                      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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