TEEA~TORNEYGENEXCAL 

OF -XAS 

April 20, 1961 

Honorable C. W. Pearcy, Chairman 

Committee on Congressional and 

Legislative Districts 

House of Representatives 

Austin, Texas 

Opinion No. 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 shall be contiguous. With 

reference to counties bordering on the Gulf of 

Mexico that are not contiguous by land, could 

two such counties be placed in the same Leglslative District because of being contiguous by 

water only? In connection with this question 

the Committee would 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 provisions mandatory? 

"3a. With regard to Section 28, wherein 

the Legislature is directed to apportion the 

Sta .te 'agreeable to the provisiors of Sections 

25, 26 and 26a of this Article,' would this 

mean such apportionment must 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 following words appear: 

'In the event the Ler?%slstur- shall 

at any regular session, following the 
Honorable C. W. Pearcy, page 2 (WW-1041) 

publication of a United States decennial 

census, fail to make such an apportionment, 

same shall be done by the Legislative Redistricting Board of Texas, etc.' 

"Would this be interpreted as meaning that 

'suchlapportionment., if not 'agreeable to' 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 Legislative Redistricting Board of the State of Texas 

to be required to act?" 

Section 26 of Article III of the Constitution of 

Texas provides as follows: 

"The members of the House of Representatives shall be apportioned among the several 

counties, according to the number of population in each, as nearly as may be, on a ratio 

obtained by dividing the population of the State, 

as ascertained by the most recent United States 

census, by the number of members of which the 

House is composed; provided, that whenever a 

single county has sufficient population to be 

entitled to a Representative, such county shall 

be formed into a separate Representative District, and when two or more counties are required 

to make up the ratio of representation, such 

counties shall be contiguous to each other; and 

when any one county has more than sufficient 

population to be entitled to one or more Representatives, such Representative or Representatives shall be apportioned to such county, and 

for any surplus of population it may be joined 

in a Representative District 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 construed by the judiciary of this State. 

However, the same word as used in Article 2922a relating to grouping of school districts to form a rural high school district has 

been defined. In Attorney General’s Opinion No. 0-4180 (1941) 

this office pointed out: 
- , 

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

"'Contiguous' as used in Article 2922a, 

relating to the grouping of school districts 

to form rural high school districts, has been 

held to mean that the districts must so touch 

one another that all may be included in a 

common boundary 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 (Writ dirmissed); Miller v. School Trustees 

of Milam County, 52 S.W.(2d) 806 (Writ Ref.). 

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 construction was intended by 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 common boundary 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 Constitution of Texas. You are, 

therefore, advised that a Representative District may be 

formed by two or more counties if they touch one another so 

that all may be included in a common boundary line, assuming, 

of course, that all other prerequisites of Sections 26 and 

26a are complied with. 

Section 1 of Article 1592a, V?rnonts Civil Statutes, 

relating to the gulfward boundary lines of all counties of 

this State bordering on the coast line of the Gulf of Mexico 

provides as follows: 

"Section 1. The gulfward boundary 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, in United 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 marine boundary 

of the State of Texas extended three leagues seaward. You are " 

therefore advised 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: 

"Provided however, that no county shall be 

entitled to or have under any apportionment more 

than seven (7) Representatives unless the populetion of such county shall exceed seven hundred 

thousand (700,000) people as ascertained by the 

most recent United States Census, in which event 

such county shall be entitled to one additional 

Representative for each one hundred thousand 

(100,000) population in excess of seven hundred 

thousand (700,000) population as shown by the 

latest United States Census; nor shall any district 

be created which would permit any county to have 

more than seven (7) Representatives except under 

the conditions set forth above." 

The above quoted provision has not been construed by the courts 

of ;his State. It is noted, however, that the provision thereof 

used mandatory language such as "no county shall be," "such 

county shall be, ' "nor shall any district be 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 representative districts, agreeable to the provisions of Sections 25, 26, and 26-a of this Article. 

,t 

. . . 

In view of ,the'provisions above quoted, you are advised redistricting bills enacted by the Legislature must 

comply with the provisions of Sections 25, 26 and 26a of 

Article III of the Constitution of Texas. The remaining provisions of Section 28 of Article III of the Constitution of 

Texas apply only if the Legislature fails to make an 
Honorable C. W. Pearcy, page 5 (WW-1041) 

apportionment in accordance with the above cited constitutional provisions. 

SUMMARY 

Any act of the Legislature apportioning the 

State into senatorial and representative 

districts is required to comply with the 

provisions of Sections 25, 26 and 26a of 

Article III of the Constitution of Texas. 

The word "contiguous" as used in Section 

26 of Article III of the Constitution of 

Texas means that a representative district 

composed of two or more counties may be 

formed if the boundaries (whether inundated 

or not) of the counties cdmprising the 

representative district 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 

Houghton Brownlee, Jr. 

john Leonarz 

REVIEWED FOR THE ATTORNEY GENERAL 

3y: Leonard Passmore