Opinion

Untitled Texas Attorney General Opinion

Court
Texas Attorney General Reports
Filed
Jul 2, 1961
Status
Published
On the bench
Will Wilson
Cited by
0 cases
Authority
More cited than 3.5%

The opinion

TEEA~TORNEYGENEXCAL

OF -XAS

April 20, 1961

Honorable C. W. Pearcy, Chairman

Committee on Congressional and

Legislative Districts

House of Representatives

Austin, Texas

Opinion No. WW-1041

Re: Construction of Sections

26, 26a and 28 of Article

III of the Texas Constitu-

Dear Mr. Pearcy: tion.

You have requested an opinion on the following ques-

tions:

“1. Section 26 provides that Counties in a

Legislative DiStFiCt shall be contiguous. With

reference to counties bordering on the Gulf of

Mexico that are not contiguous by land, could

two such counties be placed in the same Legls-

lative District because of being contiguous by

water only? In connection with this question

the Committee would also request an Attorney

Seneral's Opinion as to how far into the Gulf

county lines are extended?

“2. With regard to the provisions of Sec-

tion 26a concerning counties over ~CO,OOO in

populations, are such provisions mandatory?

"3a. With regard to Section 28, wherein

the Legislature is directed to apportion the

Sta.te 'agreeable to the provisiors of Sections

25, 26 and 26a of this Article,' would this

mean such apportionment must strictly comply

with said Sections, in order not to be in con-

travention of the Constitution?

"3b. Along the same lines and with regard

to the same Section the following words appear:

'In the event the Ler?%slstur-shall

at any regular session, following the

Honorable C. W. Pearcy, page 2 (WW-1041)

publication of a United States decennial

census, fail to make such an apportionment,

same shall be done by the Legislative Re-

districting Board of Texas, etc.'

"Would this be interpreted as meaning that

'suchlapportionment.,if not 'agreeable to' the

provisions of Sections 25, 26 and 26a, would be

in contravention to the directive to the Legis-

ture in Section 28 sufficient to cause the Legis-

lative Redistricting Board of the State of Texas

to be required to act?"

Section 26 of Article III of the Constitution of

Texas provides as follows:

"The members of the House of Representa-

tives shall be apportioned among the several

counties, according to the number of popula-

tion in each, as nearly as may be, on a ratio

obtained by dividing the population of the State,

as ascertained by the most recent United States

census, by the number of members of which the

House is composed; provided, that whenever a

single county has sufficient population to be

entitled to a Representative, such county shall

be formed into a separate Representative Dis-

trict, and when two or more counties are required

to make up the ratio of representation, such

counties shall be contiguous to each other; and

when any one county has more than sufficient

population to be entitled to one or more Repre-

sentatives, such Representative or Representa-

tives shall be apportioned to such county, and

for any surplus of population it may be joined

in a Representative District with any other con-

tiguous county or counties."

The word "contiguous" as used in Section 26 of Article III of

the Constitution of Texas has not, insofar as we have been able

to determine, been construed by the judiciary of this State.

However, the same word as used in Article 2922a relating to group-

ing of school districts to form a rural high school district has

been defined. In Attorney General’s Opinion No. 0-4180 (1941)

this office pointed out:

- ,

Honorable C. W. Pearcy, page 3 (WW-1041)

"'Contiguous' as used in Article 2922a,

relating to the grouping of school districts

to form rural high school districts, has been

held to mean that the districts must so touch

one another that all may be included in a

common boundary line, without intervening

See Beard v Marshall, 32 S.W.(2d)

$%~"kliot Common SEhool District No 48 v.

County Board of School Trustees, 76 S:W.(2d)

786 (Writ dirmissed); Miller v. School Trustees

of Milam County, 52 S.W.(2d) 806 (Writ Ref.).

We are of the opinion that such is the meaning

to be given to the word 'contiguous' as it is

used in Article 2806. Any other construction

would necessarily require the holding of

several elections involving additional expense,

delay, and inconvenience. We do not believe

that such a construction was intended by the

Legislature.

"It is, therefore, the opinion of this de-

partment that school districts are contiguous

under Article 2806, Revised Civil Statutes, if

they touch one another so that all may be in-

cluded in a common boundary line. . . ."

It is our opinion that the definition of the word

"contiguous' as used in Article 2922a is equally applicable

to the definition of the word "contiguous" as used in Section

26 of Article III of the Constitution of Texas. You are,

therefore, advised that a Representative District may be

formed by two or more counties if they touch one another so

that all may be included in a common boundary line, assuming,

of course, that all other prerequisites of Sections 26 and

26a are complied with.

Section 1 of Article 1592a, V?rnonts Civil Statutes,

relating to the gulfward boundary lines of all counties of

this State bordering on the coast line of the Gulf of Mexico

provides as follows:

"Section 1. The gulfward boundary lines

of all of the counties of this state bordering

on the coast line of the Gulf of Mexico are

hereby fixed and declared to be t&e continental

shelf in the Gulf of Mexico."

Honorable C. W. Pearcy, page 4 (WW-1041)

However, in United States of America v. States of

Louisiana, Texas, MissZsippi,; Alabama and Florida, 363 U.S.l,

at 64, 80 S.Ct. 961 (19bO);it was held that the marine boundary

of the State of Texas extended three leagues seaward. You are "

therefore advised that the gulfward boundary line of all counties

of this State bordering on the coast line of the Gulf of Mexico

is three leagues seaward from the coast line.

Section 26a of Article III of the Constitution of

Texas provides:

"Provided however, that no county shall be

entitled to or have under any apportionment more

than seven (7) Representatives unless the popule-

tion of such county shall exceed seven hundred

thousand (700,000) people as ascertained by the

most recent United States Census, in which event

such county shall be entitled to one additional

Representative for each one hundred thousand

(100,000) population in excess of seven hundred

thousand (700,000) population as shown by the

latest United States Census; nor shall any district

be created which would permit any county to have

more than seven (7) Representatives except under

the conditions set forth above."

The above quoted provision has not been construed by the courts

of ;his State. It is noted, however, that the provision thereof

used mandatory language such as "no county shall be," "such

county shall be, ' "nor shall any district be created," "except

under the conditions set forth above." In view of the language

used in .Section26a of Article III of the Constitution of Texas,

you are advised that its provisions are mandatory.

Section 28 of Article III of the Constitution of Texas

provides in part as follows:

"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 pro-

visions of Sections 25, 26, and 26-a of this Article.

. . . ,t

In view of ,the'provisionsabove quoted, you are ad-

vised redistricting bills enacted by the Legislature must

comply with the provisions of Sections 25, 26 and 26a of

Article III of the Constitution of Texas. The remaining pro-

visions of Section 28 of Article III of the Constitution of

Texas apply only if the Legislature fails to make an

Honorable C. W. Pearcy, page 5 (WW-1041)

apportionment in accordance with the above cited constitu-

tional provisions.

SUMMARY

Any act of the Legislature apportioning the

State into senatorial and representative

districts is required to comply with the

provisions of Sections 25, 26 and 26a of

Article III of the Constitution of Texas.

The word "contiguous" as used in Section

26 of Article III of the Constitution of

Texas means that a representative district

composed of two or more counties may be

formed if the boundaries (whether inundated

or not) of the counties cdmprising the

representative district touch one another

so that all may be included in a common

boundary Line.

Yours very truly,

WILL WILSON

Attorney General of Texas

mee*

Assistant

APPROVED:

OPINION COMMITTEE

W. V. Geppert, Chairman

Glenn R. Brown

W. Ray Scruggs

Houghton Brownlee, Jr.

john Leonarz

REVIEWED FOR THE ATTORNEY GENERAL

3y: Leonard Passmore

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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