12.1: Sources and Hierarchy of Law

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Sources of Law

The Texas Penal Code and Texas Code of Criminal Procedure are the primarily laws that govern criminal law in Texas. The Texas Penal Code⁸ is the principal criminal code of the state. The Texas Penal Code and its companion, the Texas Code of Criminal Procedure, were originally enacted in 1856, after the Texas legislature passed an act requiring the Texas governor to appoint a commission to codify the civil and criminal laws of Texas. Prior to that year, criminal law in Texas was governed mostly by common law. More than 100 years later, in 1973, the Penal Code underwent a major reorganization and reconciliation to consolidate, simplify, and clarify the substantive law of crimes in the state. It specifically identifies and describes all significantly harmful criminal conduct, grades criminal offenses according to the harm they cause or threaten, distributes the sentencing authority between the court system and the correctional system.

The Penal Code is organized into titles (and subdivided into multiple chapters) addressing the following specific issues and topics: general principles of criminal responsibility (often called culpability); justifications for committing criminal conduct; punishments for all misdemeanors and felonies; personal offenses against other individuals (e.g., homicide, kidnapping, assaults, and various sexual offenses); offenses against property (e.g., arson, robbery, burglary, shoplifting, fraud, and theft); offenses against public administration (e.g., bribery, perjury, and abuse of office); offenses against public order and decency; offenses against public health, safety, and morals (such as gambling, weapons, and public intoxication); and organized crime.⁹

The Texas Code of Criminal Procedure, on the other hand, addresses a number of administrative issues relating to the criminal justice process. Those issues include, among others: a lengthy discussion of the rights of the accused; courts and criminal court jurisdiction; wiretaps and the capture of electronic communication; habeas corpus (a court order in which the judge demands a law enforcement agency to produce a detainee for a court hearing to determine whether a prosecutors can demonstrate a valid reason for detaining the person); crime victim compensation; and the expunctions of criminal records.¹⁰

Hierarchy of Law

In the United States, laws are enacted, interpreted, and enforced at the federal, state, and local level. All three levels contain some form of constitution, laws enacted by a legislative body, and rules promulgated by bureaucratic agencies, panels, boards, and commissions. While both the federal and state governments have constitutions, Texas cities and towns are governed by a comparable document—a municipal (or city) charter—the basic document that defines the organization, powers, functions and essential procedures of the city government.¹¹

As a general rule, a hierarchy exists, such that a constitution (or charter), law, or rule may not contradict a higher constitution, law, or rule. The hierarchy of law used in the Texas criminal justice is relatively simple:

U.S. Constitution;
laws (statutes) enacted by Congress;
rules promulgated by federal agencies;
state constitution;
laws enacted by the state legislature;
rules promulgated by state agencies;
city/county charters (the “constitution” for the city or county);
local laws and ordinances;
rules promulgated by local agencies.

The hierarchy of law is enshrined by the Supremacy Clause of the U.S. Constitution (Article 6, Clause 2):

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.¹²

This hierarchy of law means that the rights guaranteed by the U.S. Constitution, as interpreted by the U.S. Supreme Court, and the laws passed by the U.S. Congress, will take precedence when in conflict with state law or local law.

8. Tex. Pen. Code (2019), FindLaw., https://codes.findlaw.com/tx/penal-code/.

9. Tex. Pen. Code (2019), Texas Constitution and Statutes,

https://statutes.capitol.texas.gov/?...5.00.000021.00.

10. Tex. Code Crim. Proc. Ann, arts. 4-67 (West 2019).

11. Coon, James A., “Revising City Charters in New York State, Local Government Technical Series.” Albany, NY: New York State Department of State Division of Local Government Services, June 1998.

12. United States Const., art. VI, cl.2.