Is the Texas racial profiling law unconstitutional because of its bill title?

Plain-English summary

Palo Pinto County Attorney Phil Garrett asked the Attorney General whether Senate Bill 1074 of the 2001 legislative session, the law that prohibits racial profiling by certain peace officers, was unconstitutional for failing to satisfy the "title" or "caption" requirement in article III, section 35 of the Texas Constitution. Senate Bill 1074 forbids a peace officer from engaging in racial profiling, defined as a law enforcement action based on a person's race, ethnicity, or national origin rather than on behavior or information tying the person to criminal activity, and it adds recording, reporting, and training requirements. Its title reads, "An act relating to the prevention of racial profiling by certain peace officers." The county attorney argued that title did not comply with section 35 and that the whole bill was therefore void.

The Attorney General concluded the bill does not violate the title requirement. The key was a 1986 constitutional amendment. Before 1986, the caption requirement was enforced by the courts, which could declare void any part of an act that its caption did not cover. That kind of requirement appears in many state constitutions as a reaction to the 1798 "Yazoo Act," in which a Georgia legislature disguised large private land grants under a title about paying state troops. Texas voters amended section 35 in 1986 to make the legislature solely responsible for deciding whether a bill's title gives the legislature and the public reasonable notice of its subject, and they added subsection (c), which provides that a law may not be held void on the basis of an insufficient title. The opinion explained that the notice purpose the caption rule once served is now met by the wide availability of bill texts, analyses, and fiscal notes, and that pre-1986 decisions striking down laws for defective titles no longer apply. Both the Texas Supreme Court and the Texas Court of Criminal Appeals had confirmed after 1986 that laws can no longer be struck down for a title deficiency. Because no enactment can be held invalid under section 35 for a title defect, Senate Bill 1074 was not unconstitutional on that basis.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The county attorney and other prosecutors (what the opinion held): The opinion held that a challenge to Senate Bill 1074 based on the title requirement of article III, section 35 would fail, because after the 1986 amendment no law may be held void for an insufficient title and the legislature alone judges title compliance.

Peace officers and law enforcement agencies (what the opinion held for them): The opinion left the racial-profiling statute intact against this particular constitutional attack, so the obligations the bill created, including its prohibition, recording, reporting, and training requirements, were not undermined by the title argument.

Anyone challenging a Texas statute on caption grounds (what the opinion held for them): The opinion held that the courts no longer enforce the caption requirement, so a title or caption defect is not a basis to invalidate any Texas enactment passed before or after the 1986 amendment.

Common questions

Was the Texas racial profiling law unconstitutional because of its title?
No. The opinion concluded Senate Bill 1074 did not violate article III, section 35, because since the 1986 amendment a law cannot be held void for an insufficient title.

What changed in 1986?
Voters amended article III, section 35 to make the legislature solely responsible for deciding whether a bill's title gives reasonable notice of its subject, and added a provision that a law may not be held void on the basis of an insufficient title.

Can a Texas law still be struck down for a bad caption?
No. The opinion noted that both the Texas Supreme Court and the Court of Criminal Appeals had confirmed that laws can no longer be struck down for a title deficiency after the 1986 amendment.

Why does the title requirement exist at all?
The opinion explained that caption requirements arose to prevent legislatures from hiding a bill's real subject, as in the 1798 Yazoo Act, and to give notice of a bill's subject, a purpose now served by the wide availability of bill texts, analyses, and fiscal notes.

Background and statutory framework

Senate Bill 1074 was enacted as Act of May 24, 2001, 77th Leg., R.S., ch. 947, 2001 Tex. Gen. Laws 1900, codified across several codes, including Code of Criminal Procedure articles 2.131 through 2.138 and 3.05, Education Code section 96.641(j), Occupations Code sections 1701.253(e) and 1701.402(d), and Transportation Code section 543.202. Tex. Code Crim. Proc. Ann. arts. 2.131-.138, 3.05 (Vernon Supp. 2002); Tex. Educ. Code Ann. § 96.641(j) (Vernon Supp. 2002); Tex. Occ. Code Ann. §§ 1701.253(e), .402(d) (Vernon Supp. 2002); Tex. Transp. Code Ann. § 543.202 (Vernon 2002).

Article III, section 35 limits a bill to one subject, requires each house's rules to express that subject in the bill's title so as to give the legislature and the public reasonable notice, makes the legislature solely responsible for determining compliance, and provides that a law may not be held void on the basis of an insufficient title. Tex. Const. art. III, § 35. Subsection (a) was amended and subsections (b) and (c) were added by the voters on November 4, 1986. Tex. S.J. Res. 33, 69th Leg., R.S., 1985 Tex. Gen. Laws 3363. Before that amendment, the caption requirement was judicially enforceable, and courts could void portions of an act outside its caption. Ex parte Crisp, 661 S.W.2d 944, 947 (Tex. Crim. App. 1983) (en banc). After the amendment, the Texas Supreme Court stated that laws will no longer be struck down for a deficiency in title, Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex. 2000), and the Court of Criminal Appeals held it no longer has power to declare an act unconstitutional for an insufficient caption, Baggett v. State, 722 S.W.2d 700, 702 (Tex. Crim. App. 1987) (en banc).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. III, § 35
• Tex. Code Crim. Proc. Ann. arts. 2.131-.138, 3.05 (Vernon Supp. 2002)
• Tex. Educ. Code Ann. § 96.641(j) (Vernon Supp. 2002)
• Tex. Occ. Code Ann. §§ 1701.253(e), .402(d) (Vernon Supp. 2002)
• Tex. Transp. Code Ann. § 543.202 (Vernon 2002)
• Act of May 24, 2001, 77th Leg., R.S., ch. 947, 2001 Tex. Gen. Laws 1900
• Tex. S.J. Res. 33, 69th Leg., R.S., 1985 Tex. Gen. Laws 3363

Cases:

• Ex parte Crisp, 661 S.W.2d 944, 947 (Tex. Crim. App. 1983) (en banc)
• Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex. 2000)
• Baggett v. State, 722 S.W.2d 700, 702 (Tex. Crim. App. 1987) (en banc)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0500
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0500.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

May 6, 2002

The Honorable Phil Garrett Opinion No. JC-0500
Palo Pinto County Attorney
P. O. Box 190 Re: Constitutionality of racial profiling statute
Palo Pinto, Texas 76484 under article III, section 35 of the Texas
Constitution (RQ-0467-JC)

Dear Mr. Garrett:

You ask whether Senate Bill 1074 of the Seventy-seventh Texas Legislature, relating to the prevention of racial profiling by certain peace officers, is unconstitutional for failure to meet the "title" or "caption" requirement stated in article III, section 35 of the Texas Constitution.[1] See Act of May 24, 2001, 77th Leg., R.S., ch. 947, 2001 Tex. Gen. Laws 1900 (codified at TEX. CODE CRIM. PROC. ANN. arts. 2.131-.138, 3.05 (Vernon Supp. 2002); TEX. EDUC. CODE ANN. § 96.641(j) (Vernon Supp. 2002); TEX. OCC. CODE ANN. §§ 1701.253(e), .402(d) (Vernon Supp. 2002); TEX. TRANSP. CODE ANN. § 543.202 (Vernon 2002)). Senate Bill 1074 does not violate the title requirement in article III, section 35 of the Texas Constitution.

Provisions enacted by Senate Bill 1074 provide that "[a] peace officer may not engage in racial profiling" and define "racial profiling" as "a law enforcement-initiated action based on an individual's race, ethnicity, or national origin rather than on the individual's behavior or on information identifying the individual as having engaged in criminal activity." TEX. CODE CRIM. PROC. ANN. arts. 2.131, 3.05 (Vernon Supp. 2002). The bill establishes recording and reporting requirements and education requirements for police chiefs and police officers. See id. arts. 2.132-.138; TEX. EDUC. CODE ANN. § 96.641(j); TEX. OCC. CODE ANN. §§ 1701.253(e), .402(d); TEX. TRANSP. CODE ANN. § 543.202. The title of Senate Bill 1074 provides as follows: "An act relating to the prevention of racial profiling by certain peace officers." Act of May 24, 2001, 77th Leg., R.S., ch. 947, 2001 Tex. Gen. Laws 1900. You argue that the title does not comply with article III, section 35 of the Texas Constitution and that Senate Bill 1074 is therefore unconstitutional in its entirety.

Article III, section 35 of the Texas Constitution provides as follows:

            (a) No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject.

            (b) The rules of procedure of each house shall require that the subject of each bill be expressed in its title in a manner that gives the legislature and the public reasonable notice of that subject. The legislature is solely responsible for determining compliance with the rule.

            (c) A law, including a law enacted before the effective date of this subsection, may not be held void on the basis of an insufficient title.

TEX. CONST. art. III, § 35.

Subsection (a) of article III, section 35 was amended and subsections (b) and (c) were adopted by the voters on November 4, 1986. See Tex. S.J. Res. 33, 69th Leg., R.S., 1985 Tex. Gen. Laws 3363; "Constitution of the State of Texas Amendments Adopted in 1986 and 1987," 70th Leg., 2d C.S., 1987 Tex. Gen. Laws 1021. Before the 1986 amendment to article III, section 35, the caption requirement was enforceable by the courts, which could declare void any portion of an act not encompassed in its caption. See TEXAS LEGISLATIVE COUNCIL, ANALYSES OF PROPOSED CONSTITUTIONAL AMENDMENTS 10-11 (1986) (amendments appearing on the November 4, 1986, ballot); TEXAS LEGISLATIVE COUNCIL DRAFTING MANUAL 5 (Oct. 2000); see also Ex parte Crisp, 661 S.W.2d 944, 947 (Tex. Crim. App. 1983) (en banc). A caption requirement is included in many state constitutions in reaction to the "Yazoo Act" of 1798, in which a Georgia legislature, under the guise of an act for the payment of "late state troops," made large land grants to private persons. See Ex parte Crisp, 661 S.W.2d at 951; 1 GEORGE D. BRADEN et al., THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 169 (1977). The purpose of the title requirement was to give notice to the public and the legislature of the subject of the bill. See TEXAS LEGISLATIVE COUNCIL, ANALYSES OF PROPOSED CONSTITUTIONAL AMENDMENTS 10 (1986). This requirement was particularly important when bills were handwritten and copies were not readily available, but the purpose of giving notice is now better served "by the abundance of information available about each bill, including multiple printings, bill analyses, and fiscal notes." Id. at 11. The amendment to article III, section 35 "provide[d] that the legislature is solely responsible for enforcing the rule and prohibit[ed] the invalidation of past and future enactments on the basis of a defective title." Id. at 10. Judicial decisions holding a law unconstitutional for a defective title do not apply to article III, section 35 as it now reads.

The Texas Supreme Court and the Texas Court of Criminal Appeals have both addressed the application of article III, section 35 to titles since the 1986 amendment to that provision. The Texas Supreme Court has stated that "laws will no longer be struck down because of a deficiency in title, no matter how egregious." Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex. 2000). The Court of Criminal Appeals has stated that, as a result of the amendment to article III, section 35, "this court no longer has the power to declare an act of the legislature unconstitutional due to the insufficiency of its caption." Baggett v. State, 722 S.W.2d 700, 702 (Tex. Crim. App. 1987) (en banc). Accordingly, no enactment of the legislature may be held invalid under Texas Constitution, article III, section 35 for a deficiency in title. Senate Bill 1074 is not unconstitutional for failure to meet the title requirement stated in that provision.

                                     SUMMARY

            No enactment of the Texas Legislature may be held invalid for a deficiency in title under article III, section 35 of the Texas Constitution, as amended in 1986. Senate Bill 1074 is not unconstitutional for failure to meet the title requirement in article III, section 35 of the Texas Constitution.

                                       Very truly yours,

                                       JOHN CORNYN
                                       Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Phil Garrett, Palo Pinto County Attorney, to Susan Denmon Gusky, Chair, Opinion Committee, Office of Attorney General (Nov. 15, 2001) (on file with Opinion Committee).