THE-ATTORNEY GENERAL 

OF TEXAS 

January 24, 1974 

The Honorable Ben R. Howell, 

Chairman 

State Board of Education 

201 East Eleventh Street 

Austin, Texas 

Opinion No. H- 219 

Re: Effect’ of Judicial Change in 

Congressional Districts upon 

Offices of Members of State 

Board of Education 

Dear Mr. Howell: 

You have re&ested an opinion as to the effect of court-ordered Congressional redistricting upon the tenure of members of the State Board of Education. 

The Texas Education Code provisions governing election and tenure of 

Board members are in pertinent part as follows: 

‘“$11. 21. The State Board of Education is composed of one me&bkr elected from each congressional 

district established by law. 

“$11.22. . . , 

‘l(c) No person shall be elected from or serve 

in a district who is not a bona fide resident thereof 

with five years’ continuous residence prior to his 

election. . . . 

1’:. . . 

“(h) At the general election in 1972,~ and at each 

general election thereafter immediately following a 

decennial reapportionment of congressional districts, 

one member shall be elected to the board from each 

congressional district. Except as provided in Subp. 1019 
The Honorable Ben R. Howell, page 2 (H-219) 

section (i) of this section, members of the board 

serve staggered terms of six years with the terms of 

one-third of the members expiring on December 31 

of each even-numbered year. 

“(i) One-third of the members of the board 

elected in 1972 and at each general election following 

a decennial reapportionment of congressional districts 

shall serve for terms of two years, one-third for 

four years, and one-third for six year.8. Memberx 

shall draw lots to determine which shall serve for 

terms of two, four, and six years. If the total number 

of members divided by three results in a remainder 

of one, one additional six-year term shall be filled 

by lot. If the total number of members divided by 

three results in a remainder of two, one additional 

six-year term and one additional four-year term shall 

be filled by lot. ” (emphasis added). 

Each member of the present State Board of Education was elected in 

November 1972 from congressional districts established in Senate Bill 1. (Acts 

1971, 62d Leg., First C. S., ch. 12, p. 38). 

On October 19, 1971, suit was filed in the United States District Court for 

the Northern District of Texas challenging the constitutionality of Senate Bill 1. 

On January 22, 1972, the court announced its decision, holding Senate Bill 1 to 

be unconstitutional and implementing “Plan C” as the reapportionment plan for 

the state. The District Court enjoined the Secretary of State from conducting 

or permitting any primary or general elections based upon the districts established by Senate Bill 1, but a stay of the order of the District Court was granted 

by the United States Supreme Court. Bullock v. Weiser, 404 U. S. 1065 (1972). 

As a result, the congressional and Board of Education races in 1972 were conducted according.to the provisions of existing law under Senate Bill 1. On June 

18, 1973, the Supreme Court upheld the decision of the District Court in declaring 

Senate Bill 1 to be unconstitutional, but, disagreeing with the adoption of “Plan 

C”, remanded the case to the District Court for further proceedings consistent 

with its opinion. White v. Weiser, 37 L. Ed. 2d 335.. On October 17, 1973, 

p. LO20 
The Honorable Ben R. Howell, page 3 (H-219) 

the three-judge court issued its memorandum opinion and order requiring the 

implementation of “Plan B”. One group which sought to intervene in Weiser and 

to modify “Plan B” as it affected Dallas County only was denied that opportunity 

by the Court. It alone is appealing. The appeal, of course, does not seek to 

and cannot reinstate the S. B. 1 districts. The newly defined Weiser “Plan B” 

districts are the Texas congressional districts “established by law” from which 

Congressmen must run in 1974. 

You have posed the following questions: 

“1. Are the, members [of the State Board of Education] elected in 1972 who drew terms of four years or 

six years, and who otherwise remain qualified, entitled 

to serve for the full term? 

“2. Assuming an affirmative answer to question 

one, does the change in boundaries~ of congressional 

distri,cts disqualify a member who reside’d in the district 

at the time of election but whose residence is now located 

within another district following the change in district 

boundaries? ” 

Since the statute requires that all members of the Board must stand for 

election at the first general election ymmediately following a decennial reapportionment of congressional districts, ” the answer to your first question turns on 

the meaning of “decennial reapportionment”. 

If “decennial reapportionment” means adoption of a reapportionment plan 

by the Legislature including any modification or replacement of such a plan by 

the courts, then the process of “decennial reapportionment” was not completed 

until the adoption of “Plan B” by the Weiser court inoctober 1973, and the 

“general election . . . immediately following a decennial reapportionment of 

congressional districts” will be the 1974 election, thus requiring candidates for 

every Board position to run for election in 1974 from “Plan B” districts. If, on 

the other hand, “decennial reapportionment ” does not include court action, but 

refers only to legislative reapportionment, a contrary result could be possible. 

Our research leads us to the conclusion that the first alternative is the 

correct construction. We feel that Maury v. Legislative Redistricting Board, 

p. 1021 
. . 

The Honorable Ben R. Howell, page 4 (H-219) 

471 S. W. 2d 570 (Tex. 1971) compels this result. In -, the Supreme Court 

of Texas dealt with Art. 3, 5 28, Constitution of Texas, which provides, in part: 

“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. In the event the Legislature shall at any such 

first regular session following the publication of a United 

States decennial census, fail to make such apportionment, 

same shall be done by the Legislative Redistricting Board of 

Texas. . . .‘I 

After the 1970 United States census, the 62nd Legislature, in 1971, reapportioned the Texas House. That Act was declared invalid by a state district court. 

The trial court was affirmed by the Supreme Court of Texas. Smith v. Craddick, 

471 S. W. 2d 375 (Tex. 1971). The Legislative Redistricting, Board was then 

petitioned to redistrict the state in accordance with Article 3, $ 28. The Board 

declined, taking the position that the Legislature had enacted an apportionment 

act, i. e., that the Legislature had not failed to reapportion itself, and that 

therefore the Board had no jurisdiction to act. 

The Supreme Court rejected that argument, holding that the Board did 

have jurisdiction: 

“An apportionment which is invalid, for whatever 

reason, is no apportionment; and the Board% duty to 

proceed with apportioning the state into representative 

districts accrued when the regular session adjourned on 

May 31, 1971 without having enacted a valid apportionment 

statute. ‘I (emphasis added) (471 S. W. 2d at 574) 

It thus seems clear under Mauey that in the instant case “decennial reapportionment” means the entire reapportionment process, including th’e’adoption in 

October 1973 of “Plan B” by the federal courts. Under Mauzy, Senate Bill 1 cannot be considered an apportionment at all. The 1974 general election will thus be 

the general election “immediately following a decennial reapportionment of congressional districts, ” and each Board member must therefore stand for election in 

p. 1022 
The Honorable Ben R. Howell,, page 5 (H-219) 

1974. Precedents such as Childress County v, Sachse, 310 S. W. 2d 414 (Tex. 

Civ. App.,,-Amarillo, 1958, error ref’d, n. r. e. ) are not applicable here because 

$11. 22 clearly contemplates interruption of terms by decennial reapportionment. 

It should be emphasized that this result flows from the application of case 

law and principles of statutory interpretation to ~the Texas constitutional and 

statutory provisions governing Board elections, and not o.n any theory that 

under Weiser v. White the lines drawn in Senate Bill-%ould be unconstitutional 

as Board districts. 

White v. Regester, u. s. -) 37 L. Ed 2d 314 (1973); Gaffney v. 

Cummings, u. s. -, 37 L. Ed 298 (1973) and other recent cases make 

abundantly clearthat districts for election of state officials~ are ,not required 

by the constitution to meet the same standards of mathematic equality as are 

Congressional districts. Thus, in Regester, deviation between the largest 

and the smallest legislative districts was 9. 9%, a figure which the Supreme 

Court of the United States held not to violate the principle of one man, one vote. 

The deviations in congressionaldistricts defined by Senate Bill 1 were a maximum of 4.1% which might well pass constitutional ,muster in so far as State 

offices such as State Board of Education districts are concerned. 

The earlier case of Freeman v. Dies, 307 F. Supp. 1028 (N. D. Tex. 1969) 

condemned the Board districts as then defined (they were fixed by 1949 Congressional districts, not subject to change by successive congressional reapportionment) because the population in the smallest of the then twenty-year-old districts 

varied by more than a million persons from the largest district. 

Although the S. B. 1 districts might have been.valid as State Board of 

Education districts if the Legislature had chosen to authorize separate Board 

districts and had drawn them as such, it did not. ‘By the scheme it chose 

Board districts and congressional districts are one and the same. 

In view of our answer to your first question, we need not reach the second. 

SUMMARY 

The genera,1 election of 1974 will be the first 

general election “immediately following a decennial 

p. 1023 
The Honorable Ben R. Howell, Page 6 (H-219) 

reapportionment of congressional districts, ‘I and 

one member must be elected to the State Board of 

Education from each Congressional district in 1974. 

Very truly yours, 

Attorney General of Texas 

&F~ovED: 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1024