Texas Attorney General Opinion: DM-6 Page: 6 of 13
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Honorable Chet Brooks - Page 6 (DM-6)
Honorable Tom Uher
the PES. The PES is in effect a mini-census based on additional enumeration efforts of a
substantial magnitude, different in kind from the steps leading to past technical corrections.
The PES and data derived from it will form the basis for the department's decision
about whether to adjust the census. Under guidelines adopted by the department, the
adjustment will not take place unless, among other things, "[t]he resulting counts [are] of
sufficient quality and level of detail to be usable for... legislative redistricting." Cityof
New York v. Department of Commerce, 739 F. Supp. 761, 769 (E.D.N.Y. 1990) (emphasis
in original).
The circumstances surrounding the upcoming census adjustment decision, especially
the massive new data gathering preceding it, lead us to the conclusion that should an
adjustment occur, it will constitute a new "publication" of the decennial census under the
Texas Constitution. If the adjustment is made, it too will be a "publication" of the federal
decennial census, regardless of the degree of difference in the adjusted and unadjusted
data.
If an adjustment and therefore a second publication occurs, a question would arise
as to whether the LRB would be empowered to undertake its constitutional redistricting
responsibilities, and what effect the LRB's acquisition would have on the legislature's
reapportionment jurisdiction. We address the latter part of the question first.
At first glance, the plain words of article HI, section 28, suggest that the legislature
has no state legislative redistricting powers in a special session between census publication
and a regular session.2 In contrast to the pre-1948 version of the provision which referred
to the "first session," the current provision mandates legislative action at its "first regular
session" following publication.
The Texas Supreme Court was not presented and did not answer the question in
Mauzy, 471 S.W.2d at 574, although some of its language seems to implicitly endorse the
2 Article HI, section 28, does not speak to congressional redistricting or state board of education
redistricting. Thus, it is not a restriction on the legislature's powers during a special session concerning those
two activities. There being no other state constitutional provisions on this topic, the legislature has the power to
undertake redistricting during special sessions for congressional and state board of education seats. Cf.
Attorney General Opinon 0-6488 (1945) (predating the 1948 amendments which added "regular session"
language to article III, section 28, and suggesting that redistricting is a "continuing duty" which may be
performed during special session).p. 30
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Texas. Attorney-General's Office. Texas Attorney General Opinion: DM-6, text, February 27, 1991; (https://texashistory.unt.edu/ark:/67531/metapth273813/m1/6/?q=%22%22~1: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.