The opinion
THE-ATTORNEY GENERAL
OF TEXAS
January 24, 1974
The Honorable Ben R. Howell, Opinion No. H- 219
Chairman
State Board of Education Re: Effect’ of Judicial Change in
201 East Eleventh Street Congressional Districts upon
Austin, Texas Offices of Members of State
Board of Education
Dear Mr. Howell:
You have re&ested an opinion as to the effect of court-ordered Congres-
sional 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 com-
posed 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 Sub-
p. 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 estab-
lished 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 con-
ducted 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 Edu-
cation] 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 reappor-
tionment 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, reappor-
tioned 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 reappor-
tionment” means the entire reapportionment process, including th’e’adoption in
October 1973 of “Plan B” by the federal courts. Under Mauzy, Senate Bill 1 can-
not be considered an apportionment at all. The 1974 general election will thus be
the general election “immediately following a decennial reapportionment of congres-
sional 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 maxi-
mum 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 Congres-
sional districts, not subject to change by successive congressional reapportion-
ment) 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