The Attorney General of Texas 

May 30, 1981 

Honorable Bob Bullock 

Comptroller of Public Accounts 

L.B.J. Building 

Austin, Texas 78174 

Opinion No. ~~-350 

Re: Constitutionality of SB-800, 

Senate Redistricting Bill 

Dear Mr. Bullock: 

You ask us several questions in connection with Senate Bill 800,‘which 

redistricts state senatorial positions. Your questions are directed at what 

the Texas Legislature may do in drawing up a reapportionment plan. They 

do not require us to determine the effect of the reapportionment ,plan which 

the Senate has enacted, or whether the Senate could have developed an 

alternate plan with particular characteristics. In any case, such inquiries 

would involve the investigation and resolution of fact questions, which 

cannot be done in the opinion process. 

A brief discussion of the main principles governing reapportionment 

will provide a useful context for our answers to your questions. In Reynolds 

v. Sims, 377 U.S. 533, 568 (1964), the Supreme Court held that the equal 

protection clause requires that seats in a state legislature must be 

apportioned on a population basis. U.S. Con&. amend. 14, S2. An 

apportionment plan which substantially dilutes the weight of some votes 

when compared with votes of persons living in other parts of the state is 

unconstitutional. B supfl! at 568. Districts must therefore 

be as nearly of equal population as practicable. !$ at 577. 

The Supreme Court has said that an apportionment scheme, on 

particular facts, might operate to minimize or cancel out the strength of 

racial or political elements of the population. Fortson v. Dorsey, 379 U.S. 

433, 438-39 0965). Such an apportionment scheme would invidiously 

discriminate against rights protected by the fourteenth amendment of the 

United States Constitution. Burns v. Richardson, 384 U.S. 73, 88~ (l966). L 

The federal Voting Rights Act of 1965 adds another standard against 

which a reapportionment plan must be measured. It prohibits any state from 

denying or abridging the right of any United States citizen to vote on 

account of race, color, or membership in a language minority. 42 U.S.C. 

SSl973 to 1973d. 1973k to 19731 (1976) . Under the Act. chamres in the 

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Honorable Bob Bullock - Page Two - (m-350) 

election laws, including reapportionment laws, must be submitted to the United States 

Attorney General for hls approval. 42 U.S.C. Sl973c; Conner V. Wailer, 421 U.S. 656 

fl975); see also 46 Fed. Reg. 874 (l981) (to be codified in 28 C.F.R. S51.12~~c)). 

We turn to your first question: 

1. TEX. CONST. art. 3, sec. 28, directs the Legislature to 

apportion the State into Senatorial districts agreeable to the 

provisions of Section 25 of Article 3. Federal bIW requires 

reapportionment to be based on equal population among 

districts, within certain allowable deviations. Within these 

allowable deviations, must the Legislature take into account 

the number of qualified electors residing within each district 

as dictated by TEX. CONST. art. 3, sec. 25? 

Article IIl, section 25 of the Texas Constitution provides in part that “the State 

shall be divided into Senatorial Districts . . . according to the number of qualified 

electors, as nearly as may be . . . .” The section 25 requirement that the state be 

divided into senatorial districts on the basii of qualified electors is unconstitutional on 

its face as inconsistent with the federal constitutional standard. In Kilgarlin v. 

Marti 

mfi 

C.A. No. 63-H-390 (W.D. Tex., January l&1965) (summary judgment), see also 

gar 252 F. Supp. 404,4ll (S.D. Tex. 1966), the court held that 

provision violated the equal protection clause of the fourteenth amendment of the 

United States Constitution. It did not require apportionment of senatorial districts on 

a population basii resulting in districts as nearly of equal population as is practicable. 

See Reynolds v. Sims, supra at 577. 

- 

Your second question is as follows: 

2. May an apportionment plan split counties into two or more 

Senatorial districts when an alternative plan can or could be 

drawn which maintains county integrity? 

No provision ln Texas or federal law invalidates an apportionment plan which 

Splits counties into two or more senatorial districts or requires a plan to maintain 

county integrity. Article III, section 25 of the Texas Constitution merely requires that 

senatorial districts shall be of contiguous territory. Compare Tex. Const. art III, 926 

(representative’s districts shall follow County lines). e Smith v. Craddlck, 471 S.W.2d 

375 (Tex. 1971). 

Your third question is as follows: 

3. When a county has sufficient population to justify one or 

more Senatorial districts entirely within that county% boundaries, must an apportionment plan provide that county with 

the maximum number of full Senatorial districts which can 

be contained within the county? 

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Honorable Bob Bullock - Page Three (Mu-350) 

We have neither found, nor have we been directed to any provision of state or 

federal law which requires a county to be given the maximum number of full senatorial 

districts which can be contained within it. 

Your fourth question is as follows: 

4. May an apportionment plan combine primarily rural counties 

with urban areas in a single Senatorial district, when alternative plans can or could be adopted which preserve rural 

communities of interest? 

No state or federal law prohibits the combination of rural and urban areas in a 

sinele senatorial district. The Suoreme Court has stated that “economic and other 

g&p interests” are insufficient to justify deviation from strict population equality. 

Reynolds v. Sims, supra at 579-80. See Kirkpatrick v. Preisler, 394 U.S. 526 U969). 

Thus, federal law does not require 

in reapportionment. 

sta=to recognize the common interests of groups 

It does, however, permit them to do so. See Kelly v. Bumpers, 

340 P. Supp. 568, 578 03.D. Ark. 1972). 

- 

In Gumfory v. Hansford County Commissioners Court, 561 S.W.Bd 28 (Tex. Civ. 

App.-Amarillo 1977, writ ref’d n.r.e.1. the court dealt with a challenee to countv 

commissioners precincts &awn so that in each precinct city dwelle;s formed a 

majority over persons residing in the rural area of the county. The court stated that 

the residents of the county outside the cities “are not a group subject to suspect 

classification fcr invidious discrimination under the 14th Amendment.. . .” Cf. 

Lockport v. Citizens for Community Action, 430 U.S. 259 (1977) (state might recogn= 

distinctive voter interests of urban and rural voters in %fngle shot’ referendum). 

You next ask: 

5. Because the United States Bureau of the Census has stated 

that the population figures for minority groups are “provisional”, pending the outcome of federal court litigation 

challenging the validity of these figures, may the Legislature reapportion into districts on the basis of these figures? 

Census figures have been challenged in federal court as representing an 

undercount of blacks and hispanics. In Young v. Klutxnick, 497 F. Supp. 1318 (ED. 

Mich. 19801, the district court enjoined the Bureau of the Census from certifying 

population totals for any states. Justice Stewart. however. staved this order. 

Klutxnick v. Young, Docket No. A-533 (Dec. 24, 1980); . see Klut&ick~v~Care& 66 L. 

Ed 2d 614, n. at 615 (l980). Thus, the census tottixve been certified to the 

President and provided to the states as required by law. 13 U.S.C. .6l4l(b), 141(c). 

In the past, courts have acknowledged that not all inhabitants are counted in the 

decennial census. Gaffnev v. Cummings, 412 U.S. 735, 745-51 (l973). They are seen, 

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Honorable Bob Bullock - Page Four (Mw-350) 

nevertheless, as the best available source of population data for rediitricti%z purposes. 

Kirkpatrick v. Pr’eiler, 394 U.S. 528 Cl969L 

Article m, section 28 Of the Texas Constitution reqUireS the legislature to 

redistrict at its first session after the publication Of each ce\sus. e -UT? V. 

Legislative Redistricting Board, 471 S.W.2d 570 (Tex. 1971). The legtsiature may 

reapportion on the basis of the recent census figures. 

Your next question is as follows: 

6. Because the guidelines for submitting a reapportionment 

plan to the United States Department of Justice under the 

Voting Rights Act specify that recent eleCtiOn return data 

be included in the submission, may the Legislature 

reapportion Senatori& districts without considering this 

data? 

Recent election return data is among those items generally required to be 

submitted in connection with redistricting plans. See 46 Fed. Reg. 875-76 0981) (to be 

codified in 28 C.F.R. SS51.25, 51.26). No provision7 the Voting Rights Act, however, 

requires that the legislature consider such data. Whether Senate consideration of this 

data would enhance its ability to draft a plan acceptable to the Attorney General 

beyond the scope of your question and thii opinion. 

Your final question is ss follows: 

7. At least one Senator has expressed his opinion that the 

reapportionment plan has been drafted to intentionally 

discriminate against his political interest. May a reapportionment plan adopted by the ,Legislature have either the 

purpose and/or effect of diicriminating against any recognizable political interest? 

A reapportionment plan may not have the purpose or effect of diluting the voting 

strength of linguistic or racial minorities. 42 U.S.C. 1971, 1973-1973dd-5 flST6). No 

group, however, has a constitutionally protected right to legislative seats in proportion 

to its voting strength White v. Register, 412 U.S. 755, 765-66 Ug73). 

A reapportionment plan is not necessarily in violation of the equal protection 

clause if it seeks to protect incumbents. White v. Weiser, 412 U.S. 783, 797 fl973). 

An fnmmbent, however, has no right to have his district maintained during the 

~@Wti~m~t Process. 

(RD. Penn. 1980). 

See City 503 F. Supp. 663, 672 

SUMMARY 

In Preparing a redistricting plan, the legislature need not 

take into account the number of qualified voters in senatorial 

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Honorable Bob Bullock - Page Five @w-350) 

districts as required by article II$ section 25 of the Texas 

Constitution, since that requirement was struck down by a 

federal court. 

An apportionment plan may split counties into two or 

more senatorial districts when an alternative plan could be 

drawn maintaining county integrity. 

A county need not be given the maximum number of full 

senatorial districts which can be contained within it. 

An apportionment plan may combine primarily rural 

counties with urban areas in a single senatorial district. 

The legislature may reapportion on the basis of the 

recent census fiies. 

No law requires the legislature to consider in drafting its 

reapportionment plan the recent election return data required 

to be submitted to the Department of Justice under the Voting 

Rights Act. 

A reapportionment plan need not protect the districts of 

incumbents, nor must it guarantee any group legislative seats in 

proportion to its voting strength. 

g-g 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD B. GRAY, IIl 

Executive Assistant Attorney General 

Prepared by Susan L. Garrison 

Assistant Attorney General 

APPROVEDI 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Jim Moelinger 

p. 1160