Joseph W. McKnight

LAW. In a sense the subject matter of law is almost limitless because rules are made and enforced at all levels of society for all sorts of acts. As the term law is usually understood, however, it is limited to the state's general rules governing relations between citizens (private law) and those between citizens and their government (public law). Criminal law (forbidding and punishing certain types of conduct) and constitutional law (prescribing the structure of government and rights in relation to it) are species of public law. Municipal law includes the powers exercised by local government.

The law of Texas is much like that of other parts of the United States. The government of the state is defined by a written constitution, which institutes the judicial system for the resolution of disputes. Adjudicating disputes between citizens and between citizens and governmental authorities is the principal function of the judiciary. The law applied for this purpose is an amalgam of traditional principles (mostly derived from English and Anglo-American law) and of statutes enacted by the Texas legislature, as well as statutes enacted by the United States Congress and principles embodied in the United States and Texas constitutions. Like most other states and the federal government, Texas has civil and criminal courts at the trial level and intermediate appellate courts. Unlike the federal government and all other states except Oklahoma, Texas has two higher appellate courts, the Supreme Court of Texas for civil matters and the Texas Court of Criminal Appeals for criminal cases. Rules of civil evidence and procedure are promulgated by the state Supreme Court and sometimes supplemented by legislative act. Most rules of criminal procedure are provided by statute, although rules of criminal evidence and criminal appellate rules are judicially promulgated. Rules of administrative law are those governing the administrative agencies of Texas government (such as the Railroad Commission). By legislative authority administrative rules of both a substantive and a procedural nature are promulgated in writing by the administrative agencies for the conduct of matters before them. Alongside the state courts the federal courts in Texas function under the United States Constitution to adjudicate disputes between Texans and non-Texans as well as disputes raising federal questions under United States law, including bankruptcy and admiralty matters.

In 1836 the Republic of Texas adopted the Anglo-American common law of crimes with jury trial. Those rules were the basis of the Penal Code of 1856, and criminal law has since been governed by statutes along with the safeguards of the United States and Texas constitutions. The nonstatutory, civil common law of Texas has been developed since the republic adopted "the common law of England as the rule of decision" in 1840. "Common law" was understood to include such matters as obligations arising by agreement (contracts) and those arising by injury (torts), as well as claims to property (lands as well as chattels), the status of citizens (such as marriage, divorce, welfare of children, corporations, and partnerships), and that body of legal doctrine embraced within the English concept of equity. Many of those rules have been put in an authoritative form by act of the legislature, while others have not. If codification has occurred, the legislative rules are interpreted by the courts and amplified by judicial decisions. Principles of law that are not codified are found in judicial decisions and learned writings. Only decisions of appellate courts designated to be published are looked to as sources of common law, and only about 20 percent of appellate decisions are so designated by the appellate courts deciding them.

Before the adoption of Anglo-American law, Spanish (Castilian) law prevailed in Texas; and Spanish rules were not altered in any significant degree in Mexican Texas (1821–36). The records of Hispanic towns in the San Antonio River valley (San Fernando and La Bahía) and Nacogdoches in East Texas show the effective operation of Spanish law, also apparent in the records of El Paso del Norte and Laredo, which were outside the territorial boundaries of Spanish Texas. During the Spanish regime, however, there were no legally trained judges in Texas or practicing lawyers in the modern sense. The only legal professional who functioned in Texas during the entire Spanish period was the self-taught notary of San Fernando, Francisco de Arocha. Despite a lack of legal professionals and a small European population that rarely had recourse to legal rules, Spanish law was maintained through the use of a few law books referred to by administrators and citizens in the preparation of legal instruments and in trials to settle disputes. This state of affairs was little changed under the Mexican regime except in one important particular: among the Anglo-American colonists of the 1820s and 1830s there were a few lawyers from the United States who rendered legal services to their fellow colonists and developed a familiarity with the prevailing principles of Hispano-Mexican law. As a consequence some rules of Spanish law became established and were maintained by legislation of the republic. Although some of these principles have survived in other areas of Texas law, their chief significance today is in family property law.

Much of the legislation of the republic was of a governmental nature or was passed for the benefit of particular citizens. Because of the unsettled state of defense and government at that time, however, neither the legislature nor the courts functioned very effectively. Apart from a few civil statutes of the republic and early statehood that perpetuated Hispanic legal institutions, most of the general civil and criminal laws were borrowed from the statutes of various American states. Since annexation in 1845–46 some civil rules deemed of particular and lasting importance have been embodied in constitutional provisions so that they will not be subject to easy legislative tampering. The concepts of separate property, community property, and homestead law are among the doctrines given constitutional protection. During the republic the use of the jury was carried well beyond its common-law scope, and a broad adherence to jury trial has been maintained. A statute of 1846 allowed a jury to pass sentence in criminal convictions except in capital cases or when the penalty was fixed by law, and the first restriction was removed in 1857. In 1846 the legislature also abolished some of the most archaic elements of the English procedural law, but not until 1871 were all interested parties made competent to testify in civil disputes, and not until 1889 was a person accused of crime allowed to testify under oath on his own behalf. During the first twelve years of statehood the Supreme Court of Texas continually consisted of three men of very considerable ability and experience-John Hemphill, Abner S. Lipscomb, and Royal T. Wheeler. They laid a firm foundation for the common law of Texas for the rest of the century.

With the coming of the Civil War, legislative attention shifted from other matters to those of the war. Though the Supreme Court continued to function to a limited extent during the war, for a decade thereafter the tenure of judges was short, as one brief government followed another and ties with the legal past were broken. Although the government was returned to the Texas electorate with the election of 1874 and the Constitution of 1876, the rift with the past was never fully mended. Texas law, like Texas politics, then took on a tone of populism that lasted through most of the twentieth century. Until after the Civil War, Texas substantive civil law and procedure had maintained some elements of the Spanish law, most particularly the simple system of quasi-Hispanic civil procedure that had prevailed among the Anglo-Americans in Mexican Texas. But the new learning at the state law school established in 1883 produced a new type of Texas lawyer trained in the nuances of civil procedure derived from the old English system, which was beginning to be replaced with more modern rules elsewhere in the United States. The preoccupation of Texas law with great procedural formality lasted until the mid-twentieth century. Although a great many lawyers continued to be educated wholly by apprenticeship, the quality of the bar (and thus the judiciary) was much enhanced by formal legal training. Private law schools had been established before the Civil War but perished soon thereafter. The availability of public legal education at a modest price and with good instruction did much to restore continuity in Texas law.

From 1846 until the adoption of the 1876 Constitution, various authors published annotated collections of the statute law as commercial ventures. In these compilations the laws were typically arranged alphabetically, but no effort was made toward a systematic codification. The Constitution of 1876 provided that every ten years the legislature would revise the general-statute law. The first compilation by legislative act was made in 1879. By appointing a commission of three lawyers to revise the laws and then reenacting their revision, the legislature achieved a reordering of the statutory laws and suppression of some inconsistencies in 1895, in 1911, and finally in 1925. On each occasion, however, the legislature had failed to comply with the constitutional directive to revise the statutes every decade. Under the 1876 constitution (as under other constitutions except that of 1869) the legislature meets biennially for 4½ months and at such other special sessions as the governor may call, but with an increasing population and new problems of government it was easy to postpone statutory revision as a subsidiary function of legislative responsibility.

An attitude of Jacksonian democracy adverse to banks achieved a prohibition of legislative grants of banking charters in the Constitution of 1845, and an effort to operate a bank under a Mexican charter of 1835 was successfully put down by a criminal prosecution concluded in 1859. From the end of the Civil War to World War II, Texas continued to be dominated by noncommercial interests. The majority of the population remained on the land and in towns with a population of fewer than 20,000. The laws reflected this limited commercialism. From the time of the republic there was a strong public feeling against the centralization of capital and a resulting antagonism to banks and some other commercial pursuits. Until after the Civil War banking activities were carried out by mercantile houses. The state Grange was organized in 1873 and was largely responsible for adoption of constitutional restraints on the railroads. Many Texans questioned the wisdom of making grants of land for railroad building, and laws controlling railroad rates of the 1870s and 1880s reflected anti-railroad sentiments. The Railroad Commission was instituted by a constitutional amendment in 1891. Though the United States Supreme Court had invalidated an earlier attempt at business-control legislation in 1888, this effort to control railroads survived constitutional challenge.

Like the rest of the country, toward the end of the nineteenth century Texans were much alarmed by the growing power of the business trusts, and almost a year before the enactment of the federal antitrust act of 1890 the Texas legislature passed a similar measure that had little effect but indicated the attitude toward increasing financial power in a few hands. Although some banking charters had been granted by the Reconstruction legislatures in the early 1870s and a number of federally chartered (national) banks were also established, much of the state did business without chartered banks until 1905, when the law was changed to allow the issuance of state banking charters. The state constitution, however, continued to prohibit branch banking until 1986. In 1893 the Stock and Bond Act sought to control the issuance of public securities by railroads, and the Insurance Act of 1907 required that insurance companies invest three-quarters of all premiums in Texas. Like the railroads, the banks were closely regulated by a state commission, and in the decade immediately preceding World War I statutes were enacted to regulate the issue of securities generally.

At the same time that banking was being tightly constrained, the insurance companies were less closely controlled. This development was in many respects fortuitous. Investment in life insurance was a popular form of saving to provide for the needs of a family left without its principal provider, and the accumulation of insurance capital was not seen as an acute economic danger because the insurance companies were not engaged in making small loans. As a result of lax incorporation laws and less than vigorous regulation of insurance companies, Texas attracted the formation of insurance companies that in turn assured their own political power.

After the Civil War and well into the twentieth century the legislature gave little attention to specific rules of private law that regulated dealings and disputes between citizens. When changes were made in private law, they occurred as a means of bringing about social and economic reform, as in the introduction of the workers' compensation system in 1913. This scheme of injury insurance had originated in Germany in the late nineteenth century and had been enacted elsewhere in Western Europe and the United States. As a means of prompt settlement of injury claims of employees against employers within fixed limits of financial liability, the state instituted an insurance system to which employers subscribed. Workers benefited by being freed from the three common-law impediments to recovery: the doctrine of contributory negligence, the fellow-servant doctrine, and the principle of assumed risk. Neither employers nor employees accepted the system without some resistance. After a time, however, the scheme functioned effectively within the judicial system as an alternative to common-law recovery.

The woman suffrage movement, which was particularly strong in Texas during the early years of the twentieth century, produced a reform in family property law even before voting rights for women were achieved. In 1911 the legislature gave married women the right to seek judicial approval to conduct business affairs without their husbands' participation. Two years later the legislature gave married women sole control of the income of their separate property. In subsequent legislative sessions the property rights of married women were further increased. In the decade immediately following World War I, however, the Texas Supreme Court declared some of these statutes unconstitutional, and the new property rights attained by married women were thereby curtailed. The Eighteenth and Nineteenth Amendments to the federal constitution—the former making the sale, manufacturing, and distribution of liquor illegal known as prohibition, and the latter removing sex as a qualifier for voting—became law in the meantime. Prohibition reform put a heavy burden on criminal-law enforcement, as did the social turmoil engendered by the collapse of the national economy in the early 1930s. Prison reform had been undertaken with some success before World War I, but attention to the criminal law was diverted by other matters. Nor was Texas civil law much affected by the economic crisis beyond a substantial broadening of types of moveable property exempt from creditors' claims.

The most significant legal reform that occurred in the years immediately preceding World War II was a general revision of the rules of civil procedure designed to remove some of the pitfalls and delays to proceedings that had previously barred claimants from bringing their claims to trial. This change, which involved much work on the part of the judiciary and the professorate, was heavily influenced by similar reform in the federal courts and evidenced a revival of external influences on Texas law. The receptivity of Texans to new ideas reflected the widespread national openness to reform and experimentation, which was particularly popular in the law schools. Texas enacted two laws in 1951 promulgated by the Commissioners for Uniform State Laws and subsequently has enacted more than thirty other uniform laws.

The process of legal reform that followed World War II was enhanced by a broadened general outlook as a result of the war and economic prosperity. The State Bar of Texas has been a very active force in this process. The bar's initial involvement was the preparation of the Probate Code (1955) and Business Corporation Act (1955, amended in 1961), followed by reform of nonprofit corporate law in 1959 and partnership law in 1961. The process was quickened by legislative realization that the constitutionally mandated decennial revision of the statutory law had not been undertaken since 1925, though some significant consolidation of laws had already been achieved in the fields of insurance (1951) and succession (1955). In 1963 the legislature instituted a new scheme of statutory revision by which large individual legal topics would be recompiled as independent codes. The bar was heavily involved in this process of statutory legal restatement: revision of criminal procedure (1965), commercial law (1967), family law (1967–73), water law (1971), penal law (1973), and civil procedure and practice (1985). In the course of these developments the legislature abolished the common-law doctrine of contributory negligence and substituted the principle of comparative negligence in tort recovery (1973). The process of statutory revision nevertheless continued to depend on the existence of a common law framework to which the statutory codification was merely ancillary. The codes do not constitute an exclusive body of legal rules except with regard to criminal law. As a consequence of the contagion of the notion of "Legal Realism" imparted by the University of Texas Law School during the 1920s and 1930s and the ideology of judicial activism elsewhere in the country, the Texas Supreme Court participated in the process of law reform during the two decades after the 1960s, particularly in the field of tort law. The legislature also took up the implementation of tort-law reform with the enactment of a statute on deceptive trade practices (1973). The political nature of the Supreme Court changed markedly in the late 1980s and early 1990s. In 1995 there was a Republican majority on the court for the first time since Reconstruction.

In the Constitution of 1876 final appellate review of criminal decisions at the behest of a prisoner was vested in a Court of Appeals, which also heard appeals of some civil cases. In 1891 the constitution was amended to put appellate review of all criminal cases in a Court of Criminal Appeals, and civil appeals were heard in regional Courts of Civil Appeals with further appeal to the Supreme Court. Because the single court for criminal appeals had become inadequate to handle the volume of appeals, the courts for civil appeals were transformed in 1980 into regional courts of appeals, which hear both civil and criminal appeals, with further civil appeals to the Supreme Court and criminal appeals to the Court of Criminal Appeals. The state was also allowed to take appeals in criminal prosecutions in 1989.

To encourage settlement and development during the eighteenth and nineteenth centuries, prior sovereignties and the state have disposed of a prodigious quantity of land at very low prices. Land grants were limited by prevailing rules of law as to formalities and extent, but irregularities in acquisition were not ordinarily asserted except by a subsequent government. Grants were usually defined by their own terms, and these terms have occasionally been brought into question, as in the Valmont Plantations case (1962), in which water rights to Spanish grants along the lower Rio Grande were defined. Spanish and Mexican grants often had a watercourse as one of their boundaries, and their shapes were irregular. After 1840 most land grants followed a more geometrical configuration and were later made in blocks in the North American manner. The seaward boundaries of coastal grants approach the sea more closely than grants made before Texas independence because of a difference between Spanish and English law in this regard. In the Constitution of 1866 the state's claim to minerals (preserved from the Spanish regime) was given up in favor of surface owners of land. As the public domain shrank, the legislature began to have a change of mind with respect to its disposition. In 1895 the policy of not including water rights in subsequent land grants was adopted. In 1901 it was decided that the state would dispose of mineral interests for fixed terms only, and the surface rights were thereafter sold without the underlying minerals. The changed attitude toward disposition of minerals was influenced by discovery of large quantities of oil and the decision that this resource underlying public lands should be exploited for the public interest. The development of oil and gas deposits with large financial interests at stake also produced a new subject of Texas law, developed as disputes arose. This body of law as enunciated by the courts took on a peculiarly Texan content: the mineral "lease" is not a mere contractual right to use the land for a term of years but a right of ownership of the subterranean minerals.

When Texas entered the Union, her public lands did not pass to the national government; therefore, federal landholdings in Texas (confined mostly to military and naval facilities) are much smaller than those in most western states. Although the United States Supreme Court ruled in the Tidelands controversy (1950) that the seabed of the Texas Gulf coast was not subject to state sovereignty, a congressional act of 1953 relinquished to Texas an area of more than ten miles in breadth as claimed under Hispano-Mexican law. The general land law, however, had remained largely unchanged except for instances when general social policy or particular interests were at stake. Thus, some large landowners were able to convince the legislature to relinquish the state's title to streambeds when a landowner owned both sides of the stream (1929). Overcoming constitutional arguments with heavy reliance on legislative authority, the Supreme Court in 1981 approved the shift of water-rights regulation from judicial to administrative supervision. With the emergence of federal control of environmental concerns, basic policy is laid down by the federal government, but administration of environmental programs has been delegated to the state in most cases. The control of land use, both rural and urban, has generally continued under the state. In disputes between private owners of land, common-law rules have mostly remained unchanged. Whether the transfer of a land interest is that of absolute ownership (a fee simple) or of a lesser interest or claim, transfers are ordinarily made by a formal written instrument (a deed), which is recorded in the county where the land is located in order to give any prospective purchaser of the land notice of the status of title to the land. Although many citizens often seem unaware of the rules, title to land may be lost through long occupancy by a person without a deed or by a person holding a deed from someone other than the owner, particularly when the claimant has paid annual state taxes on the land. A claim to a right-of-way or other easement may also be established by adverse use as well as by a grant from the owner of land. A claim of adverse possession may not be asserted against the state, however. The number of years of adverse possessions or use required to alter title to land varies with the circumstances of open occupancy or use. In order to protect himself against a claim that may be later asserted against him, the seller of land ordinarily supplies the buyer with a policy of insurance against that eventuality. Although claims of title to land may be proved in various ways, the most formal mode is the common-law process of ejectment, ordinarily known as trespass to try title.

The Texas laws of contracts, commerce, and business institutions are virtually identical to those in the rest of the United States, with some modest variations. As in other states the assertions of tort claims in the later twentieth century is sometimes thought to put an undue burden on professionals and nonprofessionals alike in the conduct of their activities. The cost of insurance against such claims has so increased along with the number of tort recoveries that many regard the cost of insurance as beyond their means. It is also sometimes asserted that the verdicts of some juries are well beyond a reasonable valuation of loss and that attorneys for plaintiffs negotiate too high a portion of injury awards for their fees.

Texas family property and succession laws differ significantly from those of most other states in that Texas maintains a system of community property between husband and wife. Texas law is also far from identical to that of any one of the other eight community-property states, though a 1987 change in the law so that the surviving spouse more frequently takes the deceased spouse's share of the community property on intestacy has brought Texas law into closer harmony with that of other community-property states. Although Texas allows an equitable (and hence unequal) division of community property between spouses on divorce, no post-divorce award of support (alimony) for an ex-spouse is allowed. The Texas law of marriage is similar to that of most other states except that Texas maintains the principle of informal (or common-law) marriage and the majority of American states do not. With respect to rules governing the relationship of parents to their children, however, Texas law is similar to those of most other states, although the Texas law of adoption is somewhat more sophisticated than that of most other states. See also GOVERNMENT, BANKS AND BANKING, LAW SCHOOLS, PRISON SYSTEM, BOARD OF PARDONS AND PAROLES, WOMEN AND THE LAW.


Charles R. Cutter, The Legal Culture of Northern New Spain, 1700–1810 (Albuquerque: University of New Mexico Press, 1995). Hans Peter Nielsen Gammel, comp., Laws of Texas, 1822–1897 (10 vols., Austin: Gammel, 1898). Joseph W. McKnight, "Stephen Austin's Legalistic Concerns," Southwestern Historical Quarterly 89 (January 1986).

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The following, adapted from the Chicago Manual of Style, 15th edition, is the preferred citation for this article.

Handbook of Texas Online, Joseph W. McKnight, "LAW," accessed October 16, 2018,

Uploaded on June 15, 2010. Modified on July 25, 2018. Published by the Texas State Historical Association.

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