DAN MORALES 

ATTORNEY CENERAL 

QBffice of ttp JZlttornep &meral 

&ate of IEexae 

June 7, 1995 

Honorable David Sibley 

Chair 

Opinion No. DM-35 1 

Economic Development Committee 

Texas State Senate 

P.O. Box 12068 

Austin, Texas 78711 

Dear Senator Sibley: 

Re: Whether legislation changing two of 

thirty-one senatorial districts constitutes an 

“apportionment” under article III, section 3 

of the Texas Constitution (RQ-785) 

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 “apportionment” 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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