Does a senator filling in as Texas lieutenant governor have to serve on the redistricting board?

Plain-English summary

Bill Ratliff was a state senator who, after a vacancy in the lieutenant governor's office, was elected by his Senate colleagues under article III, section 9 of the Texas Constitution to perform the lieutenant governor's duties until the next general election. He asked the Attorney General a focused question: did those duties include serving on the Legislative Redistricting Board?

The Board matters because of the once-a-decade redistricting cycle. Article III, section 28 of the constitution tells the Legislature to redraw the state's senate and house districts at the first regular session after each federal decennial census is published. If the Legislature fails to do it at that session, the job falls to the Legislative Redistricting Board, a five-member body made up of the lieutenant governor, the Speaker of the House, the attorney general, the comptroller, and the commissioner of the General Land Office. The 2000 census was published while the 77th Legislature was in session, that session was the proper one to redistrict, and it adjourned in May 2001 without passing a plan. So the task moved to the Board.

The opinion concluded the senator performing the lieutenant governor's duties was required to serve on the Board, and had no discretion in the matter. Its reasoning was textual. Article III, section 9 says the Senate "shall elect" one of its members "to perform the duties of the Lieutenant Governor." Article III, section 28 says the Board "shall be composed of five (5) members," the first being "The Lieutenant Governor." The opinion noted that Texas courts give a constitution's plain language its ordinary meaning, and that the word "shall" in a constitutional provision is mandatory rather than permissive. Serving on the Board is one of the lieutenant governor's constitutional duties, so the person performing those duties had to serve. The opinion closed by observing that because his service was constitutionally required, the fact of his participation would have no adverse legal effect on any redistricting plan the Board adopted.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The opinion addressed a specific 2001 redistricting cycle and the constitutional succession then in effect; verify the current constitutional text and any later authority before relying on the rules described here.

What the opinion meant for those who asked

The acting lieutenant governor and the Senate (what the opinion held for them): The opinion held that a senator elected under article III, section 9 to perform the lieutenant governor's duties must serve on the Legislative Redistricting Board as one of those duties, with no discretion to decline.

The Legislative Redistricting Board (what the opinion held for it): The opinion held that the Board's composition includes whoever is performing the lieutenant governor's duties, and that this person's required service would not legally undermine a plan the Board adopted.

Anyone tracking the 2001 redistricting (what the opinion held for them): The opinion confirmed that, because the 77th Legislature adjourned without redistricting after the 2000 census, the constitutional task had passed to the five-member Board.

Common questions

Does a senator filling in as lieutenant governor have to serve on the redistricting board?
Yes. The opinion concluded that service on the Legislative Redistricting Board is one of the lieutenant governor's constitutional duties, so the senator performing those duties was required to serve.

Could he have chosen not to serve?
No. The opinion concluded he was without discretion, because both constitutional provisions use the mandatory word "shall."

Why did the redistricting job fall to the Board in 2001?
The opinion explained that the 2000 census was published while the 77th Legislature was in session, that was the proper session to redistrict, and the Legislature adjourned in May 2001 without passing a plan, so article III, section 28 sent the task to the Board.

Did his required service create any legal problem for the resulting map?
The opinion concluded it did not, reasoning that because his service was constitutionally required, the fact of his participation would have no adverse legal impact on any plan the Board adopted.

Background and statutory framework

Article III, section 9(a) of the Texas Constitution governs succession when the lieutenant governor's office is vacant: the Senate elects one of its members to perform the lieutenant governor's duties, in addition to that member's duties as senator, until the next general election. Tex. Const. art. III, § 9(a). Article III, section 28 directs the Legislature to apportion the state into senatorial and representative districts at its first regular session after each decennial census, and provides that if the Legislature fails to do so, the apportionment is done by the Legislative Redistricting Board, composed of the lieutenant governor, the Speaker of the House, the attorney general, the comptroller, and the commissioner of the General Land Office, which must assemble in Austin within ninety days of final adjournment and act within sixty days of assembling. Tex. Const. art. III, § 28.

The opinion relied on the Texas Supreme Court's reading of section 28's timing in Mauzy v. Legislative Redistricting Bd., 471 S.W.2d 570 (Tex. 1971), on the rule that a constitution's plain language controls in City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995), and Armbrister v. Morales, 943 S.W.2d 202 (Tex. App.-Austin 1997, no writ), and on the mandatory force of "shall" in Wood v. State ex rel. Lee, 126 S.W.2d 4 (Tex. 1939). It noted that House Bill 150 passed the House but not the Senate and that Senate Bill 499 failed in the Senate. Tex. H.B. 150, 77th Leg., R.S. (2001); Tex. S.B. 499, 77th Leg., R.S. (2001).

Citations

Constitutional provisions:

• Tex. Const. art. III, § 9(a)
• Tex. Const. art. III, § 28

Bills:

• Tex. H.B. 150, 77th Leg., R.S. (2001)
• Tex. S.B. 499, 77th Leg., R.S. (2001)

Cases:

• Mauzy v. Legislative Redistricting Bd., 471 S.W.2d 570 (Tex. 1971)
• City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995)
• Armbrister v. Morales, 943 S.W.2d 202 (Tex. App.-Austin 1997, no writ)
• Wood v. State ex rel. Lee, 126 S.W.2d 4 (Tex. 1939)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0388
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0388.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

June 12, 2001

The Honorable Bill Ratliff
Lieutenant Governor of Texas
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. JC-0388

Re: Whether the individual elected to serve as Lieutenant Governor under article III, section 9 of the Texas Constitution is required to serve on the Legislative Redistricting Board established by article III, section 28 (RQ-0388-JC)

Dear Governor Ratliff:

You request our opinion as to whether the person elected to perform the duties of Lieutenant Governor under the terms of article III, section 9 of the Texas Constitution is required to serve as a member of the Legislative Redistricting Board pursuant to article III, section 28 of the Texas Constitution. We answer in the affirmative.

(Footnote: See Letter from Honorable Bill Ratliff, Lieutenant Governor of Texas, to Honorable John Cornyn, Attorney General of Texas (June 5, 2001) (on file with Opinion Committee).)

Article III, section 9 of the Texas Constitution provides, in relevant part:

(a) The Senate shall, at the beginning and close of each session, and at such other times as may be necessary, elect one of its members President pro tempore, who shall perform the duties of the Lieutenant Governor in any case of absence or temporary disability of that officer. If the office of Lieutenant Governor becomes vacant, the President pro tempore of the Senate shall convene the Committee of the Whole Senate within 30 days after the vacancy occurs. The Committee of the Whole shall elect one of its members to perform the duties of the Lieutenant Governor in addition to the member's duties as Senator until the next general election. If the Senator so elected ceases to be a Senator before the election of a new Lieutenant Governor, another Senator shall be elected in the same manner to perform the duties of the Lieutenant Governor until the next general election. Until the Committee of the Whole elects one of its members for this purpose, the President pro tempore shall perform the duties of the Lieutenant Governor as provided by this subsection.

TEX. CONST. art. III, § 9(a) (emphasis added). Pursuant to these provisions, and as a member of the Senate that convened in January 2001, you were elected by your colleagues to "perform the duties of the Lieutenant Governor . . . until the next general election." See id. You ask whether those duties encompass service on the Legislative Redistricting Board.

Article III, section 28 of the Texas Constitution requires that the Legislature, "at its first regular session after the publication of each United States decennial census, apportion the state into senatorial and representative districts." Id. art. III, § 28. This provision further declares that "[i]n 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." Id. The 2000 decennial census was published while the Seventy-seventh Texas Legislature was in session. The Texas Supreme Court has held that "the overriding intent of the people in adopting Sec. 28 was to permit apportionment of the state into legislative districts at the regular session of the Legislature which is convened in January following the taking of the census, if publication is either before convening or during the session." Mauzy v. Legislative Redistricting Bd., 471 S.W.2d 570, 573 (Tex. 1971) (emphasis added). Thus, the Seventy-seventh Texas Legislature was the proper session in which to undertake legislative redistricting. It failed to do so, however, prior to adjourning on May 28, 2001. As a result, under the terms of article III, section 28, the task of redistricting falls to the Legislative Redistricting Board.

(Footnote: House Bill 150 was passed by the House, but not the Senate. See Tex. H.B. 150, 77th Leg., R.S. (2001). Senate Bill 499 was introduced in the Senate, but failed passage there. See Tex. S.B. 499, 77th Leg., R.S. (2001).)

The Legislative Redistricting Board (the "Board"), created by article III, section 28, is "composed of five (5) members, as follows: The Lieutenant Governor, the Speaker of the House of Representatives, the Attorney General, the Comptroller of Public Accounts and the Commissioner of the General Land Office." TEX. CONST. art. III, § 28. The Board is required to "assemble in the City of Austin within ninety (90) days after the final adjournment" of the regular legislative session. Id. Then, within sixty (60) days of assembling, the Board must "apportion the state into senatorial and representative districts, or into senatorial or representative districts, as the failure of action of such Legislature may make necessary." Id. (emphasis added). Furthermore, "[t]he Supreme Court of Texas shall have jurisdiction to compel such Commission to perform its duties in accordance with the provisions of this section by writ of mandamus or other extraordinary writs conformable to the usages of law." Id.

Article III, section 9, as noted previously, requires that the Senate, in the event of a vacancy in the Office of Lieutenant Governor, elect one of its own members "to perform the duties of the Lieutenant Governor." Id. art. III, § 9 (emphasis added). The Senate has done so. One of the constitutional duties of the Lieutenant Governor, pursuant to article III, section 28, is to serve as a member of the Legislative Redistricting Board and, as a member, to participate in the constitutional mandate to "apportion the state into senatorial and representative districts." Id. art. III, § 28. The Texas Constitution thus makes clear that the person elected by the Senate to serve as Lieutenant Governor must also serve as a member of the Board. He is without discretion in this matter.

In construing the Texas Constitution, the supreme court gives effect to the plain language, and interprets words as they generally are understood. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 148 (Tex. 1995); see also Armbrister v. Morales, 943 S.W.2d 202, 205 (Tex. App.-Austin 1997, no writ). Furthermore, both provisions of the constitution at issue here use the word "shall": "shall elect one of its members to perform the duties of the Lieutenant Governor"; and "shall be composed of five (5) members, as follows: The Lieutenant Governor. . . ." See TEX. CONST. art. III, §§ 9, 28. When "shall" is used in a constitutional provision, the term is mandatory and not merely permissive. See Wood v. State ex rel. Lee, 126 S.W.2d 4, 9 (Tex. 1939). In our opinion, the "plain language" of article III, section 9 and article III, section 28 leaves no doubt that the voters who adopted those amendments intended that the individual elected to perform the duties of Lieutenant Governor is required, as one of those constitutional duties, to serve as a member of the Legislative Redistricting Board. Because that individual is required to serve as a member of the Legislative Redistricting Board, it naturally follows that the fact of his service thereon will have no adverse legal impact on any redistricting plan adopted by the Board.

SUMMARY

The person elected to perform the duties of Lieutenant Governor under the terms of article III, section 9 of the Texas Constitution is required, as one of those constitutional duties, to serve as a member of the Legislative Redistricting Board.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee