### DAN MORALES

ATTORNEY CENERAL 

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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 ofthe 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, willthe bii be considered as a general apportionment which would necessitate the election of a new senate at the next election? 2. Ifthe 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 3provides 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 shallbe divided by lot into two classes. The seats ofthe Senators of the first class shag be vacated at the expiration ofthe first two years,

‘You ask ooly aboot the OEkctof 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 halfofthe Senators shallbe chosen biennially thereafter. Article III, section 2 ofthe Texas Constitution requires that the senate be composed ofno more and no less than thirty-one members. Tex. Const. art. III, 52 (“The Senate shall consist ofthirty-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 decemrialcensus. 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 anew 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 bythe courts. There is,however, arelatively 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 ofthe senate to run atthe next election. Noting that historically there had been no firm distinctions made between apportionment and districting inthis 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, itwould constitute

a general reapportionment after its effective date so asto 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] ofthe Constitution of Texas, require the election ofa 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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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 

### inKilgarlin 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 YaleL.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 inthe case ofthe senate, which the Texas Constitution dictates must always consist ofthirty-one members, see Tex. Const. art. III, 52, each ofwhom is elected from one ofthirty-one separate districts, see 

### id. 525 (“each district shallbe 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 ofthe word but rather redraws district lines. Put another way, ifthe word “apportiomnent” in article III, section 3 were read inits technical sense, “apportionment” ofthe senate would neveroccur. Thus, for purposes of article III, section 3we do not believe that there is ameaningIbl 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 anew senate. In response to your second question, it follows from our aflirmative answer to your first question that legislation

p. 1872Honorable 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 ofchanges 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 allthirty-one districts. SUMMARY The passage of legislation changing two senatorial districts would wnstitute an apportionment under article III. section 3 ofthe Texas Constitution requiring the election ofanew senate.

DAN MORALES Attorney General ofTexas JORGE VEGA Fht b&ant Attorney General SARAH J. SHIRJEY Chair, Opiion Committee Prepared byMary R. Crouter Assistant Attorney General

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