Women and the Law

By: Elizabeth York Enstam

Type: Overview Entry

Published: 1976

Updated: March 31, 2021

Women's progress toward equal rights in Texas has developed within a complex history of social customs, cultural traditions, and law. The Lone Star State was at first a rural society based on farming and ranching, and its legal system reflected the outlook of a traditional, family-centered, agricultural population. As the state became more urbanized after 1900, the economy drew growing numbers of women into the marketplace. By taking jobs, entering the professions, and operating their own companies, women brought unprecedented legal questions to business, industry, politics, and government that required lawmakers to consider the needs of women as individuals and not merely as members of families. Before Texas women gained equal rights, marriage was the most significant influence on their legal status. From the time of the early republic, a single woman (feme sole) enjoyed basic civil liberties. Although she could not vote or serve on juries, she had the right to make contracts, to sue and be sued, to choose her domicile, to own and control property, and, if widowed, to have custody of her children. A matron (feme couvert), by contrast, bore many of the legal disabilities of a minor. The laws regulating property and contractual rights most clearly defined the married woman's legal status in Texas. By continuing the Spanish practice of giving limited, specific rights to married women, Texans avoided the English common-law practice of vesting the wife's legal identity in her husband. Indeed, Anglo-American law confined married women more than the Hispanic system, and a Texas statute enacted in 1840 guaranteed rights that women have had ever since: to own separate property (the personal effects, real estate, and stocks and bonds possessed at the time of marriage) and to share equally with their husbands the wealth amassed during marriage. Also in keeping with the Hispanic law was a statute enacted in 1856, which allowed anyone "of sound mind" to make a last will and testament. Even though she could not witness the will of another person, a matron had the right to leave her separate property, as well as her share of the community property to whomever she chose.

While securing the wife's rights to ownership, Texas statutes and court rulings gave to the husband the management of both her separate and their community property, with the justification that such control helped him fulfill his legal duty to support her and the family. The law allowed him to bring suit to protect or enforce his wife's separate interests, as well as those of the community property. In addition, her earnings were, like his, community property; as such, they also were under his control. Until 1967 and the enactment of the marital-property section of the Family Code, Texas law put a wife's salary, bonuses, and wages under her husband's control to the extent that technically only he could "contract her services to another." In other words, an employer who wished to comply strictly could not hire a woman without consulting her husband. Despite her disabilities, however, the wife was not without legal rights. Without her permission her husband could not sell any of her property, and though she needed his agreement to sell her real estate or stocks and bonds, she could "by oral consent" give away any of her personal goods. She also had a limited right to defend her separate property by appealing to the county court if her husband mismanaged it or used its proceeds for anything other than the family's support. Such a review of the husband's management could persuade the court to give control of her property to the wife. As a general rule, then, the husband served as the family's financial and economic agent. But whenever necessary the wife could assume familial responsibilities as guardian, trustee, administratrix, executrix, or receiving agent. Indeed, by vesting limited property rights in married women through separate and community property, Texas law protected families from husbands who were careless, wasteful, or victims of economic depression.

Control of their own property came slowly to married women, creeping through five acts of legislation passed over more than fifty years. In 1913 Houston attorney Hortense S. Ward, one of the first three women admitted to the Texas bar, led the campaign to win a law intended to enlarge married women's rights regarding their separate property. Because of numerous hasty revisions to placate critics of the original bill, the statute collided with existing property laws, and court rulings consequently sheared away some of its intended benefits. Although the new law retained the husband as sole manager of the community property, the wife acquired control of the rents and other income from her real property holdings, as well as the income from her stocks and bonds. Her husband still had to agree to the sale of her separate property, but she gained exclusive control of bank accounts in her own name. Before 1913 a husband could write checks on his wife's account and even withdraw money that she had deposited before marriage. While the wages of employed women remained under their husbands' control as community property, women of the middle and upper classes-those most likely to own real estate and stocks and bonds-benefited from the provisions of the 1913 law. Three later statutes, passed in 1921, 1957, and 1963, dealt with married women's legal status without effectively improving it. Change in the marital property law in 1921 added nothing to a married woman's rights, though it did exempt her separate property from creditors in contracts that she made jointly with her husband. Creditors could, in such cases, claim reimbursement only from the couple's community property. Thirty-six years later, in 1957, another law allowed married women aged twenty-one and over the choice of whether to accept complete control of their separate property, as well as to contract freely without their husbands' signatures. For a matron who chose not to take these rights and responsibilities, the provisions of earlier statutes remained: her husband had to "join in any encumbrance of her lands" and in the sale of her stocks and bonds. Because married couples on numerous occasions had used the wife's couvert status to avoid paying debts, the 1957 law expressly stated that marriage would not excuse a wife from her obligations or from suits and court actions in connection with her contracts. Although the measure enacted in 1963 stated that married women had the contractual rights of men and single women, it made little difference. Numerous other statutes contained provisions which, in effect if not by intent, curtailed women's rights.

Historically, Texas lawmakers were more concerned with protecting the interests of families than of individuals. Of all the state's laws intended to protect the family, those relating to the homestead probably carried the most real benefits for wives without marketable skills, whether they lived in urban or rural areas. Enacted as a statute in 1839 and first written into the state's constitution in 1845, the Texas homestead-exemption law gave wife and husband virtually identical rights regarding the homestead, except that only he could choose it and decide when to leave it. Her interests, like his, were protected by the guarantee that the surviving spouse had a life estate in the family homestead, and certain provisions of the law gave her the right, under defined circumstances, to block her husband's decisions regarding the homestead. Even if the actual holdings defined as the homestead were the husband's separate property and as such would pass beyond the immediate family upon his death, his widow and single daughters (but not single sons) had the right to live on the homestead for as long as they wished. Passage in 1967 of the Marital Property Act (later part of the Texas Family Code) perpetuated these homestead provisions by giving either surviving spouse the right of lifetime use and occupancy of the homestead. Long before 1967, however, much more than the homestead laws needed to be changed. Legal measures originally intended to strengthen the family and protect women became hindrances to business as the Texas economy expanded and the state grew more urbanized. For example, the requirement of the wife's separate agreement, apart from her husband and in the presence of a notary, to the sale of the homestead might well preserve her ownership rights from her spouse's misjudgment or coercion. But along with its patronizing implications that married women lacked the business knowledge-or the good sense-to make practical decisions, this "protection" complicated property agreements. Mishandled or ignored, the provision could enable married couples to evade the terms of agreements, avoid payment of debts, and on occasion, even renege on legal obligations.

Genuine control of property required the right to make contracts, and in this respect Texas law remained discriminatory for many years. In 1840 the Texas Congress adopted the common-law practice of barring a married woman from making contracts, and afterward the legislature enacted statutes to define specific conditions within which she could do so. In general terms, the law allowed a married man to make any contract except those expressly forbidden, while a married woman could make only those expressly allowed. If her husband failed in his legal duty to provide for her and their children, for example, the wife could draw on his separate property and pledge his credit to buy "necessaries." She had considerable latitude for such purchases, for the courts defined "necessaries" not merely as food, clothing, shelter, and medical care, but also "such things as are suitable to their condition and station in life." From frontier times the laws regulating a married woman's property and contractual rights directly affected her earning power, especially if she wished to operate a business. Both the English and the Spanish sources of Texas law were products of preindustrial societies whose trade and commerce depended at least as much on agriculture as manufacturing. Citizens of Texas, though the state was initially agrarian, increasingly found their living in nonagricultural pursuits. Even in the frontier villages, married women earned money with dressmaking and millinery, not only in their homes, but also in shops and stores. Larger numbers operated boardinghouses and schools. In small towns where people knew and associated frequently with each other, day-to-day agreements about sewing orders or a child's lessons depended more on personal trust and shared values than on law or the courts. But as urban areas grew, the variety of businesses run by matrons increased rapidly, and their clients and customers expanded beyond friends and neighbors to include larger numbers of strangers. In 1900 the United States census listed 531 women in Texas who were merchants and dealers, about one-third of whom were married. A decade later the figures had more than doubled, and this count did not include the married women who operated small businesses in their homes.

At last lawmakers realized that married women who owned and ran businesses needed wider contractual rights, from which their customers and creditors also would benefit. In 1911 the legislature passed a statute giving matrons a way to remove "the disability of coverture for mercantile and trading purposes." By applying, with her husband, in writing to the district court in the county where she intended to operate her business, a married woman could regain the status of feme sole specifically for the purpose of engaging in trade. The law made no provision for appealing the judge's decision, but if he agreed, she had the rights to contract freely and to sue and be sued "as in any other cases." With all her contracts now binding, her separate property became liable for her debts and obligations. Without this license to trade as a single woman, a matron could not be held to her contracts, and she could, in fact, void her agreements at will. Despite the law's obvious benefits, the courts interpreted the 1911 statute in ways that left married female merchants with several problems. Allowed to invest only her separate money in her business, a wife had to be able to prove that whatever funds she put into the firm were indeed hers and neither her husband's nor community property. In addition, at all times she must avoid mingling her goods with those purchased with her husband's credit or with community property. The joint holdings of her marriage could not go into her venture, though as manager of the community property, her husband could draw upon them at will. More problematical to her prospects for expanding her business was the fact that Texas laws defined her profits as community property, automatically subject to her husband's control and management. For this reason, a wife could not legally invest her profits in her company, and as community property her profits were liable for her husband's debts. Nonetheless, whatever the statutes stated and the courts ruled, city directories listed hundreds of married women operating businesses in their own names. Only with the enactment of the Marital Property Act in 1967 did such women gain equal contractual powers and the right to control those portions of the community property that they earned. Married women at last were equipped with the legal rights enabling them to build multi-million-dollar firms in Texas.

The Family Code carried benefits for women in addition to those affecting property. After 1967 both spouses had the right to select their respective domiciles, and in the event of separation or divorce, mothers retained equal rights with fathers regarding custody of the children. As parents, each had the legal duty to support their children. For the first time the wife, if employed, acquired the responsibility of providing for a husband unable to support himself; a housewife was not, however, required by law to take a job. The law also recognized the wife's right to retain her birth name after marriage. The Spanish law allowed a married woman to keep her maiden name and add her husband's name preceded by the expression “señora,” which maintained loyalty to her family of origin. From the earliest days of the Republic of Texas the practice was never mandatory: the changing of a bride's name was always more a matter of custom than of law.

As a group, Texas lawmakers were never friendly to ideas about equality for women, but sometimes legislators inadvertently wrote measures that allowed both married and single women rights normally reserved for men. The Constitution of 1876 required males or "qualified electors" for fewer than a half dozen public offices, an omission which meant that, technically at least, women could hold such elected positions as governor, lieutenant governor, secretary of state, United States senator and representative (though not state senator or representative), and county or state judge. Although Texas women could not vote at any level of government until passage of the primary suffrage law of 1918, years before that date women had served on school boards in Wills Point, Denison, and Dallas. In 1917 the male voters of Marble Falls elected a woman mayor. After the Nineteenth Amendment to the United States Constitution took effect in 1920, women were eligible to serve in any office for which they were otherwise qualified. Similarly, women sometimes acquired rights through the application of federal laws. For example, in a series of important decisions the United States Supreme Court applied the due-process clause of the Fourteenth Amendment to business interests and ruled that a corporation could exercise the rights of an individual before the law. Although a married woman in Texas could not make contracts, one effect of the court's rulings was to allow a married woman member of an incorporated organization to enter into contracts for the corporation, as well as to bring suits and manage property. In 1886 the Texas legislature issued a charter to the Dallas German Ladies Aid Society, almost all of whose members were married women. The charter enumerated the basic civil liberties of a corporate body and stated the society's right to exercise them. In other situations, too, federal law expanded individual rights and activated protections that state law failed to provide or state officials neglected to enforce. Organized labor law in Texas, for example, was rarely effective until overridden by federal regulations and statutes (see UNION REGULATION). More than the property laws and specified rights to contract, the state's criminal code recognized a matron's separate identity, and, in contrast to the common-law idea of husband-wife "oneness," assumed her general responsibility before the law as if she were "sole, or a man." The Texas criminal code of 1856 recognized a few situations in which marriage could cause mitigating circumstances for a woman if, for example, she was involved in a crime "by the command or persuasion of her husband," Such modest protections, however, could not balance a married woman's lack of civil liberties, for particularly by handing down penalties after convictions, jurors had opportunities to punish women for violating accepted customs or to reward women for observing social expectations.

In all aspects of the law, social attitudes leaked through the most objective of statutes-in the drafting of bills by legislators, the rulings and interpretations of judges, and the applications by juries during trials. Probably no area of the law so much reflected customs, mores, and outright prejudices as that pertaining to divorce. When Texas was part of Mexico, the canon law regulated divorce. In 1838 the Congress of the Republic of Texas passed a law allowing the district courts to grant legal separations and divorces when "satisfied of the justice of the application, or [when they found]...it reasonable and proper that the application should be granted." In 1841 the Congress tightened the law by defining the causes justifying divorce: "adultery, abandonment, cruel treatment, and outrages from one toward the other such as render their living together insupportable." From that time until 1967, virtually the only objective criteria for ending a marriage were, first, the provision that either spouse was entitled to a divorce after being abandoned by the other for three years; and second, the fact that wife and husband had lived apart without cohabitation for seven years. All other grounds were evaluated by juries, and in this way community values affected each divorce petition. Juries decided which actions constituted "excesses," "cruel treatment," and "outrages" and whether such behavior made continuation of the marriage "insupportable." Although commentators considered the divorce laws more favorable to wives than to husbands, these laws demonstrated a clear acceptance of a double standard of personal and sexual behavior. A husband, for example, could win a divorce because of his wife's "amorous or lascivious conduct with other men, even short of adultery," or if she was "taken in adultery" even once. A wife could succeed with this charge only if her husband "lived [italics added] in adultery with another woman." On the other hand, his discovery after marriage of her "premarital unchastity, even though concealed," would not win his freedom. A husband's violence against his wife was not adequate reason for a divorce unless it was a "serious" danger and might happen again. Moreover, the jury was likely to deliberate on whether she had behaved "indiscreetly" or had somehow "provoked" her husband. His transmission of a venereal disease was grounds for divorce, as were "false and wicked imputations of a depraved and foul husband aspersing the good name of his wife." A wife's refusal of sexual intercourse might not be a cause for divorce, depending on the jury's opinions about "her condition of health, probable ill effects of childbirth, [or] the husband's age, health, virility, and the like." Consideration for the circumstances of each case undoubtedly produced decisions resulting from contemporary notions about race and class, for juries had the discretion to examine "the habits and character of the parties; their previous training and their standing in society." Clearly, some women were judged worthy of protection from violent husbands, and others were deemed deserving of harsh treatment. Many women undoubtedly suffered the brunt of jurors' prejudices regarding their "station" in life or their "place" in society.

Legal disabilities worked equally against all married women in Texas, but minority women also faced the bias and discrimination endured by men of their racial and ethnic groups. By requiring each voter in primary elections to pay a poll tax, for example, the Terrell Election Laws of 1903 and 1907 barred many African Americans and Mexican Americans, as well as poor Whites, from the elective process. Another law passed in 1923, three years after the Nineteenth Amendment enfranchised women, denied to all black citizens the right to vote in Democratic primaries (see WHITE PRIMARY). In a one-party state, the primaries were as important as the regular elections.

For all Texas women major gains in civil liberties came as slowly as property and contractual rights. In March 1918, twenty-two years after the state's first suffragists organized, the legislature passed the law allowing women to vote in primary elections and party nominating conventions. In June 1919, Texas became the ninth state to ratify the Nineteenth Amendment to the United States Constitution, which took effect on August 26, 1920, and fully enfranchised American women. More than thirty years later, in 1954, Texas women first served on juries. Despite the 1963 law granting equal contractual rights with men, a total of forty-four legal disabilities continued to plague married women. However reassuring this statute appeared, without the amendment or rescission of dozens of other laws, its actual effects were severely limited. For example, it left intact the 1911 law that gave matrons equal contractual rights for trade, but failed to mention married women in the professions. A married woman attorney could not sign a client's bond, and married women physicians also wondered if they actually had the right to perform various procedures required by their medical practices. Restrictions remained throughout the state's judicial rulings and statutes. After years of hard work, Dallas attorney Hermine Tobolowsky succeeded in 1971 in persuading the legislature to enact the Texas Equal Rights Amendment, which the voters ratified in 1972. The amendment established the principle of equality within the state's constitution, but any constitution is, by nature, a passive instrument of government. Its provisions become active only when its principles are applied to the writing of new statutes or used to challenge existing laws in the courts. Thus, of more real and immediate significance than the Equal Rights Amendment, was passage in 1967 of the Marital Property Act, which two years later became a section of the Texas Family Code. The Marital Property Act was a comprehensive set of statutes, which, though aimed specifically at families, amended the laws regarding virtually every aspect of life in Texas, including insurance, banking, real estate, deeds, contracts, divorce, choice of domicile, child custody, and property rights. Led by Dallas attorney Louise Raggio, this revision of the state's laws amounted to a virtual revolution for women in Texas. Its major-and still largely unappreciated-effect was to give married women equal legal rights. (Single women have always enjoyed equal property and contractual rights and in 1920 and 1954, along with married women, also acquired equal political rights.) Enacted in three sections between 1967 and 1974, the Texas Family Code was the first family code in the United States. As of January 1994 no provision of the code had ever been ruled unconstitutional.

Just as women bore disabilities under the law, so did they face strong prejudice within the profession of law. Unlike medicine and teaching, which have always borne certain indelible relationships to age-old female roles, law remained more securely ensconced within the "male realm." For many years widely accepted assumptions about their "place" in society discouraged women from studying law, the most direct way to affect the passage of legislation as well as its interpretation and application in the courts. In 1900 the federal census listed no female attorneys in Texas and in 1910, only three. During the subsequent decades the numbers of women lawyers grew slowly, to only seventy-five among the state's 6,651 by 1930, and more than forty years passed before the first two minority women attorneys began practicing in Texas. Charlye O. Farris, the state's first black woman lawyer, graduated from Howard University Law School in 1953; two years later Edna Cisneros became the first Hispanic woman to be licensed in Texas as an attorney. As late as 1986, women were still a mere 14 percent of the state's practicing lawyers. But the situation changed rapidly during the following decade. By 1990, 789 women received just over 40 percent of the J.D. degrees awarded by Texas law schools, and three years later nearly 13,000 female attorneys comprised 23 percent of the State Bar of Texas. By 1994, 88.1 percent of those women lawyers were Caucasian, 5.4 percent black, 4.7 percent Hispanic, 1 percent Asian, and 0.3 percent American Indian. The remaining 0.5 percent were "other."

Despite their apparent progress during the years of the suffrage campaign and their success in winning passage of legislation during the decade afterwards, women's advance into lawmaking positions evaporated. In 1925 Governor Pat M. Neff appointed three woman attorneys to hear a single case, from which the sitting justices had disqualified themselves. Though making national news, the All-Woman Supreme Court remained a curiosity rather than the beginning of a new development. Women's progress onto the judicial bench remained glacial, even after Sarah T. Hughes was appointed the state's first female judge in 1931. Forty years later, two women held state district judgeships, two were domestic-relations judges, and one was a county judge. As late as 1981 only eleven of 330 district judges were women, and by 1990 their numbers had grown to 41 of 361, a percentage increase from 3 to 11. Despite this modest progress on the state bench, women continued to lag behind as district attorneys, advancing from 4 of 329 statewide in 1980 to only 7 in 361 by 1990. The appointment of women to the federal courts in Texas was equally slow. After nearly thirty years as a state district judge, Sarah Hughes became a federal district judge in 1961, but remained more a token than an example. In both 1980 and 1990 Texas had only three woman United States district judges, and seven others served in the state's appellate courts.

Women were also slow to claim the right to help make Texas laws. In 1931 four women sat in the state House of Representatives and only one in the Senate. During the next forty years those figures changed very little: in 1973 five women were state representatives, one a senator. In 1981–82 eleven women were members of the Texas House, still only one of the Senate. In 1989–90 the figures were little changed at fourteen and three, respectively. Modest though noticeable improvement came suddenly, however, and by 1993 the Seventy-third Legislature included 25 women among 150 representatives and 4 women among 31 senators. In 2017 those figures increased to 29 women among 150 representatives and 8 women among 31 senators. Perhaps such slow advances must also be sure progress, which in the future can assure women of stronger and more secure roles in Texas life and public affairs. See also ELECTION LAWS, GOVERNMENT, LAW, SPANISH LAW, WOMAN SUFFRAGE, WOMEN AND POLITICS.

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Barbara Bader Aldave, "Women in the Law in Texas: The Stories of Three Pioneers," St. Mary's Law Journal 25 (1993). Lori Cook, "A Demographic Profile of Texas Attorneys," Texas Bar Journal 56 (December 1993). Dallas Morning News, May 3, 1918, July 25, 1993. Kathleen Elizabeth Lazarou, Concealed under Petticoats: Married Women's Property and the Law of Texas, 1840–1980 (Ph.D. dissertation, Rice University, 1980). Jack W. Ledbetter, Texas Family Law (Austin: University of Texas Bureau of Business Research, 1974). Jane Y. McCallum, "Activities of Women in Texas Politics," in Texas Democracy, ed. Frank Carter Adams (Austin: Democratic Historical Association, 1937). Joseph W. McKnight, "Spanish Law for the Protection of Surviving Spouses in North America," Anuario de Historia del Derecho Español 57 (1987). Joseph W. McKnight, "Texas Community Property Law: Conservative Attitudes, Reluctant Change," Law and Contemporary Problems 56 (Spring 1993). Joseph W. McKnight and William A. Reppy, Jr., Texas Matrimonial Property Law (Charlottesville, Virginia: Michie, 1983). Louise Ballerstedt Raggio and Reba Graham Rasor, "From Dream to Reality-How to Get a New Code on the Books," Family Law Quarterly 8 (Summer 1974).

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Elizabeth York Enstam, “Women and the Law,” Handbook of Texas Online, accessed August 09, 2022, https://www.tshaonline.org/handbook/entries/women-and-the-law.

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March 31, 2021

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