Case Information
*1 The Attorney General of Texas May 30, 1961 Attorney General Opinion No. MW-353
Comptroller of the State of Texas the
L.B.J. Building Re: Reapportionment of Austin, Texas Texas House of Representatives Dear Mr. Bullock:
You have questioned constitutionality of the Committee Substitute to House Bil 960, recently enacted by the legislature, which would the Texas House of Representatives. You raise five specific We limit our consideration to your specific issues relating thereto. concerns. First, you ask that we address the following:
1. The proposed divides several small into more than one and combines the excess populations of counties with more than sufficient 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 to reapportionment of the House of III, section 26, as it relates to federal law. At issue was validity of a statute purported 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 several counties, according the number in each, as nearly as may be, on a ratio obtained by dividing the population of the State, as
ascertained the most recent United States census, bv the number of members of which the House each other; and when any one county has more than *2 - Page Two (MW-353)
sufficient population to be entitled to one or more 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.
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 “Whatever Section 26 of article III provides, Texas Constitution is thereby vitiated. 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 III, section 26 of the Texas Constitution: Section 26 requires that apportionment be county
1. and when two or more counties are required to make up a the district lines shall follow district of proper population, county boundaries and the counties shall be contiguous. A county not entitled to its own representative must be joined contiguous so as to achieve a district with population total entitled to onerepresentative. The only impairment of this mandate is that a county may be divided if to do so is necessary to comply with the equal requirement Fourteenth . . . Fortson v, Dorsey, 379 U.S. 433, 85 S.Ct. 498, Amendment.
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 must be formed into a separate if it has sufficient 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. 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 nullified.
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 *3 - Page Three (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 formed wholly within that county, the county is given district, and the area wherein the 25,000 live may be joined to a contiguous area. It is still required 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 Again, all requirements of section 26 are said in 4, above. inferior to the necessity of complying with the Equal Protection Clause.
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 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. Its validity turns on
However, we cannot say that the proposed plan is invalid. the facts upon which its provisions are based and the federal law considerations with 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 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 combine primarily rural
counties with urban areas in a single district, when alternative plans can or could be adopted with preserve rural communities of interest? the United States Bureau of the Census has stated the population figures for minority groups are
“provisional,~l pending the outcome federal court litigation challenging the validity of these figures, may the Legislature into districts on the basis of these figures? *4 - Page Four the guidelines for submitting a reapportionment
plan to the United States Department of Justice under Voting Rights Act specify that recent election data be included in the submission, may the Legislature districts without considering the effects of election returns and voter registratration data on proposed minority districts?
5. At least one member the committee on regions,
compacts and districts has expressed his opinion reapportionment plan has been drafted intentionally May a discriminate against his political int erest. 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 to Senate Bill 800, which reapportions Senate. We find no law, and have been cited to ncne that requires different answers 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’
bill, would not be held facially unconstitutional for departures, if any, from the county-line of article III, section 26 of the Texas Constitution.
vJn.tw.
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