Untitled Texas Attorney General Opinion ( 1971 )

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Senator J. P. Word Opinion No. M-881
Chairman, Senate Committee on
Legislative, Congressional Re: Validity of Special
8 JudlcltilDlstrlcts Session apportioning the
State Capitol State Into senatorial
Austin, Texas districts In conformity
with,the 1970 United States
Dear Senator Word: decennial census.
You have reques~tedthe opinion of this office as to
whether a valid senatorial redistricting bill may be enacted
by the Legislature at this Special Session.
It makes no difference whether this subject was Included
In the proclamation calling the Special Session or whether
the Governor amends said proclamation so as to Include this
subject. The Legislature cannot validly enact a senatorial
redistricting bill at this Special Session. Section 28 of
Article III of the Texas Constitution Is controlllng,and we
quote and analyze the following controlling portions thereof.
'The Legislature shall, at Its first
regular session after the publication of each
iJnltedStates decennial census, apportion the
state Into senatorial and representative dls-
trlcts, agreeable to the provisions of Sections
maand 26-a of this Article. . . .'
(Emphasis supplied throughout.)
The Legislature has met at Its first Regular Session after the
publication of the last decennial census and has failed to pass
any senatorial apportionment statute.
This Section 28 provides that 'In the event the
Legislature shall at any such first regular session following
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Senator J. P. Word, paf'e2 (M - 881)
the publication of a United States decennial census, fail
same shall be done3
to make such apportionment, -- the Lepisla-
--
tive Redistricting Board of Texas, which is hereby created,
and shall be composed of five (5) members as follows: The
Lieutenant Governor, thespeaker of the House of
Representatives, the Attorney General, the Comptroller of
Public Accounts and the Commissioner of the General Land
Office, a majority of whom shall constitute a quorum."
In enacting this provision, the people specifically
provided for the procedure to be followed to achieve equal
apportionment and did not see fit to leave it within the
discretion of the Governor to call a special session for
such a purpose. Moreover, we do not deem It speculative to assume
that a further reason for such a decision lay in the fact that
where the legislature had failed to act, the more reasonable
course lay In providing an entirely different body with the
power and duty to act and effect constitutional apportionment.
Quoting further from the Constitution: "Said Board shall
assemble In the City of Austin within ninety (90) days after the
final adjournment of such regular session. The Board shall.withln
sixty (60) days after assembling, apportion the state into
senatorial and representative districts,-or into senatorial or re-
presentative districts, as the failure of action of such Leplsla-
ture may make necessary."
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Senator J. P. Word, page 3 (~-881)
Thereafter provision Is made for the enactment In writing
of apportionment and filing with the Secretary of State, -
at
which time It shall have force and effect of law. It is further
provided that 'Such apportionment shall become effective at the
next succeeding statewide general election."
Thus, the exact situation which has occurred, that is,
the failure of the last regular session of the Legislature
to pass an apportionment statute,is contemplated by and pro-
vided for In the above quoted portions of Section 28.
Further, to Insure ultimate accomplishment of apportlon-
ment, Section 28 provides as follows:
The foregoing procedure Is not only clearly mandatory,
but the complete and exclusive law In this State. '!ItIs
well settled that when a power Is expressly given by the
Constitution and the means by which, or the manner in
which, It Is to be exercised Is prescribed, such means'and
manners Is exclusive of all others." 12 Tex.Jur. 2d 361
Const. Law Sec. 30. See also Houchlns v. Plalnos, 130 Tex.
413; 110 S.W.2d 549 (1937); Parks v. West, 102 Tex. 11, 111
S.W. 726 (1908).
The mandatory provisions of Section 28, Article III,
which provide for and guarantee equal representation In the
making of laws, are consistent with the republican form of
government required under Section 4 of Article IV of the
United States Constitution.
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Senator J. P. Word, page 4 (M-881)
We find nothing In the Texas Constitutional provisions
which conflict with the federal constitution.
...How power shall be dlstrlbuted by
a state among Its governmental organs Is
commonly, If not always, a question for the
state Itself...." land Farms Dairy, Inc.
v. Agnew, 300 U.S. 119371.
We do not discern any questions arising under the
equal protection clause of the Fourteenth Amendment.
Baker v. Carr, 369 U.S. 186 (1937).
Provisions In the State Constitution of Missouri
similar to those In the Texas Constitution under consideration
have been upheld by the Supreme Court of that State. State
v. Hitchcock, 146 S.W. 40 (Mo.Sup. 1912), and State v. Becker,
235 S.W. 1017 (Mo.Sup. 1921).
SUMMARY
A called session of the Legislature
cannot pass a valid Redistricting Bill where
the First Regular Session following a United
States decennial census failed to do 80.
Redistricting must be accomplished pursuant
to the provisions of Section 28 of Article III
of the Texas Constitution.
Veryt&iy your:,
Prepared by Marietta McGregor Payne
Assistant Attorney General
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Senator J. P. Word, page 5 (~-881)
APPROVED:
OPINION COMMI'ITEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Ralph Rash
Wardlow Lane
Larry Craddock
Sam McDaniel
Meade F. Griffin
Staff Legal Assistant
Nola White
First Assistant
Alfred Walker
Executive Assistant
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