Vinson v. Burgess

OPINION ON REHEARING

The appellants present two points of error in their motion for rehearing, filed following our opinion granting the appellees’ motion for rehearing. They urge that we erred in holding that article VIII, section 21(a) of the Texas Constitution does not authorize the tax rollback system of article 26.07 of the Property Tax Code, and they argue, for the first time, that we erred by finding that section 26.07 is unconstitutional, because they contend that it is a constitutional legislative enactment of the provisions of the Texas Bill of Rights, article I, sections 2 and 27 of the Texas Constitution.

We deny the appellants’ motion for rehearing.

We first consider the appellants’ contention in point of error number two in rehearing that we erred by finding that section 26.07 of the Property Tax Code is unconstitutional. They urge that it is a constitutional legislative enactment of the provisions of the Texas Bill of Rights, article I, sections 2 and 27 of the Texas Constitution. Article I, section 2 of the Texas Constitu*485tion provides that, “[a]U political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.” The section also provides that the people’s power is limited by the people’s pledge to the preservation of a republican form of government, but that, subject only to that limitation, the people “have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.”

Article I, section 27 of the Texas Constitution provides for the right of the citizens of Texas to peaceably assemble for the common good and “apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.”

The appellants contend that section 26.07 of the Property Tax Code is constitutional, even if in conflict with article VIII, sections 1-a and 9 of the Texas Constitution, because it is an act of the legislature formalizing a manner and means of exercising the rights of article I, sections 2 and 27. The appellants also call to our attention article I, section 29 of the Constitution, which declares that everything in the Bill of Rights is excepted out of the general powers of government, and that the Bill of Rights was to forever remain inviolate, and that all laws contrary to it shall be void.

The question, then, is whether the legislature may constitutionally delegate power to the people to directly make certain governmental decisions, when the people themselves have previously delegated the power, by means of the adoption of the Constitution, to their elected representatives, in this case county commissioners, to make those decisions.

One of the earliest answers to this question is to be found in the opinion of the Supreme Court of Texas in the case of State v. Swisher, 17 Tex. 441 (1856). The case involved liquor legislation in which the legislature sought to delegate its right to pass laws to the people directly through an election process. The court noted the procedure outlined in the Constitution for passing laws, observing that it contained no authority for passing laws by direct popular election, the Constitution only requiring the votes of the people’s representatives in a legislative capacity. The court then went on to say that, “besides the fact that the constitution does not provide for such reference to the voters to give validity to the acts of the legislature, we regard it as repugnant to the principles of the representative government formed by our constitution. Under our constitution, the principle of law-making is that laws are made by the people, not directly, but by and through their chosen representatives. By the act under consideration, this principle is subverted, and the law is proposed to be made at last by the popular vote of the people, leading inevitably to what was intended to be avoided, confusion and great popular excitement in the enactment of laws.” Id. at 448-49.

The Court of Criminal Appeals of Texas has held that although all power is inherent in the people by virtue of article I, section 2, that the people do not resume their inherent power or any delegated power by virtue of article I, section 27. Ex parte Farnsworth, 61 Tex.Cr.R. 353, 135 S.W. 535 (1911). Instead, section 27 provides for the right of the people to make their wishes known by assembly, petition, address, or remonstrance. Id. The court pointed out that even though the power to make certain governmental decisions might be delegated to certain public officials, the people have ample power through constitutional amendment, election of those public officials, and other means as set forth in the opinion to see to it that the public trust was properly exercised by those officials to whom the power to make governmental decisions has been delegated by the Constitution. Id. 135 S.W. at 535-36.

Based upon these authorities, we find that since the legislature may not delegate the powers conferred upon it by the Constitution to the people to exercise by direct election, even in view of article I, sections 2 and 27 of the Constitution, then the legislature also has no power, based on the same principles, to delegate the powers conferred upon other governmental bodies, *486such as commissioners courts, to the people to exercise by direct election. The people, acting in their capacity as the ultimate sovereign, as guaranteed by article I, section 2, have adopted the constitutional provisions which delegate the authority to set tax rates to the commissioners courts of this state. We have not been referred to any provision of the constitution by which the people have authorized the legislature to take that power away from the commissioners. “The people themselves are bound by the Constitution until changed as provided in the instrument itself.” Id. 135 S.W. at 536.

We agree with general authorities cited to us by the appellants relating to the importance of elections in our governmental system as the primary means by which we as the people exercise our sovereignty. However, as the authorities above indicate, governmental decisions in this state generally are not made by the people directly, but by their elected representatives. This is especially so with respect to a power which the people, in the Constitution, have delegated to be performed by their elected public officials rather than by themselves directly. This principle takes nothing away from the sovereignty of the people, who through the right to amend the Constitution and to elect their public officials, ultimately are in control. We overrule the second point of error on rehearing.

Appellants contend that we erred in our opinion on rehearing by holding that article 26.07 of the Property Tax Code is not authorized by article VIII, section 21(a) of the Texas Constitution. For the reasons discussed in our opinion on rehearing, we overrule point of error number one on rehearing.

We overrule the appellants’ motion for rehearing.