Today’s Texplainer is inspired by a question from Texas Tribune reader Cynthia Van.
Hey, Texplainer: Why do so many seemingly trivial things have to be adopted as constitutional amendments in Texas? Why can’t lawmakers address these things through legislation?
Whether it’s 2003’s Proposition 21, which allowed “a current or retired faculty member of a public college or university to receive compensation for service on the governing body of a water district," or Proposition 2 from the same year, which established “a two-year period for the redemption of a mineral interest sold for unpaid ad valorem taxes at a tax sale,” Texas voters have grown accustomed to being asked to decide seemingly obscure issues at the ballot box.
The current state constitution takes a highly restrictive view of the powers of state government. In other words, the Legislature and governor’s powers are limited to only those specifically outlined in the state constitution. So, even small legislative changes — like allowing El Paso County to finance its own parks with local taxes, for example — can require a constitutional amendment and a referendum.
Understanding why requires some history.
Since becoming a state in 1845, Texas has had four different constitutions, in part because of the state’s tumultuous past. The original constitution was replaced in 1861, after Texas seceded from the Union, with a new one that transferred Texas statehood from the U.S. to the Confederacy.
After the Confederacy was defeated, former Confederate states had to adopt new constitutions to rejoin the Union. Texas did so in 1866, but three years later that constitution was invalidated after so-called Radical Republicans — a faction of the party that had advocated for emancipating all slaves — took control of the U.S. Congress and required states to draft new constitutions that included the four laws outlined in The Reconstruction Acts of 1867. That third state constitution declared the U.S. Constitution the supreme law of the land and established bi-annual legislative sessions in Texas.
Then in 1876, as reconstruction was winding down and Democrats regained control of Congress, Texas adopted a fourth constitution that greatly restricted the size and scope of state government. That’s the same document lawmakers are amending today — nearly 140 years after its ratification.
According to House Parliamentarian Chris Griesel, voter approval has been required to change the state constitution since 1836, when Texas first declared its independence.
Texans have been voting on constitutional amendments ever since — and the document keeps growing. Since 1876, Texans have voted on roughly 680 proposed amendments to the Texas Constitution (and approved 498), and the constitution has expanded from 289 sections to 388, according to the Texas Legislative Reference Library. It’s now the second-longest constitution in the nation.
Attempts to convene a constitutional convention to make the document easier to use and understand have been unsuccessful. The most promising attempt was in 1974, when lawmakers met for a constitutional convention and drafted a simplified constitution. The new constitution failed by only three votes, in part because of the addition of a controversial “right-to-work” provision that was strongly opposed by labor groups.
The latest attempt to revise the state’s constitution was in 1998, when then-state Sen. Bill Ratliff, R-Mt. Pleasant, and then-state Rep. Rob Junell, D-San Angelo, proposed a rewritten constitution. It died in a legislative committee the following year.
Giving voters the final decision on changing the state’s constitution complexity does have some benefits, according to Sanford Levinson, a law professor at the University of Texas at Austin.
“If you do put something in the constitution, then by definition that means that your opponents next time around won’t be able to simply get rid of it by passing ordinary legislation,” Levinson said. “They would have to go through a constitutional amendment process themselves which is presumably more time consuming and more expensive.”
Because of the time and money it takes to hold a constitutional convention, some experts are doubtful that Texas lawmakers will try again anytime soon.
But on the bright side, Texas’ constitution isn’t the most wonky — nationally speaking.
Texas' constitution has the fourth-highest number of amendments, behind Alabama, California and South Carolina. And Alabama's constitution has been amended 827 times and is more than 340,000 words long — compared to Texas’ roughly 95,000 words.
The bottom line: As the state constitution is written now, any changes to it must be approved by two-thirds of each chamber and a majority of Texas voters. And lawmakers don’t seem inclined to change that process.
Disclosure: The University of Texas has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors is available here.