§ 5.001.Rule of Decision

Two subsections, and the second is a recent and pointed addition.

The rule of decision in this state consists of those portions of the common law of England that are not inconsistent with the constitution or the laws of this state, the constitution of this state, and the laws of this state.

This is the reception statute, and Texas has had one since the Republic. It answers a question every American jurisdiction had to answer: what law applies where no statute speaks.

The answer is English common law, subject to a filter. Only those portions not inconsistent with the Texas constitution or Texas statutes are received, so any conflict resolves in favour of Texas law.

The order of the three sources reflects their rank in reverse. Statutes and the state constitution displace received common law wherever they speak.

Texas’s civil law inheritance sits alongside this rather than inside it. Community property, the homestead, and the land grant system came from Spanish and Mexican law, and they survive because they entered Texas law by other routes.

Subsection (b) is the modern provision: in any action governed by Texas law, the American Law Institute’s Restatements of the Law are not controlling.

The Restatements are influential secondary works, drafted by scholars and practitioners, and Texas courts have long cited them. This does not forbid that.

What it forbids is treating them as authority. A Restatement section is a proposal about what the law should be, adopted by a private organisation; it becomes Texas law only when a Texas court or the Legislature makes it so.