Untitled Texas Attorney General Opinion ( 1991 )

QBfficeof toe IZlttornep@eneral
Mate of Qexag
DAN MORALES
ATTORVEY
CLXiERhL February 27,199l
Honorable Chet Brooks Opinion No. DM-6
chairman
Senate Committee of the Whole Re: Whether release of census counts
on Redistricting subject to possible adjustment constitutes
Legislature of the State of Texas publication of the United States decennial
P.O. Box 12068 census for purposes of article III, section
Austin Texas 78711-2068 28, of the Texas Constitution and related
questions (RQ-24)
Honorable Tom Uher
House Redistricting Committee
Texas House of Representatives
P.O. Box 2910
Austin Texas 78768-2910
Dear Gentlemen:
You request advice on matters relating to the construction of article III, section 28,
of the Texas Constitution, the provision establishing the legislature’s duty to apportion the
state into senatorial and representative districts:
The state constitution directs the legislature to apportion state senatorial and
representative districts (“legislative districts”) at the first regular session “after the
publication of each United States decennial census.” Tex. Const. art. III, § 28. If, during
such session “following the publication of a United States decennial census,” the legislature
“fail[s] to make such apportionment, the Legislative Redistricting Board (“LRB”) is
required to apportion. u
A census publication during a regular session immediately activates the
constitutional apportionment duties of both the legislature and, if it fails, the LRB. &uzy
v. Legislative Redistrictine Bd., 471 S.W.2d 570 (Tex. 1971). The underlying purpose of the
1948 constitutional amendment to article III, section 28, having been to “get on with the job
of. . . redistricting,” the constitutional obligations are activated at the earliest possible
moment:
p. 25
Honorable Chet Brooks - Page 2 (DM-6)
Honorable Tom Uher
mhe overriding intent of the people . . . was to permit apportionment
of the state into legislative districts at the regular session of the
Legislature which is convened in January following the taking of the
census, if publication is either before convening or during the session.
fi at 573.
The m court explicitly avoided stating when “publication” occurred; however, in
the same passage in which it declined to resolve the issue, the court highlighted that by a
certain date in early 1971 (during a regular legislative session) “the Legislature had been
furnished all census figures necessary to apportion the state into legislative districts.” u
The 1990 census presents Texas with unique circumstances. wile there has been
no injunction prohibiting the census enumeration from going forward, there has been an
injunction, in the form of a stipulation of the parties to a lawsuit approved by a federal
district court, which makes the reporting and publishing of the results of the enumeration
provisional, until July 15, 1991, at the latest. Stipulation and Order, Citv of New York v,
United States Deu’t of Commerce, No. 88 CV 3474 (E.D.N.Y. July 17, 1989) (“City of New
York”). Texas is a party to the lawsuit and is bound by the stipulation. a, Citv of New
&& (Order of July 13,199O).
The provisional nature of the census population counts is occasioned by the
requirement that the United States Department of Commerce (“department”) follow a
specified course of action that must culminate in its determination no later than July 15,
1991, whether to make a statistical adjustment of the 1990 decennial census. If it decides to
adjust, the adjustment must be made and published by the deadline; if it decides not to
adjust, a detailed explanation must be given by the. deadline.
The specified course of action is unique in census annals. Paragraph 3 of the
stipulation requires the department to undertake a post-enumeration survey (“PES”) “of
not fewer than 150,000 households . . . as part of the 1990 Decennial Census in a manner
calculated to ensure the possibility of using the PES . . . to produce corrected counts usable
for . . . legislative reapportionment.” Information submitted in connection with this request
shows that between 164,000 and 170,000 households were surveyed in the PES.
Paragraph 6 of the stipulation requires that the federal government’s release or
publication of “any population counts” from the 1990 census prior to the adjustment
decision bear the following legend:
p. 26
Honorable Chet Brooks - Page 3 (DM-6)
Honorable Tom Uher
The population counts set forth herein are subject to possible
correction for undercount or overcount. The United States
Department of Commerce ‘is considering whether to correct these
counts and will publish corrected counts, if any, not later than July 1.5,
1991.’
On February 5, 1991, the Census Bureau, an arm of the department, reported to the
Governor of Texas the population counts described in section 141(c) of title 13 of the
United States Code. The bureau describes these reports of population figures as “public
law 94-171 counts,” in reference to the enactment that adopted the provision codified as
section 141(c). See eenerally Pub. L. No. 94-171, 89 Stat. 1023 (1975). These counts
contain the disclaimer required by paragraph 6 of the Citv of New York stipulation and
order.
The release of the public law 94-171 counts means that the legislature now has
population counts at a geographic level sufficient to perform its task of legislative
redistricting. The question is whether the release of these counts is a “publication”
triggering the constitutionally imposed redistricting duties of the legislature and, if
necessaty, the LRB. The question is one of state, not federal, law.
Because the 1948 state constitutional amendment (effective beginning in 1951) was
enacted without regard to the unique circumstances attending the 1990 census, we cannot
answer the crucial question without considering the purpose of the amendment and the
legal and practical consequences of taking the purpose into account in determining its
meaning and reach.
The task of discerning the amendment’s basic purpose is eased enormously by the
m decision. The purpose of the amendment is to establish a structure which compels
expeditious reapportionment action for state legislative seats. That is, it forces the state
government to “get on” with the task of redistricting. The task is assigned initially to the
legislature. If it fails to act, even when it has had the necessary data only for a few days,
under m the task falls to the LRB.
p- 27
Honorable Chet Brooks - Page 4 (DM-6)
Honorable Tom Uher
We must construe the meaning of “publication” against this backdrop. Certain
overriding principles guide us. First, the people intend for the legislature to be given the
opportunity and duty to act on these apportionment matters in the first instance. Second, if
for whatever reason the legislature fails to act, the LRB must act. Third, the release of
sufficiently detailed census data is the key event triggering state action.
We find no direct authority that determines whether the release of census data
subject to the disclaimer in this case is the “publication” of a decennial census under the
constitutional provision. We do find some guidance in Texas court decisions addressing
closely related questions. In Holcomb v. Spikes, 232 S.W. 891 (Tex. Civ. App.-Amarillo
1921, writ dism’d), the court had to determine whether Lubbock County was entitled to
elect a tax collector as of the November 1920 election under the constitutional provision
that “in comties having 10,000 inhabitants, tQ be determined bv the last Drecedina census of
d Sta es a collector of taxes shall be elected.” rd. at 893 (emphasis added); s
a Tex. Constt A. VIII, iJ 16 (1876 amended 1932 (1954).
The only question before the court was whether the census taken in 1920
determined the population of Lubbock County for purposes of applying article VIII, section
16. The Director of the Census had issued a report before the November election
certifying that the population of Lubbock County was 11,096 according to census returns.
The court reviewed the census statutes and determined that the report was an official
pronouncement under the law, of which the public and all officials might take notice.
Holcomb V. Spikes, m, at 893. The Director of the Census also gave a certificate stating
that the census count was subject to correction. The court rejected the idea that the count
should not.be relied on, stating that “the fact that it may be corrected does not indicate that
the census was not complete and then a public document under the law.” Id.at 895.
The court in Ervin v. State, 44 S.W.2d 380 (Tex. Crim. App. 1931), relied on a
preliminary count of the 1930 census returns in determining that Abilene had sufficient
population to bring it within the statute requiring selection of a jury by the jury wheel
system. The.announcement of the census stated that the figures were preliminary and
subject to correction. Citing Holcomb v. Soikes, the Texas Court of Criminal Appeals
determined that the preliminary announcement of the census was an official announcement
that should have guided the jury commissioners’in their method of selecting a jury. ,&
&Q Perkins v. State, 367 S.W.2d 140, 147 (Tex. 1963); Garrett v. Anderson, 144 S.W.2d 971
(Tex. Civ. App.-San Antonio 1940, writ dism’d judgm’t car.); Attorney General Opinions
v-1310, v-1175 (1951); v-1137 (1950).
The principles underlying Mauzy. Holcomb, and &v& all point toward the
conclusion that, notwithstanding its provisional nature, the release of the public law 94-171
p. 28
Honorable Chet Brooks - Page 5 (DM-6)
Honorable Tom Uher
counts on February 5, 1991, constitutes a “publication” within the meaning of article III,
section 28, of the constitution. This conclusion is consistent with the principle announced
in Attorney General Opinion MW350 (1981). There, we concluded that publication of the
1980 census population data was a triggering “publication” under article III, section 28,
notwithstanding the census bureau’s having labelled it “provisional” due to pending federal
litigation chahenging the validity of the figures. The legend affixed to the just-released
1990 census population totals is the functional equivalent of the “provisional” label the
census bureau used to describe the 1980 census population totals.
We see no reason to depart from the principle announced in that opinion. In fact,
we see very sound reasons, grounded in case law and the underlying purposes of article III,
section 28, for adhering to it.
A POST-SESSION CENSUS ADJUSTMENT WOULD BE ANOTHER “PUBLICATION,
TRIGGERING, IF CERTAIN CI!k&STANCES ARE PRESENT, THE REDISTRICTING DUTIES OF
THE LRB FIRST ON AN INTERIM BASIS AND, IN THE NEXT REGULAR SESSION, THE
LEGISLATURE AND LATER, IF NEEDED, THE LRB
The foregoing conclusion that release of the provisional population counts is
nonetheless a publication under the constitution does not preclude there being another
publication of the population counts if an adjustment is made. In considering this
possibility, we will assume that the second publication date of the 1990 census would be
after the current regular session.1 Assuming that the department does not make its
adjustment decision until the last day, that date would be July 15, 1991. Would the release
by the department of adjusted population counts constitute yet another “publication” under
article III, section 28, of the constitution? We conclude that it would.
W,e already have explained the uniqueness of the 1990 census. The Bureau of the
Census has noted that a statistical adjustment of the count would be “for the first time in
the history of the Census.” 54 Fed. Reg. 51004 (1989). In the past, as exemplified in some
of the references in Holcomb v. Soikes, the Bureau of the Census has made corrections to
its published census figures. These corrections, however, were not premised on the
gathering of new enumeration data. In 1990, in unique circumstances, the Bureau of the
Census, under federal court order, has undertaken a new round of data gathering through
1 Nothiig in the stipulation prevents the adjustment decision from being made before the end of the
current regular session of the legislature. Such an action is not anticipated, but, if it cccws, the m principle
means that the triggering event will have occurred during the current regular session.
p. 29
Honorable Chet Brooks - Page 6 (DM-6)
,Honorable Tom Uher
the PES. The PES is in effect a mini-census based on additional enumeration efforts of a
substantial magnitude, different in kind from the steps leading to past technical corrections.
The PES and data derived from it will form the basis for the department’s decision
about whether to adjust the census. Under guidelines adopted by the department, the
adjustment will not take place unless, among other things, “[t]he resulting counts [are] of
sufficient quality and level of detail to be I&& for . . . legislative redistricting.” -of
New York v. Deuartment of Commerce, 739 F. Supp. 761,769 (E.D.N.Y. 1990) (emphasis
in original).
The circumstances surrounding the upcoming census adjustment decision, especially
the massive new data gathering preceding it, lead us to the conclusion that should an
adjustment occur, it will constitute a new “publication” of the decennial census under the
Texas Constitution If the adjustment is made, it too will be a “publication” of the federal
decennial census, regardless of the degree of difference in the adjusted and unadjusted
data.
If an adjustment and therefore a second publication occurs, a question would arise
as to whether the LRB would be empowered to undertake its constitutional redistricting
responstbilities, and what effect the LRB’s acquisition would have .on the legislature’s
reapportionment jurisdiction. We address the latter part of the question first.
At first glance, the plain words of article III, section 28, suggest that the legislature
has no state legislative redistricting powers in a special session between census publication
and a regular session.* In contrast to the pre-1948 version of the provision which referred
to the “first session,” the current provision mandates legislative action at its “first w
session” following publication.
The Texas Supreme Court was not presented and did not answer the question in
Mauzy, 471 S.W.2d at 574, although some of its language seems to implicitly endorse the
2 Article III, se&m 28, does not speak to congressional redistricting or state board of education
rediiriding. Thus, it is not a restriction on the legislature’s powers during a special session concerning those
hvo activities. There being no other state constitutional provisions on this topic, the legislnture has the power to
undertake rediitricting during special sessions for congressional and state board of education seats. Cr.
Attorney General Opinon O-6488 (1945) (predating the 1948 amendments which added “regular session”
language to article III, section 28, and suggesting that redistricting is a “continuing duty” which may be
performed during special session).
p. 30
Honorable Chet Brooks - Page 7 (DM-6)
Honorable Tom Uher
view that the legislature is constitutionalIy disabled from performing its legislative
redistricting tasks in an interim special session after census publication but before its next
regular session. To buttress the conclusion that publication during the regular session
triggered the requirement of action during that session, the &,uzy court observed that “the
other side of the coin” from its central holding would mean a two year delay in redistricting,
until the next regular session. I& at 573. This observation is wrong if the legislature may
redistrict during a special session between a post-regular session census publication and a
regular session. Yet, we cannot read too much into this language because it implicitly
reaches the very question the court explicitly stated that it was reserving. Thus, we must
look beyond w to answer the question.
The place we look is the governing constitutional provision. Article III, section 28,
ties the allocation of institutional redistricting responsibilities between the legislature and
the LRB to the fact of census publication, not the data published. Within that framework,
the two institutions’ jurisdictional responsibilities may not overlap. Thus, it is clear that the
legislature may not redistrict itself in special session during the jurisdictional period of the
LRB. This interpretation coincides with the factual circumstances and analysis in Attorney
General Opinion M-881 (1971).
Whether the legislature may reapportion itself. under other circumstances is a
complex question that requires additional research and analysis. We are uncertain whether
your inquiry extends ~to other circumstances and. due to the time constraints applicable to
your other questions, defer addressing them.
If the legislature fails to redistrict during the current regular session, which failure is
followed by a post-session census publication within the jurisdictional period of the LRB,
the LRB is empowered to undertake its redistricting responsibilities. m teaches that
the LRB’s jurisdiction is conditioned on the legislature’s failure to make an apportionment
consistent with certain state constitutional provisions. m, 471 S.W.2d at 574. Thus,
under m we necessarily conclude that the LRB’s responsibilities are triggered by the
legislature’s failure to redistrict during regular session, regardless of whether new census
counts are published following the session but during the LRB jurisdictional period. The
question of whether, under such circumstances, the LRB, as a matter of law, must use the
population counts in a second publication is addressed in the last section of this opinion.
There is less prior guidance-on a related question about the LRB’s powers and
duties in the event of a second post-session census publication, when the legislature has
redistricted.during the regular session of the first publication. m does not specifically
address the issue presented by this unique circumstance.
p. 31
Honorable Chet Brooks - Page 8 (DM-6)
Honorable Tom Uher
Consistency with one central purpose of the constitutional provision (giving the
legislature the first obligation and opportunity to act) suggests that the LRB should not be
empowered to act under the peculiar circumstances assumed, here. Yet, consistency with
another central purpose of the provision (establishing the mechanism for some state entity
to redistrict expeditiously upon publication of new census data) suggests that the LRB may
be empowered to act upon the new publication.
Because the constitutional structure did not envision the peculiar circumstances
confronting us here, we have no prior case law precisely on point, and any conclusion we
reach is therefore attended by a higher than usual degree of uncertainty. Nonetheless, we
believe that the principles underlying article III, section 28, of the constitution and w
support the conclusion that the publication of new census data may, but does not
necessarily, trigger LRB jurisdiction to undertake legislative redistricting .following
publication of the new data, even if the legislature has redistricted following the February 5
publication
Whether, in such an instance, the legislature has failed to make an apportionment in
the same sense that, as w held, it has failed to make an apportionment when its
redistricting plan is judicially invalidated within the jurisdictional time frame for the LRB
depends upon factual circumstances which.we cannot address in the opinion process. It
cannot be determined in advance whether the second set of published census data would
result in invalidation of the legislature’s redistricting plan enacted following publication of
the first set of census data. If it does, and the invalidation occurs within the LRB’s
jurisdictional period, then the LRB’s duties to redistrict are triggered; if it does not, then
they are not.
Regardless of whether the legislature has failed to redistrict during the regular
session of the first census publication, the question arises as to the reach of the LRB’s
redistricting powers if a second census publication occurs during its jurisdictional period.
Article III, section 28, sets the limit here. Under this scenario, the LRB’s jurisdiction could
vest, at most, only for the LRB jurisdictional period outlined in the constitution. More
importantly, its jurisdiction would be limited to the period until the next regular session of
the legislature. Thus, under article III, section 28, it would be empowered to enact what we
will term an “interim apportionment plan,” good only until the next regular session of the
legislature. The convening of the next regular legislative session would initiate a new
round of article III, section 28, obligations for the legislature first and, in the event of a
failure to reapportion, the LRB second. This approach maintains to the maximum extent
permitted by the language and intent of the constitution the established order of
institutional responsibilities.
p. 32
Honorable Chet Brooks - Page 9 (DM-6)
Honorable Tom Uher
THE CONCLUSION THAT A “PUBLICATION” HAS OCCURRED UNDER STATE LAW IS NOT
TANTAMOUNT TO VALIDATION OF THE PROVISIONAL CENSUS COUNTS, WHICH TEXAS
CONTINUES UNABATEDLY TO CHALLENGE
The language of our state constitution does not equate publication of census data
with its validation. The conclusion announced here should not and may not be read as a
rejection of the argument that the provisional 1990 decennial census counts are inaccurate
and disproportionately miss minorities in Texas. We represent the state in a federal
lawsuit, the Citv of New York case, arguing that minorities are disproportionately
undercounted in the current census and that, as a result, the department has a federal
constitutional duty to statistically adjust the-da&i to correct for the undercount. We also
have argued to the department that it should make the adjustment. Thus, on behalf of the
state, we reject any claim that the recently released data is as accurate as practicable, which
is the fedeml constitutional requirement. & Citv of New York v. Deoaitment of
Commerce. 713 F. Supp. 4&50 (E.D.N.Y. 1989). Our litigation continues, unabated by the
comAsions reached in this opinion.
The department in the first instance and ultimately the federal courts will answer
this question definitively. We cannot do it here, and we have not undertaken to do so. The
unavoidable fact remains that census population counts, down to the census block level,
that is, down to a level sufficient for redistricting, has occurred.
THB LEGISLATURB IS NOT PROHIBITED AS A MATTER OF LAW FROM ADJUSTING THE
PROVISIONAL PUBLIC LAW 94-171 CENSUS COUNTS IN ORDER TO PERFORM ITS
LEGISLATIVE REDISTRICTING DUTIES
Correspondence from members of the legislature4 has raised the issue of whether
the legislature must use the February 5 census counts in redistricting. Implicit in your sixth
question is a related question: whether the LRB must use the population counts in the
second census publication (that is, the adjusted census counts) in performing its
redistricting responsibilities. The answer affects both the legislature and the LRB.
3 We alsO seek ah adjustment to insure that Texas and its politicnl subdivisions receive their fair
alIocation of federal funding under federal programs whose allocation formulas are based on decennial census
counts.
4 This correspondence is from the 17 members of the Mexican-American Legislative Caucus.
p. 33
Honorable Chet Brooks - Page 10 (DM-6)
Honorable Tom Uher
This more basic question is whether the triggering event of publication also requires
that the published data be used as the sole basis for determining population for state
legislative redistricting, regardless of its accuracy and its disproportionate impact on
segments of the population. The population data contained in the triggering publication is
not the sole permissible basis for determining the population base to be used in the process
of redistricting.
The federal Equal Protection Clause and United States Supreme Court precedent
elucidating its reach in the context of state legislative redistricting must be consulted to
understand what data the legislature may and must use as a guide in undertaking its
redistricting responsibilities. The Supremacy Clause of the United States Constitution
establishes the primacy of those federal standards over state constitutional standards. ‘The
requirement of the United States Constitution takes precedence and any inccinsistency
therewith in the Texas Constitution is thereby vitiated.” Smith v. Craddick, 471 S.W.2d 375,
377 (Tex. 1971) (considering requirements of article III, section 26, of the Texas
Constitution).
In &ynolds v. sinas, 377 U.S. 533, 568 (1964), the Supreme Court held that the
equal protection~clause requires state legislative seats to be apportioned on a population
basis. The districts must be as nearly of equal population as practicable, & at 577,
although deviations from absolute equality have been permitted. See. eg, White v,
Reeester. 412 U.S. 755, 763-65 (1973) (upholding 9.9% total maximum deviation). The
most recent federal court pronouncement in this area also concludes.that population is an
appropriate basis for state legislative apportionment. Garza v. Countv of LAXAnpeleS, 918
F.2d 763, 774 (9th Cir. 1990), cert. denied, 111 S. Ct. 681 (1991); & Burns v. Richardson,
384 U.S. 73, 91 (1966) (stating that the equal protection clause does not require that
federal census population figures be used in redistricting, but doing so in a context where
the use of other figures yielded substantially the same result). The problem, though, is how
the basic building block of population is to be ascertained.
In Gaffnev v. Cummings, 412 U.S. 735.74547 (1973). the Supreme Court discussed
the inexactitude of the census both in the snapshot it takes of the nation’s population and
due to the passage of time. In particular, the court observed that the census’ inexactitude is
“most evident with respect to minorities.” &J,,at 745 n.lO. Finally, Gaffney recognized that,
in reapportioning state legislatures, states are permitted to work with “both political and
census data.” u at 753-54.
A review of the cases after Reynolds. Burns, and Gaffney indicates that courts have
not read the federal constitution as requiring states to adhere rigidly to federal census
p. 34
Honorable Chet Brooks - Page 11 (DM-6)
Honorable Tom Uher
counts in determining the population basis for legislative apportionment. The cases
typically arise in the context of whether the passage of time has made the most recent
census an outdated demographic indicator. Tbe matter being highly fact-bound, the cases
reveal no settled formula for when departures or adjustments are permissible, but a geneial
outline of what is permissible emerges.
First, as stated by the Supreme Court of Kansas, “[t]he information contained in
[state and federal censuses] is presumed to be accurate and is prima facie correct until
proven otherwise.” In re Stephan, 775 P.2d 663, 667 (1989). Second, as stated in a Texas
legislative redistricting case, a “‘high degree of accuracy’ [is] required to supplant the
population figures of the prior decennial census.” Graves v. Barnes, 446 F. Supp. 560,568
(W.D. Tex. 1977) (3-judge court), afTdsub nom, 435 U.S. 901 (1978) (citing Kirkpatrick v.
Preisler. 394 U.S. 526, 535 (1969)). Another formulation of this second test 4 that the
decennial census figures control unless “‘clear, cogent and convincing evidence’”
demonstrates that they no longer are valid and that other figures are valid. Dixon v.
J-Iassler, 412 F. Supp. 1036, 1040 (W.D. Tenn. 1976) (3-judge court), afTd 435 U.S. 901
(1978). Third, as stated by a court evaluating, among other things, a Massachusetts
legislative redistricting plan, the courts have a common sense preference for “the most
recent and accurate measure of population.” Black Political Task Force v. Connolly, 679 F.
Supp. 109,115 (D. Mass. 1988) (3-judge court) (citing Latin0 Political Action Comm. Inc. v,
City of Boston, 568 F. Supp. 1012, 1018 (D. Mass. 1983) (approving use of mid-decade
population estimates based on but different from decennial census)).
Our state constitution further complicates the rules for when departures from rigid
adherence to federal census data for determining population bases for apportionment are
permissible. Article III, section .26, requires that the ideal district size for a house of
representatives seat be determined by dividing the number of house members into the state
population “as ascertained by the most recent United States census,” provided that certain
rules regarding apportionment among counties are satisfied.5
5 This o&e previously determined that the “qualitied electors” apportionment base for state senatorial
districts in article III, section 2.5, is unconstitutional on its face because. it violates the dictates of the federal
Equal Protection Clause. &Attorney General Opinion MW-350 (1981). The opinion relied on the summary
judgment invalidation of the “qualified electors” provision of article III, section 25, in Kilearlin v. Martin, CA.
No. 63-H-3% (W.D. Tex. Jan. 11, 1965). A subsequent state court redistricting challenge premised on the
viability of the ‘qualitied electors” provision was dismissed as moot. Unham v. White, 639 S.W.2d 301 (Tex.
1982).
p. 35
Honorable Chet Brooks - Page 12 (DM-6)
Honorable Tom Uher
In each of the last two decades, this state constitutional provision has led to judicial
invalidation of redistricting plans for the state house of representatives because they cut
too many. county lines. ti Clements v. Valles, 620 S.W.2d 112 (Tex. 1981); Smith v.
Craddick. m. These decisions recognize the primacy of federal equal protection law in
this field, but establish the following rule of state law in evaluating redistricting plans: the
burden is on those challenging state house redistricting plans to show that they violate
article III, section 26, for cutting county lines, but, if they satisfy their burden, the burden
shifts to the proponents of the plans to show that the cutting of county lines was “necessary”
to satisfy federal requirements for equal representation. Clements v. Valles, 620 S.W.2d at
114.
The opinion process does not permit this office to evaluate or resolve fact questions.
Thus, we can only conclude here that there is not as a matter of law an outright prohibition
on the use of population data other than federal census population data in iegislative
redistricting. We are not equipped in the opinion process to speculate on the technical
proof necessary to justify departure from the federal census population counts, on the
appropriate methodology for any state adjustment to the census population data, or on the
effect of such adjustments on the interaction of federal equal protection requirements with
state constitutional requirements for apportionment. Whether to attempt the state’s own
adjustment of the public law 94-171 counts for purposes of legislative redistricting and, if
so, how to make such an adjustment are matters for the legislature and the LRB.
SUMMARY
The release on February 5, 1991, of 1990 census population data
(ie, the public law 94-171 counts), notwithstanding their provisional
nature, constitutes a publication within the meaning of article III,
section 28, of the constitution. The legislature and the LRB, however,
are not as a matter of law prohibited from using population counts
other than the public law 94-171 counts in determining the population
base for apportionment of the state legislature. The legislature may not
convene to reapportion itself in special session during the jurisdictional
time period of the LRB. If the United States Department of
Commerce, on its own or under court order, statistically adjusts the
1990 census based on its post enumeration survey after the regular
session but within the LRB’s jurisdictional time period following the
end of the current regular session, the LRB has limited jurisdiction to
apportion the state legislature. Under these circumstances, the LRB’s
reapportionment duties definitely arise if the legislature failed to
redistrict during regular session and, depending on factual
p. 36
Honorable Chet Brooks - Page 13 (DM-6)
Honorable Tom Uher
circumstances, may arise even if the legislature enacted a redistricting
plan during regular session. Still, under these circumstances, the LRB
would be empowered to redistrict only on an interim basis, until the
next regular session of the legislature. A statistical adjustment to the
1990 census by the department, based on the post-enumeration survey,
shall be treated as a new publication of the decennial census within the
meaning of article III, section 28.
Very truly yours,
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret)
Special Assistant Attorney General
RENEAHICKS
Special Assistant Attorney General
SUSAN GARRISON
Acting Chairman, Opinion Committee
p. 37