Carr v. Brazoria County, Texas

• Decision Date: 05 February 1972
• Docket Number: Civ. A. No. 71-G-210.
• Citation: 341 F. Supp. 155
• Parties: Lloyd J. CARR, Jr., et al., Plaintiffs, v. BRAZORIA COUNTY, TEXAS, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

341 F. Supp. 155

Lloyd J. CARR, Jr., et al., Plaintiffs, v. BRAZORIA COUNTY, TEXAS, et al., Defendants.

Civ. A. No. 71-G-210.

United States District Court, S. D. Texas, Galveston Division.

February 5, 1972.

Davis & Kee, Angleton, Tex., Butler, Binion, Rice, Cook & Knapp, and John L. McConn, Jr., Houston, Tex., for plaintiffs.

Ogden Bass, Crim. Dist. Atty., and R. L. McElyea, Asst. Crim. Dist. Atty., Brazoria County, Tex., for defendants.

Crawford C. Martin, Atty. Gen., and W. O. Shultz, II, Asst. Atty. Gen., Austin, Tex., for intervenor, The State of Texas.

David C. Bonnen, Angleton, Tex., amicus curiae.

MEMORANDUM AND ORDER

NOEL, District Judge.

I. Preface

This is a class action brought by several residents of Brazoria County, Texas, against the county, its commissioners court, its four county commissioners, and its county judge. Plaintiffs sue in behalf of the qualified voters of commissioners precincts #2 and #4 of Brazoria County, and complain that defendants' administration of the State's election laws is operating to deny them equal protection of the laws and due process of law in violation of the Fourteenth Amendment to the Federal Constitution. Jurisdiction is predicated upon 28 U.S.C. § 1343(3).

The alleged deprivation arises from the apparently successful effort of defendants to conform to the one-man-one-vote principle announced in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and held applicable to county governments in Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). In obedience to this constitutional command, defendant commissioners, by order and resolution of August 31, 1970, revised the borders of the commissioner precincts to encompass substantially equal population groups. This redistricting became effective January 1, 1971, and its result was as follows:

precinct #1 contains 27,318 persons;

precinct #2 contains 26,230 persons;

precinct #3 contains 26,885 persons; and

precinct #4 contains 25,797 persons.

Plaintiffs concede that this apportionment produced commissioners precincts of substantially equal population in conformity with Avery. No challenge is raised against this apportionment as a substantive result, nor is it contended that the division of population is gerrymandered or otherwise invidiously discriminatory in result. The only complaint is that the commissioners court, acting in good faith, conducted the mechanics of this redistricting in such a manner as to deprive certain persons of the right to vote for commissioners in the 1972 party primaries and general election, when such persons would have enjoyed this right had the redistricting not occurred.

To effectuate the redistricting in adherence to the constitutional arithmetic of Avery, it was necessary to transfer a number of persons from precincts #1 and #3 to precincts #2 and #4. This was done by altering the precinct boundary lines. The effect was to add 18,130 persons ("transferees") to precinct #2, so that 68% of the persons in that precinct were included therein as a result of the redistricting. In precinct #4, 11,748 persons were added, and they now constitute 42% of the persons residing in that precinct. In view of the requirement of Article XVI, Section 65 of the Constitution of Texas, Vernon's Ann.Tex. St., that commissioner terms be staggered,¹ the incumbent commissioners for precincts #2 and #4 were elected in the general elections of 1970 and will not again stand for election until 1974. Therefore, by reason of having been transferred to precincts #2 and #4, these former residents of precincts #1 and #3, who would otherwise have been entitled to vote in the 1972 commissioner elections, must now wait until 1974 to exercise their franchise.

Perhaps foreseeing this problem, the Texas Legislature has by statute provided a device which might arguably alleviate the hardship. Tex.Rev.Civ.Stat.Ann. art. 2351½(a) provides:

(a) Whenever the Commissioners Court changes the boundaries of commissioners precincts or of justice precincts, it may specify in its order a future date, not later than the first day of January following the next general election, on which the changes shall become effective. If an election for any precinct office is held before the effective date of the order, the office shall be filled at the election by the voters of the precinct as it will exist on the effective date of the change in boundaries. A person who has resided within the territory embraced in the new boundaries for the length of time required to be eligible to hold the office shall not be rendered ineligible by virtue of the precinct's not having been in existence for that length of time.

Since the 1970 general election fell between the August 31, 1970 redistricting order and its January 1, 1971 effective date, this statute would appear to have authorized the defendants to conduct the election so that the proposed transferees from precincts #1 and #3 might have voted for commissioners for new precincts #2 and #4. This, of course, would have obviated the present controversy.

For reasons apparently sufficient to defendants, the procedure established by Article 2351½(a) was not implemented. This is the gravamen of the instant complaint, as plaintiffs assert in their petition that this omission on the part of defendants "arbitrarily and unnecessarily denied the plaintiffs and the class which plaintiffs represent in this action their right to vote for their county commissioners," in violation of the Fourteenth Amendment to the Federal Constitution. To remedy the alleged deprivation, it is urged that this Court order commissioners places #2 and #4 to be vacant and subject to election in 1972, along with places #1 and #3.² Functionally, of course, this would be the equivalent of an order removing the affected county commissioners from office two years prior to the legal expiration of their terms.³ The State of Texas has intervened as a party defendant and has appeared by its Attorney General.⁴

II. The Three Judge Statutory Court Issue

The threshold issue presented is whether this Court must notify the Chief Judge of this Circuit for the purpose of convening a three-judge district court pursuant to 28 U.S.C. §§ 2281, 2284. Defendants contend that this is a three-judge court case because it necessarily implicates the constitutionality of the Texas scheme for staggered elections. In response, plaintiffs have vigorously urged in oral argument and briefs that this is not such a case.

Defendants' contention is without merit. It is clear from the amended complaint, oral argument, and briefs, that plaintiffs do not challenge the federal constitutionality of the Texas election laws. They merely challenge the constitutionality of an action of a local body in applying those laws,⁵ and it is well settled that this will not support the convocation of a three-judge court. As the Supreme Court stated in Ex Parte Bransford, 310 U.S. 354, 361, 60 S.Ct. 947, 951, 84 L.Ed. 1249 (1940):

It is necessary to distinguish between a petition for injunction on the ground of the unconstitutionality of a statute as applied, which requires a three-judge court, and a petition which seeks an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute which is not attacked as unconstitutional. The latter petition does not require a three-judge court. In such a case the attack is aimed at an allegedly erroneous administrative action.

Cf. Dyer v. Rich, 259 F.Supp. 736 (N.D. Miss.1966); Pervis v. LaMarque Independent School District, 328 F.Supp. 638 (S.D.Tex.1971). It follows that this is not a three-judge court case. Accordingly, this Court must decline to notify the Chief Judge of this Circuit for the purpose of convening a three-judge district court.

III. Absence of a Federal Constitutional Deprivation

In this one-judge district court case, a trial has now been had, the facts summarized above have now been established by the evidence, the case has been fully briefed, the arguments of counsel heard, and the facts, briefs and arguments have been carefully considered by the Court. All defendants have filed answers and additionally, defendants at trial moved to dismiss plaintiffs' complaint. The case is ripe for decision. The lodestar by which our inquiry must be guided is Pate v. El Paso County, 337 F.Supp. 95 (W.D.Tex. 1970), aff'd 400 U.S. 806, 91 S.Ct. 55, 27 L.Ed.2d 38 (1970).

In Pate, the plaintiffs sued to compel the commissioners court of El Paso County, Texas, to redraw its precincts in accordance with Avery. This was done, and the three-judge district court ordered the redistricting plan to be implemented. However, plaintiffs also alleged that in the realignment of the precincts those voters who were shifted from precinct #2 to precincts #1 and #3 would be unconstitutionally deprived of their vote in the 1970 elections, due to the Texas constitutional provision requiring staggered terms. In practical effect, this is precisely the deprivation complained of in the instant case. The Court found no merit in this argument and concluded that "(s)ection 65 of Article XVI, neither upon its face or as applied in the instant case, effectuates an unconstitutional denial of the right to vote." 337 F.Supp. at 96 (emphasis added). Despite the fact that its effect was to postpone the vote of certain "transferees" for a period of two years, the staggering provision was held to be a reasonable and nondiscriminatory mechanism calculated to assure continuity of membership and experience on the commissioners court, "thereby providing for more efficient and effective county government." 337 F. Supp. at 98.

Plaintiffs at bar would seek to distinguish Pate because that case was tried on the theory of a constitutional attack upon the state electoral laws providing for staggered terms, whereas the thrust of the instant complaint is the asserted unconstitutional omission...