DAN MORALES ATTORVEY CLXiERhL 

QBffice of toe IZlttornep @eneral 

Mate of Qexag 

Honorable Chet Brooks 

chairman 

Senate Committee of the Whole 

on Redistricting 

Legislature of the State of Texas 

P.O. Box 12068 

Austin Texas 78711-2068 

February 27,199l 

Opinion No. DM-6 

Re: Whether release of census counts 

subject to possible adjustment constitutes 

publication of the United States decennial 

census for purposes of article III, section 

28, of the Texas Constitution and related 

questions (RQ-24) 

Honorable Tom Uher 

House Redistricting Committee 

Texas House of Representatives 

P.O. Box 2910 

Austin Texas 78768-2910 

Dear Gentlemen: 

You request advice on matters relating to the construction of article III, section 28, 

of the Texas Constitution, the provision establishing the legislature’s duty to apportion the 

state into senatorial and representative districts: 

The state constitution directs the legislature to apportion state senatorial and 

representative districts (“legislative districts”) at the first regular session “after the 

publication of each United States decennial census.” Tex. Const. art. III, § 28. If, during 

such session “following the publication of a United States decennial census,” the legislature 

“fail[s] to make such apportionment, the Legislative Redistricting Board (“LRB”) is 

required to apportion. u 

A census publication during a regular session immediately activates the 

constitutional apportionment duties of both the legislature and, if it fails, the LRB. &uzy 

v. Legislative Redistrictine Bd., 471 S.W.2d 570 (Tex. 1971). The underlying purpose of the 

1948 constitutional amendment to article III, section 28, having been to “get on with the job 

of. . . redistricting,” the constitutional obligations are activated at the earliest possible 

moment: 

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mhe overriding intent of the people . . . was to permit apportionment 

of the state into legislative districts at the regular session of the 

Legislature which is convened in January following the taking of the 

census, if publication is either before convening or during the session. 

fi at 573. 

The m court explicitly avoided stating when “publication” occurred; however, in 

the same passage in which it declined to resolve the issue, the court highlighted that by a 

certain date in early 1971 (during a regular legislative session) “the Legislature had been 

furnished all census figures necessary to apportion the state into legislative districts.” u 

The 1990 census presents Texas with unique circumstances. wile there has been 

no injunction prohibiting the census enumeration from going forward, there has been an 

injunction, in the form of a stipulation of the parties to a lawsuit approved by a federal 

district court, which makes the reporting and publishing of the results of the enumeration 

provisional, until July 15, 1991, at the latest. Stipulation and Order, Citv of New York v, 

United States Deu’t of Commerce, No. 88 CV 3474 (E.D.N.Y. July 17, 1989) (“City of New 

York”). Texas is a party to the lawsuit and is bound by the stipulation. a, Citv of New 

&& (Order of July 13,199O). 

The provisional nature of the census population counts is occasioned by the 

requirement that the United States Department of Commerce (“department”) follow a 

specified course of action that must culminate in its determination no later than July 15, 

1991, whether to make a statistical adjustment of the 1990 decennial census. If it decides to 

adjust, the adjustment must be made and published by the deadline; if it decides not to 

adjust, a detailed explanation must be given by the. deadline. 

The specified course of action is unique in census annals. Paragraph 3 of the 

stipulation requires the department to undertake a post-enumeration survey (“PES”) “of 

not fewer than 150,000 households . . . as part of the 1990 Decennial Census in a manner 

calculated to ensure the possibility of using the PES . . . to produce corrected counts usable 

for . . . legislative reapportionment.” Information submitted in connection with this request 

shows that between 164,000 and 170,000 households were surveyed in the PES. 

Paragraph 6 of the stipulation requires that the federal government’s release or 

publication of “any population counts” from the 1990 census prior to the adjustment 

decision bear the following legend: 

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The population counts set forth herein are subject to possible 

correction for undercount or overcount. The United States 

Department of Commerce ‘is considering whether to correct these 

counts and will publish corrected counts, if any, not later than July 1.5, 

1991.’ 

On February 5, 1991, the Census Bureau, an arm of the department, reported to the 

Governor of Texas the population counts described in section 141(c) of title 13 of the 

United States Code. The bureau describes these reports of population figures as “public 

law 94-171 counts,” in reference to the enactment that adopted the provision codified as 

section 141(c). See eenerally Pub. L. No. 94-171, 89 Stat. 1023 (1975). These counts 

contain the disclaimer required by paragraph 6 of the Citv of New York stipulation and 

order. 

The release of the public law 94-171 counts means that the legislature now has 

population counts at a geographic level sufficient to perform its task of legislative 

redistricting. The question is whether the release of these counts is a “publication” 

triggering the constitutionally imposed redistricting duties of the legislature and, if 

necessaty, the LRB. The question is one of state, not federal, law. 

Because the 1948 state constitutional amendment (effective beginning in 1951) was 

enacted without regard to the unique circumstances attending the 1990 census, we cannot 

answer the crucial question without considering the purpose of the amendment and the 

legal and practical consequences of taking the purpose into account in determining its 

meaning and reach. 

The task of discerning the amendment’s basic purpose is eased enormously by the 

m decision. The purpose of the amendment is to establish a structure which compels 

expeditious reapportionment action for state legislative seats. That is, it forces the state 

government to “get on” with the task of redistricting. The task is assigned initially to the 

legislature. If it fails to act, even when it has had the necessary data only for a few days, 

under m the task falls to the LRB. 

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We must construe the meaning of “publication” against this backdrop. Certain 

overriding principles guide us. First, the people intend for the legislature to be given the 

opportunity and duty to act on these apportionment matters in the first instance. Second, if 

for whatever reason the legislature fails to act, the LRB must act. Third, the release of 

sufficiently detailed census data is the key event triggering state action. 

We find no direct authority that determines whether the release of census data 

subject to the disclaimer in this case is the “publication” of a decennial census under the 

constitutional provision. We do find some guidance in Texas court decisions addressing 

closely related questions. In Holcomb v. Spikes, 232 S.W. 891 (Tex. Civ. App.-Amarillo 

1921, writ dism’d), the court had to determine whether Lubbock County was entitled to 

elect a tax collector as of the November 1920 election under the constitutional provision 

that “in comties having 10,000 inhabitants, tQ be determined bv the last Drecedina census of 

d Sta es a collector of taxes shall be elected.” rd. at 893 (emphasis added); s 

a Tex. Constt A. VIII, iJ 16 (1876 amended 1932 (1954). 

The only question before the court was whether the census taken in 1920 

determined the population of Lubbock County for purposes of applying article VIII, section 

16. The Director of the Census had issued a report before the November election 

certifying that the population of Lubbock County was 11,096 according to census returns. 

The court reviewed the census statutes and determined that the report was an official 

pronouncement under the law, of which the public and all officials might take notice. 

Holcomb V. Spikes, m, at 893. The Director of the Census also gave a certificate stating 

that the census count was subject to correction. The court rejected the idea that the count 

should not.be relied on, stating that “the fact that it may be corrected does not indicate that 

the census was not complete and then a public document under the law.” Id.at 895. 

The court in Ervin v. State, 44 S.W.2d 380 (Tex. Crim. App. 1931), relied on a 

preliminary count of the 1930 census returns in determining that Abilene had sufficient 

population to bring it within the statute requiring selection of a jury by the jury wheel 

system. The.announcement of the census stated that the figures were preliminary and 

subject to correction. Citing Holcomb v. Soikes, the Texas Court of Criminal Appeals 

determined that the preliminary announcement of the census was an official announcement 

that should have guided the jury commissioners’in their method of selecting a jury. ,& 

&Q Perkins v. State, 367 S.W.2d 140, 147 (Tex. 1963); Garrett v. Anderson, 144 S.W.2d 971 

(Tex. Civ. App.-San Antonio 1940, writ dism’d judgm’t car.); Attorney General Opinions 

v-1310, v-1175 (1951); v-1137 (1950). 

The principles underlying Mauzy. Holcomb, and &v& all point toward the 

conclusion that, notwithstanding its provisional nature, the release of the public law 94-171 

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counts on February 5, 1991, constitutes a “publication” within the meaning of article III, 

section 28, of the constitution. This conclusion is consistent with the principle announced 

in Attorney General Opinion MW350 (1981). There, we concluded that publication of the 

1980 census population data was a triggering “publication” under article III, section 28, 

notwithstanding the census bureau’s having labelled it “provisional” due to pending federal 

litigation chahenging the validity of the figures. The legend affixed to the just-released 

1990 census population totals is the functional equivalent of the “provisional” label the 

census bureau used to describe the 1980 census population totals. 

We see no reason to depart from the principle announced in that opinion. In fact, 

we see very sound reasons, grounded in case law and the underlying purposes of article III, 

section 28, for adhering to it. 

A POST-SESSION CENSUS ADJUSTMENT WOULD BE ANOTHER “PUBLICATION, 

TRIGGERING, IF CERTAIN CI!k&STANCES ARE PRESENT, THE REDISTRICTING DUTIES OF 

THE LRB FIRST ON AN INTERIM BASIS AND, IN THE NEXT REGULAR SESSION, THE 

LEGISLATURE AND LATER, IF NEEDED, THE LRB 

The foregoing conclusion that release of the provisional population counts is 

nonetheless a publication under the constitution does not preclude there being another 

publication of the population counts if an adjustment is made. In considering this 

possibility, we will assume that the second publication date of the 1990 census would be 

after the current regular session.1 Assuming that the department does not make its 

adjustment decision until the last day, that date would be July 15, 1991. Would the release 

by the department of adjusted population counts constitute yet another “publication” under 

article III, section 28, of the constitution? We conclude that it would. 

W,e already have explained the uniqueness of the 1990 census. The Bureau of the 

Census has noted that a statistical adjustment of the count would be “for the first time in 

the history of the Census.” 54 Fed. Reg. 51004 (1989). In the past, as exemplified in some 

of the references in Holcomb v. Soikes, the Bureau of the Census has made corrections to 

its published census figures. These corrections, however, were not premised on the 

gathering of new enumeration data. In 1990, in unique circumstances, the Bureau of the 

Census, under federal court order, has undertaken a new round of data gathering through 

1 Nothiig in the stipulation prevents the adjustment decision from being made before the end of the 

current regular session of the legislature. Such an action is not anticipated, but, if it cccws, the m principle 

means that the triggering event will have occurred during the current regular session. 

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the PES. The PES is in effect a mini-census based on additional enumeration efforts of a 

substantial magnitude, different in kind from the steps leading to past technical corrections. 

The PES and data derived from it will form the basis for the department’s decision 

about whether to adjust the census. Under guidelines adopted by the department, the 

adjustment will not take place unless, among other things, “[t]he resulting counts [are] of 

sufficient quality and level of detail to be I&& for . . . legislative redistricting.” -of 

New York v. Deuartment of Commerce, 739 F. Supp. 761,769 (E.D.N.Y. 1990) (emphasis 

in original). 

The circumstances surrounding the upcoming census adjustment decision, especially 

the massive new data gathering preceding it, lead us to the conclusion that should an 

adjustment occur, it will constitute a new “publication” of the decennial census under the 

Texas Constitution If the adjustment is made, it too will be a “publication” of the federal 

decennial census, regardless of the degree of difference in the adjusted and unadjusted 

data. 

If an adjustment and therefore a second publication occurs, a question would arise 

as to whether the LRB would be empowered to undertake its constitutional redistricting 

responstbilities, and what effect the LRB’s acquisition would have .on the legislature’s 

reapportionment jurisdiction. We address the latter part of the question first. 

At first glance, the plain words of article III, section 28, suggest that the legislature 

has no state legislative redistricting powers in a special session between census publication 

and a regular session.* In contrast to the pre-1948 version of the provision which referred 

to the “first session,” the current provision mandates legislative action at its “first w 

session” following publication. 

The Texas Supreme Court was not presented and did not answer the question in 

Mauzy, 471 S.W.2d at 574, although some of its language seems to implicitly endorse the 

2 Article III, se&m 28, does not speak to congressional redistricting or state board of education 

rediiriding. Thus, it is not a restriction on the legislature’s powers during a special session concerning those 

hvo activities. There being no other state constitutional provisions on this topic, the legislnture has the power to 

undertake rediitricting during special sessions for congressional and state board of education seats. Cr. 

Attorney General Opinon O-6488 (1945) (predating the 1948 amendments which added “regular session” 

language to article III, section 28, and suggesting that redistricting is a “continuing duty” which may be 

performed during special session). 

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view that the legislature is constitutionalIy disabled from performing its legislative 

redistricting tasks in an interim special session after census publication but before its next 

regular session. To buttress the conclusion that publication during the regular session 

triggered the requirement of action during that session, the &,uzy court observed that “the 

other side of the coin” from its central holding would mean a two year delay in redistricting, 

until the next regular session. I& at 573. This observation is wrong if the legislature may 

redistrict during a special session between a post-regular session census publication and a 

regular session. Yet, we cannot read too much into this language because it implicitly 

reaches the very question the court explicitly stated that it was reserving. Thus, we must 

look beyond w to answer the question. 

The place we look is the governing constitutional provision. Article III, section 28, 

ties the allocation of institutional redistricting responsibilities between the legislature and 

the LRB to the fact of census publication, not the data published. Within that framework, 

the two institutions’ jurisdictional responsibilities may not overlap. Thus, it is clear that the 

legislature may not redistrict itself in special session during the jurisdictional period of the 

LRB. This interpretation coincides with the factual circumstances and analysis in Attorney 

General Opinion M-881 (1971). 

Whether the legislature may reapportion itself. under other circumstances is a 

complex question that requires additional research and analysis. We are uncertain whether 

your inquiry extends ~to other circumstances and. due to the time constraints applicable to 

your other questions, defer addressing them. 

If the legislature fails to redistrict during the current regular session, which failure is 

followed by a post-session census publication within the jurisdictional period of the LRB, 

the LRB is empowered to undertake its redistricting responsibilities. m teaches that 

the LRB’s jurisdiction is conditioned on the legislature’s failure to make an apportionment 

consistent with certain state constitutional provisions. m, 471 S.W.2d at 574. Thus, 

under m we necessarily conclude that the LRB’s responsibilities are triggered by the 

legislature’s failure to redistrict during regular session, regardless of whether new census 

counts are published following the session but during the LRB jurisdictional period. The 

question of whether, under such circumstances, the LRB, as a matter of law, must use the 

population counts in a second publication is addressed in the last section of this opinion. 

There is less prior guidance-on a related question about the LRB’s powers and 

duties in the event of a second post-session census publication, when the legislature has 

redistricted.during the regular session of the first publication. m does not specifically 

address the issue presented by this unique circumstance. 

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Consistency with one central purpose of the constitutional provision (giving the 

legislature the first obligation and opportunity to act) suggests that the LRB should not be 

empowered to act under the peculiar circumstances assumed, here. Yet, consistency with 

another central purpose of the provision (establishing the mechanism for some state entity 

to redistrict expeditiously upon publication of new census data) suggests that the LRB may 

be empowered to act upon the new publication. 

Because the constitutional structure did not envision the peculiar circumstances 

confronting us here, we have no prior case law precisely on point, and any conclusion we 

reach is therefore attended by a higher than usual degree of uncertainty. Nonetheless, we 

believe that the principles underlying article III, section 28, of the constitution and w 

support the conclusion that the publication of new census data may, but does not 

necessarily, trigger LRB jurisdiction to undertake legislative redistricting .following 

publication of the new data, even if the legislature has redistricted following the February 5 

publication 

Whether, in such an instance, the legislature has failed to make an apportionment in 

the same sense that, as w held, it has failed to make an apportionment when its 

redistricting plan is judicially invalidated within the jurisdictional time frame for the LRB 

depends upon factual circumstances which.we cannot address in the opinion process. It 

cannot be determined in advance whether the second set of published census data would 

result in invalidation of the legislature’s redistricting plan enacted following publication of 

the first set of census data. If it does, and the invalidation occurs within the LRB’s 

jurisdictional period, then the LRB’s duties to redistrict are triggered; if it does not, then 

they are not. 

Regardless of whether the legislature has failed to redistrict during the regular 

session of the first census publication, the question arises as to the reach of the LRB’s 

redistricting powers if a second census publication occurs during its jurisdictional period. 

Article III, section 28, sets the limit here. Under this scenario, the LRB’s jurisdiction could 

vest, at most, only for the LRB jurisdictional period outlined in the constitution. More 

importantly, its jurisdiction would be limited to the period until the next regular session of 

the legislature. Thus, under article III, section 28, it would be empowered to enact what we 

will term an “interim apportionment plan,” good only until the next regular session of the 

legislature. The convening of the next regular legislative session would initiate a new 

round of article III, section 28, obligations for the legislature first and, in the event of a 

failure to reapportion, the LRB second. This approach maintains to the maximum extent 

permitted by the language and intent of the constitution the established order of 

institutional responsibilities. 

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THE CONCLUSION THAT A “PUBLICATION” HAS OCCURRED UNDER STATE LAW IS NOT 

TANTAMOUNT TO VALIDATION OF THE PROVISIONAL CENSUS COUNTS, WHICH TEXAS 

CONTINUES UNABATEDLY TO CHALLENGE 

The language of our state constitution does not equate publication of census data 

with its validation. The conclusion announced here should not and may not be read as a 

rejection of the argument that the provisional 1990 decennial census counts are inaccurate 

and disproportionately miss minorities in Texas. We represent the state in a federal 

lawsuit, the Citv of New York case, arguing that minorities are disproportionately 

undercounted in the current census and that, as a result, the department has a federal 

constitutional duty to statistically adjust the-da&i to correct for the undercount. We also 

have argued to the department that it should make the adjustment. Thus, on behalf of the 

state, we reject any claim that the recently released data is as accurate as practicable, which 

is the fedeml constitutional requirement. & Citv of New York v. Deoaitment of 

Commerce. 713 F. Supp. 4&50 (E.D.N.Y. 1989). Our litigation continues, unabated by the 

comAsions reached in this opinion. 

The department in the first instance and ultimately the federal courts will answer 

this question definitively. We cannot do it here, and we have not undertaken to do so. The 

unavoidable fact remains that census population counts, down to the census block level, 

that is, down to a level sufficient for redistricting, has occurred. 

THB LEGISLATURB IS NOT PROHIBITED AS A MATTER OF LAW FROM ADJUSTING THE 

PROVISIONAL PUBLIC LAW 94-171 CENSUS COUNTS IN ORDER TO PERFORM ITS 

LEGISLATIVE REDISTRICTING DUTIES 

Correspondence from members of the legislature4 has raised the issue of whether 

the legislature must use the February 5 census counts in redistricting. Implicit in your sixth 

question is a related question: whether the LRB must use the population counts in the 

second census publication (that is, the adjusted census counts) in performing its 

redistricting responsibilities. The answer affects both the legislature and the LRB. 

3 We alsO seek ah adjustment to insure that Texas and its politicnl subdivisions receive their fair 

alIocation of federal funding under federal programs whose allocation formulas are based on decennial census 

counts. 

4 This correspondence is from the 17 members of the Mexican-American Legislative Caucus. 

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This more basic question is whether the triggering event of publication also requires 

that the published data be used as the sole basis for determining population for state 

legislative redistricting, regardless of its accuracy and its disproportionate impact on 

segments of the population. The population data contained in the triggering publication is 

not the sole permissible basis for determining the population base to be used in the process 

of redistricting. 

The federal Equal Protection Clause and United States Supreme Court precedent 

elucidating its reach in the context of state legislative redistricting must be consulted to 

understand what data the legislature may and must use as a guide in undertaking its 

redistricting responsibilities. The Supremacy Clause of the United States Constitution 

establishes the primacy of those federal standards over state constitutional standards. ‘The 

requirement of the United States Constitution takes precedence and any inccinsistency 

therewith in the Texas Constitution is thereby vitiated.” Smith v. Craddick, 471 S.W.2d 375, 

377 (Tex. 1971) (considering requirements of article III, section 26, of the Texas 

Constitution). 

In &ynolds v. sinas, 377 U.S. 533, 568 (1964), the Supreme Court held that the 

equal protection~clause requires state legislative seats to be apportioned on a population 

basis. The districts must be as nearly of equal population as practicable, & at 577, 

although deviations from absolute equality have been permitted. See. eg, White v, 

Reeester. 412 U.S. 755, 763-65 (1973) (upholding 9.9% total maximum deviation). The 

most recent federal court pronouncement in this area also concludes.that population is an 

appropriate basis for state legislative apportionment. Garza v. Countv of LAX AnpeleS, 918 

F.2d 763, 774 (9th Cir. 1990), cert. denied, 111 S.Ct. 681 (1991); & Burns v. Richardson, 

384 U.S. 73, 91 (1966) (stating that the equal protection clause does not require that 

federal census population figures be used in redistricting, but doing so in a context where 

the use of other figures yielded substantially the same result). The problem, though, is how 

the basic building block of population is to be ascertained. 

In Gaffnev v. Cummings, 412 U.S. 735.74547 (1973). the Supreme Court discussed 

the inexactitude of the census both in the snapshot it takes of the nation’s population and 

due to the passage of time. In particular, the court observed that the census’ inexactitude is 

“most evident with respect to minorities.” &J,, at 745 n.lO. Finally, Gaffney recognized that, 

in reapportioning state legislatures, states are permitted to work with “both political and 

census data.” u at 753-54. 

A review of the cases after Reynolds. Burns, and Gaffney indicates that courts have 

not read the federal constitution as requiring states to adhere rigidly to federal census 

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counts in determining the population basis for legislative apportionment. The cases 

typically arise in the context of whether the passage of time has made the most recent 

census an outdated demographic indicator. Tbe matter being highly fact-bound, the cases 

reveal no settled formula for when departures or adjustments are permissible, but a geneial 

outline of what is permissible emerges. 

First, as stated by the Supreme Court of Kansas, “[t]he information contained in 

[state and federal censuses] is presumed to be accurate and is prima facie correct until 

proven otherwise.” In re Stephan, 775 P.2d 663, 667 (1989). Second, as stated in a Texas 

legislative redistricting case, a “‘high degree of accuracy’ [is] required to supplant the 

population figures of the prior decennial census.” Graves v. Barnes, 446 F. Supp. 560,568 

(W.D. Tex. 1977) (3-judge court), afTdsub nom, 435 U.S. 901 (1978) (citing Kirkpatrick v. 

Preisler. 394 U.S. 526, 535 (1969)). Another formulation of this second test 4 that the 

decennial census figures control unless “‘clear, cogent and convincing evidence’” 

demonstrates that they no longer are valid and that other figures are valid. Dixon v. 

J-Iassler, 412 F. Supp. 1036, 1040 (W.D. Tenn. 1976) (3-judge court), afTd 435 U.S. 901 

(1978). Third, as stated by a court evaluating, among other things, a Massachusetts 

legislative redistricting plan, the courts have a common sense preference for “the most 

recent and accurate measure of population.” Black Political Task Force v. Connolly, 679 F. 

Supp. 109,115 (D. Mass. 1988) (3-judge court) (citing Latin0 Political Action Comm. Inc. v, 

City of Boston, 568 F. Supp. 1012, 1018 (D. Mass. 1983) (approving use of mid-decade 

population estimates based on but different from decennial census)). 

Our state constitution further complicates the rules for when departures from rigid 

adherence to federal census data for determining population bases for apportionment are 

permissible. Article III, section .26, requires that the ideal district size for a house of 

representatives seat be determined by dividing the number of house members into the state 

population “as ascertained by the most recent United States census,” provided that certain 

rules regarding apportionment among counties are satisfied.5 

5 This o&e previously determined that the “qualitied electors” apportionment base for state senatorial 

districts in article III, section 2.5, is unconstitutional on its face because. it violates the dictates of the federal 

Equal Protection Clause. &Attorney General Opinion MW-350 (1981). The opinion relied on the summary 

judgment invalidation of the “qualified electors” provision of article III, section 25, in Kilearlin v. Martin, CA. 

No. 63-H-3% (W.D. Tex. Jan. 11, 1965). A subsequent state court redistricting challenge premised on the 

viability of the ‘qualitied electors” provision was dismissed as moot. Unham v. White, 639 S.W.2d 301 (Tex. 

1982). 

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In each of the last two decades, this state constitutional provision has led to judicial 

invalidation of redistricting plans for the state house of representatives because they cut 

too many. county lines. ti Clements v. Valles, 620 S.W.2d 112 (Tex. 1981); Smith v. 

Craddick. m. These decisions recognize the primacy of federal equal protection law in 

this field, but establish the following rule of state law in evaluating redistricting plans: the 

burden is on those challenging state house redistricting plans to show that they violate 

article III, section 26, for cutting county lines, but, if they satisfy their burden, the burden 

shifts to the proponents of the plans to show that the cutting of county lines was “necessary” 

to satisfy federal requirements for equal representation. Clements v. Valles, 620 S.W.2d at 

114. 

The opinion process does not permit this office to evaluate or resolve fact questions. 

Thus, we can only conclude here that there is not as a matter of law an outright prohibition 

on the use of population data other than federal census population data in iegislative 

redistricting. We are not equipped in the opinion process to speculate on the technical 

proof necessary to justify departure from the federal census population counts, on the 

appropriate methodology for any state adjustment to the census population data, or on the 

effect of such adjustments on the interaction of federal equal protection requirements with 

state constitutional requirements for apportionment. Whether to attempt the state’s own 

adjustment of the public law 94-171 counts for purposes of legislative redistricting and, if 

so, how to make such an adjustment are matters for the legislature and the LRB. 

SUMMARY 

The release on February 5, 1991, of 1990 census population data 

(ie, the public law 94-171 counts), notwithstanding their provisional 

nature, constitutes a publication within the meaning of article III, 

section 28, of the constitution. The legislature and the LRB, however, 

are not as a matter of law prohibited from using population counts 

other than the public law 94-171 counts in determining the population 

base for apportionment of the state legislature. The legislature may not 

convene to reapportion itself in special session during the jurisdictional 

time period of the LRB. If the United States Department of 

Commerce, on its own or under court order, statistically adjusts the 

1990 census based on its post enumeration survey after the regular 

session but within the LRB’s jurisdictional time period following the 

end of the current regular session, the LRB has limited jurisdiction to 

apportion the state legislature. Under these circumstances, the LRB’s 

reapportionment duties definitely arise if the legislature failed to 

redistrict during regular session and, depending on factual 

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circumstances, may arise even if the legislature enacted a redistricting 

plan during regular session. Still, under these circumstances, the LRB 

would be empowered to redistrict only on an interim basis, until the 

next regular session of the legislature. A statistical adjustment to the 

1990 census by the department, based on the post-enumeration survey, 

shall be treated as a new publication of the decennial census within the 

meaning of article III, section 28. 

Very truly yours, 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret) 

Special Assistant Attorney General 

RENEAHICKS 

Special Assistant Attorney General 

SUSAN GARRISON 

Acting Chairman, Opinion Committee 

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