Untitled Texas Attorney General Opinion ( 1951 )

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March 28. 1951
Hon. William S. Fly, Chairman ,
Committee on Congressional
and Legislative Districts
House of Representatives
52nd Legislature
Austin, Texas Opinion No. V- 1160
Re: Constitutionality of electing
two Congressmen at large
in a single county, dividing
one county into two geograph-
ic congressional districts, or
including part of a county in
a different district from that
embracing the balance of the
county.
Dear Sir:
Reference is made to your request which reads in part
as follows :
“I have been requested by the House Commit-
tee on Congressional and Legislative Districts to
ask an opinion of you and of your department on sev-
eral matters. The Committee is concerned over
what rules it will be required to follow that have
been prescribed either by the United States Consti-
tution, the Texas Constitution, the Statutes of the
United States, or the Statutes of Texas. We would
also like to know if there exist any Congressional
precedents which might aid us in our consideration.
“It-has been suggested to the Committee that
we should give Harris County two Congressmen. If
the Committee should decide that Harris County is
en&led to two Congressmen, will it be necessary
that these Congressmen be elected at large, or will
it be necessary to divide the county geographically
and have a Congressman run from each geographic
district of the county?
.
Hon. William S. Fly, page 2 (V-1160)
“We would like to know if one part of a
county can be put into one Congressional Dis-
trict and the other portion of the county put into
another Congressional District. There is a sim-
ilar question as to whether a county like Dallas
could have a Congressman~and then a flotorial
Congressman in the adjoining counties.a
The pertinent portion of Section 2 of Article I* United
States Constitution, provides:
“Representatives and direct Taxes shall
be apportioned among the several States which
may be included within this Union, according to ,,
their respective Numbers. which shall be deter-
mined by adding to the whole Number of free
Persons, including those bound to Service for a
Term, of Years, and excluding InFans not taxed,
three fifths of all other Persons. The actual
Enumeration shall be made within three Years
after the first Meeting of the Congress of the
United States, and within every subsequent Term
of ten Years. in such Manner as they shall by
Law direct. The Number of Representatives
shall not exceed one for every thirty Thousand,
but each State shall have at Least one Represen-,
tative; e o Dm
Section 4 of Article I provides in parti
‘The Times, Places and Manner of hold-
ing Elections for Senators and Representatives,
shall, be prescribed in each State ,by-the Legis-
lature,,thereof; but the Congress may at any time
by Law make or alter such Regulations, except
as to the Places of chusing Senators.*
Section 2a of Title II, U.S.C., provides:
1/ The first sentence of this ~section was superseded bv the
pro&ion of Section 2-ofthe .+l#h Amendment which reads: ‘Rep-
resentatives shall be apportioned among the several States ac-
cording to their respective numbers, counting the whole number
of persons in each State, exc~luding Indians not taxed.”
Hon. William S. Fly, page 3 (V-1160)
-(a) On the first day, or within one week
thereafter, of the first regular session of the
Eighty-second Gongress and of each fifth Congress
thereafter, the President shall transmit to the
Congress a statement showing the whole number
.of persons in each State, excluding Indians not
taxed, as ascertained under the seventeenth and
each subsequent decennial census of the popula-
tion, and the number of Representative’s to which
each State would be entitled under an apportion-
ment& the then existing number of Representa-
tives by the method known as the method of equal
proportions, no State to receive less than one
Member.
‘(b) Each State shall be entitled,, in the
Eighty-third Congress and in each Congress
thereafter until the ,taking effect of a reappor-
tionment under this section or subsequent stat-
ute, to the number of Representatives shown in
tlie statement required by subsection (a) of this
section, no State to receive less than one Member.
It shall be the duty of the Clerk of the House of
Representatives, within fifteen calendar days af-
ter the receipt of such statement, to send to the
executive of each State a certificate of the number
of Representatives to which such State is entitled
under this section. In case of a vacancy in the of-
fice of Clerk. or of his absence or inability to dis-
charge this duty, then such duty shall devolve upon
the Sergeant at Arms of the House of Representa-
tives;,and in case of vacancies in the offices of
both the Cle~rk ,and the ~Ser~geant at ,Arms, or the ab-
sence or inability of both to act, such duty shall
devolve upon the Doorkeeper of the House of Rep-
resentatives.
‘(c) Until a State is redistricted~ in the man-
ner provided by the law thereof after any apportion-
ment, the Representatives to which such State is en-
titled under, such apportionment shall be elected in
the following manner: (1) If there is no change in
the number of, Representatives, they shall be elected
from the districts thenprescribed by the law of such
State, and lf any of them are elected from the State at
large they shall continue to be so elected: (2) if there
is an increase in the number of Representatives, such
additional Representative or Representatives shall be
Hon. William 5. Fly, page 4 (V-1160)
elected from the State at large and the other Rep-
resentatives from the districts then prescribed by
the law of such State; (3) if there is a decrease in
the number of Representatives but the number of
districts in such State is equal to such decreased
number of Representatives, they shall be elected~
from the districts then prescribed by the law of
such State; (4) if there is a decrease in the number
of Representatives but the number of districts in
such State ins less than such number of Represen-
tatives, the number of Representatives by which
such number of districts is exceeded shall be elect-
ed from the State at large and the other Represen-
tatives from the districts then prescribed by the
law of such State; or (5) if there is a decrease in
the number of Representatives and the number of
districts in such State exceeds such decreased L
number of Representatives, they shall be elected
from the State at large.”
Pursuant to the above statute, the President has
transmitted a statement to Congress and the Clerk of the House
,of Representatives has certified to the Governor of Texas “That
the State of Texas shall beentitled, in the Eighty-Third Congress
and in each Congress thereafter until the taking effect of a re-
apportionment under said Act, as amended, or subsequent Stat-
ute to Twenty-Two Representatives.”
In Section 21 of 54 Am. Jur. 536. United States, it is
stated:
‘Representatives in Congress are to be ap-
portioned zunong the severa~l states ,on-,the’basis
of .the populatioathereof as determined by’each
decennial census, but each state is to have at least
one Representative. The Constitution, however,
leaves matters relating to congressional districts
to the disposition of the states. Congress at one
time undertook to legislate upon the subject by pro-
viding that members of Congress should be elected
from districts composed of contiguous territory
containing as nearly as practicable an equal num-
ber of inhabitants, but this requirement has been
omitted from later acts of Congress providing for
the apportionment of Representatives. There is
no necessity that congressional districts be com-
‘(: ,.,, ,‘” (v-l,iboj :; ,,; :‘I..- ,~ i~“~’‘:
Hon. William S. Fly, p’age ‘5
: ,.~., .:,, . ..bT :;
‘posed .of contigUou6 dn’d”“~~~~paCt.:~~rit,ori~:s*‘. or .i.:
that they contain as nearfy asp pr?&icable~& equal’ ‘.
number of inhabitants, where such requirement is
not embodied in an act of, C.ongress providing for
the apportionment of Representatives; and it has
been held that,a ,legislatiye,,, divis~ipn!,of the sitate in-
to CongrkS~fonal’hi~trids is, not revie:w,able by the;!
court’whe,rk tlre,re is’;io’.~pn~ti~tibnal,, l,irditatio,n,
on the p’otie’r’of then.legislature to makes such ap-
portionment. The validity of apportionment”of the
statainto districts is, therefore, largely a atter
P
of local state constitutional requirements.”
There, ‘is~“no’&vision in the State Constitution
which relates~ to’ the ‘me’thod of apportioning represe.ntation ,in
Congress. Therefore, it is our opinionthatit is”lCft,entirely
to the Texas Legislature to determine ~the methods of appor-
t$7nment. ,~
I$owevei,~ we wish to call to yourl’~tt&o&that’there
is now pending’ in the United States Congres.?,.aT bill numbered
H.R. 2648 amending Section 2a of Title II, U.STIct’,, whic~h pro-
vides in part:
“(c) Each State entitled in the Eighty-third
Congress and each Congress thereafter to more, ~~
than one Representative under the apportionment
provided in subsection (a) of this section shall es-
tablish for each Representative a district com-
posed of contiguous and compact territory, and no
district so established shall vary more than 15
per centum of the number obtained by dividing the
total population of such State, as established in
the last decennial census, by the number of Rep-
resentatives apportioned under subsection (a) of
this section.
‘(d) Any Representative elected from a dis-
trict which does not conform to the requirements
set forth in subsection (c) of this section shall be
denied his seat in the House of Representatives and
the Clerk of the House shall refuse his credentials.”
2/ Wood v. Broom, 287 U.S. 1 (1932); Colegrove v. Green,
328 U.S. 549 (194b) .
Hon. William S. Fly, page 6 (v-1160)
In the event this bill passes, the Texas Legislature
will be gwerned by its provisions.
SUMMARY
It is for the Texas Legislature to deter-
x&ie the method of apportionmnt of represen-
tatives in Congress. 54 Am. Jur. 526, United
States, Sec. 21.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
J.C. Davis, Jr.
County Affairs Division
Jesse P. Luton, Jr. BY&&L
Reviewing Assistant Bruce Allen
Assistant
Charles D. Mathews
First Assistant
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