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Senator J. P.Word OpinionNo. M-881 Chairman, Senate Committee on Legislative,Congressional Re: Validity of Special 8 Judlcltil

Dlstrlcts Session apportioning the State Capitol State Into senatorial Austin,Texas districts In conformity with,the 1970United States Dear SenatorWord: decennial census.

You have reques~ted the opinion of this office as to whether a valid senatorialredistrictingbill may be enacted by the Legislatureat this Special Session.

It makes no differencewhether this subjectwas Included In the proclamation calling the Special Session or whether the Governor amends saidproclamation so as to Include this subject. The Legislature cannot validly enact a senatorial redistrictingbill at this Special Session. Section 28 of Article III of the Texas Constitution Is controlllng,andwe quote and analyze the following controllingportions thereof.

'TheLegislature shall,at Its first regular sessionafter the publication of each iJnltedStates decennial census, apportion the state Into senatorialand representativedlstrlcts, agreeable to the provisions of Sections maand 26-a of this Article.
. . .' (Emphasis supplied throughout.) The Legislaturehas met at Its first Regular Session after the publication of the last decennial census and has failed to pass any senatorialapportionment statute.

This Section 28 provides that 'In the event the Legislature shall at any such first regular session following -4298-. Senator J. P. Word, paf'e2 (M - 881)

the publication of a United States decennial census, fail to make such apportionment, same shall be -- done3 the Lepisla- -- tive RedistrictingBoard of Texas, which is hereby created, and shall be composed of five (5)members as follows: The Lieutenant Governor, thespeaker of the House of Representatives, the Attorney General, the Comptroller of PublicAccountsand the Commissioner of the General Land Office, a majority of whom shall constitutea quorum." In enacting this provision, the people specifically provided for the procedure to be followed to achieve equal apportionmentand did not see fit to leave it within the discretion of the Governor to calla special session for such a purpose. Moreover, we do not deem It speculative to assume that a further reason for such a decision lay in the fact that where the legislaturehad failed to act, themore reasonable
course lay In providing an entirelydifferent body with the power and duty to act and effect constitutionalapportionment. Quoting further from the Constitution: "SaidBoard shall assemble In the City of Austin within ninety (90)days after the final adjournment of such regular session. The Board shall.withln sixty (60)days after assembling, apportion the state into senatorialand representativedistricts,-or into senatorial or representativedistricts, as the failure of action of such Leplslaturemay make necessary."
-42gg-Senator J. P. Word, page 3 (~-881)

Thereafterprovision Is made for the enactment In writing of apportionmentand filingwith the Secretary of State, at - which time It shall have force and effect of law. It is further provided that 'Suchapportionment shall become effective at the next succeeding statewide general election." Thus, the exact situationwhich has occurred, that is, the failure of the last regular session of the Legislature to pass an apportionment statute,is contemplatedby and provided for In the above quotedportions of Section 28. Further, to Insure ultimate accomplishmentof apportlonment, Section 28 provides as follows:

The foregoingprocedure Is not only clearlymandatory, but the complete and exclusive law In this State. '!It Is well settled that when a power Is expresslygiven by the Constitutionand themeans by which, or the manner in which, It Is to be exercised Is prescribed, suchmeans'and
manners Is exclusive of all others." 12 Tex.Jur. 2d 361 Const. Law Sec. 30. See also Houchlns v. Plalnos, 130 Tex. 413; 110 S.W.2d 549 (1937);Parks v. West, 102 Tex. 11, 111 S.W. 726 (1908). Themandatory provisions of Section 28, Article III, which provide for and guarantee equal representation In the making of laws, are consistentwith the republican form of government required under Section 4 of Article IV of the United States Constitution. -4300-- .

Senator J. P. Word, page 4 (M-881)

We find nothing In the Texas Constitutionalprovisions which conflict with the federal constitution.

...How power shall be dlstrlbuted by a state among Its governmentalorgans Is commonly, If not always, a question for the state Itself...." land Farms Dairy, Inc. v.Agnew, 300 U.S. 119371. We do not discern any questionsarising under the equal protection clause of the Fourteenth Amendment. Baker v. Carr, 369 U.S. 186 (1937). Provisions In the State Constitutionof Missouri similar to those In the Texas Constitutionunder consideration have been upheld by the Supreme Court of that State. State
v. Hitchcock, 146 S.W. 40 (Mo.Sup.1912), and State v. Becker, 235 S.W. 1017 (Mo.Sup. 1921). SUMMARY A called session of the Legislature cannotpass a valid RedistrictingBill where the First Regular Session followinga United States decennial census failed to do 80. Redistrictingmust be accomplishedpursuant to the provisions of Section 28 of Article III of the Texas Constitution. Veryt&iy your:,

Preparedby Marietta McGregor Payne Assistant Attorney General
-4301-Senator J. P. Word, page 5

APPROVED: OPINION COMMI'ITEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Ralph Rash Wardlow Lane Larry Craddock Sam McDaniel Meade F. Griffin Staff Legal Assistant Nola White First Assistant Alfred Walker ExecutiveAssistant (~-881)

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