               THE-ATTORNEY                             GENERAL
                         OF                 TEXAS




                                    January    24,   1974


The Honorable Ben R. Howell,                            Opinion   No.   H- 219
     Chairman
State Board of Education                                Re:   Effect’ of Judicial Change in
201 East Eleventh Street                                      Congressional    Districts   upon
Austin,  Texas                                                Offices of Members      of State
                                                              Board of Education

Dear Mr.     Howell:

         You have re&ested    an opinion as to the effect of court-ordered  Congres-
sional    redistricting upon the tenure of members    of the State Board of Education.

         The Texas Education Code provisions     governing              election   and tenure   of
Board     members  are in pertinent part as follows:

                      ‘“$11. 21. The State Board of Education is com-
               posed of one me&bkr elected from each congressional
               district established  by law.

                       “$11.22.     . . ,

                      ‘l(c) No person shall be elected from or serve
               in a district who is not a bona fide resident thereof
               with five years’ continuous residence prior to his
               election.    . . .

                       1’:.   . .

                     “(h) At the general election in 1972,~ and at each
               general election thereafter  immediately   following a
               decennial reapportionment   of congressional    districts,
               one member shall be elected to the board from each
               congressional   district. Except as provided in Sub-




                                              p. 1019
The Honorable   Ben R. Howell,      page 2 (H-219)




             section (i) of this section,  members   of the board
             serve staggered terms of six years with the terms of
             one-third  of the members     expiring on December   31
             of each even-numbered      year.

                     “(i) One-third    of the members    of the board
             elected in 1972 and at each general election following
             a decennial reapportionment        of congressional    districts
             shall serve for terms of two years,        one-third for
             four years,      and one-third for six year.8.    Memberx
             shall draw lots to determine which shall serve for
             terms of two, four, and six years.         If the total number
             of members        divided by three results in a remainder
             of one, one additional six-year       term shall be filled
             by lot.     If the total number of members      divided by
             three results in a remainder       of two, one additional
             six-year      term and one additional four-year     term shall
             be filled by lot. ” (emphasis      added).

      Each member of the present State Board of Education was elected in
November   1972 from congressional  districts established in Senate Bill 1. (Acts
1971, 62d Leg.,  First C. S., ch. 12, p. 38).

       On October 19, 1971, suit was filed in the United States District Court for
the Northern District of Texas challenging the constitutionality        of Senate Bill 1.
On January 22, 1972, the court announced its decision,         holding Senate Bill 1 to
be unconstitutional   and implementing      “Plan C” as the reapportionment     plan for
the state.   The District Court enjoined the Secretary      of State from conducting
or permitting   any primary or general elections based upon the districts         estab-
lished by Senate Bill 1, but a stay of the order of the District Court was granted
by the United States Supreme Court.         Bullock v. Weiser,   404 U. S. 1065 (1972).
As a result,   the congressional    and Board of Education races in 1972 were con-
ducted according.to    the provisions   of existing law under Senate Bill 1. On June
18, 1973, the Supreme Court upheld the decision of the District Court in declaring
Senate Bill 1 to be unconstitutional,    but, disagreeing  with the adoption of “Plan
C”, remanded the case to the District Court for further proceedings           consistent
with its opinion.   White v. Weiser,      37 L. Ed. 2d 335.. On October 17, 1973,




                                      p. LO20
The Honorable    Ben R.    Howell,   page 3     (H-219)



the three-judge   court issued its memorandum       opinion and order requiring the
implementation    of “Plan B”.   One group which sought to intervene in Weiser and
to modify “Plan B” as it affected Dallas County only was denied that opportunity
by the Court.   It alone is appealing.  The appeal, of course,     does not seek to
and cannot reinstate the S. B. 1 districts.     The newly defined Weiser   “Plan B”
districts  are the Texas congressional    districts  “established by law” from which
 Congressmen    must run in 1974.

       You have posed     the following   questions:

                    “1. Are the, members  [of the State Board of Edu-
             cation] elected in 1972 who drew terms of four years or
             six years,  and who otherwise remain qualified,  entitled
             to serve for the full term?

                     “2. Assuming   an affirmative answer to question
             one, does the change in boundaries~ of congressional
             distri,cts disqualify a member who reside’d in the district
             at the time of election but whose residence  is now located
             within another district following the change in district
             boundaries?    ”

       Since the statute requires that all members             of the Board must stand for
election at the first general election ymmediately             following a decennial reappor-
tionment of congressional    districts, ” the answer          to your first question turns on
the meaning of “decennial    reapportionment”.

       If “decennial    reapportionment”    means adoption of a reapportionment        plan
by the Legislature     including any modification     or replacement    of such a plan by
the courts,   then the process     of “decennial   reapportionment”    was not completed
until the adoption of “Plan B” by the Weiser         court inoctober    1973, and the
“general election . . . immediately        following a decennial reapportionment       of
congressional    districts”   will be the 1974 election,    thus requiring candidates for
every Board position to run for election in 1974 from “Plan B” districts.             If, on
the other hand, “decennial       reapportionment ” does not include court action, but
refers only to legislative     reapportionment,     a contrary result could be possible.

       Our research leads us to the conclusion             that the first alternative   is the
correct construction.   We feel that Maury v.             Legislative   Redistricting   Board,




                                          p.   1021
                                                                                    .           .




The Honorable    Ben R.   Howell,   page 4 (H-219)




471 S. W. 2d 570 (Tex. 1971) compels this result.  In -,               the Supreme Court
of Texas dealt with Art. 3, 5 28, Constitution of Texas,          which provides,  in part:

                    “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 provisions    of Sections 25, 26, and 26-a of
             this Article.    In the event the Legislature      shall at any such
             first regular session following the publication of a United
             States decennial census,      fail to make such apportionment,
             same shall be done by the Legislative         Redistricting   Board of
             Texas.   . . .‘I

        After the 1970 United States census,     the 62nd Legislature,      in 1971, reappor-
tioned the Texas House.        That Act was declared invalid by a state district court.
The trial court was affirmed by the Supreme Court of Texas.             Smith v. Craddick,
471 S. W. 2d 375 (Tex. 1971).      The Legislative   Redistricting, Board was then
petitioned to redistrict   the state in accordance    with Article 3, $ 28.      The Board
declined,    taking the position that the Legislature   had enacted an apportionment
act, i. e., that the Legislature    had not failed to reapportion   itself,    and that
therefore    the Board had no jurisdiction   to act.

      The Supreme     Court rejected    that argument,     holding that the Board         did
have jurisdiction:

                    “An apportionment    which is invalid, for whatever
             reason,   is no apportionment;   and the Board% duty to
             proceed with apportioning the state into representative
             districts  accrued when the regular session adjourned on
             May 31, 1971 without having enacted a valid apportionment
             statute. ‘I (emphasis   added) (471 S. W. 2d at 574)

       It thus seems clear under Mauey that in the instant case “decennial       reappor-
tionment” means the entire reapportionment      process,  including th’e’adoption in
October 1973 of “Plan B” by the federal courts.      Under Mauzy, Senate Bill 1 can-
not be considered   an apportionment   at all. The 1974 general election will thus be
the general election “immediately    following a decennial reapportionment     of congres-
sional districts, ” and each Board member must therefore       stand for election in




                                       p. 1022
The Honorable    Ben R.   Howell,,   page 5 (H-219)




1974.   Precedents    such as Childress   County v, Sachse,   310 S. W. 2d 414 (Tex.
Civ. App.,,-Amarillo,    1958, error ref’d, n. r. e. ) are not applicable here because
$11. 22 clearly contemplates    interruption of terms by decennial reapportionment.

       It should be emphasized    that this result flows from the application of case
law and principles   of statutory interpretation   to ~the Texas constitutional  and
statutory provisions   governing Board elections,      and not o.n any theory that
under Weiser v. White the lines drawn in Senate Bill-%ould          be unconstitutional
as Board districts.

       White v. Regester,             u. s. -)     37 L. Ed 2d 314 (1973); Gaffney v.
Cummings,          u. s. -,     37      L. Ed 298 (1973) and other recent cases make
abundantly clearthat      districts   for election of state officials~ are ,not required
by the constitution to meet the same standards of mathematic             equality as are
Congressional    districts.     Thus, in Regester,     deviation between the largest
and the smallest    legislative    districts was 9. 9%, a figure which the Supreme
Court of the United States held not to violate the principle of one man, one vote.
The deviations in congressionaldistricts          defined by Senate Bill 1 were a maxi-
mum of 4.1% which might well pass constitutional           ,muster in so far as State
offices such as State Board of Education districts         are concerned.

       The earlier case of Freeman v. Dies,     307 F. Supp. 1028 (N. D. Tex. 1969)
condemned the Board districts    as then defined (they were fixed by 1949 Congres-
sional districts, not subject to change by successive    congressional    reapportion-
ment) because the population in the smallest    of the then twenty-year-old    districts
varied by more than a million persons from the largest district.

        Although the S. B. 1 districts    might have been.valid  as State Board of
Education districts    if the Legislature    had chosen to authorize  separate Board
districts   and had drawn them as such, it did not. ‘By the scheme it chose
Board districts    and congressional     districts are one and the same.

      In view of our answer    to your first    question,   we need not reach the second.

                                       SUMMARY

                   The genera,1 election of 1974 will be the first
             general election “immediately    following a decennial




                                      p. 1023
The Honorable     Ben R. Howell,    Page 6   (H-219)




               reapportionment of congressional  districts, ‘I and
               one member must be elected to the State Board of
               Education from each Congressional   district in 1974.

                                                       Very   truly yours,




                                                       Attorney   General    of Texas

&F~ovED:




DAVID     M. KENDALL,      Chairman
Opinion    Committee




                                   p. 1024
