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DAN MORALES
 ATTORNEY
      CENERAL                                    June 7, 1995

     Honorable David Sibley                              Opinion No. DM-35 1
     Chair
     Economic Development Committee                      Re: Whether legislation changing two of
     Texas State Senate                                  thirty-one senatorial districts constitutes an
     P.O. Box 12068                                      “apportionment” under article III, section 3
     Austin, Texas 78711                                 of the Texas Constitution (RQ-785)

     Dear Senator Sibley:

             You ask the following questions about article III, section 3 of the Texas
     Constitution:
                      1. If the legislature makes changes to only two of thirty-one
                senate districts, will the bii be considered as a general apportionment
                which would necessitate the election of a new senate at the next
                election?

                     2. If the legislature makes changes to more than two but not all
                of the current senate districts, would the changes necessitate the
                election of the whole new senate or only the senate districts with
                changes?

                    3. Does the extent of the changes to senate districts affect the
                answer to the preceding questions?1

            Article III, section 3 provides in pertinent part:
                     The Senators shall be chosen by the qualified electors for the
                term of four years; but a new Senate shall be chosen after every
                apportionment, and the Senators elected atIer each apportionment
                shall be divided by lot into two classes. The seats of the Senators of
                the first class shag be vacated at the expiration of the first two years,


             ‘You ask ooly aboot the OEkct of redisuicting legislation enacted by the legislature. You do not
     askabouttk.dTectofuaurt~rrdistrictin&nordowceddrcssiL
Honorable David Sibley - Page 2             (DM-351)




            and those of the second class at the expiration of four years, so that
            one half of the Senators shall be chosen biennially thereafter.

Article III, section 2 of the Texas Constitution requires that the senate be composed of no
more and no less than thirty-one members. Tex. Const. art. III, 5 2 (“The Senate shall
consist of thirty-one members, and shall never be increased above this number.“) Section
28 of article III requires the legislature to “apportion the state into senatorial and
representative districts” at its first regular session after the publication of each United
States decemrial census.

        In essence you ask whether legislation recon6guring two senatorial districts would
constitute an “apportiomnent” under section 3 of article III, thus requiring the election of
a new senate, that is, elections in all thirty-one senatorial districts, or ifit would constitute
something less or different. We have been able to locate absolutely no case law on this
subject, and it does not appear that such legislation has ever been considered or reviewed
by the courts. There is, however, a relatively recent attorney general opinion answering an
almost identical question on the subject. In Attorney General Opinion M-349 (1969) this
office was asked to consider whether legislation proposed in 1%9, which would have
made changes in two of the thirty-one senatorial districts but which would not have
become effective until January 1972, would have constituted general apportionment, thus
requiring all members of the senate to run at the next election.

        Noting that historically there had been no firm distinctions made between
apportionment and districting in this state and that senatorial redistricting had consistently
been recognized as apportionment, this office concluded that the bill recordiguring two
senatorial districts would constitute “apportionment*’ as that term is used in article III,
section 3. Attorney General Opinion M-349 (1969) at 2-3. The opinion concluded that
although the proposed legislation would not constitute an apportionment prior to its
effective date, it would constitute

            a general reapportionment after its effective date so as to require the
            election of a new Senate at that time. [The proposed legislation], if
            finally enacted into law, upon reaching its eflbctive date, would be an
            apportionment at that time and would, therefore, in accordance with
            Article III of Section 3 [sic] of the Constitution of Texas, require the
            election of a new Senate.

Id. at 3.

        Section 3 of article III has not been amended since 1969, nor have there been any
intervening judicial opinions which would call Attorney General Opinion M-349 into




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Honorable David Sibley - Page 3              (DM-351)




question.   Furthermore, we see no basis on which to fault Attorney General Opinion
M-349.

        One might try to draw a distinction between “apportionment” following the
decennial census and the recontigurement of districts, i.e., “districting.*’ The lengthy
discussion in Kilgarlin v. Martin, 252 F. Supp. 404 (S.D. Tex. 1966), rev’d on other
grounds, 386 U.S. 120 (1967), regarding the technical meaning of the terms “apportion-
ment” and “districting” quoted in Attorney General Opinion M-349 might be read to
support such a vie-w:

                 “Apportionment,” in the technical sense, refers solely to the
            process of allocating legislators among several areas or political
            subdivisions, while “districting” entails the actual drafting of district
            lines. Thus, Congress “apportions” Representatives among the
            states, while the states ‘district” by actually drawing the
            congressional district lines.      In Texas, the Legislature both
            “apportions” and “districts” as in H.B. 195. For example, it
            “apportions” 19 Representatives to Harris County, and “districts”
            Harris County into three districts. In keeping with wmmon usage,
            however, the total process will be referred to as “apportionment” in
            this opinion. See Comment, 72 Yale L.J. 968 (1963) at 970 n. 24.
Id. at 410 n.1

         Although some might argue that this distinction between apportionment and
districting is significant with respect to article III, section 3, we believe that this distinction
is attenuated in the case of the senate, which the Texas Constitution dictates must always
consist of thirty-one members, see Tex. Const. art. III, 5 2, each of whom is elected from
one of thirty-one separate districts, see id. 5 25 (“each district shall be entitled to elect one
Senator”). The house of representatives, on the other hand, may consist of 93 to 150
members. See id. $2. Thus, the legislature never really “apportions” senators to
senatorial districts in the technical sense of the word but rather redraws district lines. Put
another way, if the word “apportiomnent” in article III, section 3 were read in its technical
sense, “apportionment” of the senate would never occur. Thus, for purposes of article III,
section 3 we do not believe that there is a meaningIbl distinction between “apportionment”
and ‘districting.”

       For the following reasons, we conclude that the passage of legislation changing
two senatorial districts would constitute an apportionment under article III, section 3 of
the Texas Constitution requiring the election of a new senate. In response to your second
question, it follows from our aflirmative answer to your first question that legislation




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Honorable David Sibley - Page 4            (DM-351)




changing more than two senatorial districts would also constitute an “apportionment.” In
response to your third question, the extent of changes to senatorial districts does not affect
our answer to your tirst and second questions. Article III, section 3 makes no distinction
tieen    an “apportionment” of senatorial districts that affects merely two districts and an
“apportionment* of senatorial districts that affects all thirty-one districts.

                                    SUMMARY

               The passage of legislation changing two senatorial districts
           would wnstitute an apportionment under article III. section 3 of the
           Texas Constitution requiring the election of a new senate.




                                                       DAN MORALES
                                                       Attorney General of Texas

JORGE VEGA
Fht b&ant Attorney General

SARAH J. SHIRJEY
Chair, Opiion Committee

Prepared by Mary R. Crouter
Assistant Attorney General




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