No. DM-0006 (1991).

• Case Date: February 27, 1991
• Court: Texas

Texas Attorney General Opinions 1991. No. DM-0006 (1991). February 27, 1991Opinion No. DM-006Morales Opinion No. DM-006 Office of the Attorney General State of TexasHonorable Chet BrooksChairmanSenate Committee of the Whole on RedistrictingLegislature of the State of TexasP. O. Box 12068 Austin, Texas 78711-2068Honorable Tom UherChairmanHouse Redistricting CommitteeTexas House of RepresentativesP. O. Box 2910Austin, Texas 78768-2910SYLLABUS: 1991-0006Re: Whether release of census counts subject to possible adjustment constitutes publication of the United States decennial census for purposes of article III, section 28, of the Texas Constitution and related questions (RQ-24)Dear Gentlemen: You request advice on matters relating to the construction of article III, section 28, of the Texas Constitution, the provision establishing the legislature's duty to apportion the state into senatorial and representative districts. The state constitution directs the legislature to apportion state senatorial and representative districts ("legislative districts") at the first regular session "after the publication of each United States decennial census." Tex. Const. art. III, section 28. If, during such session "following the publication of a United States decennial census," the legislature "fail[s] to make such apportionment," the Legislative Redistricting Board ("LRB") is required to apportion. Id. A census publication during a regular session immediately activates the constitutional apportionment duties of both the legislature and, if it fails, the LRB. Mauzy v. Legislative Redistricting Bd., 471 S.W.2d 570 (Tex. 1971). The underlying purpose of the 1948 constitutional amendment to article III, section 28, having been to " get on with the job of . . . redistricting," the constitutional obligations are activated at the earliest possible moment: [T]he overriding intent of the people . . . 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. Id. at 573. The Mauzy court explicitly avoided stating when "publication" occurred; however, in the same passage in which it declined to resolve the issue, the court highlighted that by a certain date in early 1971 (during a regular legislative session) "the Legislature had been furnished all census figures necessary to apportion the state into legislative districts." Id. The 1990 census presents Texas with unique circumstances. While there has been no injunction prohibiting the census enumeration from going forward, there has been an injunction, in the form of a stipulation of the parties to a lawsuit approved by a federal district court, which makes the reporting and publishing of the results of the enumeration provisional, until July 15, 1991, at the latest. Stipulation and Order, City of New York v. United States Dep't of Commerce, No. 88 CV 3474 (E.D.N.Y. July 17, 1989) ("City of New York"). Texas is a party to the lawsuit and is bound by the stipulation. See, City of New York (Order of July 13, 1990). The provisional nature of the census population counts is occasioned by the requirement that the United States Department of Commerce ("department") follow a specified course of action that must culminate in its determination no later than July 15, 1991, whether to make a statistical adjustment of the 1990 decennial census. If it decides to adjust, the adjustment must be made and published by the deadline; if it decides not to adjust, a detailed explanation must be given by the deadline. The specified course of action is unique in census annals. Paragraph 3 of the stipulation requires the department to undertake a post-enumeration survey ("PES") "of not fewer than 150,000 households . . . as part of the 1990 Decennial Census in a manner calculated to ensure the possibility of using the PES . . . to produce corrected counts usable for . . . legislative reapportionment." Information submitted in connection with this request shows that between 164,000 and 170,000 households were surveyed in the PES. Paragraph 6 of the stipulation requires that the federal government's release or publication of "any population counts" from the 1990 census prior to the adjustment decision bear the following legend: 'The population counts set forth herein are subject to possible correction for undercount or overcount. The United States Department of Commerce is considering whether to correct these counts and will publish corrected counts, if any, not later than July 15, 1991.' On February 5, 1991, the Census Bureau, an arm of the department, reported to the Governor of Texas the population counts described in section 141(c) of title 13 of the United States Code. The bureau describes these reports of population figures as "public law 94-171 counts," in reference to the enactment that adopted the provision codified as section 141(c). See generally Pub. L. No. 94-171, 89 Stat. 1023 (1975). These counts contain the disclaimer required by paragraph 6 of the City of New York stipulation and order. NOTWITHSTANDING THEIR PROVISIONAL NATURE, THE RELEASE OF THE PUBLIC LAW 94-171 COUNTS ON FEBRUARY 5, 1991, IS A "PUBLICATION" UNDER TEXAS CONSTITUTION ARTICLE III, SECTION 28, AND THE LEGISLATURE MAY PROCEED TO FULFILL ITS LEGISLATIVE REDISTRICTING DUTIES The release of the public law 94-171 counts means that the legislature now has population counts at a geographic level sufficient to perform its task of legislative redistricting. The question is whether the release of these counts is a "publication'' triggering the constitutionally imposed redistricting duties of the legislature and, if necessary, the LRB. The question is one of state, not federal, law. Because the 1948 state constitutional amendment (effective beginning in 1951) was enacted without regard to the unique circumstances attending the 1990 census, we cannot answer the crucial question without considering the purpose of the amendment and the legal and practical consequences of taking the purpose into account in determining its meaning and reach. The task of discerning the amendment's basic purpose is eased enormously by the Mauzy decision. The purpose of the amendment is to establish a structure which compels expeditious reapportionment action for state legislative seats. That is, it forces the state government to "get on" with the task of redistricting. The task is assigned initially to the legislature. If it fails to act, even when it has had the necessary data only for a few days, under Mauzy the task falls to the LRB. We must construe the meaning of "publication" against this...