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                                    March   28.       1951


    Hon. William S. Fly, Chairman                 ,
    Committee    on Congressional
      and Legislative   Districts
    House of Representatives
    52nd Legislature
    Austin, Texas                           Opinion          No. V- 1160

                                            Re:        Constitutionality   of electing
                                                       two Congressmen      at large
                                                       in a single county, dividing
                                                       one county into two geograph-
                                                      ic congressional    districts,   or
                                                      including part of a county in
                                                       a different district from that
                                                      embracing    the balance of the
                                                      county.

    Dear    Sir:

               Reference      is made to your request             which reads   in part
    as follows :

                  “I have been requested by the House Commit-
           tee on Congressional     and Legislative   Districts to
           ask an opinion of you and of your department on sev-
           eral matters.    The Committee     is concerned over
           what rules it will be required to follow that have
           been prescribed    either by the United States Consti-
           tution, the Texas Constitution,    the Statutes of the
           United States, or the Statutes of Texas.      We would
           also like to know if there exist any Congressional
           precedents   which might aid us in our consideration.

                   “It-has been suggested to the Committee       that
           we should give Harris County two Congressmen.             If
           the Committee     should decide that Harris County is
           en&led to two Congressmen,         will it be necessary
           that these Congressmen       be elected at large, or will
           it be necessary    to divide the county geographically
           and have a Congressman         run from each geographic
           district of the county?
                                                                                  .




Hon. William    S. Fly,   page 2      (V-1160)




            “We would like to know if one part of a
     county can be put into one Congressional       Dis-
     trict and the other portion of the county put into
     another Congressional    District.   There is a sim-
     ilar question as to whether a county like Dallas
     could have a Congressman~and       then a flotorial
     Congressman    in the adjoining counties.a

             The pertinent portion       of Section    2 of Article   I* United
States   Constitution, provides:

            “Representatives    and direct Taxes shall
     be apportioned among the several States which
     may be included within this Union, according to                       ,,
     their respective    Numbers.  which shall be deter-
     mined by adding to the whole Number of free
     Persons,   including those bound to Service for a
     Term, of Years, and excluding InFans not taxed,
     three fifths of all other Persons.    The actual
     Enumeration     shall be made within three Years
     after the first Meeting of the Congress    of the
     United States, and within every subsequent Term
     of ten Years. in such Manner as they shall by
     Law direct.    The Number of Representatives
     shall not exceed one for every thirty Thousand,
     but each State shall have at Least one Represen-,
     tative; e o Dm

             Section   4 of Article    I provides     in parti

              ‘The Times,    Places and Manner of hold-
     ing Elections    for Senators and Representatives,
     shall, be prescribed    in each State ,by-the Legis-
     lature,,thereof;   but the Congress   may at any time
     by Law make or alter such Regulations,        except
     as to the Places of chusing Senators.*

             Section   2a of Title    II, U.S.C.,   provides:




     1/ The first sentence of this ~section was superseded     bv the
pro&ion      of Section 2-ofthe .+l#h Amendment which reads:    ‘Rep-
resentatives    shall be apportioned among the several States ac-
cording to their respective     numbers,  counting the whole number
of persons in each State, exc~luding Indians not taxed.”
Hon. William   S. Fly,   page 3   (V-1160)



            -(a) On the first day, or within one week
     thereafter,   of the first regular session of the
     Eighty-second     Gongress    and of each fifth Congress
     thereafter,   the President    shall transmit to the
     Congress    a statement    showing the whole number
    .of persons in each State, excluding Indians not
     taxed, as ascertained     under the seventeenth and
     each subsequent decennial census of the popula-
     tion, and the number of Representative’s       to which
     each State would be entitled under an apportion-
     ment&     the then existing number of Representa-
     tives by the method known as the method of equal
     proportions,    no State to receive less than one
     Member.

             ‘(b) Each State shall be entitled,, in the
    Eighty-third      Congress    and in each Congress
    thereafter     until the ,taking effect of a reappor-
    tionment under this section or subsequent stat-
    ute, to the number of Representatives          shown in
    tlie statement required by subsection         (a) of this
    section,     no State to receive less than one Member.
    It shall be the duty of the Clerk of the House of
    Representatives,       within fifteen calendar days af-
    ter the receipt of such statement,        to send to the
    executive of each State a certificate        of the number
    of Representatives       to which such State is entitled
    under this section.        In case of a vacancy in the of-
    fice of Clerk. or of his absence or inability to dis-
    charge this duty, then such duty shall devolve upon
    the Sergeant at Arms of the House of Representa-
    tives;,and     in case of vacancies    in the offices of
    both the Cle~rk ,and the ~Ser~geant at ,Arms, or the ab-
    sence or inability of both to act, such duty shall
    devolve upon the Doorkeeper          of the House of Rep-
    resentatives.

            ‘(c) Until a State is redistricted~ in the man-
    ner provided by the law thereof after any apportion-
    ment, the Representatives     to which such State is en-
    titled under, such apportionment     shall be elected in
    the following manner:     (1) If there is no change in
    the number of, Representatives,     they shall be elected
    from the districts   thenprescribed     by the law of such
    State, and lf any of them are elected from the State at
    large they shall continue to be so elected:     (2) if there
    is an increase   in the number of Representatives,       such
    additional Representative    or Representatives     shall be
Hon. William    5. Fly,   page 4    (V-1160)




     elected from the State at large and the other Rep-
     resentatives   from the districts    then prescribed   by
     the law of such State; (3) if there is a decrease      in
     the number of Representatives       but the number of
     districts  in such State is equal to such decreased
     number of Representatives,       they shall be elected~
     from the districts   then prescribed     by the law of
     such State; (4) if there is a decrease     in the number
     of Representatives    but the number of districts     in
     such State ins less than such number of Represen-
     tatives, the number of Representatives        by which
     such number of districts     is exceeded shall be elect-
     ed from the State at large and the other Represen-
     tatives from the districts    then prescribed    by the
     law of such State; or (5) if there is a decrease      in
     the number of Representatives       and the number of
     districts  in such State exceeds such decreased           L
     number of Representatives,       they shall be elected
     from the State at large.”

             Pursuant to the above statute, the President has
 transmitted   a statement to Congress     and the Clerk of the House
,of Representatives    has certified to the Governor of Texas “That
the State of Texas shall beentitled,     in the Eighty-Third  Congress
 and in each Congress     thereafter until the taking effect of a re-
 apportionment    under said Act, as amended, or subsequent Stat-
ute to Twenty-Two      Representatives.”

            In Section    21 of 54 Am.   Jur. 536.   United States,   it is
stated:

             ‘Representatives     in Congress     are to be ap-
     portioned zunong the severa~l states ,on-,the’basis
     of .the populatioathereof      as determined      by’each
     decennial census, but each state is to have at least
     one Representative.       The Constitution,      however,
     leaves matters     relating to congressional        districts
     to the disposition    of the states.   Congress      at one
     time undertook to legislate upon the subject by pro-
     viding that members       of Congress    should be elected
     from districts    composed of contiguous territory
     containing as nearly as practicable         an equal num-
     ber of inhabitants,    but this requirement       has been
     omitted from later acts of Congress          providing for
     the apportionment      of Representatives.       There is
     no necessity    that congressional     districts    be com-
                             ‘(: ,.,, ,‘” (v-l,iboj                  :; ,,; :‘I..- ,~ i~“~’‘:
Hon. William    S. Fly,   p’age ‘5



                                                  :   ,.~.,   .:,,     . ..bT   :;

    ‘posed .of contigUou6 dn’d”“~~~~paCt.:~~rit,ori~:s*‘. or          .i.:
     that they contain as nearfy asp pr?&icable~&              equal’ ‘.
     number of inhabitants, where such requirement                 is
     not embodied in an act of, C.ongress providing for
     the apportionment     of Representatives;        and it has
     been held that,a ,legislatiye,,, divis~ipn!,of the sitate in-
     to CongrkS~fonal’hi~trids        is, not revie:w,able by the;!
     court’whe,rk tlre,re is’;io’.~pn~ti~tibnal,,    l,irditatio,n,
     on the p’otie’r’of then.legislature    to makes such ap-
     portionment.      The validity of apportionment”of          the
     statainto   districts  is, therefore,     largely a       atter
                                                            P
     of local state constitutional       requirements.”

           There, ‘is~“no’&vision    in the State Constitution
which relates~ to’ the ‘me’thod of apportioning   represe.ntation ,in
Congress.    Therefore,   it is our opinionthatit    is”lCft,entirely
to the Texas Legislature     to determine ~the methods of appor-
t$7nment.     ,~

           I$owevei,~ we wish to call to yourl’~tt&o&that’there
is now pending’ in the United States Congres.?,.aT bill numbered
H.R. 2648 amending Section 2a of Title II, U.STIct’,, whic~h pro-
vides in part:

             “(c) Each State entitled in the Eighty-third
     Congress     and each Congress     thereafter   to more,                                   ~~
     than one Representative      under the apportionment
     provided in subsection     (a) of this section shall es-
     tablish for each Representative       a district com-
     posed of contiguous and compact territory,          and no
     district so established    shall vary more than 15
     per centum of the number obtained by dividing the
     total population of such State, as established        in
     the last decennial census, by the number of Rep-
     resentatives    apportioned under subsection       (a) of
     this section.

            ‘(d) Any Representative             elected from a dis-
     trict which does not conform             to the requirements
     set forth in subsection (c) of          this section shall be
     denied his seat in the House            of Representatives   and
     the Clerk of the House shall            refuse his credentials.”




    2/ Wood v. Broom,           287 U.S.      1 (1932);              Colegrove       v. Green,
328 U.S. 549 (194b) .
Hon. William   S. Fly,   page 6    (v-1160)




           In the event this bill passes,     the Texas    Legislature
will be gwerned   by its provisions.


                            SUMMARY

            It is for the Texas Legislature    to deter-
    x&ie the method of apportionmnt         of represen-
     tatives in Congress.    54 Am. Jur. 526, United
     States, Sec. 21.

                                        Yours   very   truly,

APPROVED:                               PRICE DANIEL
                                        Attorney General
J.C. Davis, Jr.
County Affairs Division

Jesse P. Luton, Jr.                     BY&&L
Reviewing Assistant                        Bruce Allen
                                              Assistant
Charles D. Mathews
First Assistant




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