The Proposed Constitution for Texas

SMU Law Review Volume 29 | Issue 2 Article 1 1975 The Proposed Constitution for Texas Elizabeth Levatino Steve Bickerstaff Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Elizabeth Levatino, et al., The Proposed Constitution for Texas, 29 Sw L.J. 477 (1975) https://scholar.smu.edu/smulr/vol29/iss2/1 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THE PROPOSED CONSTITUTION FOR TEXAS by Elizabeth Levatino* and Steve Bickerstafl** T HE present Texas Constitution was drafted by a constitutional convention in 1875, and adopted by the voters in 1876. Beginning in 1887, only eleven years after the adoption of the then "new" constitution, attempts to call a constitutional convention for substantial revision of the document have been undertaken unsuccessfully. Finally, however, the machinery for substantial revision of the constitution, approved by the voters in 1972 and continued through the action of the 64th Texas Legislature three years later, will culminate on November 4, 1975, when a revised constitution will be presented to the voters for the first time since 1876. One reason given for the continual call for substantial revision has been the inflexibility of the present constitution. The lack of flexibility is reflected in the number of amendments which have been proposed and adopted. The adoption of no less than 220 amendments, over half of which have occurred in the past twenty-five years, leads one to the conclusion that the constitution has increasingly been a barrier to state and local government rather than a workable guideline for meeting the current needs of Texas citizens and demands on Texas government. The constrictions caused by the constitution as reflected in the amendment process were demonstrated in a study conducted by Dr. Janice C. May for It was the Texas Advisory Commission on Intergovernmental Relations.' shown that during the period from 1951 to 1972, ninety-eight of 145 amendments submitted to the voters have dealt with government finance. Sixtyeight of these concerned finance on the state level and thirty on the local level; seventy-two percent passed. Twenty-nine of the state level finance2 amendments have related to the !thirteen constitutionally established funds. Twelve of the thirty "local level" finance amendments involved taxation.-3 The next largest category of amendments to the Texas Constituition is that of amendments amending earlier amendments. Eighty-five such proposals were submitted between 1951 and 1972, of which sixty-three passed. Sixtyfour of these proposed amendments to amendments concerned finance. 4 A third category encompasses the forty-six amendments which were designed to overcome limitations on local government. St. Mary's College; J.D., The University of Texas. Assistant Attorney *B.A., General of Texas. ** B.A., J.D., The University of Texas. Director of the Office of Constitutional Research; Parliamentarian of the Texas Senate. 1. J. MAY, AMENDING THE TEXAS CONsTrruTrON: 1951-1972 (1972). 2. See, e.g., TEX. CONST. art. VII, §§ 2 (Perpetual School Fund), 11 (Permanent University Fund). 3. J. MAY, supra note 1, at 7. 4. Id. at 2. As Dr. May points out, the sheer number of amendments has created the need for more amendments; that is, "length breeds length." May, Constitutional Revision in Texas, in THE TEXAS CONSTr1IUION: PROBLEMS AND PROSPECTS FOR REVISION 75 (1971). 5. J. MAY, supra note 1, at 2. SOUTHWESTERN LAW JOURNAL lVol. 29 Looking briefly at the amendment process from another perspective, the five most amended constitutional articles are Article III, Legislative Department-sixty-seven proposed, forty-seven adopted; Article XVI, General 'Provisions-twenty-seven proposed, nineteen adopted; Article VIII, Taxation and Revenue-fifteen proposed, nine adopted; Article IX, Countiesthirteen proposed, twelve adopted; and Article VII, Education-ten proposed, nine adopted. 6 The high number of amendments to the legislative article reflects another problem with the present constitution-that of organization. Article III contains provisions which relate not only to the legislature and legislative processes, but also to finance, 7 to special districts and local government, 8 and, until recently, to retirement systems. 9 The undesirability of this piecemeal, band-aid treatment for the ills of the Texas Constitution was one of the major reasons for seeking the commencement of a comprehensive revision process. Such a process was authorized by the voters through the establishment of the Constitutional Revision Commission in 1973 and the convening of the Texas Legislature as a Constitutional Convention in 1974.10 The thirty-seven member Constitutional Revision Commission studied the present constitution and proposals for its revision for a nine-month period, held nineteen public hearings which were attended by over 4,000 Texas citizens, and finally presented its recommendations for a revised Texas Constituition to the Texas Legislature on November 3, 1973.11 On January 8, 1974, the 1974 Constitutional Convention, comprised of the state's 150 representatives and thirty-one senators, convened. On July 30, 1974, the Constitutional Convention dissolved, unable to agree on a proposed constitution for submission to the voters. On January 14, 1975, the 64th Legislature convened and by April 16, 1975, it had reconsidered the work of the Constitutional Revision Commission and the Constitutional Convention, and passed Senate Joint Resolution 11, thereby approving for presentation to the voters of Texas comprehensive proposals for revising the Texas Constitution, and giving -thevoters the option to accept or reject each proposal. This Article will consider certain provisions contained in the proposed constitution, tracing their development through the Constitutional Revision Commission, the committee of the Constitutional Convention which considered the provisions, the Constitutional Convention itself, and finally, as approved by the 64th Legislature in the form in which they will be presented to the voters on November 4, 1975. Limitations of time and space prevent analysis of each section here, so the provisions discussed were chosen as those presenting significant, substantive alterations in the present constitution. However, it must be pointed out that no section was ignored by the groups involved in the revi6. Id. at 6. 7. TEx. CONST. art. III, §§ 49, 49a, 49-b, 49-c, 49-d, 49-d-1, 49-e, 50, 50a, 50b, 50b-1, 51, 51-a, 51-b, 51-c, 51-d, 65. 8. Id. §§ 48-d, 51g, 52, 52-b, 52d, 52e (adopted in 1967), 52e (adopted in 1968), 53, 55, 62, 63, 64. 9. Id. §§ 48a (1936), 48b (1965), 51-e (1944), 51-f (1944) (all of which were repealed on April 22, 1975). 10. TEx. CONST. art. XVII, § 2 (...truncated)