Does the constitutional ban on excessive fines apply to Texas, and how do courts decide if a fine is excessive?

Plain-English summary

In early 2019 the U.S. Supreme Court decided Timbs v. Indiana, holding that the Eighth Amendment's protection against excessive fines applies to the states, not just the federal government, by way of the Fourteenth Amendment's Due Process Clause. The chair of the Texas House Committee on Corrections asked the AG a set of questions about what Timbs means for Texas and how Texas courts would handle excessive-fines claims.

The AG worked through the questions in order. On incorporation, Timbs squarely held that the Due Process Clause (not the Privileges and Immunities Clause) carries the Excessive Fines Clause against the states, and because Texas courts are bound by U.S. Supreme Court precedent, a Texas court would follow that. On the state constitution, the AG confirmed that article I, section 13 of the Texas Constitution, which uses language almost identical to the Eighth Amendment, has long been read by Texas courts as a protection against excessive fines. On a statute that requires the executive branch to enforce an excessive fine, the AG explained that courts start by presuming a statute is constitutional and try to read it so it stays constitutional, but if a fine is unconstitutionally excessive a court would not enforce it. Whether the court strikes the whole statute or just the offending part depends on the statute, and Texas (unlike federal law) has a severability statute, Government Code section 311.031, that directs courts to save the constitutional remainder when possible.

The AG also addressed the shared constitutional legacy. The Excessive Fines Clause traces back through the Magna Carta and the 17th-century English Bill of Rights, and nearly identical language appeared in every Texas constitution from 1836 to today. Because of that common language and history, the AG said a Texas court would likely treat federal excessive-fines case law as instructive, if not determinative, when applying article I, section 13. On the representative's final questions, how a court actually decides whether a given fine is excessive and what factors it weighs, the AG declined to opine. It explained that the Supreme Court in Timbs did not set out a test (it remanded that question), the Timbs case was still pending in the Indiana courts with the Texas AG's office participating as amicus, and AG opinions do not resolve issues tied up in pending litigation.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG 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

Legislators and committee staff: At the time of the opinion, the AG confirmed that the excessive-fines limit binds Texas through the Fourteenth Amendment's Due Process Clause after Timbs, and that article I, section 13 supplies a parallel state protection. The opinion also flagged that Texas's severability statute would let courts preserve the valid portions of a law whose fine provision is struck, a point relevant to how penalty statutes are drafted.

Texas courts and prosecutors: The opinion described the analytical posture: presume the statute constitutional, decline to enforce a fine that is unconstitutionally excessive, and apply federal jurisprudence as instructive if not determinative under article I, section 13 given the shared text and history.

Researchers and journalists following Timbs: The opinion explained that the AG would not supply a factor test for excessiveness, because the Supreme Court left that question open on remand and the litigation was ongoing, with the Texas AG's office involved as amicus. Readers looking for the standard a court would apply will not find it resolved here.

Common questions

Did Timbs v. Indiana make the excessive-fines clause apply to states?
Yes. The opinion explained that the U.S. Supreme Court held the Eighth Amendment's Excessive Fines Clause is incorporated against the states through the Fourteenth Amendment's Due Process Clause.

Does the Texas Constitution have its own protection against excessive fines?
Yes. Article I, section 13 uses language nearly identical to the Eighth Amendment, and the opinion noted Texas courts have interpreted it as a protection against excessive fines.

If a fine in a statute is unconstitutional, does the whole law fall?
Not necessarily. The opinion said a court would not enforce an unconstitutionally excessive fine, but Texas's severability statute (Government Code section 311.031) directs courts to uphold the constitutional portion of the law when possible.

Did the AG say how to tell whether a fine is excessive?
No. The AG declined to answer that, citing the absence of a Supreme Court test and the then-pending Timbs litigation in which the Texas AG's office was participating as amicus.

Background and statutory framework

The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," and the opinion described it as guarding against abuses of government's punitive authority. The Bill of Rights originally limited only the federal government, but the Fourteenth Amendment's Due Process Clause incorporates certain guarantees against the states through selective incorporation (McDonald v. City of Chicago). Timbs v. Indiana held the Excessive Fines Clause is among them, tracing the right from the Magna Carta through English and colonial law.

For the state-law side, the opinion relied on Texas decisions reading article I, section 13 as an excessive-fines protection (In re Xerox Corp., Pennington v. Singleton, Ex parte Dotson) and on the rule that lower courts follow Texas Supreme Court precedent (Henry Schein v. Stromboe; King St. Patriots v. Texas Democratic Party for the binding force of U.S. Supreme Court precedent). On statutory construction, it cited City of Pasadena v. Smith (presumption of constitutionality) and Geeslin v. State Farm Lloyds (an unconstitutional statute is void), together with the severability statute at Government Code section 311.031. For the shared federal-state legacy, it pointed to Corpus Christi v. Public Utility Commission, Commission for Lawyer Discipline v. Benton, and Reyes v. State, and traced article I, section 13's wording back through the 1836, 1845, 1861, 1866, and 1869 Texas constitutions. The AG declined the remaining questions under the practice reflected in GA-0502, MW-205, and V-291 of not opining on matters in pending litigation.

Citations

Constitutional and statutory provisions:

• U.S. Const. amend. VIII
• U.S. Const. amend. XIV, § 1
• Tex. Const. art. I, § 13
• Tex. Gov't Code § 311.031
• Repub. Tex. Const. of 1836, Declaration of Rights 11th; Tex. Const. of 1845, art. I, § 11; Tex. Const. of 1861, art. I, § 11; Tex. Const. of 1866, art. I, § 11; Tex. Const. of 1869, art. I, § 11

Cases:

• Timbs v. Indiana, 139 S. Ct. 682, 686-87 (2019)
• McDonald v. City of Chicago, 561 U.S. 742, 754 (2010)
• King St. Patriots v. Tex. Democratic Party, 521 S.W.3d 729, 732 n.11 (Tex. 2017)
• In re Xerox Corp., 555 S.W.3d 518, 527 n.53 (Tex. 2018)
• Pennington v. Singleton, 606 S.W.2d 682, 690 (Tex. 1980)
• Ex parte Dotson, 76 S.W.3d 393, 405 & n.57 (Tex. Crim. App. 2002)
• Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 689 (Tex. 2002)
• City of Pasadena v. Smith, 292 S.W.3d 14, 19 (Tex. 2009)
• Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 795 n.2 (Tex. App.-Austin 2008, no pet.)
• Corpus Christi v. Pub. Util. Comm'n, 51 S.W.3d 231, 242 (Tex. 2001)
• Comm'n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 434 (Tex. 1998)
• Reyes v. State, 557 S.W.3d 624, 631 (Tex. App.-El Paso 2017, pet. ref'd)
• Indiana v. Timbs, No. 27S04-1702-MI-00070 (Ind. Mar. 27, 2017)

Attorney General opinions:

• Tex. Att'y Gen. Op. Nos. GA-0502 (2007); MW-205 (1980); V-291 (1947)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0267
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0267.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 11, 2019

The Honorable James White Opinion No. KP-0267
Chair, Committee on Corrections
Texas House of Representatives Re: Protections against excessive fines under
Post Office Box 2910 the U.S. and Texas Constitutions (RQ-0277-KP)
Austin, Texas 78768-2910

Dear Representative White:

   In Timbs v. Indiana, the U.S. Supreme Court held that the Eighth Amendment's Excessive

Fines Clause of the U.S. Constitution is an incorporated protection applicable to the States under
the Due Process Clause of the Fourteenth Amendment. 139 S. Ct. 682, 686-87 (2019). In light
of Timbs, you ask several questions about the protections against excessive fines under the U.S.
and Texas Constitutions.1 The Eighth Amendment in the Bill of Rights provides:

            Excessive bail shall not be required, nor excessive fines imposed,
            nor cruel and unusual punishments inflicted.

U.S. CONST. amend. VIII. The Eighth Amendment's protection against excessive fines, like its
proscription of excessive bail and cruel and unusual punishment, "guards against abuses of
government's punitive or criminal-law-enforcement authority." Timbs, 139 S. Ct. at 686. The
Bill of Rights was conceived as a limitation on the powers of the federal government, and initially,
courts determined that the first eight amendments did not apply to the States. Id. at 687; McDonald
v. City of Chicago, 561 U.S. 742, 754 (2010). But the Due Process Clause of the Fourteenth
Amendment, adopted after the Civil War, incorporates certain of the guarantees set out in the
Bill of Rights, rendering them applicable to both the States and the federal government.
McDonald, 561 U.S. at 754, 764-65. Rather than conclude that the Due Process Clause
incorporates the entire Bill of Rights, however, the U.S. Supreme Court determined "that the only
rights protected against state infringement by the Due Process Clause were those rights of such a
nature that they are included in the conception of due process of law." Id. at 759 (quotation marks
omitted). Thus, the Court has examined the Bill of Rights guarantee-by-guarantee over the years
to determine which are incorporated rights applicable to the States-a process known as selective
incorporation. Id. at 763-65.

     "A Bill of Rights protection is incorporated ... if it is fundamental to our scheme of ordered

liberty, or deeply rooted in this Nation's history and tradition." Timbs, 139 S. Ct. at 687 (quotation
marks omitted). To make that determination, the Supreme Court in Timbs traced the lineage of
the Excessive Fines Clause from the Magna Carta through 17th-century English law and American
colonial-era provisions. Id. at 687-88. The Court also recounted the history of governmental
abuses that warranted protection from excessive fines as a fundamental right. Id. at 688-89.
Because of the Anglo-American history of the right to be free from excessive fines and the right's
widespread acknowledgment as fundamental, the Court held: "The Excessive Fines Clause is
therefore incorporated by the Due Process Clause of the Fourteenth Amendment" and thus
applicable to the States. Id. at 687, 689.

   We first consider your question whether a Texas court would conclude that the Eighth

Amendment's excessive fines guarantees are incorporated by the Fourteenth Amendment's Due
Process Clause or, alternatively, by its Privileges and Immunities Clause. Request Letter at 3. The
Fourteenth Amendment guarantees not only due process of law, but also the privileges and
immunities of U.S. citizens. U.S. CONST. amend. XIV, § 1. Rights under the Due Process Clause
and the Privileges and Immunities Clause present different issues. McDonald, 561 U.S. at 759.
As discussed above, the Court in Timbs held that the Fourteenth Amendment's Due Process Clause
incorporates the Eighth Amendment's excessive fines protection as against the States. 139 S. Ct.
at 686-87. Texas courts "are bound by U.S. Supreme Court precedent unless and until the
Supreme Court overrules it." King St. Patriots v. Tex. Democratic Party, 521 S.W.3d 729, 732
n.11 (Tex. 2017) (citation omitted).2

   You also ask whether Texas courts would recognize article I, section 13 of the

Texas Constitution "as a constitutional guarantee that protects Texans from excessive fines."
Request Letter at 3. The first sentence of article I, section 13 provides:

             Excessive bail shall not be required, nor excessive fines imposed,
             nor cruel or unusual punishment inflicted.

TEX. CONST. art. I, § 13. Texas courts interpret this provision as protection from excessive fines.
See, e.g., In re Xerox Corp., 555 S.W.3d 518, 527 n.53 (Tex. 2018); Pennington v. Singleton, 606
S.W.2d 682, 690 (Tex. 1980); Ex parte Dotson, 76 S.W.3d 393, 405 & n.57 (Tex. Crim. App.
2002); see also Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 689 (Tex. 2002) (stating "[l]ower
courts are bound to follow [the Texas Supreme] Court's decisions").

    Next, you ask how a court would "likely interpret a law that mandates the executive branch

to enforce a statute accompanied with an excessive fine." Request Letter at 3. Courts begin
statutory construction presuming the statute is constitutional and attempt to interpret a statute "in
a manner that renders it constitutional if it is possible to do so." City of Pasadena v. Smith, 292
S.W.3d 14, 19 (Tex. 2009). But if a court concludes that a statute imposes an unconstitutionally
excessive fine, likely the court would not enforce the fine. See Geeslin v. State Farm Lloyds, 255
S.W.3d 786, 795 n.2 (Tex. App.-Austin 2008, no pet.) (stating "[a]n unconstitutional statute is
void and cannot provide a basis for any right or relief"). Whether the court would declare all or
only part of the statute invalid would depend on the particular statute. Unlike federal law, Texas
has a law requiring courts to save the balance of a law when one part is unconstitutional. See TEX.
GOV'T CODE § 311.031 (regarding severability of statutes).

     You also ask whether "Texas and the American colonies share a similar constitutional

legacy" and, if so, how that legacy would affect a court's excessive-fines analysis. Request Letter
at 5. The Supreme Court explained in Timbs that the language of the Eighth Amendment Excessive
Fines Clause is almost the same as that in the 17th century English Bill of Rights. 139 S. Ct. at

688. Language virtually identical to the Eighth Amendment appeared in every Texas constitution
     from 1836 to the present.3 Because of the state and federal provisions' common language and
     shared history, a Texas court would likely conclude that federal jurisprudence is instructive about,
     if not determinative of, excessive fines issues under article I, section 13 of the Texas Constitution.
     See Timbs, 139 S. Ct. at 687 (stating that "if a Bill of Rights protection is incorporated, there is no
     daylight between the federal and state conduct it prohibits"); cf. Corpus Christi v. Pub. Util.
     Comm'n, 51 S.W.3d 231, 242 (Tex. 2001) (relying on U.S. Supreme Court case law to determine
     a takings issue under the Texas Constitution because of the similarity of the state and federal
     protections); Comm'n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 434 (Tex. 1998)
     (applying federal First Amendment standards absent a showing that the text, history, and purpose
     of the Texas Constitution provides broader protection); Reyes v. State, 557 S.W.3d 624, 631 (Tex.
     App.-El Paso 2017, pet. ref'd) (holding that there is no significant difference in the protections
     against cruel and unusual punishment in the Eighth Amendment of the U.S. Constitution and
     article I, section 13 of the Texas Constitution).

      Your remaining questions concern how a court would determine whether a fine is
     

     unconstitutionally excessive and what circumstances or factors a court would consider when
     making that determination. Request Letter at 4-5. While the U.S. Supreme Court in Timbs held
     that the Fourteenth Amendment incorporates the Eighth Amendment protection against fines, it
     did not determine whether the specific fine in question was excessive. See Timbs, 139 S. Ct. at
     690-91. Instead, it remanded the case for the lower court to make that determination. See id. at
     691. The case remains pending in the Indiana Supreme Court, and the Office of the Attorney
     General is involved in that appeal as amicus curiae. Indiana v. Timbs, No. 27S04-1702-MI-00070
     (Ind. Mar. 27, 2017) (pending). Given the lack of guidance from the U.S. Supreme Court on a test
     to determine excessive fine questions and the pending litigation surrounding the application of
     Timbs to specific excessiveness determinations, we are unable to answer your final questions. See
     Tex. Att'y Gen. Op. Nos. GA-0502 (2007) at 3-4 (declining to opine on matters of pending
     litigation and instead deferring to the court to decide the pending issue); MW-205 (1980) at 1; V-291 (1947) at 5-6.

                                    SUMMARY
     
                  Courts following U.S. Supreme Court precedent would
           conclude that the Due Process Clause of the Fourteenth Amendment
           incorporates the Eighth Amendment protection against excessive
           fines.
     
                  Courts recognize article I, section 13 of the Texas
           Constitution as a constitutional protection against excessive fines.
           A court would not enforce an unconstitutionally excessive fine.
           Depending on the statute, a Texas court would be obligated to follow
           Texas law that requires it to separate the unconstitutional fine and
           uphold the portion of the statute that is constitutional, if possible.
     
                   A Texas court would likely conclude that the Excessive
           Fines Clause of the Eighth Amendment of the U.S. Constitution is
           binding on the State, and federal jurisprudence is instructive about,
           if not determinative of, excessive fines issues under article I, section
           13 of the Texas Constitution.
     
                                           Very truly yours,
     
                                           KEN PAXTON
                                           Attorney General of Texas
     

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

1See Letter from Honorable James White, Chair, House Comm. on Corrs., to Honorable Ken Paxton, Tex. Att'y Gen. at 3-5 (Mar. 15, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
2In his concurring opinion in Timbs, Justice Thomas agreed that the Fourteenth Amendment incorporates the Eighth Amendment guarantees as fully applicable to the States but concluded that incorporation is due to the Privileges and Immunities Clause rather than the Due Process Clause. 139 S. Ct. at 691, 698 (Thomas, J., concurring). Justice Gorsuch also agreed that the Fourteenth Amendment incorporates the Eighth Amendment guarantees as against the States but found it unnecessary to decide which clause is the proper vehicle for incorporation. See id. at 691 (Gorsuch, J., concurring).
3See REPUB. TEX. CONST. OF 1836, Declaration of Rights 11th, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822-1897, at 1069, 1083 (Austin, Gammel Book Co. 1898); TEX. CONST. OF 1845, art. I, § 11; TEX. CONST. OF 1861, art. I, § 11; TEX. CONST. OF 1866, art. I, § 11; TEX. CONST. of 1869, art. I, § 11; TEX. CONST. art. I, § 13.