separation of powers doctrine in Texas

2025The separation-of-powers doctrine provides that “governmental authority vested in one department of government cannot be exercised by another department unless expressly permitted by the constitution.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).

2025The requirement of standing is based on “two limitations on subject-matter jurisdiction: the separation of powers doctrine and, in Texas, the open courts provision.” Id. at 578 (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)).

2024The separation of powers doctrine requires that “any attempt by one department of government to interfere with the powers of another is null and void.” Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim.

2021The separation of powers doctrine requires that “any attempt by one department of government to interfere with the powers of another is null and void.” Meshell, 739 S.W.2d at 252 .

2025The “genuine” and unwaivable nature of the subject matter jurisdiction involved in this case is explained in Texas Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440, 443-446 (Tex. 1993) (explaining standing, the separation of powers doctrine, the open courts provision of the Texas Constitution requiring injury, and the prohibition of advisory opinions addressing hypothetical injuries)3; and Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc., 971 S.W.2d 439, 442 (Tex. 1998) (Ripeness and standing are justiciability doctrines that originate from the prohibition of ad

2025Tex., 971 S.W.2d 439, 442 (Tex. 1998) (“The constitutional roots of justiciability doctrines such as ripeness, as well as standing and mootness, lie in the prohibition on advisory opinions, which in turn stems from the separation of powers doctrine.”).

2026Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018), as corrected on denial of reh’g (Dec. 21, 2018); Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999) (“This prohibition [of deciding moot controversies] is rooted in the separation of powers doctrine in the Texas and United States Constitutions that prohibits courts from rendering advisory opinions.”) (citing Tex. Const. art.

2025Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999); Dominguez v. Dominguez, 583 S.W.3d 365 , 370 (Tex. App.—El Paso 2019, pet. denied)("The mootness doctrine implicates a court's subject matter jurisdiction, and such jurisdiction is essential to a court's power to decide a case."); see also Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc., 971 S.W.2d 439, 442 (Tex. 1998)(justiciability doctrines such as ripeness, as well as standing and mootness, lie in prohibiting advisory opinions, which in turn stem from the separation of powers doctrine set forth in Article 2, Section 1 of the

2016Courts thus traditionally take a “flexible approach” in determining whether a separation of powers violation has occurred, and will uphold “statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment.” Id. at 671-72; see also Armadillo Bail Bonds, 802 S.W.2d at 239 (“The undue interference test ‘takes the middle ground between those who would seek rigid compartméñtalization and those who would find no separation of' powers violation until one branch completely disrupted another branch’s ability to function.’

2016This separation of powers clause is violated in one of two ways: (1) “when one branch of government assumes, or is delegated, to whatever degree, a power that is more ‘properly attached’ to another branch[;]” and (2) “when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.” Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.Crim.App.1990).

2020The separation of powers doctrine is violated “when one branch of government assumes or is delegated a power ‘more properly attached’ to another branch.” Salinas v. State, 523 S.W.3d 103, 106-07 (Tex. Crim.

2019App. 2015) (“We hold that, if the statute under which the court costs are assessed (or an interconnected statute) provides for an allocation of such court costs to be expended for legitimate criminal justice purposes, then the statute allows for a ALLEN — 2 constitutional application that will not render the courts tax gatherers in violation of the separation of powers clause.”) (emphasis added); Salinas v. State, 523 S.W.3d 103, 107 (Tex. Crim.

2009See In re M.R.J.M. , 193 S.W.3d 670 , 676 (Tex. App.—Fort Worth 2006, no pet.) (en banc) (holding that under the separation of powers clause an appellate court has the authority to order preparation of all of the evidence in a termination case when necessary to review a trial court’s determination that an appeal is frivolous); see also In re K.D., 202 S.W.3d 860, 866 (Tex. App.—Fort Worth 2006, no pet.) (applying rule from In re M.R.J.M and ordering entire record of the termination proceedings to review the trial court’s frivolousness findings).

2009See In re S.T. , 263 S.W.3d at 405 B 05. [3] The Department supported its representation of the facts supporting termination through argument of counsel and live testimony from the caseworker assigned to the case. [4] In In re M.R.J.M. , the Fort Worth court addressed an argument that section 263.405 violated the separation of powers clause of the Texas Constitution, contained in Article II, section 1, because it prevented courts of appeals from reviewing the trial record in assessing factual sufficiency challenges (factual sufficiency review being a court of appeals power granted in Article V

2019A challenged conviction-fee statute does not violate the separation of powers clause, and is thus constitutional, if it or an interconnected statute provides for an allocation of the charged cost “to be expended for legitimate criminal justice purposes.” Id. at 517 .

2018However, the collection of fees by a court in a criminal case constitutes a judicial function, and thus does not violate the Separation of Powers clause of the Texas Constitution, where a “statute under which [a] court cost[] [is] assessed (or an interconnected statute) provides for an allocation of such [a] court cost[] to be expended for [a] legitimate criminal justice purpose[].” Salinas, 523 S.W.3d at 107 , 109 n.26 (quoting Peraza, 467 S.W.3d at 517 ); see also Casas v. State, 524 S.W.3d 921 , 925–27 (Tex. App.—Fort Worth 2017, no pet.) (“Although courts may not operate as tax gatherers,

2010This limitation is informed by the two constitutional limitations on subject-matter jurisdiction — the separation of powers doctrine and Texas’s open courts provision — which both require “an actual, not merely a hypothetical or generalized grievance.” Id.

2010This limitation is informed by the two constitutional limitations on subject-matter jurisdiction— the separation of powers doctrine and Texas’s open courts provision — which both require “an actual, not merely a hypothetical or generalized grievance.” Id.

1999Jones v. State, 803 S.W.2d 712, 716 (Tex. Crim.App.1991); Meshell v. State, 739 S.W.2d 246, 255 (Tex.Crim.App.1987). *165 Assuming, for the sake of argument, that article 28.061 unduly interferes with the prosecutorial function, the majority still errs in failing to apply the second step in the separation of powers analysis: determining whether the enactment is authorized by a constitutional provision.

1997We analyze both articles 32.01 and 28.061 in relation to the decisions of Meshell, Jones v. State, 803 S.W.2d 712 (Tex.Crim.App.1991), and Norton . *186 Meshell v. State The court of criminal appeals held the Speedy Trial Act and article 28.061 unconstitutional because they violated the separation of powers doctrine.

2008The Court of Criminal Appeals in Rose v. State , 752 S.W.2d 529 (1987), held that an instruction regarding parole violated a defendant's right under due course of law and violated the separation of powers doctrine.

1995Rose v. State, 752 S.W.2d 529, 537 (Tex.Crim.App.1987) (op. on reh’g), held that a parole instruction under former TexCode Cri.m.P.Ann art. 37.07, § 4 (act of June 13, 1985, 69th Leg., R.S., ch. 576, sec. 1, 1985 Tex.Gen.Laws 2195, amended by act of May 6, 1987, 70th Leg., R.S., ch. 66, sec. 1, 1987 Tex.Gen.Laws 170, amended by act of June 19, 1987, 70th Leg., R.S., ch. 1101, sec. 15, 1987 Tex.Gen.Laws 3765), violated the separation of powers doctrine and the due course of law clause of the Texas Constitution.

2015Cf Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dept. of Transp., 179 S.W.3d 589, 603 (Tex. App.-Austin 2005, pet. denied) ("A court 'cannot modify an agency order without usurping the agency's authority and thereby violating the separation of powers doctrine. '" (quoting City of Stephenville v. Tex. Parks & Wildlife Dep t, 940 S.W.2d 667, 678 (Tex. App.-Austin 1996, writ. denied))).

2005Code Ann. §§ 2301.001 , .151. (6) A court "cannot modify an agency order without usurping the agency's authority and thereby violating the separation of powers doctrine." City of Stephenville v. Texas Parks & Wildlife Dep't , 940 S.W.2d 667, 678 (Tex. App.--Austin 1996, writ denied).

2006See Ex parte Barnes, 959 S.W.2d at 320 ; Condran, 951 S.W.2d at 191 .

1998Constitutionality of Article 32.01 We agree with the holdings of Norton, Condran, and Ex parte Barnes that article 32.01, standing alone, does not im-permissibly infringe on the exclusive prose-cutorial discretion of the State’s attorney in preparing a case against an accused and therefore does not violate the separation of powers doctrine. 7 Ex parte Barnes, 959 S.W.2d at 319 ; Condran, 951 S.W.2d at 190 ; Norton, 918 S.W.2d at 29 .

2025See Perry, 483 S.W.3d at 900 n.85 (addressing the merits of Governor Perry’s pretrial separation of powers claim in the first instance on discretionary review and citing “the importance of the interests protected by the Separation of Powers clause, the purely legal nature of the issue before us, and concerns of judicial economy”).

2024See Perry, 483 S.W.3d at 900 n.85 (addressing the merits of Governor Perry’s pretrial separation of powers claim in the first instance on discretionary review and citing “the importance of the interests protected by the Separation of Powers clause, the purely legal nature of the issue before us, and concerns of judicial economy”).

2025See Rivera v. State, 381 S.W.3d 710 , 714–15 (Tex. App.—Beaumont 2012, pet. ref’d) (determining that the appellant was not permitted to raise a separation of powers challenge to the mandatory life without parole sentence because he did not raise the issue in the trial court); Wilkerson, 347 S.W.3d at 724 (concluding that the appellant failed to preserve his argument that “the 4 mandatory sentencing statute violates the separation of powers doctrine” by not presenting it to the trial court); see also Ex parte Williams, 2021 WL 1583882 , at *12 (holding that by not presenting his separation of p

2025See Rivera v. State, 381 S.W.3d 710 , 714–15 (Tex. App.—Beaumont 2012, pet. ref’d) (determining that the appellant was not permitted to raise a separation of powers challenge to the mandatory life without parole sentence because he did not raise the issue in the trial court); Wilkerson, 347 S.W.3d at 724 (concluding that the appellant failed to preserve his argument that “the 4 mandatory sentencing statute violates the separation of powers doctrine” by not presenting it to the trial court); see also Ex parte Williams, 2021 WL 1583882 , at *12 (holding that by not presenting his separation of p

2020See Williams, 938 S.W.2d at 458 ; see also Wilkerson, 347 S.W.3d at 724 .

2020See Williams, 938 S.W.2d at 458 ; see also Wilkerson, 347 S.W.3d at 724 .

2010See, e.g., Walker v. Texas Dept. of Family and Protective Services , No. 01-07-00867-CV, ---- S.W.3d ----, 2009 WL 1688469, *7, 12 (Tex.App.--Houston [1st Dist.] June 18, 20009, pet. filed)(not yet reported)(refusing to reach the constitutionality of Section 263.405 under the due-process clause and separation-of-powers clause absent a showing that the operation of the challenged statute caused appellant harm); In re M.M.F. , No. 2-08-014-CV, 2008 WL 5265033 , *7 (Tex.App.--Fort Worth Dec. 18, 2008, no pet.)(mem. op.)(refusing to address constitutionality of Section 263.405 under the separation

2010See, e.g., Walker v. Texas Dept. of Family and Protective Services, 312 S.W.3d 608, 620, 625 (Tex.App.-Houston [1st Dist.] 2009, pet. filed) (refusing to reach the constitutionality of Section 263.405 under the due-process clause and separation-of-powers clause absent a showing that the operation of the challenged statute caused appellant harm); In re M.M.F., No. 2-08-014-CV, 2008 WL 5265033 , *7 (Tex.App.Fort Worth Dec. 18, 2008, no pet.)(mem. op.)(refusing to address constitutionality of Section 263.405 under the separation-of-powers clause when the alleged harm-that he did not timely file a

2016Id. at 783-86 ; see also Blackwell, 500 S.W.2d at 102-04 (striking down another provision in the Texas Controlled Substances Act, which would have allowed a defendant to *738 petition the court for a reduction in sentence after conviction, “whether he is presently serving a sentence, is on probation or parole, or has been discharged from the sentence,” concluding that provision functioned as a “commutation” of the defendant’s sentence, thereby violating the separation of powers provision); State v. Flood, 814 S.W.2d 548, 550 (Tex.App.-Houston [1st Dist.] 1991, no pet.) (concluding that a simil

2014“The separation of powers doctrine therefore requires that ‘any attempt by one department of government to interfere with the powers of another is null and void.’” Id. (quoting Ex parte Giles , 502 S.W.2d 774, 780 (Tex. Crim.

2019The Court of Criminal Appeals concluded section 402.010 was unconstitutional because it violated the separation of powers clause: “[T]he 45-day time frame [in section 402.010] is a constitutionally intolerable imposition on a court’s power to enter a final judgment and a violation of separation of powers.” Ex parte Lo, 424 S.W.3d at 30 .

2018The Separation of Powers clause is violated “when one branch of government assumes or is delegated a power more properly attached to another branch.” Ex parte Lo, 424 S.W.3d at 28 (internal quotations omitted); see also Salinas v. State, 523 S.W.3d 103 , 106–07 (Tex. Crim.

2012See In re D.W., 249 S.W.3d 625, 631 (Tex. App.—Fort Worth 2008), pet. denied, 260 S.W.3d 462 (Tex. 2008) (holding that mother’s complaint, challenging section 263.401’s 4 dismissal deadline as violative of the separation of powers clause of the Texas constitution, was not the type of challenge of facial unconstitutionality of a statute that could be asserted for the first time on appeal); In re K.A.S., 131 S.W.3d 215 , 231 (Tex. App.—Fort Worth 2004, pet. denied) (holding that because constitutional attacks on section 263.401 were not raised in trial court, parent had waived right to assert th

2012See In re D.W. , 249 S.W.3d 625, 631 (Tex. App.—Fort Worth 2008), pet. denied , 260 S.W.3d 462 (Tex. 2008) (holding that mother’s complaint, challenging section 263.401’s dismissal deadline as violative of the separation of powers clause of the Texas constitution, was not the type of challenge of facial unconstitutionality of a statute that could be asserted for the first time on appeal); In re K.A.S. , 131 S.W.3d 215 , 231 (Tex. App.—Fort Worth 2004, pet. denied) (holding that because constitutional attacks on section 263.401 were not raised in trial court, parent had waived right to assert t

2010Separation of Powers In Point of Error Three, D.R. asks us to hold Section 263.405 unconstitutional as a violation of the separation-of-powers clause, in conjunction with our sister court’s decision in In re D.W. , 249 S.W.3d 625 (Tex.App.--Fort Worth), pet. denied , 260 S.W.3d 462 (2008).

2010Separation of Powers In Point of Error Three, D.R. asks us to hold Section 263.405 unconstitutional as a violation of the separation-of-powers clause, in conjunction with our sister court’s decision in In re D.W., 249 S.W.3d 625 (Tex.App.-Fort Worth), pet. denied, 260 S.W.3d 462 (2008).

2012Ill, § 1 (vesting the legislative power in the Senate and House of Representatives). 28 Specifically, the Chiropractor Parties assert that by effectively incorporating a coding system developed by the AMA — a private association (not to mention a longtime professional rival to chiropractors and chiropractic) — to supply a definition or description of “surgical procedure,” the Legislature has delegated its authority to the AMA in a manner that fails the eight-factor balancing test articulated by the supreme court in Texas Boll Weevil Eradication Foundation, Inc., 952 S.W.2d at 472 , for delegat

2012Ill, § 1 (vesting the legislative power in the Senate and House of Representatives). 28 Specifically, the Chiropractor Parties assert that by effectively incorporating a coding system developed by the AMA — a private association (not to mention a longtime professional rival to chiropractors and chiropractic) — to supply a definition or description of “surgical procedure,” the Legislature has delegated its authority to the AMA in a manner that fails the eight-factor balancing test articulated by the supreme court in Texas Boll Weevil Eradication Foundation, Inc., 952 S.W.2d at 472 , for delegat

2015Argument in this case is necessary because the court of appeals’ opinion is in conflict with a recent case from the Fourteenth Court of Appeals, Salinas v. State, 426 S.W.3d 318 (Tex. App.—Houston [14th Dist.] 2014, pet. granted) (statute requiring assessment of court costs was not facially unconstitutional under the separation of powers clause of the Texas Constitution).

2015Section 133.102 Appellant argued to this Court and the Court of Criminal Appeals that Section 133.102(a)(1) of the Local Government Code was facially unconstitutional under the separation of powers clause of the Texas Constitution “[b]ecause the [$133] consolidated court cost is primarily used to fund non-court programs” and 7 effectively impermissibly compels courts to collect a “tax.” This Court properly observed that “to prevail on a facial challenge, a party must establish that the statute always operates unconstitutionally in all possible circumstances.” See Salinas, 426 S.W.3d at 326 ; s

1997See Davis v. City of Lubbock, 160 Tex. 38 , 326 S.W.2d 699, 714 (1959); Southern Prison Co. v. Rennets, 110 S.W.2d 606, 609 (Tex.Civ.App. — Amarillo 1937, writ dism’d); Railroad Comm’n v. Uvalde Const. Co., 49 S.W.2d 1113, 1114 (Tex.Civ.App.— Austin 1932, no writ).

1997See Davis v. City of Lubbock, 160 Tex. 38 , 326 S.W.2d 699, 714 (1959); Southern Prison Co. v. Rennets, 110 S.W.2d 606, 609 (Tex.Civ.App. — Amarillo 1937, writ dism’d); Railroad Comm’n v. Uvalde Const. Co., 49 S.W.2d 1113, 1114 (Tex.Civ.App.— Austin 1932, no writ).

1989Rose v. State, 724 S.W.2d 832, 834-39 (Tex.App.—Dallas 1986, pet. granted); Joslin v. State, 722 S.W.2d 725, 731-36 (Tex.App.—Dallas 1986, pet. granted).

1987By his first supplemental ground, appellant contends the instruction violates the separation of powers doctrine under the Texas Constitution, citing the first opinion of the Dallas Court of Appeals in Rose v. State, No. 85-01136 (Tex.App.—Dallas, Aug. 11, 1986), withdrawn, 724 S.W.2d 832 (Tex.App.—Dallas 1987, no pet.), in which a panel of the court made that holding.

2012While agreeing that Blum had no right to delay an election, which would interfere with the 25 elective process in a manner contrary to the separation-of-powers doctrine, the Texas Supreme Court recognized that while an injunction that delays the election would be improper, “an injunction that facilitates the elective process may be appropriate.” Blum, 997 S.W.2d at 263 .

2012While agreeing that Blum had no right to delay an election, which would interfere with the elective process in a manner contrary to the separation-of-powers doctrine, the Texas Supreme Court recognized that while an injunction that delays the election would be improper, “an injunction that facilitates the elective process may be appropriate.” Blum, 997 S.W.2d at 263 .

2025“To determine whether a separation of powers violation involving ‘undue interference’ has occurred, [courts] engage in a two-part inquiry.” Tex. Comm’n on Env’l Quality v. Abbott, 311 S.W.3d 663, 672 (Tex. App.—Austin 2010, pet. denied).

2023The three branches of government do not, however, “operate with absolute independence,” and Texas courts “have instead ‘long held that some degree of interdependence and reciprocity is subsumed within the separation of powers principle.’” Martinez v. State, 503 S.W.3d 728, 734 (Tex. App.—El Paso 2016, pet. ref’d) (quoting Tex. Comm’n on Env’t Quality v. Abbott, 311 S.W.3d 663, 672 (Tex. App.—Austin 2010, pet. denied)).

2006See Ex parte Barnes, 959 S.W.2d at 320 ; Condran, 951 S.W.2d at 191 .

1998Constitutionality of Article 32.01 We agree with the holdings of Norton, Condran, and Ex parte Barnes that article 32.01, standing alone, does not im-permissibly infringe on the exclusive prose-cutorial discretion of the State’s attorney in preparing a case against an accused and therefore does not violate the separation of powers doctrine. 7 Ex parte Barnes, 959 S.W.2d at 319 ; Condran, 951 S.W.2d at 190 ; Norton, 918 S.W.2d at 29 .