Kilgarlin v. Martin

JOHN R. BROWN, Circuit Judge

(concurring):

I concur fully in the result. And I concur fully in the opinion except for that division styled “Burden of Proof.” 79 I think that, as this Court did in Bush v. Martin, S.D.Tex.1966, 251 F.Supp. 484 [C.A. No. 63-H-266, Jan. 5, 1966], we need not, and therefore should not, take any hard and fast position or even indicate our views on who has the burden, or when or under what circumstances the burden shifts or when the burden is met.

It took nearly 175 years to come to Baker v. Carr’s recognition that legislative bodies — as are the Judiciary, the Executive, the Administrators — are not only under the Constitution but amenable to judicial scrutiny. See Gomillion v. Lightfoot, 5 Cir., 1959, 270 F.2d 594, 599 (dissenting opinion), rev’d, 1960, 364 U.S. 339 , 81 S.Ct. 125 , 5 L.Ed.2d 110 . I think that as this hard-fought, hard-won right begins to flower, we ought not to stunt its growth by artificial, and rigid, standards out of another day. Certainly not until the development of this new approach demonstrates that such standards are appropriate and needful.

The Court does not need, the Court does not use, them here. Rather, as the opinion so carefully emphasizes, the Court factually finds affirmatively that: (1) there is no political gerrymandering; (2) there is no racial gerrymandering; (3) there is no Fifteenth Amendment Negro disenfranchisement; (4) there is no crazy quilt; and (5) excepting flo-torial districts, there is no population disparity. Conversely, as a factual matter, we find affirmatively that there are acceptable rational explanations afforded in this record for the action of the Texas Legislature in this apportionment and in the use of the various types of districts employed (see text accompanying notes 62-64, supra, and items (1) through (5) in text at note 63, supra, 252 F.Supp. 443 ). The efforts to east this into three mutually exclusive areas — (1) de minimis at one extreme, No. (3) per se at the other, with the second being (2) “the area of the big middle” — really solves nothing. In none is judicial inquiry avoided. In each there is a judicial *449 determination that this much is not too much, this much is way too much, or this much does or does not pass muster. In determining this, the substantive standard is clear: (a) substantial numerical equality — numerical equality as nearly as is practicable — -and (b) deviations from numerical equality are permitted if they have a rational basis in legitimate state interests. Both (a) and (b) are a part of the constitutional obligation of the state. And judicial determination of whether this constitutional imperative has been met ought not to go off on, or be thwarted or frustrated by, the slippery change of reviewing standards as the particular disparity goes up or down the scale.

Moreover, these are not just ordinary cases if, indeed, any serious constitutional issue may be so characterized. This, as was the parallel congressional case, is one in which this very Court struck down the predecessor statute. Instead of the Court using its acknowledged equity power to formulate and impose a court-directed plan, it followed, with evident wisdom, the process once again applied of leaving it first to the Legislature. But the Court retained jurisdiction as it does again. The legislation under attack was enacted in response to that conditional judicial order. That order contemplated that the product of the legislature would be tested to determine whether there was any need to exercise the reserved power to enter a subsequent equity decree and to determine whether the product was constitutionally acceptable. Legislation brought into being under those circumstances to meet a specific challenge in a specific case bears little resemblance to the situation in which after routine enactment, private or public parties attack the constitutional validity of a new bill. I do not mean to say that such responsive legislation is suspect. This, like talking in terms of “presumptions” (see note 8 and accompanying text), just affords another stumbling block to the simple, though profound and awesome, judicial inquiry in this new and rapidly developing area.

The constitutional imperative is plain. The substantive standard is clear. Why not take the record and lay it against those standards and then see whether it does or does not measure up? The one thing always obvious in any reapportionment bill is the numerical result. The problem necessarily then relates to a qualitative evaluation of factors which do or do not justify the deviation. If there are rational significant state policies, then it is the state which knows this better than any other party. To say that individual plaintiffs seeing widespread numerical disparity have to undertake to prove the negative of any possible conceivable rational basis in a state of 254 counties and a population of nearly 10 million is to insulate state activity from meaningful judicial inquiry. Worse, in the name of a procedural standard to expedite the trial of cases, it is to commit the Judiciary to an incongruous process in which, to scrutinize the needle which must exist to overcome the numerical deviation, the attackers must first stack and then unstack the hay. The prospect becomes all the more irrational when, as in Texas and in our two cases (state and congressional), the parties and the Court are put to the awkward task of reconstructing a legislative history from reports of political pundits, news reporters’ accounts of heated exchanges, or the like.

If, as some long thought, this is a “political thicket,” then I think that the law must work out both the substantive and procedural rules as the nature of the serious problem requires. We ought, therefore, to postpone as long as possible any hard choice. What the burden of proof rule should be, I do not know. I think it should be hammered out from experience. Because the opinion on this score forecloses this opportunity for pragmatic experimentation and would commit the Court to a rigid policy born of quite different controversies, I must, with deference, register this difference.

*450 APPENDIX “A”

The original plaintiffs were the following :

(1) William W. Kilgarlin, Chairman of the Democratic Executive Committee of Harris County, Texas;

(2) Robert C. Eckhardt, State Representative from the old 22nd Representative District in Harris County, Texas;

(3) Don Kennard, State Senator from the old 10th Senatorial District in Tarrant County, Texas;

(4) Franklin Spears, State Senator from the old 26th Senatorial District in Bexar County, Texas; and

(5) Jake Johnson State Representative from the old 68th Representative District in Bexar County, Texas.

All allege that they are duly qualified voters in Texas and taxpayers. They bring suit in their own behalf and for all voters similarly situated. The cause has both lost and gained plaintiffs since rendition of summary judgment by this Court on January 11, 1965. The following have dropped out, all State Representatives: Myra Banfield, Ben Barnes, John E. Blaine, Jack Crain, David Crews, Wayne Gibbens, Forrest A. Harding, George T. Hinson, James L. Slider, and Bill Walker. Certain plaintiffs have been added, who will “broaden the base of the class, and * * * make it more representative.” They are:

(1) Josh Gates, State Representative from the old 30th Representative District and a resident of the newly-created Representative District 20F (a flotorial district) in Fort Bend County, Texas;

(2) Dan Weiser, Secretary of the Democratic Executive Committee of Dallas County, Texas, and a resident of the old 51st Representative District and the newly-created 33rd Representative District' of Dallas County;

(3) Malcom McGregor, a resident of the old 74th Representative District and the newly-created 67th Representative District of El Paso County, Texas;

(4) Edgar Berlin, a resident of the old 9th Representative District and the newly-created 9th Representative District of Jefferson County, Texas; and

(5) Francis L. Williams, a resident of the old 22nd Representative District and the newly-created 24th Representative District of Harris County, Texas, who is a Negro.

Plaintiffs sue in their own behalf and for all voters similarly situated. Plaintiffs, and thus the parties who align with them, contend that House Bill 195 is unconstitutional on five major grounds:

(1) That it submerges population as the controlling consideration in the apportionment of seats in the Legislature, especially in the eleven flotorial districts wherein the right to vote allegedly is diluted substantially;

(2) That exclusive of the flotorial districts, it deviates arbitrarily and unreasonably from the population of the ideal or average district;

(3) That it accomplishes partisan gerrymandering through the use of multi-member districts, allegedly designed to cancel out or minimize the voting strength of racial or political elements— specifically, Republicans, liberal Democrats, and Negroes;

(4) That through the use of multi-member districts in major urban centers, it deprives Negroes of their right to vote, in violation of the Fifteenth Amendment ; and

(5) That it “contains a needless mixture of multi-member, flotorial, and single member districts, which reapportion the 150 House seats in a ‘crazy quilt’ manner completely lacking in rationality * * * ”

With the exception of ground number four, all of the alleged violations, if proven, would constitute denials of equal protection of the laws under the Fourteenth Amendment. Plaintiffs pray the Court to declare that H.B. 195 is uncon *451 stitutional on one or all of the above grounds and to reapportion the House of Representatives pursuant to a single-member-district plan which they submitted to the Court.

Numerous intervenors were permitted to file interventions and participate in the hearing. Those referred to as the Taylor intervenors consist of the following:

(1) Guthrie Taylor, a resident of Bertram, Burnet County, Texas, the old 65th Representative District and the newly-created District 40F;

(2) James S. Miles, a resident of Taylor, Williamson County, Texas, the old 54th Representative District and the newly-created District 38F;

(3) John Wells, a resident of Collin County, Texas, the old 50th Representative District and the newly-created District 32F; and

(4) Job 0. Booth, Jr., á resident of Bexar County, Texas, the old 68th Representative District and the newly-created 57th District.

They sue in behalf of all voters similarly situated. They align themselves with the plaintiffs and adopt their pleadings, asserting that Texas should be redistricted into 150 single-member districts of equal population to assure them equal representation and their votes equal weight. They pray the Court to declare H.B. 195 unconstitutional and to adopt their proposed single-member-district plan of apportionment, either by direct court order or by an order requiring the Legislative Redistricting Board of Texas to so apportion the State. See Art. 3, § 28 of the Texas Constitution.

Other intervenors referred to as the Ewing intervenors consist of the following:

(1) John Kirby Ewing;

(2) R. F. Spurlock; and

(3) Harry E. Lindsey.

All allege that they are residents of Harris County, Texas. They sue in behalf of all persons similarly situated.

The Ewing intervenors, representing themselves to be qualified voters of Harris County, Texas, allege that H.B. 195 is unconstitutional because it treats Harris County differently from all other counties in the State by placing ths 19 representatives allocated to Harris County in three separate multi-member districts within the county limits rather than in one multi-member district consisting of Harris County, thus violating the equal protection clause of the Fourteenth Amendment. These intervenors, claiming to represent all of the voters in Harris County as a class, pray that the Court declare House Bill 195 unconstitutional only with regard to those provisions dividing Harris County into three multi-member districts. They pray that the Court enter its order requiring representatives from Harris County to be elected at large, county-wide. Their prayer is in effect that Harris County be constituted one multi-member district rather than three.

Certain named defendants are the following state and party officials:

(1) John Connally, Governor of the State of Texas;

(2) Crawford Martin, Secretary of State of the State of Texas;

(3) Waggoner Carr, Attorney General of the State of Texas;

(4) Preston Smith, Lieutenant Governor of the State of Texas;

(5) Ben Barnes, Speaker of the House of Representatives of the State of Texas;

(6) Robert S. Calvert, Comptroller of Public Accounts of the State of Texas; and

(7) Jerry Sadler, Commissioner of the General Land Office of the State of Texas; and

(8) Peter O’Donnell, Jr., Chairman, Texas State Republican Executive Committee.

Although served with copies of the pleadings and briefs through counsel of *452 record, the following did not participate in this proceeding: William M. Elliott; Robert E. Turrentine, Jr.; Dorsey B. Hardeman; George Moffett; Louis Crump; Ralph M. Hall; J. P. Word; Grady Hazlewood; Galloway Calhoun, Jr.; Tom Creighton; Frank Owen, III; H. J. Blanchard; Walter L. Buenger; Billy Hodges; Milton D. Richardson; Julio Guzman; Eugene Locke; Will D. Davis; R. H. Lee; Anna Bennett; W. M. Adams; Ann Lyle; William A. Schmidt; and Velma Sherman.

In answer, defendants refute plaintiffs’ contentions in detail and question the accuracy of their examples. Defendants assert that plaintiffs “are only able to represent their own point of view, which is a minority point of view, not only in their own county but in their legislative district and in the State of Texas as a whole.” Defendants pray that the Court declare H.B. 195 constitutional in all respects and award them their costs,

A named defendant is Peter O’Donnell, Jr., Chairman of the Texas State Republican Executive Committee, who filed an answer admitting all of the allegations of the plaintiffs’ First Amended Complaint and praying that this Court take jurisdiction to determine the rights and duties, of the parties herein. Although styled as a defendant herein, in his brief this defendant aligns himself as a plaintiff and adopts the brief filed by plaintiffs. Therefore, when the term “defendants” is used in the opinion, it will not include the Chairman of the State Republican Executive Committee unless so stated.

The Court permitted the filing of statements by one group and one individual, appearing herein as amicus curiae. The first amicus statement is that of a group of thirty-two legislators headed by F. DeWitt Hale of Corpus Christi, Texas. They assert that they are not parties nor attorneys of record in this cause but are interested in the outcome only as duly-elected public officials of the State of Texas because it will affect the policies of government of the State of Texas. The gist of their statement is that the majority of the Legislature has no quarrel with the decisions of the Supreme Court of the United States which require apportionment on the basis of population and which hold that factors such as historical political boundaries, communities of interest, and other rational state policies may constitutionally be considered in drawing district lines, so long as the resulting plan does not violate the basic requirement that representation be based upon population. Further, as members of the Legislature, they state that they have dedicated their efforts to achieve this result in the State of Texas. Finally, they assert that they represent a cross-section of thinking both in the Legislature and in the State of Texas, and suggest that it would be erroneous for the Court to conclude that the plaintiff-legislators, Senators Eckhardt and Kennard and Representatives Johnson and Gates, reflect the thinking of that body because “ * * * [M]ost members are opposed to the position taken by plaintiffs.”

The second amicus statement is that of Robert W. Hainsworth, a lawyer admitted to practice before this Court and a member of the Negro race, who requested this Court to defer decision upon the issue of racial discrimination through the use of multi-member districts, pending his appeal to the Supreme Court of the United States of Hainsworth v. Martin, 386 S.W.2d 202 (Tex.Civ.App.1965), error ref. n. r. e., which raises the identical issue under the old statute. The Court vacated the appeal as moot, 86 S.Ct. 256 (U.S. Oct. 25, 1965), and denied a petition for rehearing, 86 S.Ct. 532 (U.S. Jan. 18, 1966).

APPENDIX “B”

Subsequent to the hearing of this cause, the Court invited the parties to brief further the question of the relief or remedy which should be ordered by the Court with regard to the situation in the flotorial districts, in the event H.B. 195 should be held invalid as to such districts. The Court suggested that a decree similar to the one in Toombs v. Fort- *453 son, 241 F.Supp. 65 (N.D.Ga.1965) might be appropriate, in such event.

The parties replied in a variety of ways. Plaintiffs filed an extensive brief which reargued the entire case before concluding with their view of the proper remedy. They contend (1) that the Court lacks authority to stay redress for any length of time, declining discussion of postponement of remedy beyond August 1, 1967 as being too remote; (2) that this Court has no alternative but to enjoin the 1966 elections under H.B. 195 and grant relief effective almost immediately; (3) that the Court has no duty to resubmit the matter to the Legislature sitting in regular session, because that body has had its one allowable chance to apportion Texas in a constitutional manner and has failed; and (4) that the Court lacks the power to sever H.B. 195 and to strike down the flotorial districts only. Plaintiffs assert that the Court, either itself initially or after reference to a master, must promulgate a complete, new plan of apportionment for the 1966 elections. Finally, they suggest that the Court should “announce certain general standards, guidelines, and criteria to provide a basis for review of future apportionment acts.”

Defendant O’Donnell, although having aligned himself with plaintiffs, suggests similar remedies but in somewhat different order. First, he suggests appointment of a special master in chancery to formulate a plan subject to the Court’s approval. Alternatively, if no master be appointed, he asks that the Court (1) hold H.B. 195 invalid, (2) enjoin all elections thereunder, and (3) return the ultimate responsibility for the adoption of a constitutional plan of apportionment to defendants again, forcing the convention of a special session of the Legislature.

Defendants state their order of preference, in the event the Court should reach the question of remedies, to be as follows: (1) that the Court should recognize H.B. 195 as a valid interim procedure, but order the Legislature to reapportion the State properly subsequent to the 1970 census; or (2) that the Court; should recognize H.B. 195 as a valid interim procedure, but order the legislators from the flotorial districts to run at large therein if the Legislature does not correct the discrimination in these districts by August 1, 1967; or (3) that the Court should recognize H.B. 195 as a valid interim procedure, but hold it invalid as of August 1, 1967 if not amended by such date; or (4) that the Court should require the legislators from the flotorial districts to be elected at large therein for the 1966 elections and subsequent elections. They assert that the Court would be in error to enjoin the holding of elections under H.B. 195. Defendants answer plaintiffs’ contentions by asserting (1) that the Court does not lack authority to stay redress; (2) that the Court would err in enjoining the 1966 elections under H.B. 195; (3) that the Legislature has had no opportunity to correct this particular deficiency, if it be a deficiency; and (4) that the Court obviously has the power to sever.

The Hale amicus curiae group expressed an order of preference for possible remedies. First, they desire (1) that the Court approve H.B. 195 as a valid interim measure until completion of the 1970 Federal Census, subsequent to which the Legislature would validly reapportion the State as required by law; or (2) that the Court outline the standards under the Fourteenth Amendment which it deems necessary for the Legislature to satisfy; and (3) that the Court retain continuing jurisdiction of the cause. Second, they ask if the Court should not proceed as first suggested, that the Court uphold H.B. 195 as a valid interim measure until the next regular session of the Legislature, commencing January 1,1967, and afford that body the opportunity to correct the deficiencies prior to August 1, 1967, failing which, the Court should order that the candidates from the dominant and appurtenant counties all run at large from the counties comprising the respective flotorial districts, thus making multi-member districts out of the flo-torial districts. If the Court should deem immediate relief to be proper, they pre *454 fer the solution of running candidates at large within the flotorial districts. These legislators express their overriding concern to be that H.B. 195 be maintained insofar as possible, even if certain portions thereof are invalid.

APPENDIX “C”

Districts Not Having Constituent Counties in a Flotorial District

District Number

District Total

Number of Representatives Per District

Population Per Representative

Percentage of Deviation from Ideal District of 63,864

1 59,971 1 59,971 — 6.09

2 60,906 1 60,906 — 4.62

3 62,464 1 62,464 — 2.19

4 63,549 1 63,549 — 0.49

5 67,367 1 67,367 + 5.48

6 68,813 1 68,813 + 7.75

7 67,767 1 67,767 + 6.11

8 60,357 1 60,357 — 5.49

9* 245,659 4 61,415 — 3.83

10 60,877 1 60,877 — 4.67

11 63,889 1 63,889 + 0.03

12 70,808 1 70,808 + 10.87

13 69,436 1 69,436 + 8.72

16 61,282 1 61,282 — 4.04

17 57,551 1 57,551 — 9.88

18 57,604 1 57,604 — 9.80

21* 140,364 2 70,182 + 9.89

22* 417,283 7 59,612 * — 6.65

23* 408,409 6 68,068 + 6.58

24* 417,396 6 69,566 + 8.93

25 66,272 1 66,272 + 3.77

26 67,361 1 67,361 + 5.47

27 59,683 1 59,683 — 6.54

28 55,772 1 55,772 — 12.67

29 65,119 1 65,119 + 1.96

30 63,896 1 63,896 + 0.05

33* 951,527 14 67,966 + 6.42

34 67,045 1 67,045 + 4.98

41 66,706 1 66,706 + 4.45

42 71,301 1 71,301 + 11.64

43 63,067 1 63,067 — 1.24

44 66,961 1 66,961 + 4.85

49* 180,904 3 60,301 _ 5.58

50 70,105 1 70,105 + 9.77

51 69,992 1 69,992 + 9.59

52* 538,495 8 67,312 + 5.39

53 61,571 1 61,571 — 3.59

54 56,594 1 56,594 — 11.38

55 64,815 1 64,815 + 1.49

56 56,750 1 56,750 — 11.13

57* 687,151 10 68,715 4" 7.59

* Denotes multi-member districts

*455 APPENDIX “0”

Districts Not Having Constituent Counties in a Flotorial District

Number of District Number District Total Representatives Per District Population Per Rcp-sentative Percentage of Deviation from Ideal District of 63,864

58 70,845 1 70,845 + 10.93

59 69,184 1 69,184 + 8.33

60 68,621 1 68,621 + 7.45

63 60,846 1 60,846 — 4.72

64 64,067 1 64,067 + 0.31

65 61,112 1 61,112 — 4.30

66 70,874 1 70,874 + 10.97

67* 314,070 5 62,814 — 1.64

70 67,717 1 67,717 + 6.03

71 64,630 1 64,630 H" 1.19

72 70,357 1 70,357 + 10.16

73 60,884 1 60,884 — 4.67

74 55,055 1 55,055 — 13.79

75 62,165 1 62,165 — 2.66

78 55,517 1 55,517 — 13.07

79 59,774 1 59,774 — 6.40

80* 115,580 2 57,790 — 9.51

81 54,385 1 54,385 — 14.84

82 60,508 1 60,508 — 5.25

83 66,478 1 66,478 + 4.09

84 56,528 1 56,528 — 11.48

85* 123,528 2 61,764 — 3.28

86 56,793 1 57,793 — 9.50

* Denotes multi-member districts

Average Overrepresentation - 6.70%

Average Underrepresentation - 6.01%

Average Range 12.7%

APPENDIX “D”

Waggoner Carr Attorney General of Texas

Supreme Court Building Austin 11, Texas

May 19, 1965

Honorable Ben Barnes

Speaker of the House

Austin, Texas

Dear Mr. Speaker:

As a result of the analyzing and briefing of Section 26, Article III of the Texas Constitution of 1876 and the recent decisions of the U. S. Supreme Court on the subject of state reapportionment, this office has reached the following legal conclusions.

1. Whenever a single county has sufficient population to be entitled to more *456 than one representative, all of the representatives to which it is entitled shall he apportioned to that county.

2. Multi-representative counties may be apportioned so that the representatives can run at-large within the county or from individual districts within the county or, a combination of any of these methods.

3. If a single county does not have sufficient population to entitle it to one representative, such county shall be joined with one or more contiguous counties until the proper population ratio is achieved. The above cited provision of the Texas Constitution requires that counties be kept intact and their boundaries not be violated.

4. Should the keeping of counties intact result in a violation of the Supreme Court “one man, one vote” rule, then the county lines must be violated but only to the extent necessary to carry out the mandate of the Supreme Court. In all other instances, county lines must remain intact and multi-county districts or flo-torial districts be formed by the joining of complete and contiguous counties.

The above legal conclusions have been set out as clearly and concisely as possible. These conclusions have been reached by a thorough analysis of the Texas constitutional provisions as well as recent federal court decisions. Our research has also thoroughly developed the legislative history and legislative interpretation of the legislative sessions immediately prior to and immediately subsequent to the adoption of the constitutional provisions involved.

Yours very truly,

Waggoner Carr

WC:ld

APPENDIX “E”

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

WILLIAM W. KILGARLIN, ET AL.,

Plaintiffs,

VS.

CRAWFORD MARTIN, Secretary of State of the State of Texas, ET AL.,

Defendants.

CIVIL ACTION NO. 63-H-390

DECREE

This cause having come on for trial at which all parties, including intervenors and amicus curiae, were present by counsel ; and the Court having heard the evidence and having considered the pleadings, evidence, and arguments of counsel; and the Court being of the view that a Decree should be entered granting relief to the plaintiffs only to the extent hereinafter specified, for the reasons set forth in the Court’s Opinion filed this day which constitutes also the Court’s findings of fact and conclusions of law under Federal Rules of Civil Procedure 52(a);

It is therefore ORDERED, ADJUDGED, and DECREED by the Court:

FIRST: The Court hereby declares that the present apportionment of Representative Districts for the State of Texas as set forth in House Bill 195, 59th Legislature, Vernon’s Texas Sess. Law *457 Service ch. 351 at 753 (1965) [Tex.Rev. Civ.Stat.Ann. Art. 195a (Supp. 1965)], is constitutional and therefore valid EXCEPT for Districts identified therein as 15F, 20F, 32F, 36F, 38F, 40F, 46F, 48F, 62F, 69F, and 77F, which Districts as presently constituted are unconstitutional and therefore invalid.

SECOND: In conducting any election for the nomination or election of any Member of the House of Representatives of the State of Texas, the named defendants, individually and in their respective official Representative capacities, and their respective agents, officers and employees, are hereby enjoined from enforcing, applying or following said House Bill 195, (a) as to invalid Districts 15F, 20F, 32F, 36F, 38F, 40F, 46F, 48F, 62F, 69F, and 77F; and (b) as to Districts 14, 19, 31, 35, 37, 39, 45, 47, 61, 68, and 76, which, though valid, are hereinafter recomposed with the invalid Districts to create new, valid, multi-member Districts.

THIRD: Pending enactment by the State of Texas of a new apportionment act in substitution for or amendment of said House Bill 195 which complies with the requirements of the Constitution of the United States and other applicable law, the counties embraced in Representative Districts numbered 14, 15F, 19, 20F, 31, 32F, 35, 36F, 37, 38F, 39, 40F, 45, 46F, 47, 48F, 61, 62F, 68, 69F, 76, and 77F in House Bill 195 are hereby recomposed in multi-member districts and each such District shall bear the number and shall be entitled to elect the number of Representatives indicated for it, as follows:

14 Smith, Rusk Place 1 Place 2

19 Brazoria, Fort Bend Place 1 Place 2

31 Grayson, Collin and Rockwall Place 1 Place 2

35 McLennan, Coryell Place 1 Place 2 Place 3

37 Bell, Williamson Place 1 Place 2

39 Travis, Burnet Place 1 Place 2 Place 3 Place 4

45 Nueces, Kleberg Place 1 Place 2 Place 3 Place 4

47 Cameron, Brooks, Kenedy, Willacy Place 1 Place 2 Place 3

'61 Taylor, Haskell, Jones Place 1 Place 2

68 Ector, Loving, Reeves and Winkler Place 1 Place 2

76 Lubbock, Crosby Place 1 Place 2 Place 3

FOURTH: Representative Districts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 41, 42, 43, 44, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 63, 64, 65, 66, 67, 70, 71, 72, 73, 74, 75, 78, 79, 80, 81, 82, 83, 84, 85, and 86 of House Bill 195 are not changed to any extent and such Districts together with Districts 14, 19, 31, 35, 37, 39, 45, 47, 61, 68 and 76 as herein composed shall constitute the Representative Districts of the State of Texas. All other provisions of House Bill 195 except those enjoined in paragraph SECOND above shall remain in full force and effect.

*458 FIFTH: Paragraphs SECOND, THIRD, and FOURTH of this order shall not become effective until 12 noon the first day of August, 1967, in order to enable the Texas Legislature during its next regular session or any intervening special session, to reconsider said House Bill 195 and to enact substitute legislation.

SIXTH: The parties shall bear their own costs.

SEVENTH: The Court retains jurisdiction of this complaint for such other and further orders as may be required.

. There may be a slight difference, perhaps mostly in emphasis, perhaps nothing more than semantics, with respect to one other matter. The opinion, citing Sincock v. Roman, D.Del., 1964, 233 F. Supp. 615, 619 , states that “in reviewing the validity of an apportionment statute, it is not within the reach of the Court’s inquiry to determine which is the better or best, wiser or wisest, of two or more apportionment proposals. * * * The concern * * * of this Court, is not that which might have been done, but that which was done.” 252 F.Supp. at 431. Granted that it is not for the Judiciary to select the “good,” the “better,” or the “best,” I think that, as this Court held in Bush v. Martin, 1966, S.D.Tex., 251 F.Supp. 484 at 509 [C.A. No. 63-H-266, Jan. 5, 1966], in determining whether the enacted plan achieves substantial numerical equality or equality as nearly as is practicable, the process necessarily is a comparative one so that other plans, either offered or available, are of great significance.