the county in many administrative functions
● Serves as budget officer in counties with fewer than 225,000 residents
● Most have broad judicial duties, such as presiding over misdemeanor criminal and small
civil cases, probate matters and appeals from the Justice of the Peace Court
● Serves as head of emergency management” (https://www.county.org/About-Texas-
Counties/About-Texas-County-Officials/%E2%80%8BTexas-County-Judge)
These duties give the County Judge a great deal of power and also show areas where state and
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local government can have conflict. For example during the Covid-19 pandemic county judges
in some larger counties in Texas such as Dallas and Harris County wanted to institute stricter
mitigation measures than those allowed by the state of Texas. However since local governments
do not have constitutional standing at the federal level, the state can limit their power. As a result
county judges were limited in what restrictions they could put in place. Like other local
governments, county governments in Texas are constrained by federal and state government.
However, counties are given a great deal of responsibility and are in charge of many vital public
services.
Article V of the Texas Constitution specifies that counties have an elected County Clerk
and County Sheriff. (https://statutes.capitol.texas.gov/Docs/CN/htm/CN.5.htm). Other county
officials include district attorneys, county attorneys, tax assessor-collector, district clerks and
county clerks. Other officials include Justice of the Peace, Constable and County Auditor.
(https://www.county.org/About-Texas-Counties/About-Texas-County-Officials). Counties also
often include unincorporated areas. Below the level of county government is city government.
City governments are organized in several ways. General law cities are only allowed to
work within specific parameters set by the legislature. Home rule cities that have had a charter
adopted by the voters have more leeway and are only subject to specific prohibitions by the state.
Conflicts between state and local government have increasingly occurred in Texas, particularly
since the Texas government is controlled by the Republican Party while large cities tend to
support ideas associated with the Democratic Party.
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City government also performs many functions. Elected city councils pass ordinances,
which are laws that are applicable at the local level. Ordinances passed sometimes generate
controversy especially when they conflict with the prevailing policies at the state level.
There are several forms of city governance. In the council-manager form of government
the city council hires a professional city manager who appoints department heads and plays a key
role in setting policy. In a weak mayor form of government the city council appoints department
heads and plays a key role in setting policy. In a strong mayor system the mayor appoints
department heads and plays a key role in setting policy. Many cities in Texas follow the council-
manager form of governance while some larger cities use the weak mayor form. Houston is
generally considered to be the city in Texas that uses the closest equivalent to a strong mayor
form of governance. Another form of government previously used in the city of Galveston is the
Commissioner system where Commissioners were in charge of specific city services.
Table 1: Types of City Government
Type of City Government Characteristics of Type of City Government
Council-Manager City Manager appoints departments heads and
sets policy
Weak Mayor City Council appoints department heads and
sets policy
Strong Mayor Mayors appoints department heads and sets
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Type of City Government Characteristics of Type of City Government
policy
There are strengths and weaknesses to each approach to governing a city. City managers
are usually trained professionals who have the potential to manage cities in a competent and
efficient manner. However, city managers are not elected officials and may not be attuned to the
needs and desires of city residents. Weak mayor systems provide for a large amount of
representation but do not always result in clear leadership. A strong mayor often provides clear
leadership but centralizes power in one elected office. Particularly in smaller cities there has
been a trend towards selecting professional city managers as the preferred method of governance.
Social Responsibility
City managers are often hired to run city governments in a nonpartisan and professional
manner. What responsibilities do citizens have to ensure that their cities are ethically and
efficiently run? Does an unelected city manager limit the power of citizens to govern their
communities?
Cities elect mayors and city council members. In some cities such as San Angelo, the
city Chief of Police is an elected office. Cities can also have referendums that consider various
issues. These local elections are plagued by low turnout in many cases but help to shape the way
local areas are governed. Sometimes elections can result in major changes at the county level.
For example in 2018 Democrats performed well in traditionally Republican Harris County with
Lina Hidalgo winning the office of County Judge.
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The United States Conference of Mayors brings mayors from throughout the country together to
discuss specific issues. Texas mayor's and other elected officials confront a diverse array of
issues. Local government is often the first office politicians hold.
Diversity in political representation is also achieved through serving as Mayor. For
example, Kathy Whitmire served as Mayor of Houston from 1982 to 1991, becoming one of the
first women to govern a large city in the United States. Houston has also had African Americans
Lee Brown and Sylvester Turner serve as Mayor. The city of San Antonio has had several
Latinx mayors and an African American woman, Ivy Taylor. Mayors in Texas have sometimes
moved on to higher positions. Henry Cisneros and Julian Castro were each appointed to be the
Secretary of Housing and Urban Development in the presidential cabinet after serving as mayor
of San Antonio. Castro, whose twin brother Joaquin was elected to Congress, came from a
political family long active in San Antonio politics. Ron Kirk was appointed by President
Barack Obama to the cabinet level position of United States Trade Representative after serving
as Mayor of Dallas.
Independent school districts (ISDs) are another major form of local government.
Independent school district boards are elected throughout the State of Texas to help set policy.
Members of independent school boards perform functions such as hiring the Superintendent who
leads ISDs on a day to day basis and approving the budget for ISDs. They deal with issues such
as curriculum and transportation.
Communication Skills
Students often have strong opinions about the education they received through Independent
School Districts across the state of Texas. Think about your education and come up with two
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strengths and two weaknesses. While not every student was educated through an ISD, each
student has an educational experience that they can describe.
In addition to the major forms of local government, there are also many special purpose
districts. As the office of the comptroller notes, “In Texas, thousands of local governments called
special purpose districts provide a variety of services including water conservation, toll roads,
hospitals, libraries, utilities and fire control efforts.”
(https://comptroller.texas.gov/transparency/local/special-
purpose.php#:~:text=In%20Texas%2C%20thousands%20of%20local,utilities%20and%20fire%2
0control%20efforts.) In Texas there are community college districts, water districts, Arts and
entertainment districts and library districts. Many key government functions are carried out
through the use of special purpose districts. Having such a large number of districts can create
problems in the areas of organization and accountability. While Texas is often advertised as
having a comparatively small government, there are many special purpose districts that can be
confusing to fully understand.
Personal Responsibility
Voter turnout for local government offices is traditionally very low despite the large amount of
responsibility and power held. What responsibility do people have to vote in local elections?
Should voting be mandatory? Think of two reasons why you agree or disagree with this idea?
Conclusion
Despite low voter turnout in many local elections, local governments have a profound impact on
the lives of Texans. Counties, cities and special purpose districts each perform key services.
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The form and function of local government is important to understand since it has such a broad
influence on areas such as infrastructure, education and law enforcement.
If you want to know more… www.county.org
United States Conference of Mayors www.usmayors.org
Vocabulary List Council-Manager-In the Council-Manager system of city governance the City Council hires a
City Manager who is responsible for making key decisions.
County Judge-The County Judge is the lead elected official in a county who is elected along with
members of the Commissioners Court.
Independent School Districts (ISD) are special purpose districts that administer K-12 education.
Special Purpose Districts are local government entities that provide specific services such as
water, hospitals and libraries.
Strong Mayor-In the Strong Mayor system of city governance an elected Mayor is responsible
for making key decisions.
Weak Mayor-In a Weak Mayor system of city governance a city council including a mayor is
responsible for making key decisions.
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Review Questions What is a key issue regarding turnout in local elections?
What are the three types of city governance?
What are some responsibilities carried out by special districts?
Bibliography
https://www.county.org/About-Texas-Counties/About-Texas-County-
Officials/%E2%80%8BTexas-County-Judge
https://comptroller.texas.gov/transparency/local/special-
purpose.php#:~:text=In%20Texas%2C%20thousands%20of%20local,utilities%20and%20fire%2
0control%20efforts.
https://statutes.capitol.texas.gov/Docs/CN/htm/CN.5.htm
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Chapter 9 The Judicial Branch
Introduction In this chapter, you will learn:
• Learn the role of the judicial branch in the Texas government
• Learn the structure of the Texas judicial system
• Learn the two types of law, civil and criminal
• Learn how a court operates
• Learn how Texas judges are selected, controversies with the system, and possible
solutions
The Role of the Judicial Branch in Texas
Government The judicial branch is the court system of the state. As we have learned so far, the
legislative branch's role is to enact legislation, statutes. The executive branch's role is to carry out
or execute laws. The judicial branch's role is to interpret laws and apply the laws to the facts in a
case brought before a court. Texas courts interpret the law by looking at the U.S. and Texas
Constitution, and statutes enacted by the legislature, the facts of the case, and precedent.
If you remember the legislature, can look at anything happening within the state and debate it.
Courts cannot do this. All of their work occurs within a tight box of rules. Courts decide cases.
A case is the formal filing of a complaint in court. It names the parties or litigants, the people
involved in the case, the issues, the particular questions the court is asked to resolve. Courts can
110
only decide cases within their jurisdiction. Jurisdiction is the authority of a court to hear a
specific case. The Texas Constitution or the legislature establishes a court's jurisdiction.
Courts can help clarify the constitution or statutes as written by reviewing the words used
and applying them to a current situation. The constitution and statutes are written to apply to a
whole category of possible actions. Thus, courts need to interpret whether the current fact
situation falls within the category regulated. In the court case, the parties or litigants present
evidence to prove their claim that the restriction applies or does not apply to the case. The
evidence is the facts of what occurred and is tightly controlled to ensure that only actual factual
occurrences are admitted into court, not speculation or third-hand gossip. For each type of case,
the legislature sets the burden of proof. The burden of proof is the amount of evidence that
must be shown to prove the claims. This burden varies widely with the type of case.
The courts also interpret the constitution and statutes to protect the people from
government overreach. This is called judicial review. The U.S. and Texas constitutions include
protections of the people from government control of certain activities. If the Texas legislature
tries to overreach and control these actions, the courts will strike the legislature's action by
declaring it unconstitutional. This is a complicated area of law because the courts have to
carefully determine if the activity falls within the people's freedom or the government's right to
protect the people. For example, I can say that a candidate for office should not be elected
because of my free speech protections in the U.S. and Texas constitutions. But I cannot say that I
will shoot and kill the person at 3 pm today to prevent him from being elected to office. This is a
threat to the person's right to be free from fear of violence and shows that I intend to violate the
laws against murder, both of which the government has the right to control.
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Two types of law: civil and criminal
Law and cases are divided as either civil or criminal. Criminal law is a prohibitive law
because it prohibits conduct which the government decides that it must protect society from
anyone taking that action. The simplest explanation is that it is a crime to walk into a
convenience store, point a gun at the clerk, and demand that she hands over all the money in the
cash register. The legislature has specified this is a crime called robbery and is punishable by a
prison sentence. So, the government has decided that for the good of society, it must completely
prohibit this conduct. In all criminal cases, the burden of proof rests on the government and is
guilt beyond a reasonable doubt. We will learn more about criminal law in the next chapter.
Civil law regulates disagreements between two litigants or parties. The parties can be
anyone, individual, business, or government. Civil law can be confusing because it covers
everything for which the legislature has provided a remedy in court which is not criminal. Civil
law covers everything from responsibility for damages in a traffic accident, removing children
from unfit parents, divorces, adoptions, probates of estates, and everything in between. The
legislature establishes the duties parties owe each other in a specified type of interaction, what
constitutes a breach of that duty, and damages the injured party can recover. The burden of
proof varies widely with the kind of case. It can be as simple as a preponderance of the evidence
in a minor traffic accident to clear and convincing evidence to remove children from parents.
Comparison of Civil Law and Criminal law
Civil law Criminal law
Definitions Interpersonal disputes such as
divorce, debt, personal injury;
A statute that identifies
conduct as criminal, felony or
misdemeanor, and punishable
by the government
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Civil law Criminal law
Case filed by Individuals The government
Type of punishment Monetary damages,
disposition of property and/or
a relationship or
Incarceration, fines, probation
Burden of proof It varies from a
preponderance of the
evidence to clear and
convincing evidence
depending on the topic
Always guilt beyond a
reasonable doubt
Appeal filed by Any dissatisfied party The defendant;
Right to a jury Must pay a fee to have a jury Automatic in some cases;
requested in others; no fee
charged
Jury verdict Some do not have to be
unanimous
Unanimous decision
Brenda Norton, Introduction to Politics OpenStax to be published.
Structure of the Texas judicial system
The structure of the Texas judicial system is hierarchical. This means that you start at
the lowest level and move up to the highest level. The Texas constitution and the legislature
establish each court and its jurisdiction. In setting the court's jurisdiction, the legislature
specifies the territory the court covers and the topics. Thus, a county court in Tom Green
County can only hear cases arising in Tom Green County. In addition, the legislature specifies
the types of cases a court can decide. If any other kind of case is filed, it must be dismissed.
There are about 3151 judges in Texas in over 2600 courts Texas. Thus, the Texas judicial
branch is big!
The first level of courts is trial courts. They have original jurisdiction, the court
where a case begins. Trial courts may hear civil or criminal cases or both depending on what
the legislature specifies the jurisdiction for each court. Evidence is presented in the form of
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witness testimony and exhibits, documents presented in the court. Before trial, in a civil or
criminal case, the parties and their attorneys investigate the claims and acquire evidence to be
presented during the trial in a discovery process. Trials may be to a jury or the bench. A jury
trial will have six or twelve persons from the community specially selected through a
process called voir dire to hear the case. The judge will give the jurors a charge, specific
written instructions, and a detailed list of questions to be answered. The jury cannot stray
from these instructions and questions, or there will be a mistrial, a declaration that the case is
so tainted that it must start over with a new jury. The second type of trial is a bench trial.
In a bench trial, the judge decides everything. There is no jury. In civil cases, the parties
determine what type of trial they want to have. In some criminal cases, a defendant can elect to
have a bench trial. But in many criminal cases, there must be a jury trial because of the
seriousness of the matter. The state can never request a bench trial in a criminal case. The
decision by the jury, or in the case of a bench trial, the judge, is called a verdict. The judge will
put everything in writing, sign it and enter it into the court's record as a legally binding document
called a judgment. In a civil case, if either party is dissatisfied or in a criminal case in which the
defendant is found guilty, the unhappy person can file an appeal.
Types of trial courts in Texas Texas has a variety of trial courts. The state has the most trial courts of any state. This is
because the Texas constitution provides local control of the courts, so many courts have a limited
jurisdictional territory.
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Municipal courts
The legislature allows cities to create municipal courts to enforce municipal ordinances
and assist justice of the peace courts with class C misdemeanors within a given city. The
municipal courts handle the largest volume of Texas court cases due to the fact that most
traffic and parking tickets are class C misdemeanors. Violation of city ordinances and Class
C misdemeanors are punishable by a fine. In addition, municipal court judges can also issue
search or arrest warrants to law enforcement in the territory. The number of municipal courts
increases with the city's population, so Houston has about thirty municipal courts while
smaller cities may only have one or none. There are about 1000 municipal courts in Texas.
Justice of the Peace and Small Claims courts
Justice of the peace courts are local trial courts. The legislature sets the territory in a
specific area known as a precinct which usually only covers a few miles. The justice of the peace
court hears small claims, those under $10 000, which arise within the court's territory, and
criminal cases punishable by a fine but not a jail sentence, class C misdemeanors. In addition,
they have exclusive jurisdiction over most landlord-tenant disputes, so if your landlord refuses to
return your deposit or sues you for unpaid rent, you will be in the Justice of the peace/small
claims court.
In rural counties, the J.P., the nickname for justices of the peace, also serves as the county
coroner. All J.P.s serve as a local magistrate. Magistrates are judges who hold arraignments
which are hearings to determine if there is probable cause to keep a person in jail on criminal
charges and set bail. We will discuss this process more in-depth in the next chapter.
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Like municipal courts, the Justice of the peace courts are very busy as they also hear
cases about traffic tickets. Due to their high volume of cases, the Justice of the peace courts
generate a lot of revenue for the state through their enforcement of traffic fines. In 2018 justice
courts collected $324 million in penalties, with $204 million kept by their county and $102
million sent to the state. https://www.txcourts.gov/media/1443455/2018-ar-statistical-final.pdf
Justices of the peace in Texas do not have to be licensed attorneys. This is controversial
because of their authority over disputes up to $10,00, the ability to issue search and arrest
warrants, determine bail, and cause of death when acting as a coroner. J.P.s must undergo eighty
hours of training during their first year in the office and 20 hours of training each year. However,
many people feel that given the increasing importance of their duties, the state should require a
law llicense. https://www.theatlantic.com/politics/archive/2017/02/when-your-judge-isnt-a-
lawyer/515568/
County courts
Constitutional county courts have administrative duties for each of the 254 counties in
Texas. In some counties, they also have judicial responsibilities. The Texas constitution vests
the county judge with both administrative and judicial duties within each county. The county
judge presides over the five-member county commissioner's court, the council which oversees
county administration. The Texas constitution limits the number of constitutional county
courts in each county to one, but this became a problem because some counties' populations
increased so much that the administration took up all of the judge's time or the caseload
became too large for one judge. The legislature addressed this problem by creating statutory
county courts.
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County courts at law or statutory county courts have been created for counties with larger
populations. Today there are about 250 county courts at law. Statutory county courts have
original jurisdiction over civil cases with a value of $200 to $200,00. They also hear appeals
from municipal and Justice of the peace/small claims courts. An appeal to a county court in
which the fine is $ 100 or less ends in the county court.
Probate courts are specialized county courts in the most populated counties. There
are 18 probate courts in 10 counties. Probate is the legal process of passing on the estate of a
deceased person under statute or a will. The probate court also hears guardianships,
determining that person can no longer be legally responsible for their care and mental illness
commitments.
District Courts State District courts are the highest trial court in Texas. They handle all felony criminal
cases and can hear any civil suit in an amount over $200, except where another court has
exclusive jurisdiction. In addition, the district courts have exclusive jurisdiction over divorces,
cases involving title to real property (land), juvenile justice cases, and contested elections. In
some counties, the legislature designates different district courts to focus their work on civil,
criminal, juvenile, or family cases. Also, the legislature establishes the territory of the district
court. As a result, some district courts, 98, cover more than one county while others are within
one county, 370.
Appellate courts
Appellate court jurisdiction is to review what the lower trial court decided to see if
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there was a substantial enough error of law to have probably caused the rendition of an
improper judgment. Thus, an appeal is not a "do-over" of the trial. No witnesses testify, and
no exhibits are submitted. Instead, the appellate court reviews the proceedings below to see if
the error meets the standard. The appellate court does this by examining the record, copies of
all documents filed below, reading the transcript, a written record of everything said in court
below. Next, the appellate court receives briefs, documents written by lawyers which argue
their view of the case based on the transcript, record, and precedent to persuade the court.
Precedent, also called common law or judge-made law, is an essential part of the judicial
process in the U.S. Courts review prior cases and how they were decided using them for
guidance in determining the current case.
Sometimes, the appellate court also hears oral arguments, in which each of the
attorneys explains their views on the case and tries to persuade the judges to their viewpoint.
The court will then issue an opinion, a written explanation of the court's reasoning behind
their decision in the case. The decision can be to affirm or reverse. If the case is affirmed,
the lower court's decision stands. If the decision is reversed, the appellate court has two options.
First, it can render the decision the trial court should have made, but this is rarely done.
Second, the appellate court can also remand the case, sending it back to the lower court for a
new trial. The opinion will explain to the lower court where it erred in the first trial and explain
how to fix the error. The remand allows the lower court to correct its mistake and for the parties
to receive a court decision on their case still. Appellate courts in Texas are divided into
intermediate appellate courts and dual appellate courts of last resort.
Intermediate appellate courts Intermediate appellate court have appellate jurisdiction over fourteen different regions
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in the state of Texas. These courts are called state district courts of appeal but are very
different from district trial courts, so be careful of the names! The courts of appeal sit in three-
judge panels to not have just one person reviewing and deciding if the lower court committed
a serious error. While the justices sit in three-judge panels, there can be more than three
justices on a given court of appeal. For example, the fifth district court of appeals, sitting in
Dallas, oversees several counties in north Texas, not just Dallas, and has 13 justices. They sit
in rotating panels of three judges to hear the large volume of cases from their region. In
infrequent instances, intermediate courts of appeals, which consist of more than three judges,
can sit en banc. En banc is when all of the judges for the court hear a case.
Appellate courts of last resort Texas is one of only two states which has a dual structure for its courts of last resort.
This means that there are two highest courts in the state of Texas. One is the Court of
Criminal Appeals, the highest court for all criminal cases, and the Texas Supreme Court,
the highest court for all civil cases. Each has one presiding Justice and eight associate
justices.
Most cases reach the Court of Criminal Appeals by mandatory jurisdiction. This
means the legislature designated the type of case that the court must review if the parties
request review. A case in which the death penalty has been imposed skip the intermediate
court of appeals and are automatically taken directly from the trial court to the Court of
Criminal Appeals for review.
The Texas Supreme Court is the court of last resort for all civil cases and juvenile
justice cases. Unlike the Court of Criminal Appeals, the Texas Supreme court is not required
to hear most cases. The court will review a case only if four of the justices agree to hear the
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case. To decide the case requires five justices to agree on a decision. Since Texas is a large
state with a large population, thousands of cases request a review by the Texas Supreme court
each year. The chance of the court taking a case of review is low, and in 2017 was only 12%.
This selection system is designed to leave most of the control over cases in the lower level
regional courts and ensure that the Supreme court only accepts cases of statewide importance.
Judicial selection in Texas
There are several common types of selecting judges used in the U.S. The style can
differ depending on the level of the court within each judicial system. The common types
are an appointment for life, appointment for a specified number of years, election, a hybrid
or combination of the other methods, the most common being appointment followed by
retention election. Texas is one of only six states that hold partisan elections for judges and
is the only state in which partisan elections are held for almost all judges in the state. As a
result, Texas's system has become controversial, so we will look at all of the selection types
used in the U.S. to compare the Texas system.
Lifetime appointment
The U.S. federal judicial branch utilizes the appointment for life for article III judges
and appointment for years for Article I judges. No state uses appointment for life, so we will
leave a discussion of the merits of that type of selection to your American Government class.
Appointment for a term of years
Many states use the appointment for a term of years system of selection. The manner of
the appointment varies by state but is commonly gubernatorial nomination with legislative
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approval. The judge then serves for a specific number of years. In some states, the judge can
be reappointed, and in some, it is for only one term.
Election
A few U.S. states use the election process to select some judges. There are two major
types of judicial election used in the U.S.: partisan election, a candidate's political party is listed
on the ballot, and nonpartisan election, the candidate's political affiliation is not listed on the
ballot. About thirteen states still hold nonpartisan elections for some of their judgeships Many
states have moved away from a direct election and towards retention elections which we will
discuss in the next section. http://www.judicialselection.us/
TEXAS
Texas is one of only six states which still hold partisan elections for judgeships.
http://judicial selection.us/judicial_selection/index.cfm?state=tx Texas is the only state which
has partisan elections for practically all judges. As a result, in Texas, judges run for office just
like all other elected officials. They align with a political party, receive the majority vote in a
party primary election, and campaign showing their affiliation to the party. Most states have
moved away from this style of selection due to partisanship, appearances of impropriety due to
large campaign contributions for persons appearing before the court, and the creation of
instability due to selection by political popularity not the l egal expertise of the candidates.
https://www.txcourts.gov/media/ 1450219/201230_tcjs-final-report_compressed.pdf
Texas has been the subject of scrutiny for allegations of favoritism to campaign donors
and political party pressure on judges. https://www.pbs.org/wgbh/pages/frontline/shows/justice/
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As a result, there is pressure within the state to change this system, including from former and
current judges asking to change the system. Several Texas judges advocate for a change to this
system because it eliminates campaign contributions and the appearance of "buying the judges'
favor. Further, it lessens the impact of political party preferences and influence.
https://www.youtube.com/ watch?v=M_xrxOmHU5Q
Texas has put some limits on the amount of direct campaign donations. Still, it does
not prohibit people with cases pending in a particular court from contributing to that judge's
election. There are also rules of conduct prohibiting judges from participating in improper
political activity. Improper conduct is not defined, and the party leaders have been known to
pressure candidates. Also, if there is a change in party preference by the voters, good judges
can be swept from office and poor ones retained just because of their party affiliation. Texas
voters rarely know very much about judicial candidates, and voting in judicial elections is
low. (https://www.txcourts.gov/media/1450219/201230_tcjs-final-report_compressed.pdf)
A recent commission, made up of members of the legislature, retired judges and
prominent attorneys, studying judicial reform in Texas all recommended changing the Texas
election system for judges. Half of the committee recommended moving to the retention system.
https://www.txcourts.gov/media/1450219/201230_tcjs-final-report_compressed.pdf
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Missouri or Retention System. A style of selection that has gained popularity in the U.S. is the retention or the Missouri
system. https://ballotpedia.org/Retention_election. In the retention system, the Governor with
legislative approval initially appoints the judge. The appointment is for a term of years. After
this initial term, if the person wants to remain in office, they must run in a retention election.
The people vote whether to retain the judge in the office or to replace the judge. There is no
opposing candidate. The judge runs on their record, and in a couple of states, may list their
party affiliation on the ballot. If a judge is retained, they continue in office for another term. In
some states, there is a limit on the number
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of retention terms a judge may serve. If the judge is not retained, then the process begins with
new nominees and appointments. This style appeals to many Americans because it limits
campaigning and political party influence over the judiciary while allowing the people some say
over the judicial officers.
Judicial Qualifications
The legislature has established minimum qualifications for most courts. A city council
sets the qualification for a municipal judge. As we discussed earlier, some of the
qualifications are minimal, a source of controversy in Texas.
Court Age Knowledge and
experience
Election
Supreme Court, Court of Criminal Appeals,
35-74 Licensed attorney
practicing as a lawyer
or serving as a judge
Statewide election
of Supreme court
and Court of
and Intermediate Courts of Appeal
for a total of at least 10 years
Criminal Appeals;
by region for
intermediate
appellate courts
District Courts 25-74 Licensed attorney in
practice or serving as a
judge for a total of at
least 4 years
Region-wide
County Court at Law 25-and up Licensed attorney in
practice or serving as a
judge for a total of at
least 10 years
By county
Statutory county courts A licensed attorney for 4 years
By county
Justice of the Peace and
small claims courts
No legal experience
required
By precinct
Municipal courts Set by each city
council usually 2-4
years appointment or
election
By city usually licensed 2-4 years
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Removal from office
A Texas judge can be involuntarily removed from office by the Texas Commission of
Judicial Conduct to violate the Judicial Code of Ethics. Additionally, the Texas Supreme
court can also reprimand or remove district court judges for improper conduct. Additionally,
as Texas state officials, all Texas judges are subject to impeachment by the Texas
legislature.
If you want to know more. . . . Two Videos explaining the Texas court system
https://www.youtube.com/watch?v=5tOm94gSZmY Texas trial court system and
commissioners court produced by Texas Association of Counties
An explanation of Texas court system produced by Texas State Law Library
A report from a commission considering changing the judicial selection process in Texas https://www.txcourts.gov/media/1450219/201230_tcjs-final-report_compressed.pdf
The official website for the Texas court system https://www.txcourts.gov/
Schematic of the Texas court system https://www.txcourts.gov/media/1055214/Court-Structure-
Chart-Sept-2015.pdf
If you want to compare the judicial branches in all fifty states https://www.ncsc.org/
If you want to learn more about the federal judicial branch https://www.uscourts.gov/about- federal-courts/court-role-and-structure If you want to know more about the work of the U.S. Supreme Court https://www.scotusblog.com/
If you want a dictionary of common legal terms https://www.uscourts.gov/glossary
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Vocabulary list Burden of proof is the standard for the amount of evidence that must be shown in court to win your case. The burden varies with the type of case. Court case is the formal filing of a complaint in court. Court of Criminal Appeals highest criminal court in Texas
Evidence to the testimony and exhibits introduced in court can be used in deciding a case. However, there are strict rules on what evidence can be presented in court. Issues the questions to be decided in a court case Judicial branch the court system of the nation or state. Jurisdiction is the authority of a court to hear a specific case. Litigants or parties are the people involved in a court case.
Missouri or Retention System involves selecting judges by appointment for a term of years and
then a retention election for another term of years.
Texas Supreme Court highest civil court in Texas
Review Questions
Explain the process a case takes through the Texas court system
Explain the different types of courts in the Texas court system
Explain how judges are selected in Texas
Discuss the different judicial selection types used in the U.S. and the pros and cons of each.
Bibliography
Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections Edited by Matthew J.
Streb NYU Press 2009
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Chapter 10 Criminal Law
Introduction In this chapter, you will
• Learn the types of criminal laws
• Learn the duties of law enforcement and your rights with them
• Learn the duties of prosecutors and your rights with them
• Learn the duties of criminal courts and your right with them
In the last chapter, we learned about the judicial branch. In this chapter, we are going to
focus on a part of that branch, criminal law. Criminal law is anything designated by a statute as
a crime and enforced solely by the government. The statute must be specific about what actions
amount to a crime, the elements of the crime, and the possible punishment for a violation.
Criminal law involves several parts of the Texas government, law enforcement, prosecutor, and
courts. Also, because of the punitive nature of criminal law, the US and Texas constitutions
grant you specific protections in criminal law. We will learn about each separately.
Criminal laws
Criminal law is a prohibitive law. It prohibits conduct which the government has
decided is so important that it must protect society from anyone taking that action. There are two
categories of criminal law, felony and misdemeanor. The difference is in the authorized
punishment for an offense. Misdemeanors are less serious offenses, and felonies carry more
significant penalties. There are no federal misdemeanors. All violations of federal criminal law
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are felonies. Each state has both felonies and misdemeanors in its criminal laws. How do we
know whether an offense is a felony or a misdemeanor? The statute declaring the activity a
crime states which one it is. Also, the legislature specifies the type by setting out the possible
punishments for violation. https://statutes.capitol.texas.gov/Docs/PE/htm/PE.12.htm
Misdemeanors As table 1 shows, misdemeanors range from Class C to Class A. The penalty for a Class
C is a fine of up to $500. Examples of Class C misdemeanors are regular traffic tickets and
minors in possession of alcohol. As we learned in chapter 9, Class C, misdemeanors are heard
in municipal or justice of the peace courts. If the fine imposed is $100 or more, the defendant
can appeal a finding of guilt to a county court.
A Class B is punishable by a fine of up to $2,000 and/or a jail sentence of up to 180 days.
The jail term will be served in the local county jail, not a state prison. An example of Class B is
a first driving while intoxicated offense (DWI). These cases are heard in county courts.
A Class A misdemeanor is punishable by a fine of up to $4,000 and /or a sentence to jail
of up to one year. However, the jail term will be served in the local jail, not a state prison. An
example of a Class A misdemeanor is a second DWI offense or if the DWI blood alcohol level is
above .15.
Felony Felonies are divided into five categories in Texas. The lowest felony is a state jail felony.
The state jail felony is punishable by a jail sentence between 180 days to 2 years and/or a fine up
to $10,000. In a state jail, felony sentences are served at the local jail and not the state prison.
You can be charged with a state jail felony if you fail to pay child support for a term of two years
or an amount of $10,00 or more.
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The next level of a felony is a third-degree, which is punishable by a term of 2-10 years
in state prison and /or a fine of up to $10,000. Third-degree felonies include leaving the scene of
an accident in which someone is seriously injured.
A second-degree felony is punishable by a term in state prison of 2-20 years and /or a
fine of up to $10,00. Second-degree felonies include manslaughter, recklessly causing the death
of another, and reckless injury to a child.
A first-degree felony is punishable by a state prison term of 5-99 years and /or a fine of
up to $10,000. This felony includes aggravated robbery, arson-causing death, attempted capital
murder, other types of murder, aggravated sexual assault.
The highest level of felony in Texas is a capital felony. These felonies are limited to
specified types of murder, murder for hire, murder of certain government officials, premeditated
murder, murder while committing a felony. All states have capital felonies, which include the
same types of murders as Texas. The difference between states is whether the death penalty is a
possible punishment for capital felonies. If the defendant is found guilty in a state that does not
have the death penalty, he is automatically sentenced to life in prison without parole. In Texas,
the person may be sentenced to death or life in prison without parole. If the death penalty is
imposed, the defendant is entitled to an appeal directly to the Court of Criminal Appeals.
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Offense Maximum Punishment
Examples Court with Original Jurisdiction
Felonies
Capital felony Execution; alternative minimum sentence is life in prison without parole
Capital murder District court, with automatic appeal to Texas Court of Criminal Appeals, if the death penalty is imposed
First-degree felony
5-99 years or life; $10,000 fine
Theft of property valued at $200,000 or more; aggravated sexual assault
District court
Second- degree felony
2-20 years; $10,000 fine
Theft of property valued at $100,000 or more, but less than $200,000; aggravated assault; reckless injury to a child
District court
Third-degree felony
2-10 years; $10,000 fine
Theft of property valued at $20,000 or more, but less than $100,000; drive-by shooting with no injury
District court
State jail felony
180 days to 2 years; $10,000 fine
Theft of property valued at $1,500 or more, but less than $20,000; credit card or debit card abuse
District court
Misdemeanors
Class A misdemeanor
1 year; $4,000 fine
Burglary; theft of property valued at $500 or more, but less than $1,500; theft of cable service; stalking without bodily injury
Constitutional county court or county court at law
Class B misdemeanor
180 days; $2,000 fine
Theft of property valued at $20 or more, but less than $500; driving while intoxicated; possession of up to 4 ounces of marijuana; making terroristic threats
Constitutional county court or county court at law
Class C misdemeanor
$500 fine Theft of property valued at less than $20; assault without bodily injury; producing or selling term papers or reports
Justice of the Peace Court
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Offense Maximum Punishment
Examples Court with Original Jurisdiction
for use by others; attending a dog fight
https://texaspolitics.utexas.edu/archive/html/just/features/0201_01/crimeandp.html
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Another distinction between civil and criminal laws is the burden of proof, the amount of
evidence that must be shown in court to hold the defendant responsible. First, the burden of
proof is always on the government in a criminal case. Second, in the US, a person is considered
innocent until proven guilty. Third, in all criminal cases, the burden of proof is guilt beyond a
reasonable doubt. This means that the prosecution, the name for the government attorneys
pursuing the case, must show that no other reasonable decision is possible. This is a heavy
burden. Precedent, reviewing prior cases to see how laws have been interpreted in the past, is
essential in determining how much proof is needed. We also need to keep in mind that the rules
of procedure and evidence, the tight control on what can be said or introduced in a court case,
apply in criminal cases. Not everything we see in media is admissible and will not be heard or
seen by the jury deciding the case.
Juvenile Crimes Unless it is an ordinary traffic ticket, the Juvenile Justice Department is responsible for
prosecuting and punishing crimes committed by persons ten to sixteen. Texas is one of only nine
states, allowing someone who is seventeen to be tried as an adult. The US Constitution does not
allow the death penalty to be imposed on anyone who committed a crime under eighteen.
However, the juvenile defendant can be sentenced to life in prison without parole.
Juvenile justice focuses more on rehabilitation than the adult criminal system in Texas.
The parent, a guardian, or if one of them is not available, guardian ad litem must be present in all
encounters with the police and prosecution after arrest. Guardian ad litem is a person appointed
by the court to stand in place of the parent or guardian in the child's life. The juvenile defendant
will also have an attorney. The prosecutors have more leeway in placing the juvenile into
alternative programs, not just prison, to address substance abuse, mental health issues, lack of
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life skills to rehabilitate and reform the juvenile's conduct to prevent him from becoming a repeat
offender.
The juvenile can be sentenced to a juvenile facility, and if a sentence is for longer than
the juvenile will be underage, they will be transferred to an adult state prison at age 18. The
juvenile can also be sentenced to a" boot camp," a military-style camp designed to instill
discipline in the juvenile. There is a lot of controversy surrounding the juvenile justice system in
Texas due to allegations of abuse and inhumane treatment. Currently, Texas is under a court
order to reform its system to address these issues.
The Criminal process The general process for how a criminal case moves through the court is the same as in a
civil case –pretrial, trial, and appellate. But there is a unique vocabulary and special procedures
within a criminal case. Many of the special procedures protect your US and Texas Constitutional
rights in a criminal case. Texas does not grant criminal defendants any rights in addition to those
covered by the US Constitution, so we will discuss these rights in terms of what is protected by
the US Constitution. Remember, the US Constitution is the supreme law of the US and must be
followed at all times.
No ex post facto laws are allowed in the United States. An ex post facto law makes an
act a crime after it is committed. Both the US and Texas constitutions prohibit ex post facto
laws. Thus, criminal laws can only apply prospectively, today and into the future, and not
retroactively, to action in the past.
Rights and Liberties Protected by the US Constitution in Criminal Cases
Article I sec 9. No ex post facto law
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Rights and Liberties Protected by the US Constitution in Criminal Cases
Article I sec. 9 Writ of habeas corpus
Fourth Amendment
Right to be secure from unreasonable search and seizure; warrants to issue on probable cause
Fifth Amendment
Right of due process before deprivation of "life, liberty, or property"; Right in a criminal case to indictment by a grand jury for capital crimes; Right against self-incrimination; no double jeopardy;
Sixth Amendment
Right to a speedy trial by an impartial jury; to be informed of the accusations; to confront witnesses against him; to have compulsory process to produce witnesses; to have the assistance of counsel
Eighth Amendment
Right against excessive bail, excessive fines, or cruel and unusual punishment
Rights and Liberties Protected by the Texas Constitution Article I in Criminal Cases
Section 16 No ex post facto law
Section 12 Writ of habeas corpus
Section 10 Speedy public trial by an impartial jury; knowledge of the charges; right against self-incrimination; right to an attorney; confront witnesses against him and compulsory process for obtaining witnesses; indictment by a grand jury if prison sentence possible; no unreasonable search and seizure; warrants to issue on probable cause
Section 11
a-c, 13 Right against excessive bail, excessive fines, or cruel and unusual punishment
Section 19 Right of due process before deprivation of "life, liberty, or property."
Section 14 No double jeopardy
Section 30, 31
Rights of crime victims
Let us assume a crime has been committed. Law enforcement is investigating. They must
gather evidence to prove any accusations they make. The rules found in the US and Texas
Constitutions restrict them against unreasonable search and seizure to gather this evidence. The
right is against unreasonable search and seizure, not reasonable ones. So the first question to
ask is what is a reasonable search and seizure. The constitutional protections refer to a warrant
for this search or seizure, issuing on probable cause, so you may think that only searches under a
warrant are reasonable. This is not true. While there must be probable cause to issue a warrant,
many searches today are under a reasonable suspicion standard and warrantless, without a
warrant, due to courts upholding many statutes permitting this type of search. The courts rely on
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precedent to determine if the facts show that the police had reasonable suspicion for the search
and the type of search allowed on reasonable suspicion.
Let us assume that the investigation has closed in on one person, and the police want to
arrest the person. Law enforcement must perform many duties at this stage to ensure the person's
rights are followed. First, at the time of arrest, the person must be given their Miranda rights.
Miranda rights come from the case of Miranda v. Arizona, and I bet you already know them.
"You have the right to remain silent; anything you say can be used against you in a court of law.
You have the right to an attorney. If you cannot afford one, one will be appointed for you. Do
you understand each of these rights as I have read them to you?" Law enforcement must advise
you of these rights any time you are in custody. If you are not free to leave, they must give you
the Miranda rights.
You do not have a constitutional right to a telephone call, but you do have the right to
call an attorney, so you receive a telephone call to allow you to contact one or someone who can
help you get one. Suppose you say that you cannot afford to hire an attorney. There will be
paperwork to complete in that case, and it may take some time to get an attorney appointed.
https://statutes.capitol.texas.gov/Docs/CR/htm/CR.26.htm
It depends on the charge against you how swiftly the remainder of the procedures will
occur in Texas. If you are charged with a misdemeanor, you will have the first hearing within
twenty-four to forty-eight hours. In court, you will be informed of the charges against you, your
Miranda rights will be reread to you, the court will check the status of your obtaining an
attorney, and bail will be set. If it is a felony, you can be held for up to ninety days while the
court waits for the grand jury to return an indictment against you.
The US and Texas constitutions require a grand jury review allegation by law
enforcement that a felony has been committed before the prosecutor, the government's attorney
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for a criminal case can proceed. A grand jury is a group of citizens chosen to review the
investigation and to determine if probable cause has been shown by the prosecutor so that the
case can move forward in court. A citizen over 18 who holds a Texas driver's license may be
called to serve on a grand jury. There is a review process similar to voir dire for a trial jury.
Grand jurors serve for a period of time. Unlike a trial jury that hears the entirety of one
case, grand juries hear a limited amount of information about many cases. Only the prosecution
presents the case to the grand jury. The defendant cannot defend himself and often does not even
know the grand jury is considering charges against him.
Next, a court will review your case to determine if you should be allowed to post bail.
Bail is a way to be released from jail pretrial by promising to return for all your hearings and the
trial. Bail cannot be punitive because, at this point, you are considered innocent. Bail can take
many forms. You can be required to post an amount of money with the court, which will be
forfeited if you fail to appear. Most of us do not have the amount of money the court requests to
be posted, so we call on a bail bond company. A bail bond company is licensed to post bail on
behalf of others. The company stands as surety for the bail amount if you do not show up for all
court appearances, like an insurance company. The bail bond company will charge you at least
ten percent of the bail amount to issue the bond. They can require you to leave the property with
them as payment surety. Texas allows bounty hunting so they can come after you if you do not
show up for court. They can also add restrictions to ensure that you do show up. Today it is
common for courts and bonding companies to require ankle monitors to receive bail.
A common practice that ends a criminal case is called a plea bargain. A plea bargain is a
process whereby the defendant negotiates a sentence with the prosecutor in return for giving their
right to a full trial on the case. This process is controversial because some feel that the defendant
should not "choose "their sentence. However, the prosecutor and court can reject any requested
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plea bargain. It also helps to ensure a speedy disposition of a case where the defendant wants to
admit guilt, thus freeing up court time for contested cases.
Punishments We learned earlier that fines or incarceration in a local jail or state prison could be
imposed on an individual convicted of a crime in Texas. There are several alternatives to these,
which are geared toward the rehabilitation of the individual. Probation or community
supervision is used with first-time offenders for some crimes. The defendant is allowed to live
at home, attend school, or work. The person will have to report to a probation officer on a
written schedule, submit to drug testing, will not be allowed to go to certain places or interact
with certain people. The defendant may also have to attend counseling or rehabilitation
meetings. Today it is common for the convicted person to wear an ankle monitor so police can
track them at all times.
The convicted defendant may be required to perform community service. Community
service is work for the good of the community to try and reform your conduct. Government
agencies and nonprofits agree to be responsible for the person and monitor their conduct at the
worksite. This means picking up trash on the highway or volunteering at a local service agency
for some offenses.
Work release some persons sentenced to supervision must stay in jail at night. They are
released to attend school or work each day. The purpose of these programs is to allow the person
to reconsider and reform their conduct. These are common punishments for low-level marijuana
or child support crimes.
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The length of the court-imposed restrictions depends on the punishment imposed, with a
maximum of ten years for a felony conviction and two years for a misdemeanor conviction. For
certain crimes, the judge can impose longer restrictions. If you break any of the rules or commit
another crime while on probation, it will be revoked, and you will have to serve your sentence in
jail or prison.
Another alternative to imprisonment is deferred adjudication. The defendant pleads
guilty to the charge in deferred adjudication, but the judge holds the case open and defers making
a final judgment. During the deferral period, the judge will impose restrictions on the
defendant's activities similar to probation; however, the judge will dismiss the case and discharge
the defendant if the conditions are completed. In addition, the defendant will not have a record of
a criminal conviction. Deferred adjudication restrictions are usually greater than probation, and
if a condition is violated, the defendant is not allowed to appeal revocation and sentence.
The use of alternative sentences is increasing in Texas due to the high cost of caring for a
prison inmate and overcrowding. Texas spends about $23,000 per year to house an inmate,
about $50 per day. The state spends about $3.2 billion annually to house and care for prisoners.
https://www.chron.com/news/houston-texas/texas/article/Here-s-how-much-Texas-spends-on-
the-average-inmate-11439179.php The cost of housing a death row inmate is higher at about
$62 per day because they must be kept in a special unit in solitary confinement.
The cost of housing inmates increases each year as the population is aging, resulting in
increased health costs, which the state must provide. Just as your health care costs are rising, so
are those which the state must provide. https://www.texastribune.org/2019/11/25/texas-prison-
health-care-budget-parole/
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Prison Operations Usually, jails and prisons are operated by the government. However, private security
companies began opening private prisons advertising that they can provide equal or better care at
a lower cost than the government since they are a private business. Unfortunately, private prisons
have not been as beneficial as promised. There have been problems with private prisons in
Texas. There have been many allegations of abuse and neglect in private prisons throughout
Texas and the US, so they have become controversial. https://www.pbs.org/newshour/
show/private-prisons-help-overcrowding-cost Also, it has been found that there is little to no
cost savings to the government in many cases due to the minimum standards required.
There are some private prisons in Texas, but many have closed. This has caused an
economic issue for the town that welcomed the private prison to create employment. Today,
many of the private facilities in Texas are under contract to the federal government to a house
person held by Immigration Enforcement. There have been problems in these private prisons, so
the federal government is ending these contracts leaving many out of work.
https://www.houstonpress.com/news/future-uncertain-for-texas-private-prisons-as-feds-move-to-
end-their-contracts-8682839
Death penalty
The death penalty has several special restrictions. First, it only can be applied in capital
murder cases. Secondly, the prosecutor decides whether to "go for" the death penalty in any
case. Third, the trials are more expensive than other capital felony trials in which the guilty
person is sentenced to life in prison without parole. Additionally, when the death penalty is
chosen as an option in a case, the jury must be specially questioned before being selected.
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Further, the trial must occur in two parts, called a bifurcated trial, separating a guilt/not
guilty decision from the decision assessing the punishment. The same jury hears both parts of
the trial. Finally, there are automatic appeals if the death penalty is imposed.
The death penalty has become controversial globally, and the US is the only remaining
robust democracy that allows it to be imposed. As a result, many states in the US have
abandoned it. Even in Texas, fewer death penalty decisions are being imposed.
If you want to know more . . . . Criminal Law an explanation of Texas criminal law prepared by the State Bar of Texas
https://www.texasbar.com/AM/Template.cfm?Section=Our_Legal_System1&Template=/CM/Co
ntentDisplay.cfm&ContentID=23456
Vocabulary and explanations of criminal law generally
https://www.law.cornell.edu/wex/criminal_law
Criminal constitutional rights These videos address constitutional rights in criminal matters. These videos show things from a
federal court perspective. Still, since Texas does not grant any rights greater than the US
Constitution in these areas, the videos may help you understand your constitutional rights.
https://www.youtube.com/watch?v=x2dOCBMLzoY explanation of a grand jury (Warning:
This video states nineteen jurors are on the grand jury. This is for federal grand juries. In
Texas, our grand juries are twelve jurors.
https://www.youtube.com/watch?v=YdKzQrq4QVM explanation of Miranda v. Arizona
https://www.youtube.com/watch?v=I8nSpJVP6fk US Constitution fifth amendment
https://www.youtube.com/watch?v=9t2_NuXlR-4 US Constitution sixth amendment
https://www.youtube.com/watch?v=dUmSonxbvIA US Constitution eighth amendment
https://www.youtube.com/watch?v=5RhTmWkcghg US Constitution fourth amendment
Vocabulary Arraignment the initial court hearing when you will be told what crime you have been charged with, bail will be set, and you will be appointed an attorney if you have not already employed one.
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Bail the terms set by the court to release you from jail and to ensure that you will appear for all hearings and trial in a criminal case against you. It can be money or restrictions on your activities. Capital punishment imposing the death penalty on a person convicted of specific crimes. Criminal law is anything designated by a statute as a crime and enforced solely by the
government.
Deferred adjudication. The defendant pleads guilty to the charge but the judge holds the case
open and defers making a final judgment. During the deferral period, the judge will impose
restrictions on the defendant's activities similar to probation; however, the judge will dismiss the
case and discharge the defendant if the conditions are completed so there is no criminal
conviction on the person’s record.
Felony more serious criminal offenses carrying more severe penalties than misdemeanors.
Grand jury the body which reviews evidence to see if there is probable cause to charge a person with a felony Guilt beyond a reasonable doubt the standard required to convict someone of a crime Miranda rights the statement required to be read to the person in the U.S. upon arrest or detention advising them of their rights under the US Constitution Misdemeanor less serious criminal offenses.
Probable cause the amount of evidence required for the government to take specific actions against you in a criminal investigation or case. There is no specific definition, and it is determined on a case-by-case basis. Probation after conviction your sentence to prison is suspended if you comply with specific requirements for your behavior during a specified amount of time. If you fail to comply, you will serve your prison sentence.
Review Questions What is the difference between misdemeanors and felonies and the types of each
Explain the steps in the criminal trial process Texas
What is a grand jury
What are your rights in a criminal case under the US and Texas Constitutions
141
Bibliography
Texas Criminal Procedure and Evidence (Aspen Select) 2nd Edition
by Amanda Peters, Wolters Kluwer; 2nd edition ( 2018)
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- Welcome to Texas Government
- Table of Contents
- Introduction
- Pre-Columbian
- Age of Exploration
- The Six Flags of Texas
- Flags 1 and 2: Spain and France
- Flag number 3: Mexico: Mexico (1821–1836)
- Flags number 4 and 5: Republic of Texas (1836–1845) and U.S. state (1845-1861) (1865-present day)
- Flag number 6: and the Confederate States of America (1861–1865)
- Texas economy
- Texas political culture
- Texas demographics today
- Infrastructure.
- Studying Texas
- If you want to know more . . ..
- Vocabulary
- Review Questions
- Bibliography
- Introduction
- Pillars of the U.S. Constitution
- Can v. Should
- Supremacy Clause
- Delegation of power to the federal government
- Concurrent federal and state authority
- Preemption and nullification
- Constitutionally required or prohibited conduct of states
- Article IV
- Fourteenth Amendment
- 10th amendment Reserved Powers
- Sovereign Immunity
- Police Powers
- If you want to know more. . .
- Review Questions
- Vocabulary
- Bibliography
- Introduction
- 1836 Constitution
- 1845 Constitution
- Constitutions of 1861, 1866, and 1869
- 1876 Constitution
- If you want to know more . . .
- Vocabulary
- Review Questions
- Bibliography
- May, Janice. The Texas State Constitution (Oxford Commentaries on the State Constitutions of the United States) Oxford University Press, 2011
- Introduction
- Public Opinion and Political Participation
- Table 1: Examples of Political Participation
- Political Parties
- Elections
- Table 2: United States and Texas Voter Turnout 2008-2020
- Table 3: Texas Presidential Election Results 1976-2020
- Interest Groups
- Media in Texas
- Conclusion
- If you want to know more…
- Vocabulary List
- Review Questions
- Bibliography:
- Introduction
- Legislative Elections
- Legislative Representation
- House and Senate Organizations
- The Legislative Process
- Oversight
- Impeachment
- Conclusion
- If you want to know more…
- Vocabulary List
- Review Questions
- Bibliography
- Introduction
- How Executive Branch Officials are Selected
- Organization of the Executive Branch
- Powers of the Executive Branch
- GRAPHIC: Powers of the Texas Governor
- Table 1: Recent Governors of Texas
- Texas Plural Executive
- Conclusion
- If you want to know more…
- Vocabulary List
- Review Questions
- Bibliography
- Introduction
- Public Policy
- Table 1: Stages of the Policy Making Process
- Education Policy
- Energy Policy
- Health Care Policy
- Immigration Policy
- Social Policy
- Water Policy
- Texas State Budget and Financing
- Texas State Budget 2020-21
- Conclusion
- If you want to know more…
- Vocabulary List
- Review Questions
- Bibliography
- Introduction
- Local Government
- Organization and Functions of Local Government
- Table 1: Types of City Government
- Conclusion
- If you want to know more…
- Vocabulary List
- Review Questions
- Bibliography
- Introduction
- The Role of the Judicial Branch in Texas Government
- Two types of law: civil and criminal
- Structure of the Texas judicial system
- Types of trial courts in Texas
- Municipal courts
- Justice of the Peace and Small Claims courts
- County courts
- District Courts
- Appellate courts
- Intermediate appellate courts
- Appellate courts of last resort
- Judicial selection in Texas
- Lifetime appointment
- Appointment for a term of years
- Election
- TEXAS
- Missouri or Retention System.
- Judicial Qualifications
- Removal from office
- If you want to know more. . . .
- Vocabulary list
- Missouri or Retention System involves selecting judges by appointment for a term of years and then a retention election for another term of years.
- Review Questions
- Bibliography
- Introduction
- Criminal laws
- Misdemeanors
- Felony
- Juvenile Crimes
- The Criminal process
- Punishments
- Prison Operations
- Death penalty
- If you want to know more . . . .
- Criminal constitutional rights
- Vocabulary
- Review Questions
- Bibliography
- Texas Criminal Procedure and Evidence (Aspen Select) 2nd Edition
