    The Attorney General of Texas
                May
                  30, 1981




Honorable Bob Bullock                      Opinion No. ~~-350
Comptroller of Public Accounts
L.B.J. Building                            Re: Constitutionality     of SB-800,
Austin, Texas 78174                        Senate Redistricting Bill


Dear Mr. Bullock:

         You ask us several questions in connection with Senate Bill 800,‘which
redistricts state senatorial positions. Your questions are directed at what
the Texas Legislature may do in drawing up a reapportionment        plan. They
do not require us to determine the effect of the reapportionment ,plan which
the Senate has enacted, or whether the Senate could have developed an
alternate plan with particular characteristics.     In any case, such inquiries
would involve the investigation      and resolution of fact questions, which
cannot be done in the opinion process.

        A brief discussion of the main principles governing reapportionment
will provide a useful context for our answers to your questions. In Reynolds
v. Sims, 377 U.S. 533, 568 (1964), the Supreme Court held that the equal
protection    clause requires that seats in a state legislature         must be
apportioned on a population basis.          U.S. Con&.     amend. 14, S2.      An
apportionment     plan which substantially dilutes the weight of some votes
when compared with votes of persons living in other parts of the state is
unconstitutional.    B                   supfl! at 568. Districts must therefore
be as nearly of equal population as practicable.     !$ at 577.

        The Supreme Court has said that an apportionment          scheme, on
particular facts, might operate to minimize or cancel out the strength of
racial or political elements of the population.   Fortson v. Dorsey, 379 U.S.
 433, 438-39 0965).      Such an apportionment     scheme would invidiously
discriminate against rights protected by the fourteenth amendment of the
United States Constitution.  Burns v. Richardson, 384 U.S. 73, 88~(l966).
                                                                     L
        The federal Voting Rights Act of 1965 adds another standard against
which a reapportionment plan must be measured. It prohibits any state from
denying or abridging the right of any United States citizen to vote on
account of race, color, or membership in a language minority.       42 U.S.C.
 SSl973 to 1973d. 1973k to 19731 (1976) .     Under the Act. chamres in the




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Honorable Bob Bullock     -   Page Two    - (m-350)




election laws, including reapportionment laws, must be submitted to the United States
Attorney General for hls approval. 42 U.S.C. Sl973c; Conner V. Wailer, 421 U.S. 656
fl975); see also 46 Fed. Reg. 874 (l981) (to be codified in 28 C.F.R. S51.12~~c)).

            We turn to your first question:

            1. TEX. CONST. art. 3, sec. 28, directs the Legislature to
               apportion the State into Senatorial districts agreeable to the
               provisions of Section 25 of Article 3. Federal bIW requires
               reapportionment    to be based on equal population among
               districts, within certain allowable deviations.   Within these
               allowable deviations, must the Legislature take into account
               the number of qualified electors residing within each district
               as dictated by TEX. CONST. art. 3, sec. 25?

        Article IIl, section 25 of the Texas Constitution provides in part that “the State
 shall be divided into Senatorial Districts . . . according to the number of qualified
 electors, as nearly as may be . . . .” The section 25 requirement that the state be
 divided into senatorial districts on the basii of qualified electors is unconstitutional on
 its face as inconsistent with the federal constitutional        standard.    In Kilgarlin v.
 Marti    C.A. No. 63-H-390 (W.D. Tex., January l&1965) (summary judgment), see also
 mfi
 gar                      252 F. Supp. 404,4ll (S.D. Tex. 1966), the court held that
 provision violated the equal protection clause of the fourteenth amendment of the
 United States Constitution.      It did not require apportionment of senatorial districts on
 a population basii resulting in districts as nearly of equal population as is practicable.
-See Reynolds v. Sims, supra at 577.
            Your second question is as follows:

            2. May an apportionment plan split counties into two or more
               Senatorial districts when an alternative plan can or could be
               drawn which maintains county integrity?

       No provision ln Texas or federal law invalidates an apportionment plan which
Splits counties into two or more senatorial districts or requires a plan to maintain
county integrity. Article III, section 25 of the Texas Constitution merely requires that
senatorial districts shall be of contiguous territory.   Compare Tex. Const. art III, 926
(representative’s districts shall follow County lines). e Smith v. Craddlck, 471 S.W.2d
375 (Tex. 1971).

            Your third question is as follows:

            3. When a county has sufficient population to justify one or
               more Senatorial districts entirely within that county% boun-
               daries, must an apportionment plan provide that county with
               the maximum number of full Senatorial districts which can
               be contained within the county?




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.


    Honorable Bob Bullock    -    Page Three      (Mu-350)




            We have neither found, nor have we been directed to any provision of state or
    federal law which requires a county to be given the maximum number of full senatorial
    districts which can be contained within it.

                Your fourth question is as follows:

                4. May an apportionment plan combine primarily rural counties
                   with urban areas in a single Senatorial district, when alter-
                   native plans can or could be adopted which preserve rural
                   communities of interest?

          No state or federal law prohibits the combination of rural and urban areas in a
    sinele senatorial district.   The Suoreme Court has stated that “economic and other
    g&p interests” are insufficient to justify deviation from strict population equality.
    Reynolds v. Sims, supra at 579-80.      See Kirkpatrick v. Preisler, 394 U.S. 526 U969).
    Thus, federal law does not require sta=to     recognize the common interests of groups
    in reapportionment.     It does, however, permit them to do so. -See Kelly v. Bumpers,
    340 P. Supp. 568, 578 03.D. Ark. 1972).

            In Gumfory v. Hansford County Commissioners Court, 561 S.W.Bd 28 (Tex. Civ.
    App.-Amarillo     1977, writ ref’d n.r.e.1. the court dealt with a challenee to countv
    commissioners precincts &awn so that in each precinct city dwelle;s formed a
    majority over persons residing in the rural area of the county. The court stated that
    the residents of the county outside the cities “are not a group subject to suspect
    classification  fcr invidious discrimination    under the 14th Amendment..         . .” Cf.
    Lockport v. Citizens for Community Action, 430 U.S. 259 (1977) (state might recogn=
    distinctive voter interests of urban and rural voters in %fngle shot’ referendum).

                You next ask:

               5.   Because the    United States Bureau of the Census has stated
                    that the population figures for minority groups are “provi-
                    sional”, pending the outcome of federal court litigation
                    challenging the validity of these figures, may the Legisla-
                    ture reapportion into districts on the basis of these figures?

          Census figures have been challenged in federal court as representing              an
    undercount of blacks and hispanics.     In Young v. Klutxnick, 497 F. Supp. 1318 (ED.
    Mich. 19801, the district court enjoined the Bureau of the Census from certifying
    population totals for any states.        Justice Stewart. however. staved this order.
    Klutxnick v. Young, Docket No. A-533 (Dec. 24, 1980); . see Klut&ick~v~Care&         66 L.
    Ed 2d 614, n. at 615 (l980). Thus, the census tottixve            been certified to the
    President and provided to the states as required by law. 13 U.S.C. .6l4l(b), 141(c).

          In the past, courts have acknowledged that not all inhabitants are counted in the
    decennial census. Gaffnev v. Cummings, 412 U.S. 735, 745-51 (l973). They are seen,




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Honorable Bob Bullock    -   Page Four     (Mw-350)




nevertheless, as the best available source of population data for rediitricti%z   purposes.
Kirkpatrick v. Pr’eiler, 394 U.S. 528 Cl969L
       Article m, section 28 Of the Texas Constitution reqUireS the legislature to
redistrict at its first session after the publication Of each ce\sus. e    -UT?  V.
Legislative Redistricting   Board, 471 S.W.2d 570 (Tex. 1971). The legtsiature may
reapportion on the basis of the recent census figures.

            Your next question is as follows:
            6. Because the guidelines for submitting a reapportionment
               plan to the United States Department of Justice under the
               Voting Rights Act specify that recent eleCtiOn return data
               be included in the submission,       may the Legislature
               reapportion  Senatori& districts  without considering this
               data?

       Recent election return data is among those items generally required to be
submitted in connection with redistricting plans. See 46 Fed. Reg. 875-76 0981) (to be
codified in 28 C.F.R. SS51.25, 51.26). No provision7  the Voting Rights Act, however,
requires that the legislature consider such data. Whether Senate consideration of this
data would enhance its ability to draft a plan acceptable to the Attorney General
beyond the scope of your question and thii opinion.

            Your final question is ss follows:

            7. At least one Senator has expressed his opinion that the
               reapportionment     plan has been drafted to intentionally
               discriminate against his political interest.     May a reappor-
               tionment plan adopted by the ,Legislature have either the
               purpose and/or effect of diicriminating      against any recog-
               nizable political interest?

       A reapportionment plan may not have the purpose or effect of diluting the voting
strength   of linguistic or racial minorities.  42 U.S.C. 1971, 1973-1973dd-5 flST6). No
group, however, has a constitutionally protected right to legislative seats in proportion
to its voting strength     White v. Register, 412 U.S. 755, 765-66 Ug73).

      A reapportionment    plan is not necessarily in violation of the equal protection
clause if it seeks to protect incumbents.      White v. Weiser, 412 U.S. 783, 797 fl973).
 An fnmmbent, however, has no right to have his district maintained during the
~@Wti~m~t         Process. See City                                503 F. Supp. 663, 672
(RD. Penn. 1980).

                                     SUMMARY

                   In Preparing a redistricting plan, the legislature need not
            take into account the number of qualified voters in senatorial




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Honorable Bob Bullock   -     Page Five     @w-350)



           districts as required by article II$ section 25 of the Texas
           Constitution,  since that requirement  was struck down by a
           federal court.

                 An apportionment plan may split counties into two or
           more senatorial districts when an alternative plan could be
           drawn maintaining county integrity.

                   A county need not be given the maximum number of full
           senatorial districts which can be contained within it.

                   An apportionment    plan may combine primarily           rural
           counties with urban areas in a single senatorial district.

                  The legislature    may reapportion        on the basis of the
           recent census fiies.

                   No law requires the legislature to consider in drafting its
           reapportionment   plan the recent election return data required
           to be submitted to the Department of Justice under the Voting
           Rights Act.

                   A reapportionment plan need not protect the districts of
           incumbents, nor must it guarantee any group legislative seats in
           proportion to its voting strength.

                                          g-g



                                                Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD B. GRAY, IIl
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVEDI
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moelinger




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