The Texas Constitution and the Open Courts Provision

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Jason B. Freeman

Jason B. Freeman

Managing Member


Mr. Freeman is the founding member of Freeman Law, PLLC. He is a dual-credentialed attorney-CPA, author, law professor, and trial attorney.

Mr. Freeman has been named by Chambers & Partners as among the leading tax and litigation attorneys in the United States and to U.S. News and World Report’s Best Lawyers in America list. He is a former recipient of the American Bar Association’s “On the Rise – Top 40 Young Lawyers” in America award. Mr. Freeman was named the “Leading Tax Controversy Litigation Attorney of the Year” for the State of Texas for 2019 and 2020 by AI.

Mr. Freeman has been recognized multiple times by D Magazine, a D Magazine Partner service, as one of the Best Lawyers in Dallas, and as a Super Lawyer by Super Lawyers, a Thomson Reuters service. He has previously been recognized by Super Lawyers as a Top 100 Up-And-Coming Attorney in Texas.

Mr. Freeman currently serves as the chairman of the Texas Society of CPAs (TXCPA). He is a former chairman of the Dallas Society of CPAs (TXCPA-Dallas). Mr. Freeman also served multiple terms as the President of the North Texas chapter of the American Academy of Attorney-CPAs. He has been previously recognized as the Young CPA of the Year in the State of Texas (an award given to only one CPA in the state of Texas under 40).

The Texas Constitution’s open courts provision ensures that litigants receive their day in court.  Tex. Const.  Ann. art. 1, § 13

The open courts provision of the Texas Constitution provides that:

All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

TEX. CONST. art I, § 13.

The Texas Supreme Court has held that the open courts provision guarantees that “the right to bring a well-established common law cause of action cannot be effectively abrogated by the legislature absent a showing that the legislative basis for the statute outweighs the denial of the constitutionally-guaranteed right of redress.” More specifically, the Court has held that a statute’s application violates the open courts provision when it bars a common-law cause of action before the litigant has a reasonable opportunity to discover the wrong and bring suit.

What Rights are Guaranteed by the Texas Constitution’s Open Courts Provision?

The Texas Supreme Court has recognized at least three separate constitutional guarantees emanating from the constitution’s open courts provision:

  1. Courts must actually be open and operating, so that, for example, the legislature must place every county within a judicial district.
  2. Citizens must have access to those courts unimpeded by unreasonable financial barriers, so that the legislature cannot impose a litigation tax in the form of increased filing fees to enhance the state’s general revenue.
  3. Meaningful legal remedies must be afforded to citizens, so that the legislature may not abrogate the right to assert a well-established common law cause of action unless the reason for its action outweighs the litigants’ constitutional right of redress. 

Historical Roots of the Open Courts Provision

The provision’s wording and history demonstrate the importance of the right of access to the courts. The open courts provision finds its roots in the Magna Carta as well as the English Bill of Rights of 1689.  And the right of access to the courts has long been at the foundation of the American democratic experiment.

The Texas Supreme Court’s case law reaches back into the 1800’s.  In H. Runge & Co. v. Wyatt, 25 Tex. (Supp.) 291 (1860), the court was faced with the issue of whether a defendant had the right to be sued in his home county when that county was newly severed from an existing county and did not yet have courts. Relying on the open courts provision, the court concluded that the legislature could not have intended to force plaintiffs to sue in a county where there were no tribunals to provide a remedy by due course of law.

In Dillingham v. Putnam, 109 Tex. 1, 14 S.W. 303 (1890), the Texas Supreme Court stated, “A law which practically takes away from either party to litigation the right to a fair and impartial trial in the courts provided by the constitution for the determination of a given controversy, denies a remedy by due course of law.”  The court went on to hold that a legislative act making the right of appeal depends on the giving of a supersedeas bond, without reference to the appellant’s ability to pay, was unconstitutional.  Of course, for those unable to pay, the bond was an impossible condition.

Freeman Law Tax Attorneys

Freeman Law aggressively represents clients in tax litigation at both the state and federal levels. When the stakes are high, clients rely on our experience, knowledge, and talent to help them navigate all levels of the tax dispute lifecycle—from audits and examinations to the courtroom and all levels of appeals. Schedule a consultation or call (214) 984-3000 to discuss your tax needs.