Mauzy v. Legislative Redistricting Board, B--2955

• Decision Date: 27 September 1971
• Docket Number: No. B--2955,B--2955
• Citation: 471 S.W.2d 570
• Parties: Oscar H. MAUZY, Relator, v. The LEGISLATIVE REDISTRICTING BOARD et al., Respondents.
• Court: Texas Supreme Court

Page 570

471 S.W.2d 570

Oscar H. MAUZY, Relator, v. The LEGISLATIVE REDISTRICTING BOARD et al., Respondents.

No. B--2955.

Supreme Court of Texas.

Sept. 27, 1971.

Tony Korioth, Austin, for relator.

Crawford Martin, Atty. Gen., Pat Bailey, Asst. Atty. Gen., Austin, for respondent.

Mitchell, Gilbert & McLean, Arthur Mitchell, Fred Head, Austin, for intervenor.

CALVERT, Chief Justice.

Sec. 28, Art. III, Constitution of Texas, Vernon's Ann.St. provides:

'Sec. 28. The Legislature shall, at its first regular session after the publication of each United States decennial census, apportion the state into senatorial and representative districts, agreeable to the provisions of Sections 25, 26, and 26--a of this Article. In 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, which is hereby created, and shall be 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, a majority of whom shall constitute a quorum. Said Board shall assemble in the City of Austin within ninety (90) days after the final adjournment of such regular session. The Board shall, within sixty (60) days after assembling, 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. * * * The 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. * * *'

The section in its present form was adopted as an amendment to the constitution in 1948.

The regular session of the 62nd Legislature, which convened January 12, 1971 and adjourned May 31, 1971, enacted a statute, ch. 981, p. 2974 (art. 195a--3, §§ 1--5, Vernon's Ann.Civ.St.), apportioning the state into representative districts, but it failed to enact a statute apportioning the state into senatorial districts. The officials constituting the Legislative Redistricting Board as provided in the constitution met formally for the first time on August 24, 1971 for the announced purpose of apportioning the state into senatorial districts.

On August 10, 1971, the District Court for the 53rd Judicial District, Travis County, declared the representative district apportionment act invalid, and a direct appeal was taken to this court. On September 16 we affirmed the trial court's judgment. See Smith, et al. v. Craddick et al., 471 S.W.2d 375 (Tex.Sup.1971).

Following our action in Smith v. Chaddick, relator, Honorable Oscar H. Mauzy, through counsel, petitioned the Legislative Redistricting Board to proceed to apportion the state into representative as well as senatorial districts. The Board declined, stating in a formal resolution as its reason for so doing that it was the Board's official position that it had no jurisdiction to apportion for representative districts inasmuch as the Legislature had enacted a statute apportioning for such districts, and the invalidation of the statute by judicial action did not serve to confer jurisdiction on the Board. As a consequence of that action, relator instituted this direct proceeding in this court seeking, primarily, a writ of mandamus to compel the Board to redistrict for representative districts.

On September 17 we authorized intervention in the proceeding by Honorable Fred Head, a member of the House of Representatives, who had been asserting in a suit in the trial court, and wished to assert here, that the 1970 decennial census had not been 'published' before the regular session of the 62nd Legislature convened that the regular session of the 63rd Legislature which convenes the second Tuesday in January, 1973, will, therefore, be the 'first regular session' After ¹ publication of the census, and only it has jurisdiction under the constitution to redistrict; that since the regular session of the 62nd Legislature had no jurisdiction to redistrict, the Board has none.

The contention of intervenor should be considered first; if it is sound, all other issues in the case are moot and immaterial. However, we do not think the contention is sound.

Admittedly, the language of the opening sentence of Sec. 28, Art. III, quoted above, is subject to the interpretation intervenor places upon it; but when we consider the object and purpose of Sec. 28, in the light of its history, we do not think the interpretation is a reasonable one. That object and purpose obviously was to get on with the job of legislative redistricting which had been neglected or purposely avoided for more than twenty-five years. Intervenor's interpretation would require interpolation of the word 'convened' into the constitutional provision and he would thus interpret it as saying that the Legislature shall apportion into districts 'at its first regular session (convened) after publication of each United States decennial census. * * *' The law permits the interpolation of words into a constitutional or statutory provision when necessary to achieve clear intent, Sweeny Hospital District v. Carr, 378 S.W.2d 40, at 47 (Tex.Sup.1964); Halbert v. San Saba Springs Land & Live-Stock Ass'n, 89 Tex. 230, 34 S.W. 639, 49 L.R.A. 193 (1896); but interpolation should not be resorted to when to permit it will defeat overriding intent.

We are convinced 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. We recognize that this interpretation can mean that on some occasions the Legislature may have only a few weeks, or even only a few days, in which to put the finishing touches on a redistricting bill, with jurisdiction in the Board to complete the task in the event of legislative failure; but the other side of the coin can be a two year delay in making legislative redistricting effective if redistricting legislation must be postponed until a second regular session when census publication occurs a few days or a few weeks after convening of the first regular session. Having concluded that intervenor is wrong in his basic position, we find it unnecessary to decide when 'publication' of the 1970 census actually occurred, although we note in passing that intervenor's counsel stated in oral argument that by February 18, 1971, the Legislature had been furnished all census figures necessary to apportion the state into legislative districts.

The next issue which commands our attention is whether enactment of the invalid statute attempting apportionment of the state into representative districts robs the Board of jurisdiction to apportion the state into such districts. We hold that it does not.

In support of its position that it does, the Board cites, particularly, State ex rel. Lein v. Sathre, 113 N.W.2d 679 (N.D.Sup.1962) and Yorty v. Anderson, 60 Cal.2d 312, 33 Cal.Rptr. 97, 384 P.2d 417 (1963). Decisions of courts of other jurisdictions, even if based upon identical facts, are no more than persuasive, and they are persuasive only to the extent that their reasoning is regarded as logical. State v. Sathre is obviously inapposite. It appears from the opinion in the case that North Dakota, like Texas, has provided in its constitution for a board or commission to apportion the state into legislative districts if the legislature fails to do so at its first regular session after each decennial census. The board is required to make its apportionment within ninety days after adjournment of the legislative session. The legislature failed to apportion and the board proceeded to perform its duty. The supreme court declared the apportionment invalid, and, in response to an argument that the ninety day period having expired and there was no agency having authority to apportion further, the court held that the legislature had continuing authority to apportion into legislative districts. That is not our question.

The...