## 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’ ofJudicial Change in Congressional Districts upon Offices ofMembers 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 ofthe State Board of Education. The Texas Education Code provisions governing election and tenure of Board members are inpertinent 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 abona 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 inSubp. 1019The Honorable Ben R. Howell, page 2 (H-219)

section (i) ofthis section, members ofthe board serve staggered terms of six years with the terms of one-third ofthe members expiring on December 31 of each even-numbered year.

“(i) One-third ofthe members ofthe board elected in 1972 and at each general election following a decennial reapportionment of congressional districts shall serve for terms oftwo years, one-third for four years, and one-third for six year.8. Memberx shall draw lots to determine which shall serve for terms oftwo, four, and six years. Ifthe total number of members divided by three results in a remainder of one, one additional six-year term shall be filled by lot. Ifthe total number ofmembers divided by three results ina remainder oftwo, one additional six-year term and one additional four-year term shall be filled by lot. ” (emphasis added). Each member ofthe present State Board of Education was elected in November 1972 from congressional districts established inSenate Bill 1. (Acts 1971, 62d Leg., First C. S., ch. 12, p. 38). On October 19, 1971, suit was filed inthe United States District Court for the Northern District of Texas challenging the constitutionality ofSenate Bill 1. OnJanuary 22, 1972, the court announced its decision, holding Senate Bill 1to be unconstitutional and implementing “Plan C” as the reapportionment plan for the state. The District Court enjoined the Secretary ofState from conducting or permitting any primary or general elections based upon the districts established by Senate Bill 1, but a stay ofthe order ofthe 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. OnJune 18, 1973, the Supreme Court upheld the decision ofthe District Court in declaring Senate Bill 1tobe unconstitutional, but, disagreeing with the adoption of “Plan C”, remanded the case tothe District Court for further proceedings consistent with its opinion. White v. Weiser, 37L. Ed. 2d 335.. On October 17, 1973,

p. LO20The 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 inWeiser and tomodify “Plan B” as itaffected Dallas County only was denied that opportunity by the Court. Italone is appealing. The appeal, of course, does not seek to and cannot reinstate the S.B. 1districts. 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 offour years or six years, andwho otherwise remain qualified, entitled to serve for the full term?

“2. Assuming an affirmative answer to question one, does the change inboundaries~ of congressional distri,cts disqualify a member who reside’d inthe district atthe 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 ofthe Board must stand for election atthe first general election ymmediately following a decennial reapportionment of congressional districts, ” the answer toyour 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 aplan by the courts, then the process of“decennial reapportionment” was not completed until the adoption of “Plan B” by the Weiser court inoctober 1973, andthe “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 tolegislative 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, 528, Constitution of Texas, which provides, inpart: “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 ofSections 25, 26, and 26-a of this Article. Inthe event the Legislature shall atany such first regular session following the publication ofa 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 nojurisdiction 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, 1971without having enacted avalid apportionment statute. ‘I (emphasis added) (471 S.W. 2d at 574) Itthus seems clear under Mauey that inthe 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 1cannot 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. 1022The Honorable Ben R. Howell,, page 5 (H-219)

1974. Precedents such as Childress County v, Sachse, 310S.W. 2d 414 (Tex. Civ. App.,,-Amarillo, 1958, error ref’d, n.r. e. )are not applicable here because $11.22 clearly contemplates interruption ofterms by decennial reapportionment. Itshould be emphasized that this result flows from the application of case law and principles of statutory interpretation to~theTexas constitutional and statutory provisions governing Board elections, and not o.nany theory that under Weiser v. White the lines drawn inSenate 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 ,notrequired by the constitution to meet the same standards ofmathematic equality as are Congressional districts. Thus, inRegester, deviation between the largest and the smallest legislative districts was 9.9%, a figure which the Supreme Court ofthe United States held not to violate the principle of one man, one vote. The deviations in congressionaldistricts defined by Senate Bill 1were amaximum 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 ofFreeman 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 inthe smallest ofthe then twenty-year-old districts varied by more than amillion persons from the largest district. Although the S.B. 1districts might have been.valid as State Board of Education districts ifthe Legislature had chosen to authorize separate Board districts and had drawn them as such, itdid not. ‘By the scheme it chose Board districts and congressional districts are one andthe same. Inview of our answer toyour 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. 1023The Honorable Ben R. Howell, Page 6 (H-219)
reapportionment of congressional districts, ‘Iand 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

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