Gavin Howe
Texas residents are subject to both Texas state laws and US federal laws. While Texas has its own constitution, laws passed by the state legislature, and court decisions that interpret Texas laws, federal laws still apply in Texas as they do across all 50 states. This includes the US Constitution, federal statutes, court decisions interpreting federal laws, and regulations issued by federal administrative agencies. In cases where state and federal laws conflict, the Supremacy Clause of the US Constitution requires state laws to yield to valid federal laws and regulations. An example of this is seen in the area of low-level radioactive waste disposal, where Texas state law precluding disposal by the US Department of Energy in private facilities was superseded by federal law due to its burden on interstate commerce.
| Characteristics | Values |
|---|---|
| Supremacy Clause | Requires inconsistent state laws to yield to valid federal laws and regulations |
| State laws | Include the Texas Constitution, laws passed by the Texas legislature, and decisions by courts that interpret Texas laws |
| Federal laws | Include the U.S. Constitution, statutes in the U.S. Code, court decisions that interpret federal laws, and regulations issued by federal administrative agencies |
| State vs. Federal laws | State law may contradict federal law, as in the case of cannabis laws |
| Examples of federal laws overriding state laws | Federal law requiring service providers to notify mortgagors of the right to cancel private mortgage insurance; Federal law precluding disposal of low-level radioactive waste by the U.S. Department of Energy in private facilities |
| Examples of state laws overriding federal laws | Texas statute restricting access to magnetic stripe information on driver's licenses; Texas act of 1870 imposing a tonnage tax on foreign vessels |
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What You'll Learn
Texas state laws vs. federal laws
Texas residents are subject to both Texas state laws and US federal laws. Federal laws apply in Texas as they do across all 50 states. The US Constitution is the supreme law of the US, and federal laws include statutes periodically codified in the US Code, decisions by courts that interpret federal laws, and regulations issued by federal administrative agencies to implement federal laws.
Texas also has its own state laws, which include the Texas Constitution, laws passed by the Texas legislature and periodically codified in the Texas Statutes, and decisions by courts that interpret Texas laws. The Texas Constitution has been in effect since 1876 and is the seventh version of this document.
In the case of a conflict between federal and state laws, the Supremacy Clause of the US Constitution requires that inconsistent state laws yield to valid federal laws and regulations. For example, a Texas act of 1870 that imposed a tonnage tax on foreign vessels to defray quarantine expenses was held to violate Article I, Section 10 of the US Constitution, which prohibits levy without the consent of Congress.
Another example is in the area of cannabis regulation, where state laws have been at odds with federal enforcement. While some states, including Texas, have decriminalized marijuana, the Department of Justice issued a statement in 2018 requiring US Attorneys to enforce the laws enacted by Congress, which means stricter regulation for states that have legalized cannabis use.
In some cases, the applicability of federal law depends on specific circumstances. For example, the Texas Advertising Fee Statute, which imposes a fee on purchasers of outdoor cigarette advertising, may or may not be preempted by the federal Cigarette Labeling and Advertising Act, depending on the specific facts of the case.
Additionally, there are certain areas of law where most of the applicable legislation comes from either the state or federal level. For instance, most of the laws that apply to victims of domestic violence and sexual assault come from state laws, such as those dealing with protection orders, divorce, custody, and crimes. At the same time, there are also relevant federal laws that apply across all states, such as immigration remedies for undocumented immigrant victims, Federal Gun Laws, VAWA Housing Laws, and Military Protective Orders.
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The Supremacy Clause
The Supreme Court has relied on the Supremacy Clause to establish a robust role for the federal government in managing the nation's affairs. The Court has interpreted the clause to mean that federal law can preempt state law either expressly or impliedly. Express preemption occurs when federal law explicitly states its intent to preempt state law, while implied preemption occurs when that intent is implicit in the structure and purpose of federal law. The Court has also developed the doctrine of field preemption, which holds that some federal legislation implicitly prevents states from adopting any laws on the same general subject.
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Texas' stance on cannabis
Texas has a history of stringent laws and conservative stances on many issues, including cannabis. The state's current cannabis laws are at a crossroads, with calls for both stricter regulations and pushes for legalization.
Recreational marijuana is illegal in Texas. The Texas Health and Safety Code makes the possession, use, sale, and delivery of marijuana a criminal offence, with penalties varying based on the amount involved. The state also prohibits the delivery of marijuana to minors, classifying it as a second-degree felony.
In 2019, Texas legalized the purchase, sale, and possession of hemp products through House Bill 1325, creating a loophole for the sale of low-THC products. This has led to a booming market with over 7,000 dispensaries, but critics argue that the unregulated market poses safety risks and undermines the state's medical marijuana program.
The future of cannabis in Texas is uncertain, with the 2025 legislative session witnessing intense debates. Lieutenant Governor Dan Patrick has advocated for banning all forms of tetrahydrocannabinol (THC) products, supporting Senate Bill 3, which aims to eliminate the sale of consumable THC products. On the other hand, State Representative Jessica González has introduced House Bill 1208, which seeks to permit adults aged 21 and over to use, possess, and transport limited amounts of cannabis. The bill also proposes child-resistant and clearly labeled packaging, with a 10% tax on sales intended to generate revenue for the state.
The outcome of these competing bills will significantly impact Texas's legal landscape and its residents, shaping the state's approach to cannabis regulation or prohibition.
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Access to records
Texas residents are subject to both Texas state and US federal laws. While Texas has its own constitution, laws passed by the state legislature and a court system that interprets Texas laws, federal laws still apply in Texas as they do across all 50 states.
The Supremacy Clause of the United States Constitution requires that inconsistent state laws yield to valid federal laws and regulations. This means that, in the event of a conflict between Texas state law and federal law, federal law takes precedence. For example, in the case of Western Union Telegraph Co. v. Texas (1882), a Texas tax on private telegraph messages sent out of the state was found to impose an invalid burden on foreign and interstate commerce, and it was deemed unconstitutional.
In terms of access to records, this principle also applies. Federally-funded state protection and advocacy systems for persons with mental illness or developmental disabilities may have access to records in accordance with federal law, even if the person's legal guardian objects. This is an example of how federal law can overrule Texas state law, as Texas law grants legal guardians the right of care, control, and protection of their wards.
Additionally, Texas's Open Government laws allow for access to certain information about inmates confined in facilities operated under a contract with the Texas Department of Criminal Justice. This includes the inmate's name, identification number, age, birthplace, department photograph, physical description, general state of health, nature of any injuries or critical illnesses, assigned unit and date of reception, offense and resulting judgment and sentence, county and court of conviction, earliest and latest possible release dates, and parole date. However, this information is only subject to disclosure if it does not violate federal law relating to the confidentiality of substance abuse treatment.
Furthermore, Texas's Open Government laws outline that a governmental body can release exempt information unless it is considered "confidential" under the Act or by some other law or judicial decision. Once such information is released, it must be made available to any person. However, the governmental body must specifically identify which categories of exceptions apply to the requested information if it chooses to withhold certain records.
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Advertising and free speech
The First Amendment to the US Constitution protects commercial speech from government interference. Commercial speech has been defined by the US Supreme Court as speech that proposes a commercial transaction, such as marketing and labeling. Companies that produce products associated with public health concerns, such as alcohol, tobacco, and food, have a constitutional right to market these products to consumers.
In 1975, the Court overturned a conviction under a state statute that made it illegal for any publication by sale or circulation to encourage or prompt procuring an abortion. The Court held the statute unconstitutional as applied to an editor of a weekly newspaper who published an advertisement announcing the availability of legal and safe abortions in another state.
In 1976, the Court eliminated the commercial speech exception to the First Amendment by voiding a statute that prohibited licensed pharmacists from advertising prescription drug prices. In a suit brought by consumers to protect their right to receive information, the Court held that speech proposing a commercial transaction is of social value and entitled to protection. The Court ruled that state interests in the ban were not served by the statute.
In 1977, the Court voided a municipal ordinance that barred displaying "For Sale" and "Sold" signs on residential lawns, purportedly to limit white flight. The Court determined that the right of owners to communicate their intention to sell a commodity and the right of potential buyers to receive the message were protected. The community interest could have been achieved by less restrictive means, and in any event, may not be achieved by restricting the free flow of truthful information.
In Texas, the Attorney General has opined that whether the Texas Advertising Fee Statute violates free speech protections is a fact-intensive question that cannot be resolved in an attorney general opinion. Similarly, whether the Texas Advertising Fee Statute, as it applies to cigarettes, is preempted by the federal Cigarette Labeling and Advertising Act is a fact-intensive question that cannot be resolved in an attorney general opinion.
Freedom of speech and expression have been a cornerstone of what it means to be an American citizen. However, in recent years, individuals in America have faced repercussions, including being slandered, fired, charged, and even jailed, for simply voicing their opinions.
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Frequently asked questions
The Supremacy Clause of the United States Constitution requires that state laws yield to federal laws and regulations.
No, Texas cannot overrule federal law. Federal laws apply in Texas as they do across all 50 states.
A Texas law precluding the disposal of low-level radioactive waste by the US Department of Energy in private facilities was overruled by federal law, as it burdened interstate commerce.
Federal gun laws apply in Texas.
Texas has its own constitution, which has been in effect since 1876.
