                                                                   R-149



   THEAA~TORNEY                   GENE&AI.
                   OF TEXAS


                            Feb. 27, 1947     .,


Hon. Donald M. Markle, Chairman
Committee on Privileges,  Suffrage & Elections
House of Representatives, 50th Legislature
Austin, Texaa                      Opinion No, V-53

                                    Re:   Whether the House of Rep-
                                          resentatives may seat a
                                          delegate  elected as the
                                          ‘“Representative from Nue-
                                          WE6 Countj+”



          You have asked our opinion on the two questions set,out be-
low, arising from the following situation stated in your letter of Fcb-
ruery 20, 1947, to t&&rdeg*ztttmnt, whS4.hread0 at3 follows:

          “‘I hand you he,rewith an mstrument, dated November
    18, 1946, executed by the County Judge of Nueces County,
    Texas, certifying that at an electian held on November 5,
    1946, Mr. PhiHp A, Schraub, ef Corpus Christi, Texas,
    was elected a Representative from Nueces County to the
    House of Repreaentativer of the Fiftieth Legislature.
    ‘This inetrument WAS filed with the Chief Clerk of the
    House of Representatives on January 16, 1947, and WAS
     referred to the &mmittae on Privileges, Suffrage And
    B2.2l;tioas ef the House ,by the Speaker on Februbry 12,


               0. E. Cannon,of Corpus Christi, T4x*s, has
           “Mr..
    been certified by the Secretary of State as the duly atect-
    ed Representative ‘from District No. 71 to the House of
    Representatives af the Fiftieth Legislature,  (See page 3
    of House Journal for January 14, 1947,)

          ‘“The provisions of the election laws of Texas per-
    taining to contests arising out of elections for members
    of, the Legislature do not provide for a situation such
    ;t2rfa   one,, (See Title 50, Ch, 9, of the R.C,S, of Texas,


         “On January 16, 1947, Mr. Schraub, in an address de-
    livered before the House requested that he be seated.
    (See page 42, et seq., of the current House Journal.)
Hon. Donald M. Markle, Page 2                        Opinion No. V-53



         ““The Committee on Privileges, Suffrage and
    Elections of the House, of which I am Chairman, has
    instructed me to request your opinion on the follow-
    ing two questions:

         “(1) could the said Philip A. Schraub legally and
    constitutionally be seated as a member of the House
    of Representatives of the Fiftieth Legislature of Tex-
    as if the House should vote to seat him?

         “(2) if he could be seated by the House, what
    procedure should this Committee follow in acting
    upon the instrument herein enclosed? ‘*

          The substance of the instrument attached is contained in
the first paragraph of your letter; and, for the sake of brevity, will
not be here copied. The instrument, being an original document of
the House of Representatives, is herewith returned to you.

         Article   III of the Constitution of Texas states:

          “Sec. 2. * * * The House of Representatives
    shall consist of ninety-three members until the
    first apportionment after the adoption of this Con-
    stitution, when or at any apportionment thereafter,
    the number of Representatives may be increased
    by the Legislature, upon the ratio of not more than
    one Representative for every fifteen thousand in-
    habitants; provided, the number of Representatives
    shall never exceed one hundred and fifty.‘” (Urider-
    scormg ours.)

         “Sec. 26, The members of the House of Repre-
    sentatives shall be apportioned among the several
    counties, according to the number of population 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 num-
    ber of members of which the House is composed;
    provided, that whenever a single county has suffi-
    cient population to he entitled to a Representative,
    such county shall be formed into a separate Repre-
    sentative District, 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 popula-
    tion to be entitled to one or more Representatives,
    such Representative or Representatives shall be ap-
    portioned to such county, and for any surplus of
Hon. Donald M, Markle, Page 3                         Opinion No. V-53



       population it may be joined in a Representative  Dis-
       trict with any other contiguous county or counties.”

            ‘“Sec. 28. The Legislature shall, at its first ses-
       sion after the publication of each United States decen-
       nial census, apportion the State into Senatorial and
       Representative districts, agreebly to the provisions
       of sections 25 and 26 of this Article; * * *”

           In spite of the provisions of Section 28 of Article III above,
 the last enactment redistricting the State on the basis of the dtcen-
nial census, was in 1921 (Acts 1921, 2nd C.S., p. 264, being Art. 195,
R.C.S. 1925), That article divides the stateinto 127 districts. Twelve
of tht districts are allotted more than one representative;     thrte of
 such districts (Harris, Bexar, and Dallas, Counties) have five reprt-
 w&t&her     each. A count of the reprertntativcs provided for, in Ar-
ticle 195 shows that there are now 150 representativts from the 127
districts.   Accadingly, at the beginning of the Fiftieth Ltgislature,
 150 seprtstntatives    were certified by the Secretary of State to have
baen duly elected. Each of the 180 representatives was present for
the first roll call. Each of the 150 representatives took the oath of
,offict. (HJ. 50th Leg., ppO l-5 for Jan 14, 1947). Mr. Schraub was
net among the 150 reprosentabives mentioned above.

           It is apparent that since Art. III, See. 2 clearly provides
that 'tit number of Representatives shall never exceed one hundred
and fifty,“’ and since 150 representatives have been already seated,
the House could net constitutionally seat another representative.

           Further, Art. 195, as applicable here, providts:

            ““The Representative Districts shall be composed
       respectivtly of the following named counties, each of
       which Districts shall be entitled to elect ont Rtpresen-
       tative unless otherwise provided herein:



           “No. 71. Nuects, Jim Wells and Duval”

          The act provides for one, and only one, representative from
the area composed of Nueces County and two adjoining countits. The
Honerable 0. E. Cannon, having been already seated from such dis-
trict, the Heuse would not be justified in seating a second represen-
tative from Nueces County,

         Finally, the member certified by the County Judge of Nueces
County, was declared to have been elected to be the ‘“Representative
from Nueees County.” There is no such district under Art 195.
Hon. Donald M. MarkBe, Page 4                       Op%nionNo, V-53



            It is perceived +&at due to the greaatly increased popula-
tion of Nueees County, tine effor% is here being made to %OTEXa re-
distsisting, allowing additional representation from such area, 1%
was, undoubtedly, %heplan of %heframers of tie Texas Cons%itu%ion,
that, based on a decennial eens-rs,: areas which have had larger pro-
portionate increases in populai.olr, should be given additional rep-
resentation.    Texas, being a d~~moeracy: it was co.ntempla%ed that
representation should be proportionat#r to populationi witi a read-
justment of euch vepssentation     ia& trr, years in 091de~ to alPow
for increases and deczraases oil populat&zn in dkf&erentcl~eaa4of %he
State. Nevertheless, f&e power aad I-sponsibility %o redis%ric%
the Stats is left by the C&as%i%u%ioxzsol@Iy wi%hiain t& province of
the Legislature.

           As s%a%edinn59 C. J* 38:

           “* * * The duty imposed upon the legislative de-
      partment of the s%ate goveanment %o appor*i0n the state
      is mandatory, and continued until discharged. How-
      ever, %hne IegisPatura cannot be compeYkd to act, and,
      when ia fails at ihe proper’ time to do so, this duty faPBs
      on each suceeedis,g legislature ,unril pe~rfosmed. But
      during the inrervaP ‘bpe%wee:r~the return of an emsmera-
      ticm and the making of a new apport:iarmemt, the foam-
      er apporbionment remains xn force; and so also when
      +he hime far a ~eappoatiommen~ afsivss, the old appor-
      Itianment remains in force until the new act takes ef-
      fee%, or u&il a valid new apportionmen% is madei in
      ease if for any rea50m a valid appcr%ionment act is no%
      passed a%the appointed time., :icx<,i-,

             In New York, a taxpayer brought a marxiamus ho compel
the redistricting to allow additional senators and asssmb&nxn       inn
his area based on increased population, lrhe legislahuse having
failed to redistrict after a ten year period as required by their
ecnstitution, The mandamus was dccnie$ the highest New York
court saying 5 ‘“ApporLionment is a duty placed by the Constituntion
an the Legislature, over which %he courts have no junrisdicbhon,”
Burns v. Flynn, 198 N. E. 424 (1935). FOP similar BoPdiqs, see
In Re State Census, (S,D, lass), 62 N, W. 129; Ftagus    v0 Marks,
(III, 19261, 152 N. W. 557: 16 C.J.S. 438 (Consti%u%ional Law, Sec.
14%); and an annotahion, 46 A.L.R, 964.

           Ahtempts have been made to force redist.ric&ing by Q&O
Warranto proceedangs (People v. B$ackuell, 111, Sup. CU. 1930,
173 N.E, J50), and by actions to ?-~sl’ra~b &e comprroP,Penfrom
paying the salaries of Ycgislators who failed to tedisfnict as re-
quired by State Cons%i&utionns.(Fergus v. Kinney,. 111. sup, CU.!,
1929, 164 N, E. 6&j,  It is artm~wced ilnlajll oLrthese cases tiat
Hon. Donald M. Markle,   Page 5                     Opinion No. V-53



the 1egisLturs is under a mandtitory duty to redistrict tbt state as
required by the State Constitution. but rssponsibility to t.h.siPcon-
stituents, a sense cf public duty, and the carrying out of the oath of
office taken by the 1egislatPrs to uphold the Constitution, are the
only iracentivea that can prempt legislative action.

             Under Art. III, Sec. gi the House of Representatives is
mrdc the judge of the qualifications and election of its own mem-
btrs.   Neverthekcsu, fer the rea6ono stated, the answer to quesstion
(S) i~?that you may not legally Scat Mr. Phillip A. Schraub. The
an@we~ to que8tim    (2) becemts immaterial and no answer thcs&o
in lbeeeuurry,



           A ptrru    tlsctrd from a district not designated
      by stathtte, w&ore eutehpewom, if m&ted, vmuld give
      mom ~ap~wucat8tSve~ for ruek ama than authorized
      by statute, (LMLw&h      Peprcsentative would cause
      the numb& of reprcocntatives to exceed 150, (the
      maxirn0m prescribed by Art, III, Sec. 2 ef the Tars
      Constitution) i ma’y ihotbe legally eeated by N4 Hmwe
      of RepreOWtWWes,




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