## TEEA~TORNEYGENEXCAL
OF -XAS

April 20, 1961

Honorable C. W. Pearcy,Chairman Committee on Congressional and LegislativeDistricts House of Representatives Austin, Texas OpinionNo. WW-1041

Dear Mr. Pearcy: Re: Construction of Sections 26, 26a and 28 of Article III of the Texas Constitution.

tions: You have requested an opinion on the following ques-



## “1 . Section 26 provides that Counties in a Legislative DiStFiCt shallbe contiguous. With reference to countiesbordering on the Gulf of Mexico that are not contiguousby land, could two such countiesbe placed in the same LeglslativeDistrict because of being contiguousby water only? In connectionwith this question the Committeewould also request an Attorney Seneral's Opinion as to how far into the Gulf county lines are extended? “2. With regard to the provisions of Section 26a concerning counties over ~CO,OOO in populations, are such provisionsmandatory?
"3a. With regard to Section 28, wherein the Legislature is directed to apportion the Sta.te 'agreeableto the provisiors of Sections 25, 26 and 26a of thisArticle,' would this mean such apportionmentmust strictly comply with said Sections, in order not to be in contravention of the Constitution?
"3b. Along the same lines and with regard to the same Section the followingwords appear:

'In the event the Ler?%slstur- shall at any regular session, following theHonorable C. W. Pearcy,page 2 (WW-1041)

publication of a United States decennial census, fail to make such an apportionment, same shallbe done by the LegislativeRedistrictingBoard of Texas, etc.' "Would this be interpretedas meaning that 'suchlapportionment., if not 'agreeableto' the provisions of Sections 25, 26 and 26a, would be in contravention to the directive to the Legisture in Section 28 sufficient to cause the LegislativeRedistrictingBoard of the State of Texas tobe required to act?" Section 26 of Article III of the Constitution of Texas provides as follows:

"Themembers of the House of Representatives shallbe apportioned among the several counties,according to the number of population in each, as nearly as may be, on a ratio obtainedby dividing the population of the State, as ascertainedby the most recent United States census,by the number of members of which the House is composed;provided, that whenever a single countyhas sufficientpopulation to be entitled to a Representative, such county shall be formed into a separateRepresentativeDistrict, and when two or more counties are required to make up the ratio of representation, such counties shallbe contiguous to each other; and when any one countyhas more than sufficient population to be entitled to one or more Representatives, suchRepresentative or Representatives shallbe apportioned to such county, and for any surplus of population it may be joined in a RepresentativeDistrict with any other contiguous county or counties."
The word "contiguous"as used in Section 26 of Article III of the Constitution of Texas has not, insofar as we have been able to determine,been construedby the judiciary of this State. However, the sameword as used in Article 2922a relating to grouping of schooldistricts to form a rural high school district has been defined. In Attorney General’s OpinionNo. 0-4180 (1941) this officepointed out:- ,

Honorable C. W. Pearcy,page 3 (WW-1041)

"'Contiguous'as used in Article 2922a, relating to the grouping of school districts to form ruralhigh school districts,has been held to mean that the districtsmust so touch one another that all may be included in a commonboundary line,without intervening

See Beard v Marshall, 32 S.W.(2d) $%~"kliot Common SEhool District No 48 v. County Board of School Trustees, 76 S:W.(2d) 786 (Writdirmissed);Miller v. School Trustees of Milam County, 52 S.W.(2d) 806 (WritRef.). We are of the opinion that such is the meaning to be given to the word 'contiguous'as it is used in Article 2806. Any other construction would necessarily require the holding of several elections involving additional expense, delay, and inconvenience. We do not believe that such a constructionwas intendedby the Legislature.
"It is, therefore, the opinion of this department that school districts are contiguous under Article 2806, Revised Civil Statutes, if they touch one another so that all may be included in a commonboundary line.

. . ."
It is our opinion that the definition of the word "contiguous'as used in Article 2922a is equally applicable to the definition of the word "contiguous"as used in Section 26 of Article III of the Constitutionof Texas. You are, therefore,advised that a RepresentativeDistrict may be formed by two or more counties if they touch one another so that all may be included in a commonboundary line, assuming, of course, that all other prerequisites of Sections 26 and 26a are compliedwith.

Section 1 of Article 1592a,V?rnonts Civil Statutes, relating to the gulfwardboundary lines of all counties of this State bordering on the coast line of the Gulf of Mexico provides as follows:

"Section 1. The gulfwardboundary lines of all of the counties of this state bordering on the coast line of the Gulf of Mexico are hereby fixed and declared to be t&e continental shelf in the Gulf of Mexico."Honorable C. W. Pearcy,page 4 (WW-1041)

However, inUnited States of America v. States of Louisiana, Texas,MissZsippi,;Alabama and Florida, 363 U.S.l, at 64, 80 S.Ct. 961 (19bO);it was held that the marineboundary of the State of Texas extended three leagues seaward. You are " thereforeadvised that the gulfward boundary line of all counties of this State bordering on the coast line of the Gulf of Mexico is three leagues seaward from the coast line.

Section 26a of Article III of the Constitution of Texas provides:

"Providedhowever, that no county shallbe entitled to or have under any apportionmentmore than seven (7) Representativesunless thepopuletion of such county shall exceed seven hundred thousand (700,000)people as ascertainedby the most recent United States Census, in which event such county shallbe entitled to one additional Representative for each one hundred thousand (100,000)population in excess of seven hundred thousand (700,000)populationas shownby the latest United States Census; nor shall any district be createdwhich would permit any county to have more than seven (7)Representatives except under the conditions set forth above."
The above quotedprovisionhas not been construedby the courts of ;his State. It is noted, however, that the provision thereof used mandatory language such as "no county shallbe," "such county shallbe,' "nor shall any districtbe created," "except under the conditions set forth above." In view of the language used in .Section

26a of Article III of the Constitution of Texas, you are advised that its provisions are mandatory.

Section 28 of Article III of the Constitution of Texas provides in part as follows:

"The Legislature shall, at its first regular session after the publication of each United States decennial census, apportion the state into senatorial and representativedistricts, agreeable to the provisions of Sections 25, 26, and 26-a of thisArticle. ,t

. . . In view of ,the'provisions above quoted,you are advised redistrictingbills enactedby the Legislature must complywith the provisions of Sections 25, 26 and 26a of Article III of the Constitutionof Texas. The remaining provisions of Section 28 of Article III of the Constitutionof Texas apply only if the Legislature fails to make anHonorable C. W. Pearcy,page 5 (WW-1041)

apportionment in accordancewith the above cited constitutionalprovisions.

SUMMARY Any act of the Legislature apportioning the State into senatorialand representative districts is required to complywith the provisions of Sections 25, 26 and 26a of Article III of the Constitutionof Texas. The word "contiguous"as used in Section 26 of Article III of the Constitution of Texas means that a representativedistrict composed of two or more countiesmay be formed if the boundaries (whetherinundated or not) of the counties cdmprising the representativedistrict touch one another so that all may be included in a common boundary Line.
Yours very truly,
WILL WILSON Attorney General of Texas

mee*Assistant

APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman
Glenn R. Brown W. Ray Scruggs HoughtonBrownlee, Jr. john Leonarz
REVIEWED FOR THE ATTORNEY GENERAL 3y: Leonard Passmore