Upham v. White

639 S.W.2d 301 (1982)

Chester R. UPHAM, et al., Appellants, v. Mark WHITE, et al., Appellees.

No. C-1068.

Supreme Court of Texas.

March 11, 1982.

Rehearing Denied October 13, 1982.

Graves, Dougherty, Hearon & Moody, John M. Harmon and R. James George, Jr., Austin, Crews, Field, Steele & Page, J. Ritchie Field, Conroe, for appellants.

Mark White, Atty. Gen., Richard Gray and James R. Meyers, Asst. Attys. Gen., Bickerstaff, Heath & Smiley, Steve Bickerstaff, Austin, for appellees.

CAMPBELL, Justice.

This is a direct appeal from the denial of a permanent injunction by the 261st District Court of Travis County, Texas. Appellants sought to enjoin enforcement of the Senate Redistricting Plan of the Legislative Redistricting Board. Tex.Const. art. III, § 25, provides in part that senatorial districts shall be apportioned "according to the number of qualified electors, as nearly as may be." Appellants allege the plan contravenes the Texas Constitution because the Board used 1980 U.S. Census total population figures for senatorial apportionment. We dismiss the cause.

On March 5, 1982, after this Court heard oral arguments in this cause, a three-judge United States District Court issued a summary opinion[1] and ordered that the 1982 elections, including state senatorial elections, be held on the constitutional primary election date.

The United States District Court adopted for its temporary emergency plan the Legislative Redistricting Board's Plan. The order further provided the temporary plan will remain in effect for all elections through December 31, 1983, unless valid reapportionment plans are sooner enacted. implementing a plan for the 1982 election. The Supremacy Clause[2] makes the order of that Court binding on state courts. See Wise v. Lipscomb, 437 U.S. 535, 98 S. Ct. 2493, 57 L. Ed. 2d 411 (1978). Because, under *302 the above order of the United States District Court, reapportionment must be reconsidered either by the legislative process or by the federal courts, the constitutionality of the Board's Plan under the Texas Constitution is not now before us.

This cause is now moot and is dismissed.

[1] Terrazas, et al. v. Clements, et al., Civil Action No. 3-81-1946, in the United States District Court for the Northern District of Texas, Dallas Division, Summary Opinion and Order of March 5, 1982. The three-judge panel consisted of United States Circuit Judge Carolyn Dineen Randall and District Judges Barefoot Sanders and Jerry Buchmeyer.

[2] U.S.Const. art. VI, cl. 2.