Untitled Texas Attorney General Opinion ( 1969 )

Honorable Murray Watson Opinion No. M-349
Chairman of Senate Committee on
Legislative, Congressionaland Re: Senate Bill No. 25 on
Judicial Dlatrlcts apportionmentof State into
State Capitol Building Senatorial Districts and
Austin, Texas elections required thereby.
Dear Senator Watson:
In your recent request for opinion you submitted a copy of Senate
Bill No. 25 which proposes to make changes In two of the thirty-one
Senatorial Districts (Nos. 8 and 16), to become effective in the
elections to the 63rd Legislature In 1972. In connection therewith
you present the following questions:
“1. Can the Legislatureamend the statute dealing
with apportionmentof the Senate or House of
Representativeson a local basis bill?
“2. Will such a bill be consideredas a general
reapportionmentin order to require the members
of the Senate to run at the next election?
“3. Can a bill be passed at this session--tobecome
effective January, 1972--and not be considered a
reapportionment,in order to cause all members
to run at the next election?
“4. Will the bill require publication as a local bill
in the newspapers?
“5. Are there any constitutionalquestionswhich would
prohibit the enactment of such bill or jeopardize
the existing district in either the House of Repre-
sentativesor the Senate?”
Article III, Section 3 of the Constitutionof Texas provides, in
part, as follows:
“The Senators shall be chosen by the qualified electors
for the term of four years; but a new Senate shall be
chosen after every apportionment,and the Senators
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Hon. Murray Watson, Page 2 (M-349)
elected after each apportionment shall be divided by
lot Into two classes. The seats of the Senators of
the first class ahall be vacated at the expiration
of the first two years, and those of the second class
at the expiration of four years, so that one half of
the Senators shall be chosen biennially thereafter...‘I
(Emphasis supplied)
Article III, Section 25 of the Constitutionof Texas states, In part,
that:
“The State shall be divided Into Senatorial Districts
of contiguous territory according to the number of
qualified electors, as nearly as may be, and each
district shall be entitled to elect one Senator ...’
Article III, Section 28 of the Constitutionof Texas directs, in
part, as follows:
“The Legislature shall, at its first regular session
after the publication of each United States decennial
census, apportion the state Into senatorialand
representativedistricts, agreeable to the provisions
of Sections 25, 2b, and 26-a of this Article. In the
event the legislature shall at any such first regular
session following the publication of a United States
decennial census, fail to make such apportionment,
same shall be done by the LegislativeRedistricting
Board of Texas, ...” (Emphasis supplied)
The evident question of whether a bill such as S.B. No. 25 Is,
in fact, an apportionmentbill or is something less or different is
best set out in the case of Kllgarlin v. Martin, (D.C. 1966) 252
F. Supp. 404, reversed on other grounds 87 S.C. 820, 386 U.S. 120,
17 L. Ed. 2d 771, wherein a footnote contained the following:
” tApportlonmentI, In the technical sense, refers
solely to the process of allocating legislators
among several areas or political subdivlalons,while
‘districting’entails the actual drafting of district
lines. Thus, Congress ‘apportions’Representatives
among the states, while the states ‘district’by
actually drawing the congressionaldistrict lines. In
Texas, the Legislatureboth ‘apportions’and ‘districts’
as In H.B. 195. For example, It ‘apportions I 19 Represen-
tatives to Harris County, and ‘districts’ Harris County
into three districts. In keeping with common usage,
however, the total process will be referred to as lap-
portionmentI In this o inion. See Comment, 72 Yale L.J.
968 (1963) at 970 n. 2fl.”
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Hon. Murray Watson, Page 3 (M-349)
Redistrictingof the Senate has consistentlybeen reaognlzedas an
apportionmentas is reflected by the elections held pursuant to
the most recent "redistricting"thereof occasioned by Acts 1965,
59th Legislature,page 719, Chapter 342.
Any apportionmentof,the Senate must be In aompllance with those
portions of Article III, Section 25, Constitutionof Texas, which
have not been declared to be in violation of the United States
Constitution. (Attorney Qeneral Opinion WW-1041, dated April 20,
1961) The portion of Article III, Section 25, above quoted,
requires the State a8 a whole to be divided Into Senatorialdistricts.
This does not mean that S.B. No. 25 as written could not be passed
Into law, but that if it were, It would have the effect of reappor-
tioning the unmentioned Senatorial districts as they were and would,
therefore, be a general and not a local law. Your first question IJ
answered In the negative In,that such apportionmentwould be a
general and not a local law.
In Attorney Oeneral's Oplnlon No. 2366, dated July 18, 1921, and
recorded ,onpage 188, et seq. of the Report and Opinions of
Attorney General 1920-22, at page 192, being an answer to an inquiry
similar to your second and third questions, the following opinion
was expressed:
"Moreover,in the event the Legislature should pass an
act rediatrlctlngthe State Into senatorialdistricts
effective some time In 1924, it could not be said that
the State has been apportioned until the Act takes
effect. It follows that In the event a new Senate would
not be elected under the new apportionmentuntil after
the taking effect of the Act."
No reason Is seen why such opinion should not still be authoritative.
It is the established policy of this office to follow earlier
opinions on the same subject where they are not shown to be clearly in
error. Attorney General's Opinion No. O-1659 (1939).
Your second question is answered In the negative Insofar as It
inquires as to whether the enactment of S.R. No. 25 would necessitate
the election of a new Senate for the 61st or 62nd Legislature. How-
ever, It must be answered in the affirmative to the extent that it
Inquires as to whether Its passage would be considered as a general
reapportionmentafter its effective date so as to require the election
of a new Senate at that time. S.B. No. 25, if finally enacted into
law, upon reaching Its effective date, would be an apportionmentat
that time and would, therefore, in accordance with Article III of
Section 3 of the Constitutionof Texas, require the election of a
new Senate.
Your third question is answered In the affirmative to the extent thit
S.B. No. 25 could be passed at this session and not immediatelybe
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Hon. Murray Watson, Page 4 (M-349)
an apportionmentrequiring the election of a new Senate, such
election not being required until after its effective date.
Inasmuch as S.B. 25, if enacted, would not be a local law as pointed
out in answer to your first question, publication required of local
laws by Article III, Section 57 of the Texas Conetltutionneed not
be made.
Referring to your fifth question, no attempt will be made to foreclose
or foresee any and all possible constitutionalquestions that might
arise as a result of the passage of S.B. No. 25. Nevertheless,$t
should be observed that if S.B. No. 25 were to be finally enacted into
law so as to become effective for the elections to the 63rd Legls-
lature, It will not satisfy the requirement of Article III, Section 28
of the Constitutionof Texas, to the effect that a new apportionment
must be made after the decennial Federal Census of 1970. This is
necessarily so because of the necessity of requiring the passage of
an apportionmentutilizing the results of the decennial census.
Such bill, if enacted, would be repealed by the apportionmentrequired
to be made after the decennial Federal Census of 1970 or by the
apportionmentof the LegislativeRedj.stricting Board in the event the
Legislature does not act.
SUMMARY
S.B. No. 25, proposing to change the boundarlea
of two of thirty-one Senatorial districts,would
be a general law and upon its effective date would
require the election of a new Senate; but if
enacted it would be repealed by the apportionment
required to be made after the deceMla1 Federal
Census of 1970 or by the apportionmentof the
LegislativeRedistrictingBoard In the event the
Legislaturedoes not act.
truly yours,
Prepared by Harold G. Kennedy
Assistant Attorney &neral
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Hon. Murray Watson, Page 5 (M-349)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
CiaorgeKelton, Co-Chairman
Louis Neumann
John Banks
Dyer Moore, Jr.
Jay Floyd
W. V. GEPPERT
Staff Legal Assistant
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