If Texas changes just two senate districts, does the whole senate have to run for re-election?

Plain-English summary

State Senator David Sibley asked the Attorney General a redistricting timing question with real political stakes: if the legislature changes only two of the thirty-one senate districts, does that count as an "apportionment" under article III, section 3 of the Texas Constitution, which would force every senator (not just the two in the redrawn districts) to stand for election at the next election? He also asked whether changing more than two districts changed the answer, and whether the size of the changes mattered.

The office answered yes to the first question. Even a bill that redraws just two senate districts is an "apportionment" under section 3, so it triggers the election of a new senate, meaning elections in all thirty-one districts. From that, the second answer followed automatically: changing more than two districts is likewise an apportionment. And on the third question, the extent of the changes does not matter. Section 3 draws no line between an apportionment that touches two districts and one that touches all thirty-one.

The office acknowledged it could find no case law on the point and that no court appeared to have reviewed such legislation. But it found a close match in its own prior work. Attorney General Opinion M-349 (1969) had answered an almost identical question about a 1969 bill that would have changed two of the thirty-one senate districts, concluding that the bill would constitute apportionment and would require electing a new senate once it took effect. Because section 3 had not been amended since 1969 and no intervening court decision undercut M-349, the office saw no reason to depart from it.

The office also addressed the theoretical argument that "apportionment" (allocating legislators among areas) is technically different from "districting" (drawing the actual lines), an argument drawn from the federal court's discussion in Kilgarlin v. Martin. It concluded the distinction does not work for the Texas senate. The Constitution fixes the senate at exactly thirty-one members, each elected from one of thirty-one districts, so the legislature never really "apportions" senators in the technical sense; it only redraws lines. If section 3's word "apportionment" were read in that narrow technical sense, the senate would never be apportioned at all. So for purposes of article III, section 3, apportionment and districting mean the same thing.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Redistricting law has moved a great deal since 1995, and it now sits within an extensive body of federal constitutional and voting-rights law, plus repeated rounds of state and federal litigation, that this opinion did not address. The opinion also expressly limited itself to redistricting legislation enacted by the legislature and did not address court-ordered redistricting. Read this page for how the office read article III, section 3 in 1995, and check current law before relying on any conclusion here.

What the opinion meant at the time

For senators and the requestor: The opinion told senators that a mid-decade redraw of even a couple of districts was not a contained event. Under the office's reading, it reset the whole chamber: all thirty-one seats would be up at the next election, and the newly elected senators would again be divided by lot into two-year and four-year classes as section 3 directs.

For the legislature drawing the map: The opinion treated any senate redistricting bill as an "apportionment," so the choice to redraw districts carried the constitutional consequence of a new senate election regardless of how few districts were touched.

For voters and the press following redistricting: The opinion explained why a seemingly minor two-district change would, in the office's view, put every senate seat on the ballot, and why the staggered four-year terms restart after any apportionment.

Common questions

If Texas redrew only two senate districts, did all 31 senators have to run again?
Under this 1995 opinion, yes. The office read any senate redistricting, even a two-district change, as an "apportionment" under article III, section 3, which requires the election of a new senate.

Did it matter how many districts were changed?
No. The opinion said the extent of the changes did not affect the answer. Two districts or all thirty-one, the result was the same: a new senate election.

What is the difference between "apportionment" and "districting," and did it matter here?
In technical usage, apportionment means allocating legislators among areas and districting means drawing the actual lines. The office said that distinction does not work for the Texas senate, because the senate is fixed at thirty-one single-member districts, so the legislature only ever redraws lines. Reading "apportionment" narrowly would mean the senate is never apportioned, which the office rejected.

What happened to senators' four-year terms after an apportionment?
Article III, section 3 provides that after every apportionment a new senate is chosen and divided by lot into two classes, one serving two years and one serving four, so that half the senate is elected every two years thereafter.

Did this opinion cover court-ordered redistricting?
No. The office noted the senator asked only about redistricting legislation enacted by the legislature, and the opinion did not address court-ordered redistricting.

Background and statutory framework

Three provisions of article III of the Texas Constitution frame the question. Section 2 fixes the size of the senate: "The Senate shall consist of thirty-one members, and shall never be increased above this number." Section 3 provides that senators serve four-year terms, "but a new Senate shall be chosen after every apportionment," and the senators elected after each apportionment are divided by lot into two classes, the first class vacated after two years and the second after four, so that half the senate is chosen every two years. Section 25 provides that each district is entitled to elect one senator. Section 28 requires the legislature to apportion the state into senatorial and representative districts at its first regular session after each federal decennial census.

The interpretive question was whether "apportionment" in section 3 covers a small mid-decade change to a couple of districts. With no case law to rely on, the office turned to Attorney General Opinion M-349 (1969), which had considered a 1969 bill changing two senate districts (effective in 1972) and concluded that it would be a general reapportionment once it took effect, requiring the election of a new senate. M-349 had observed that Texas historically made no firm distinction between apportionment and districting, and that senatorial redistricting had consistently been recognized as apportionment.

The office considered the technical apportionment-versus-districting distinction discussed in Kilgarlin v. Martin, 252 F. Supp. 404 (S.D. Tex. 1966), rev'd on other grounds, 386 U.S. 120 (1967), a three-judge federal district court decision quoted in M-349. That discussion explained that "apportionment" technically refers to allocating legislators among areas while "districting" refers to drawing the lines, but it also noted that in Texas the legislature both apportions and districts, and used "apportionment" for the whole process. The office concluded that, because the senate is constitutionally fixed at thirty-one single-member districts, the legislature never truly apportions senators in the technical sense and only redraws lines, so the distinction is meaningless for article III, section 3. On that basis it held that changing two districts, more than two, or all thirty-one each constitutes an apportionment that requires a new senate election.

Citations

Constitutional provisions discussed:

• Texas Constitution art. III, § 2 (senate fixed at thirty-one members)
• Texas Constitution art. III, § 3 (new senate chosen after every apportionment; division by lot into two- and four-year classes)
• Texas Constitution art. III, § 25 (each district elects one senator)
• Texas Constitution art. III, § 28 (apportionment into districts after each decennial census)

Case discussed:

• Kilgarlin v. Martin, 252 F. Supp. 404 (S.D. Tex. 1966), rev'd on other grounds, 386 U.S. 120 (1967) (technical meaning of "apportionment" and "districting")

Prior Attorney General opinion relied upon:

• Attorney General Opinion M-349 (1969) (legislation changing two senate districts constitutes apportionment requiring a new senate election)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0351
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0351.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 7, 1995

Honorable David Sibley
Chair
Economic Development Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. DM-351

Re: Whether legislation changing two of thirty-one senatorial districts constitutes an "apportionment" under article III, section 3 of the Texas Constitution (RQ-785)

Dear Senator Sibley:

You ask the following questions about article III, section 3 of the Texas Constitution:

1. If the legislature makes changes to only two of thirty-one senate districts, will the bill be considered as a general apportionment which would necessitate the election of a new senate at the next election?

2. If the legislature makes changes to more than two but not all of the current senate districts, would the changes necessitate the election of the whole new senate or only the senate districts with changes?

3. Does the extent of the changes to senate districts affect the answer to the preceding questions?[1]

Article III, section 3 provides in pertinent part:

The Senators shall be chosen by the qualified electors for the term of four years; but a new Senate shall be chosen after every apportionment, and the Senators elected after each apportionment shall be divided by lot into two classes. The seats of the Senators of the first class shall be vacated at the expiration of the first two years, and those of the second class at the expiration of four years, so that one half of the Senators shall be chosen biennially thereafter.

Article III, section 2 of the Texas Constitution requires that the senate be composed of no more and no less than thirty-one members. Tex. Const. art. III, § 2 ("The Senate shall consist of thirty-one members, and shall never be increased above this number.") Section 28 of article III requires the legislature to "apportion the state into senatorial and representative districts" at its first regular session after the publication of each United States decennial census.

In essence you ask whether legislation reconfiguring two senatorial districts would constitute an "apportionment" under section 3 of article III, thus requiring the election of a new senate, that is, elections in all thirty-one senatorial districts, or if it would constitute something less or different. We have been able to locate absolutely no case law on this subject, and it does not appear that such legislation has ever been considered or reviewed by the courts. There is, however, a relatively recent attorney general opinion answering an almost identical question on the subject. In Attorney General Opinion M-349 (1969) this office was asked to consider whether legislation proposed in 1969, which would have made changes in two of the thirty-one senatorial districts but which would not have become effective until January 1972, would have constituted general apportionment, thus requiring all members of the senate to run at the next election.

Noting that historically there had been no firm distinctions made between apportionment and districting in this state and that senatorial redistricting had consistently been recognized as apportionment, this office concluded that the bill reconfiguring two senatorial districts would constitute "apportionment" as that term is used in article III, section 3. Attorney General Opinion M-349 (1969) at 2-3. The opinion concluded that although the proposed legislation would not constitute an apportionment prior to its effective date, it would constitute

a general reapportionment after its effective date so as to require the election of a new Senate at that time. [The proposed legislation], if finally enacted into law, upon reaching its effective date, would be an apportionment at that time and would, therefore, in accordance with Article III of Section 3 [sic] of the Constitution of Texas, require the election of a new Senate.

Id. at 3.

Section 3 of article III has not been amended since 1969, nor have there been any intervening judicial opinions which would call Attorney General Opinion M-349 into question. Furthermore, we see no basis on which to fault Attorney General Opinion M-349.

One might try to draw a distinction between "apportionment" following the decennial census and the reconfigurement of districts, i.e., "districting." The lengthy discussion in Kilgarlin v. Martin, 252 F. Supp. 404 (S.D. Tex. 1966), rev'd on other grounds, 386 U.S. 120 (1967), regarding the technical meaning of the terms "apportionment" and "districting" quoted in Attorney General Opinion M-349 might be read to support such a view:

"Apportionment," in the technical sense, refers solely to the process of allocating legislators among several areas or political subdivisions, while "districting" entails the actual drafting of district lines. Thus, Congress "apportions" Representatives among the states, while the states "district" by actually drawing the congressional district lines. In Texas, the Legislature both "apportions" and "districts" as in H.B. 195. For example, it "apportions" 19 Representatives to Harris County, and "districts" Harris County into three districts. In keeping with common usage, however, the total process will be referred to as "apportionment" in this opinion. See Comment, 72 Yale L.J. 968 (1963) at 970 n. 24.

Id. at 410 n.1.

Although some might argue that this distinction between apportionment and districting is significant with respect to article III, section 3, we believe that this distinction is attenuated in the case of the senate, which the Texas Constitution dictates must always consist of thirty-one members, see Tex. Const. art. III, § 2, each of whom is elected from one of thirty-one separate districts, see id. § 25 ("each district shall be entitled to elect one Senator"). The house of representatives, on the other hand, may consist of 93 to 150 members. See id. § 2. Thus, the legislature never really "apportions" senators to senatorial districts in the technical sense of the word but rather redraws district lines. Put another way, if the word "apportionment" in article III, section 3 were read in its technical sense, "apportionment" of the senate would never occur. Thus, for purposes of article III, section 3 we do not believe that there is a meaningful distinction between "apportionment" and "districting."

For the following reasons, we conclude that the passage of legislation changing two senatorial districts would constitute an apportionment under article III, section 3 of the Texas Constitution requiring the election of a new senate. In response to your second question, it follows from our affirmative answer to your first question that legislation changing more than two senatorial districts would also constitute an "apportionment." In response to your third question, the extent of changes to senatorial districts does not affect our answer to your first and second questions. Article III, section 3 makes no distinction between an "apportionment" of senatorial districts that affects merely two districts and an "apportionment" of senatorial districts that affects all thirty-one districts.

SUMMARY

The passage of legislation changing two senatorial districts would constitute an apportionment under article III, section 3 of the Texas Constitution requiring the election of a new senate.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

[1] You ask only about the effect of redistricting legislation enacted by the legislature. You do not ask about the effect of court-ordered redistricting, nor do we address it.