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Senator J. P. Word Opinion No. 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 1970 United States 

Dear Senator Word: decennial census. 

You have reques~ted the opinion of this office as to 

whether a valid senatorial redistricting bill may be enacted 

by the Legislature at this Special Session. 

It makes no difference whether this subject was Included 

In the proclamation calling the Special Session or whether 

the Governor amends said proclamation so as to Include this 

subject. The Legislature cannot validly enact a senatorial 

redistricting bill at this Special Session. Section 28 of 

Article III of the Texas Constitution Is controlllng,and we 

quote and analyze the following controlling portions thereof. 

'The Legislature shall, at Its first 

regular session after the publication of each 

iJnlted States decennial census, apportion the 

state Into senatorial and representative dlstrlcts, agreeable to the provisions of Sections 

maand 26-a of this Article. . . .' 

(Emphasis supplied throughout.) 

The Legislature has met at Its first Regular Session after the 

publication of the last decennial census and has failed to pass 

any senatorial apportionment statute. 

This Section 28 provides that 'In the event the 

Legislature shall at any such first regular session following 

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Senator J. P. Word, paf'e 2 (M - 881) 

the publication of a United States decennial census, fail 

to make such apportionment, same shall be -- 

done3 the Lepisla- -- 

tive Redistricting Board 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 

Public Accounts and the Commissioner of the General Land 

Office, a majority of whom shall constitute a quorum." 

In enacting this provision, the people specifically 

provided for the procedure to be followed to achieve equal 

apportionment and did not see fit to leave it within the 

discretion of the Governor to call a 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 legislature had failed to act, the more reasonable 

course lay In providing an entirely different body with the 

power and duty to act and effect constitutional apportionment. 

Quoting further from the Constitution: "Said Board 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 

senatorial and representative districts ,-or into senatorial or representative districts, as the failure of action of such Leplslature may make necessary." 

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Senator J. P. Word, page 3 (~-881) 

Thereafter provision Is made for the enactment In writing 

of apportionment and filing with the Secretary of State, at - 

which time It shall have force and effect of law. It is further 

provided that 'Such apportionment shall become effective at the 

next succeeding statewide general election." 

Thus, the exact situation which has occurred, that is, 

the failure of the last regular session of the Legislature 

to pass an apportionment statute,is contemplated by and provided for In the above quoted portions of Section 28. 

Further, to Insure ultimate accomplishment of apportlonment, Section 28 provides as follows: 

The foregoing procedure Is not only clearly mandatory, 

but the complete and exclusive law In this State. '!It Is 

well settled that when a power Is expressly given by the 

Constitution and the means by which, or the manner in 

which, It Is to be exercised Is prescribed, such means'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). 

The mandatory provisions of Section 28, Article III, 

which provide for and guarantee equal representation In the 

making of laws, are consistent with the republican form of 

government required under Section 4 of Article IV of the 

United States Constitution. 

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

We find nothing In the Texas Constitutional provisions 

which conflict with the federal constitution. 

. ..How power shall be dlstrlbuted by 

a state among Its governmental organs 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 questions arising under the 

equal protection clause of the Fourteenth Amendment. 

Baker v. Carr, 369 U.S. 186 (1937). 

Provisions In the State Constitution of Missouri 

similar to those In the Texas Constitution under 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 

cannot pass a valid Redistricting Bill where 

the First Regular Session following a United 

States decennial census failed to do 80. 

Redistricting must be accomplished pursuant 

to the provisions of Section 28 of Article III 

of the Texas Constitution. 

Veryt&iy your:, 

Prepared by Marietta McGregor Payne 

Assistant Attorney General 

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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 

Executive Assistant 

(~-881) 

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