            TEEA~TORNEYGENEXCAL
                        OF   -XAS




                       April 20, 1961


Honorable C. W. Pearcy, Chairman
Committee on Congressional and
  Legislative Districts
House of Representatives
Austin, Texas
                             Opinion No. WW-1041
                             Re:    Construction of Sections
                                    26, 26a and 28 of Article
                                    III of the Texas Constitu-
Dear Mr. Pearcy:                    tion.
         You have requested an opinion on the following ques-
tions:
         “1. Section 26 provides that Counties in a
    Legislative DiStFiCt shall be contiguous. With
    reference to counties bordering on the Gulf of
    Mexico that are not contiguous by land, could
    two such counties be placed in the same Legls-
    lative District because of being contiguous by
    water only? In connection with this question
    the Committee would also request an Attorney
    Seneral's Opinion as to how far into the Gulf
    county lines are extended?
         “2. With regard to the provisions of Sec-
    tion 26a concerning counties over ~CO,OOO in
    populations, are such provisions mandatory?
         "3a. With regard to Section 28, wherein
    the Legislature is directed to apportion the
    Sta.te 'agreeable to the provisiors of Sections
    25, 26 and 26a of this Article,' would this
    mean such apportionment must strictly comply
    with said Sections, in order not to be in con-
    travention of the Constitution?
         "3b. Along the same lines and with regard
    to the same Section the following words appear:
              'In the event the Ler?%slstur-shall
         at any regular session, following the
Honorable C. W. Pearcy, page 2 (WW-1041)


            publication of a United States decennial
            census, fail to make such an apportionment,
            same shall be done by the Legislative Re-
            districting Board of Texas, etc.'
             "Would this be interpreted as meaning that
        'suchlapportionment.,if not 'agreeable to' the
        provisions of Sections 25, 26 and 26a, would be
        in contravention to the directive to the Legis-
        ture in Section 28 sufficient to cause the Legis-
        lative Redistricting Board of the State of Texas
        to be required to act?"
             Section 26 of Article III of the Constitution of
Texas provides as follows:
             "The members of the House of Representa-
        tives shall be apportioned among the several
        counties, according to the number of popula-
        tion 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, by the number of members of which the
        House is composed; provided, that whenever a
        single county has sufficient population to be
        entitled to a Representative, such county shall
        be formed into a separate Representative Dis-
        trict, and when two or more counties are required
        to make up the ratio of representation, such
        counties shall be contiguous to each other; and
        when any one county has more than sufficient
        population to be entitled to one or more Repre-
        sentatives, such Representative or Representa-
        tives shall be apportioned to such county, and
        for any surplus of population it may be joined
        in a Representative District with any other con-
        tiguous county or counties."
The word "contiguous" as used in Section 26 of Article III of
the Constitution of Texas has not, insofar as we have been able
to determine, been construed by the judiciary of this State.
However, the same word as used in Article 2922a relating to group-
ing of school districts to form a rural high school district has
been defined. In Attorney General’s  Opinion No. 0-4180 (1941)
this office pointed out:
-   ,




        Honorable C. W. Pearcy, page 3 (WW-1041)


                 "'Contiguous' as used in Article 2922a,
            relating to the grouping of school districts
            to form rural high school districts, has been
            held to mean that the districts must so touch
            one another that all may be included in a
            common boundary line, without intervening
                     See Beard v Marshall, 32 S.W.(2d)
            $%~"kliot   Common SEhool District No 48 v.
            County Board of School Trustees, 76 S:W.(2d)
            786 (Writ dirmissed); Miller v. School Trustees
            of Milam County, 52 S.W.(2d) 806 (Writ Ref.).
            We are of the opinion that such is the meaning
            to be given to the word 'contiguous' as it is
            used in Article 2806. Any other construction
            would necessarily require the holding of
            several elections involving additional expense,
            delay, and inconvenience. We do not believe
            that such a construction was intended by the
            Legislature.
                  "It is, therefore, the opinion of this de-
             partment that school districts are contiguous
             under Article 2806, Revised Civil Statutes, if
             they touch one another so that all may be in-
             cluded in a common boundary line. . . ."
                   It is our opinion that the definition of the word
        "contiguous' as used in Article 2922a is equally applicable
        to the definition of the word "contiguous" as used in Section
        26 of Article III of the Constitution of Texas. You are,
        therefore, advised that a Representative District may be
        formed by two or more counties if they touch one another so
        that all may be included in a common boundary line, assuming,
        of course,  that all other prerequisites of Sections 26 and
        26a are complied with.
                  Section 1 of Article 1592a, V?rnonts Civil Statutes,
        relating to the gulfward boundary lines of all counties of
        this State bordering on the coast line of the Gulf of Mexico
        provides as follows:
                 "Section 1. The gulfward boundary lines
            of all of the counties of this state bordering
            on the coast line of the Gulf of Mexico are
            hereby fixed and declared to be t&e continental
            shelf in the Gulf of Mexico."
Honorable C. W. Pearcy, page 4 (WW-1041)


          However, in United States of America v. States of
Louisiana, Texas, MissZsippi,; Alabama and Florida, 363 U.S.l,
at 64, 80 S.Ct. 961 (19bO);it was held that the marine boundary
of the State of Texas extended three leagues seaward. You are "
therefore advised that the gulfward boundary line of all counties
of this State bordering on the coast line of the Gulf of Mexico
is three leagues seaward from the coast line.
          Section   26a   of Article III of the Constitution of
Texas provides:
         "Provided however, that no county shall be
    entitled to or have under any apportionment more
    than seven (7) Representatives unless the popule-
    tion of such county shall exceed seven hundred
    thousand (700,000) people as ascertained by the
    most recent United States Census, in which event
    such county shall be entitled to one additional
    Representative for each one hundred thousand
    (100,000) population in excess of seven hundred
    thousand (700,000) population as shown by the
    latest United States Census; nor shall any district
    be created which would permit any county to have
    more than seven (7) Representatives except under
    the conditions set forth above."
The above quoted provision has not been construed by the courts
of ;his State. It is noted, however, that the provision thereof
used mandatory language such as "no county shall be," "such
county shall be, ' "nor shall any district be created," "except
under the conditions set forth above." In view of the language
used in .Section26a of Article III of the Constitution of Texas,
you are advised that its provisions are mandatory.
          Section 28 of Article III of the Constitution of Texas
provides in part as follows:
          "The Legislature shall, at its first regular
     session after the publication of each United States
     decennial census, apportion the state into senatorial
     and representative districts, agreeable to the pro-
     visions of Sections 25, 26, and 26-a of this Article.
     . . . ,t
          In view of ,the'provisionsabove quoted, you are ad-
vised redistricting bills enacted by the Legislature must
comply with the provisions of Sections 25, 26 and 26a of
Article III of the Constitution of Texas. The remaining pro-
visions of Section 28 of Article III of the Constitution of
Texas apply only if the Legislature fails to make an
Honorable C. W. Pearcy, page 5 (WW-1041)


apportionment in accordance with the above cited constitu-
tional provisions.

                          SUMMARY
      Any act of the Legislature apportioning the
      State into senatorial and representative
      districts is required to comply with the
      provisions of Sections 25, 26 and 26a of
      Article III of the Constitution of Texas.
      The word "contiguous" as used in Section
      26 of Article III of the Constitution of
      Texas means that a representative district
      composed of two or more counties may be
      formed if the boundaries (whether inundated
      or not) of the counties cdmprising the
      representative district touch one another
      so that all may be included in a common
      boundary Line.
                           Yours very truly,
                           WILL WILSON
                           Attorney General of Texas



                          mee*
                                 Assistant

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman

Glenn R. Brown
W. Ray Scruggs
Houghton Brownlee, Jr.
john Leonarz
REVIEWED FOR THE ATTORNEY GENERAL
3y: Leonard Passmore
