Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
May 30, 1961
MARK WHITE
Attorney General
Honorable Bob Bullock Opinion No. MW-353
Comptroller of the State of Texas
L.B.J. Building Re: Reapportionment of the
Austin, Texas Texas House of Representatives
Dear Mr. Bullock:
You have questioned the constitutionality of the Committee
Substitute to House Bil 960, recently enacted by the legislature, which would
reapportion the Texas House of Representatives. You raise five specific
issues relating thereto. We limit our consideration to your specific
concerns. First, you ask that we address the following:
1. The proposed reapportionment plan divides
several small counties into more than one
representative district and combines the excess
populations of counties with more than sufficient
population for a single district into multiple
adiacent districts. Is the DroDosed plan valid in
light of the decision issued-by-the Su&eme Court
of Texas in Smith v. Craddick, 471 S.W.2d 375
(Tex. 1971)? -
The Smith v. Craddick ‘case to which you refer considered the Texas
Constitutional provision relating to reapportionment of the House of
Representatives, article III, section 26, as it relates to federal law. At
issue was the validity of a statute which purported to effect
reapportionnient of the House following the 1970 federal census. The state
constitutional provision reads now, as then, as follows:
Sec. 26. The members of the House of
Representatives shall be apportioned among the
several counties, according to the number of
population in each, as nearly as may be, on a ratio
obtained by dividing the population of the State, as
ascertained by the most recent United States census,
bv the number of members of which the House is
each other; and when any one county has more than
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Honorable Bob Bullock - Page Two (MW-353)
sufficient population to be entitled to one or more
Representatives, such Representative or Representatives shall
be apportioned to such county, and of any surplus of population
it may be joined in a Representative District with any other
contiguous county or counties. (Emphasis added.)
After citing a number of federal court decisions and discussing the cases of
Kilgarlin v. Martin, 252 F. Supp. 404 (S. D. Tex. 1966) and Kilgarlin v. Hill, 366 U.S. 120
{1967), the Texas Supreme Court noted in Smith v. Craddick that the requirement of the
United States Constitution takes precedence and any inconsistency therewith in the
Texas Constitution is thereby vitiated. “Whatever Section 26 of article III provides,
there must be equal representation to accord with the holdings of the federal courts.”
471 S.W.2d at 377. The Texas Court summarized at 471 S.W.2d at 377, 376 the effect of
federal decisions regarding the Fourteenth Amendment to the U. S. Constitution on
article III, section 26 of the Texas Constitution:
1. Section 26 requires that apportionment be by county
and when two or more counties are required to make up a
district of proper population, the district lines shall follow
county boundaries and the counties shall be contiguous. A
county not entitled to its own representative must be joined to
contiguous counties so as to achieve a district with the
population total entitled to onerepresentative. The only
impairment of this mandate is that a county may be divided if
to do so is necessary in order to comply with the equal
population requirement of the Fourteenth
Amendment. . . . Fortson v, Dorsey, 379 U.S. 433, 85 S. Ct. 498,
13 L. Ed. 2d 401 (1965); cf. Connor v. Johnson, 402 U.S. 690, 91
S. Ct. 1790, 29 L. Ed. 2d 268 (1971).
2. The first clause of the proviso dicates that a county
must be formed into a separate district if it has sufficient
population for one representative. This would be effective only
so long as the population of that county is within permissible
limits of variation. If the population of the county is slightly
under or over the ideal population figure, the state constitution
requires that the county constitute a separate district.
3. The final clause of Section 26 dictates that, for any
surplus population, the county shall be joined with contiguous
county or counties in a flotorial district. This dictate is
nullified. (Emphasis in original.)
4. With the nullification of the dictate relative to use of
the surplus population (less than enough for a district) of a
county which already has one or more representatives allocated
thereto, it becomes permissible to join a portion of that county
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Honorable Bob Bullock - Page Three (Mu-353)
(in which the surplus population reside and which is not included
in another district within that county) with contiguous area of
another county to form a district. For example, if a county has
100,000 population, and if a district of 75,000 population is
formed wholly within that county, the county is given its
district, and the area wherein the 25,000 live may be joined to a
contiguous area. (Emphasis in original.)
5. It is still required that a county receive the member
or members to which that county’s own population is entitled
when the ideal district population is substantially equalled or is
exceeded. No exception to this requirement is made by wha
said in 4, above. Again, all requirements of section 26 are
inferior to the necessity of complying with the Equal Protection
Clause. (Emphasis added.)
The statute considered in Smith v. Craddick was held unconstitutional by the
Supreme Court of Texas because it ignored the integrity of county lines, the observance
of which is commanded by the Texas Constitution, when it was unnecessary to ignore
them in order to comply with federal constitutional requirements. If the bill about
which you inquire would have the same effect we believe it would meet a similar fate.
However, we cannot say that the proposed plan is invalid. Its validity turns on
the facts upon which its provisions are based and the federal law considerations with
which it must comport. At the time Smith v. Craddick was considered, the federal
Voting Rights Act, 42 U.S.C. sec. 1971, et seq., had not been applied to Texas, and the
requirements of the Fifteenth Amendment to the United States Constitution were not
discussed.
Our review is necessarily limited to the facial characteristics of the proposed
legislation. In the absence of appropriate determinations of fact, which cannot be made
in an attorney general opinion, we have no basis for concluding that deviations of the
bill from the county-line requirements of the Texas Constitution, if any, are not
compelled by the dominant requirements of the United States Constitution. See White
--
v. Register, 412 U.S. 755 (1973); Mauzy v. Legislative Redistricting Board, 471 S.W.2d
570 (Tex. 1971).
Your remaining questions are as follows:
2. May an apportionment plan combine primarily rural
counties with urban areas in a single representative
district, when alternative plans can or could be adopted
with preserve rural communities of interest?
3. Because the United States Bureau of the Census has stated
that the population figures for minority groups are
“provisional,~l pending the outcome of federal court
litigation challenging the validity of these figures, may the
Legislature reapportion into districts on the basis of these
figures?
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Honorable Bob Bullock - Page Four (Mu-353)
4. Because the guidelines for submitting a reapportionment
plan to the United States Department of Justice under the
Voting Rights Act specify that recent election data be
included in the submission, may the Legislature reapportion
representative districts without considering the effects of
election returns and voter registratration data on proposed
minority districts?
5. At least one member of the committee on regions,
compacts and districts has expressed his opinion that the
reapportionment plan has been drafted to intentionally
discriminate against his political int erest. May a
reapportionment plan adopted by the Legislature have
either the purpose or effect of discriminating against any
recognizable political interest?
These questions are virtually identical with four questions in your recent request
for an attorney general opinion relating to Senate Bill 800, which reapportions the
Senate. We find no law, and have been cited to ncne that requires different answers to
these questions depending on whether they are directed at the Senate or House
reapportionment plan. Consequently, we refer you to Attorney General Opinion MW-
350 (19811, for answers to these questions.
SUMMARY
C.S.H.B. 960, the House of Representatives’ reapportionment
bill, would not be held facially unconstitutional for its
departures, if any, from the county-line requirements of article
III, section 26 of the Texas Constitution.
vJn.tw.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY, Ill
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moelinger
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