Terrazas v. Ramirez

CORNYN, Justice,

concurring.

I concur with the judgment of a majority of the court, but for reasons that differ from those expressed in the plurality opinion. Although I agree with sections I, III (except the conclusion that Relators have not demonstrated a right to the writ of mandamus against the Attorney General), and the first paragraph of section IV.A of the plurality opinion, I would hold that the Attorney General exceeded his authority and I would not reach the issues discussed in sections II and IV.B. For those reasons, I write separately.

This case concerns a fundamental principle of American constitutional jurisprudence, the doctrine of separation of governmental power. The founding fathers of this nation and this state plainly understood that the best way to control governmental power is to divide it. They knew that it was only by balancing the powers of one branch of government against the powers of the other two that any degree of freedom for the people could be preserved. As James Madison, the father of the United States Constitution wrote:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

James Madison, The Federalist No. 47 (sesquicentennial ed. 1937). This case is not just about this particular Attorney General, who ostensibly agreed to a substitute reapportionment of the Texas Senate after a trial court had temporarily enjoined use of the legislature’s own reapportionment of the senate. Indeed, the Attorney General, as the state’s lawyer, asserts that he was caught in a constitutional conundrum. With the filing period for candidates beginning December 3, 1991 and the trial court having enjoined implementation of Senate Bill 31 (S.B. 31), the potential loomed for a delay in the upcoming elections. General Morales may have in good faith believed that, when confronted with the hard choices before him, the best course was to agree to a substitute reapportionment for S.B. 31 and request that the Governor call a special session to pass another reapportionment plan. See TEX. CONST., art. Ill, §§ 5, 40. Governor Richards, it has been reported, has steadfastly refused to call a special session for this purpose.

Thus we are confronted, not with a lapse in the constitutional power of reapportionment as some members of this court contend, but a declination by the Governor to allow the legislature to act.1 This presents the issue of the power of the Attorney General, a member of the executive department of Texas government, to agree to a judgment that reapportions the Texas Senate. Based on the following analysis, I can only conclude that he has no such power. By contending that there is no effective limit to the power of the Attorney General to agree to such judgments, the dissent condones the substitution of such agreements for the official acts of the legislature and ignores the evils that limitations on *732governmental power are intended to prevent.2 History teaches us all too well the abuses of unlimited governmental power.

I.

I disagree with the plurality’s summary dismissal of the dispute over the Attorney General’s power to agree to a substitute senate reapportionment. We are told the issue is not whether he had the authority to agree, but the effect of his agreement. While satisfactory to vacate the void judgments below, a result with which I agree, this, I submit, is a judicial focus on the symptom rather than the disease. In my opinion, if the Attorney General has the power to substitute his agreement for the legislature’s constitutionally granted power of reapportionment, whatever evidentiary gyrations must be undertaken before the court blesses it are only window dressing. Is it any less likely that the trial court that entered these agreed judgments would have entered a different judgment if the parties were required to engage in a perfunctory evidentiary hearing? Clearly not.

All governmental authority in this state emanates from the citizenry. TEX. CONST, art I, § 2. In their written constitution, Texans have delegated to the Legislature, or in limited circumstances to the Legislative Redistricting Board (hereinafter LRB), the authority to draw legislative district lines. Article III, § 28 of the Texas Constitution provides in pertinent part:

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 reapportionment, 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.

Because the constitution expressly grants the redistricting power for senatorial and representative districts to the legislature and the LRB and describes the means for exercising the power, such are the exclusive means by which the power can be exercised. See Parks v. West, 102 Tex. 11, 111 S.W. 726, 727 (1908) (“It is a rule for the construction of constitutions, constantly applied, that where a power is expressly given and the means by which, or the manner in which, it is to be exercised is prescribed, such means or manner is exclusive of all others.”); accord Houchins v. Plainos, 130 Tex. 413, 110 S.W.2d 549, 553 (1937). Accordingly, the executive branch, including the Attorney General, has no reapportionment power.

This conclusion is also compelled by the doctrine of separation of powers, implicit in the federal constitution, A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529, 55 S.Ct. 837, 842-43, 79 L.Ed. 1570 (1935), but explicit in the Texas Constitution. The separation of powers provi*733sion, which has been present in every Texas Constitution since 1845, declares:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one, those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

Tex. Const, art. II, § 1. Thus, under our constitution, it is only by express constitutional provision that the executive department could legitimately exercise the redistricting power.3 As has been noted, under article III, § 28, that power is expressly granted to the legislature and the LRB, not to the executive department.

Finally, this holding is compelled by the absence of specific constitutional authorization for the Attorney General’s agreement to the substitute senate districts ordered by the trial court’s judgment.4 It is true that the Constitution and laws of this state generally grant the Attorney General broad authority in exercising his role as the state’s lawyer. Maud v. Terrell, 109 Tex. 97, 200 S.W. 375, 376 (1918) (upholding the exclusive constitutional grant to the Attorney General to represent the Comptroller, as a state official); Bullock v. Texas Skating Assoc., 583 S.W.2d 888, 894 (Tex.Civ.App.—Austin 1979, writ ref’d n.r.e.) (holding that it is within the authority of the Attorney General to decide whether to appeal an adverse judgment). But, it is fundamental to our jurisprudence that the Attorney General may only act within his constitutional or statutory authority. Day Land & Cattle Co. v. State, 68 Tex. 526, 4 S.W. 865, 867 (1887). Any of his actions beyond the scope of his delegated power are not binding on the state.5 State v. Reagan County Purchasing Co., 186 *734S.W.2d 128, 135 (Tex.Civ.App.—El Paso 1944, writ ref’d w.o.m.). This is because

“[t]he powers conferred by the Constitution upon the state officials are generally held to be exclusive, and except in the manner authorized by the Constitution, these powers cannot be enlarged or restricted.”

Garcia v. Laughlin, 155 Tex. 261, 285 S.W.2d 191, 194 (1955).

The general discretionary power of the Attorney General to'settle lawsuits on behalf of the state is not the issue here. As a general rule, he has such authority. Executive Condominiums, Inc. v. State, 764 S.W.2d 899, 902 (Tex.App.—Corpus Christi 1989, writ denied). But c.f Bell v. State, 727 S.W.2d 806, 809 (Tex.App.—Austin 1987, writ ref’d n.r.e.) (Attorney General cannot settle a case for “less than that to which the State [is] clearly entitled_”). However, the Attorney General as a member of the executive department, simply cannot settle a case in a manner that usurps the express constitutional authority of another department of government.

II.

The Attorney General also argues that the request of nineteen senators who agreed to the reapportionment plan substituted by the trial court’s judgment in this case validates his authority to agree to a substitute reapportionment of the senate. Clearly, that cannot be the case.

First, the Senate has no power to convene itself. Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324, 328 (1946). However the nineteen senators convened, it was not an official convocation of the Texas Senate, and their acts do not carry the force of law. Any official act attempted by a separate meeting of Senators not convened in a regular or special session is a nullity. See OP.TEX.ATT’Y GEN. NO. 0-7061 at 9 (1946).6

Furthermore, any argument that nineteen senators could legally have exercised the redistricting power is further eroded by the fact that only members of the Senate were involved. The redistricting power can only be exercised by the entire legislature, consisting of the Senate and House of Representatives. See Tex. Const, art 3, § 1. Even the Attorney General does not claim the substitute reapportionment plan to be a legislative product, but argues only that it is “infinitely closer to a legislative product” than the plan advocated by Relators7 in other legal proceedings. However, since redistricting is a power exercised by both houses of the legislature, any purported exercise of that authority by nineteen senators outside of a session of the legislature is void and ineffective to invoke the apportionment power granted under article III, § 28.

III.

The Attorney General further contends that Relators are not entitled to the writ of mandamus against him because the settlement agreement has been subsumed in the trial court’s judgment over which he has no power. Thus, he argues, the question of the Attorney General’s exercise of his authority to agree to reapportionment of the Texas Senate has been rendered moot by the trial court’s entry of judgment. I disagree. When a question of this nature is capable of repetition and would otherwise evade review, a court is authorized to proceed to address the issue to avoid future repetition. Dunn v. Blumstein, 405 U.S. 330, 333 n. 1, 92 S.Ct. 995, 997-98 n. 1, 31 L.Ed.2d 274 (1972); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494-95, 23 L.Ed.2d 1 (1969); Southern Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. *735310 (1911). In future cases, where suit is filed and an agreed judgment entered on the same day, no one could ever challenge the power of the Attorney General to bind the state to the terms of a substitute redistricting plan. Such a situation is capable of repetition and yet likely to evade judicial review.8 Thus, this action is not moot and mandamus should conditionally issue to compel the Attorney General to rescind his agreement to the substitute senatorial reapportionment.

IV.

Additionally, relators seek a writ of mandamus commanding the trial court to vacate the agreed judgments ordering the implementation of the substitute senate reapportionment plan. I agree with a majority of the court that the writ should so issue, but for different reasons than those expressed in the plurality opinion.

The Attorney General contends that mandamus should not lie because Relators had an adequate remedy at law available to them which they declined to exercise. Of course, this court will only issue a writ of mandamus directing a district judge to set aside a judgment when the directed course of action is the only proper course, and the petitioner has no other adequate remedy. State v. Thurmond, 516 S.W.2d 119, 121 (Tex.1974). Here, Relators have no other adequate remedy.

Relators are not parties to Mena or Qui-roz. Because they are not parties, Rela-tors have no right to appeal the judgments rendered by the trial court. It is plain that appeal is not an adequate remedy when one has no right to appeal. Further, there is nothing Relators could have done to become parties to the settled suits. Suit was filed, service of citation waived and an agreed judgment signed in Quiroz, all on the same day. Relators had no meaningful opportunity to intervene prior to entry of the agreed judgment. Up until the settlement, the Attorney General was vigorously defending S.B. 31. Because of our stay order, issued in conjunction with the Attorney General’s direct appeal to this court after the trial court granted its temporary injunction, no further proceedings in Mena were permissible. Furthermore, no one had the right to intervene after the entry of judgment. First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex.1984) (no right to intervention after judgment unless court sets judgment aside, even if trial court retains plenary jurisdiction); Comal County Rural High School District No. 705 v. Nelson, 158 Tex. 564, 314 S.W.2d 956, 957 (1958). Thus, Relators have no adequate remedy at law.

There is another reason as well why mandamus should conditionally issue against Judge Ramirez. Ordinarily, entry of a consent judgment is a ministerial act by the trial court. See Pope v. Powers, 132 Tex. 80, 120 S.W.2d 432 (Tex.Comm’n App. 1938, opinion adopted); Travelers Ins. Co. v. Williams, 603 S.W.2d 258, 262 (Tex.Civ.App.—Corpus Christi 1980, no writ). But, for reasons already given, the Attorney General lacked the authority to agree to a plan for reapportionment of senate districts. See also Department of Public Safety v. Great Southwest Warehouses, Inc., 352 S.W.2d 493, 495 (Tex.Civ.App.—Austin 1961, writ ref’d n.r.e.) (Attorney General may not waive sovereign immunity because it would be usurpation of legislative prerogative in violation of the constitutional separation of powers). Furthermore, “[a] judge, even with the Attorney General’s consent, is expressly prohibited [by article 1, § 28 of the constitution] from suspending any valid statute.” Houston Chronicle Publishing Co. v. Mattox, 767 S.W.2d 695, 698 (Tex.1989); see also, State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272, 276 (1939); Tex. Const., art. 1, § 28.9 Not *736even a judgment of a court can serve to enlarge the Attorney General’s powers.10 State ex rel. Downs v. Harney, 164 S.W.2d 55, 56 (Tex.Civ.App.—San Antonio 1942, writ ref d w.o.m.). This court has expressly agreed with the statement of the rule in Harney that:

As the powers and duties of the Attorney General are prescribed by the Constitution and Statutes, those powers must be limited to those so prescribed, and may not be enlarged by the courts.

Garcia v. Laughlin, 155 Tex. 261, 285 S.W.2d 191, 194 (1955) (quoting Harney, 164 S.W.2d at 56). Since the agreed judgment is based on an unauthorized compromise agreement which has potential impact on a substantial right, the right to equal representation in the electoral process, the agreed judgment is void. See Johnson v. Rancho Guadalupe, Inc., 789 S.W.2d 596, 598 (Tex.App.—Texarkana 1990, writ denied); see also State v. $50,600.00, 800 S.W.2d 872, 876 (Tex.App.—San Antonio 1990, writ denied) (where public interest involved, court can vacate an agreed judgment). Thus, the relator’s right to mandamus is not defeated by the fact that the Attorney General's agreed reapportionment plan has been incorporated in the judgments below.

V.

I also disagree with the court’s unwarranted discussion of a Texas trial court’s authority to order a remedial reapportionment. Although I do not doubt the power of our courts to invalidate and enjoin a legislative reapportionment in a proper case, the issue of the constitutional power of our courts to reapportion, and the circumstances under which such a remedy could be ordered are not before us. Without citing a single opinion of any court interpreting the authority of a Texas court under the Texas Constitution to order a reapportionment, the plurality opinion concludes: “Nevertheless, we do not doubt the power of our courts to do so.” 11 In my *737view, any opinion this court might express on this subject in these proceedings would be not only ill-advised, but advisory as well. See Correa v. First Court of Appeals, 795 S.W.2d 704, 705 (Tex.1990) (the “judicial power does not embrace the giving of advisory opinions.”); accord Firemen’s Ins. Co. v. Burch, 442 S.W.2d 331, 333-34 (Tex.1968) (“The courts do not make mere hypothetical adjudications, where there is no presently justiciable controversy before the court, and where the existence of a ‘controversy’ is dependent on the happening of future events.” (eases cited)); Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 646 (Tex.1933) (supreme court has no advisory power). Furthermore, counsel have informed us that a separate settlement and judgment affecting the state house of representatives apportionment has been submitted for preclearance to the Justice Department by the Secretary of State. There are legal challenges to legislative redistricting on going in the federal courts as well. Given the nature and timing of legal challenges to reapportionment on numerous fronts, we can only speculate on the course of future events. Under these circumstances, I am convinced that the under*738standable desire to provide guidance would merely confuse, not clarify, further legal proceedings.

Additionally, unnecessarily deciding that a lone Texas trial court of general jurisdiction has the power to reapportion and the circumstances under which that power may be exercised should be of concern for other practical and procedural reasons as well. In fact, the unprecedented power vested today in our state trial courts raises more questions than answers. For example: What preclusive effect would such a trial court judgment have? Would a prior reapportionment challenge bar a subsequent suit by different parties who may have wholly different interests? Would a determination of invalidity on one constitutional ground bar subsequent litigation on separate and distinct grounds? How is notice to all potential intervenors to be accomplished? Who bears the cost of effecting notice? Can the trial court’s reapportionment be set aside by an intervenor based on inadequate notice? How are multiple concurrent state court challenges in different trial courts to be consistently resolved in the absence of the power to coordinate or consolidate all such trial court proceedings as the federal courts are empowered to do in multidistrict or multicircuit litigation? These are but a few of the unanswered questions which naturally flow from the wholesale engrafting of federal court reapportionment jurisprudence on our state judicial system, not to mention the implicit overruling of innumerable years of Texas constitutional case law.

Under traditional rules of res judicata and collateral estoppel, the risk of inconsistent and conflicting judgments is minimized. The doctrine of collateral estoppel only bars relitigation of (1) facts in a subsequent action that were fully and fairly litigated in a prior action (2) if those facts were essential to the judgment in the prior action and (3) if the parties in the prior action were cast as adversaries. Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984); accord Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex.1990). The doctrine of res judica-ta, as a general rule, only bars relitigation of issues that either were, or reasonably should have been, litigated between the same parties in the prior suit. Griffin v. Holiday Inns of America, 496 S.W.2d 535, 537 (Tex.1973); Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex.1971). Under the view of a majority of the court, the risk of inconsistent statewide reappor-tionments is very real because it is highly unlikely that litigation of a reapportionment claims would often be barred by either collateral estoppel or res judicata. I have no doubt that the rules which the court articulates today will spawn an explosion of state redistricting lawsuits in the future.

VI.

We have also been informed by counsel, and it is reported in the news media, that the Governor has declined to call a special session of the legislature to address reapportionment. We have no official communication, however, to the effect that the Governor refuses to call a special session under any circumstances, including in the event the judgments below are set aside as we order today. The Governor, as is her prerogative, may change her mind; she may not. She may decide to leave reapportionment of our state legislature to the federal courts. Under our constitution, that is her choice alone.

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In conclusion, under the facts of this case, I would hold that the Texas Constitution vests the sole authority to reapportion in the legislature, except when the jurisdiction of the LRB is invoked; the Attorney General has no authority to agree to a judgment reapportioning the senate; and that the trial court’s judgment based on such ostensible agreement is void. For these reasons, I would conditionally grant the writ of mandamus to compel the Attorney General to rescind his agreement upon which the judgment in this case is based. I also agree with a majority of this court that we should conditionally grant the writ to order the trial judge, the Honorable Mario Ramirez, to vacate the agreed judgment *739that orders the implementation of new senatorial districts based on the purported agreement of the parties. I agree that there is no particular reason to grant the writ compelling the Secretary of State to withdraw his submission of the substitute redistricting plan for preclearance by the United States Justice Department because the relief we have granted, I believe, accords relators complete relief. Furthermore, because the Justice Department has already cleared the plan, the issue relating to the Secretary of State is moot.

. Were we to condone the actions challenged here, the potential for the usurpation of the legislature’s constitutional authority by the executive department, of which the Attorney General and the Governor are members, is staggering. Given that under our constitution a special session of the legislature may only convene when called by the Governor, any agreed judgment which supplanted an act of the legislature could not be challenged because of a so-called “constitutional lapse” in the legislature's ability to act. As here, such lapse exists only because the Governor has so far declined to call a special session. The legislature, the elected representatives of the people, would be powerless to pass new legislation overruling such actions until the next biennial general session.

. As Justice Holmes observed, the constraints of law are not primarily designed for persons with good intentions: "[Y]ou must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.” Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 459 (1897). I think it is likely that the framers of the Texas Constitution of 1876 shared Holmes’s view of human nature. The framers were disillusioned with the abuses of government power during Reconstruction and "sought all possible means to forestall oppressive, corrupt and expensive government." Bruff, Separation of Powers Under the Texas Constitution, 68 TEX.L.REV. 1337, 1339 (1990).

. There are exceptions to this rigid prohibition under which legislative authority has been delegated under certain circumstances. See Trimmer v. Carlton, 116 Tex. 572, 296 S.W. 1070, 1079 (1927); Annotation, Permissible Limits of Delegation of Legislative Power, 79 L.Ed. 474, 479-80 (1934). First, it is not an unconstitutional delegation of legislative power for the legislature to grant to a person or governmental entity certain of its powers which the legislature “cannot itself practically and efficiently exercise, such as the making of railroad rates.” Trimmier, 296 S.W. at 1079. Second, the legislature may also delegate "the power to make rules to carry into effect complete laws.” Id.

Third, the legislature may constitutionally delegate the power to find facts upon the ascertainment of which a completed law shall be applicable. Tuttle v. Wood, 35 S.W.2d 1061, 1065 (Tex.Civ.App.—San Antonio 1930, writ ref'd). Fourth, the legislature "may enact a law to become operative upon a certain contingency or future event." Trimmier, 296 S.W. at 1080. Finally, the legislature may delegate legislative authority concerning matters of local concern. Ex parte Brewer, 68 Tex.Crim. 387, 152 S.W. 1068, 1069-70 (1913). Clearly, the power to draw district lines does not fall under any of these exceptions and is not a delegable power.

. JUSTICE MAUZY’s dissent criticizes our "wooden” construction of the constitution and formalistic approach. To the contrary, his dissent echoes the words attributed to former Chief Justice Charles Evans Hughes: "The Constitution is what the judges say it is.” Address by Charles Evans Hughes at Elmira, New York (May 3, 1907).

. The Texas Legislature, since 1846, has limited the Attorney General’s power to make agreements binding on the state:

An admission, agreement, or waiver made by the attorney general in an action or suit to which the state is a party does not prejudice the rights of the state.

TEX.GOVT CODE § 402.004.

Until this court expressly held that the Attorney General, on behalf of the state, was subject to the same rules of civil procedure as any other litigant, Herring v. Texas Department of Corrections, 500 S.W.2d 718, 720 (Tex.Civ.App.—Houston [14th Dist.] 1973), aff'd, Texas Dept. of Corrections v. Herring, 513 S.W.2d 6, 7-8 (Tex.1974); Lowe v. Texas Tech University, 540 S.W.2d 297, 301 (Tex.1976), the Attorney General successfully asserted that this statute even restricted the admissibility against the state of his evidentiary admissions and limited his power to respond to discovery requests that might be binding on the state. Harrington v. State, 385 S.W.2d 411, 417 (Tex.Civ.App.—Austin 1964), rev'd on other grds, 407 S.W.2d 467 (Tex.1966), cert. denied, 386 U.S. 944, 87 S.Ct. 977, 17 L.Ed.2d 874 (1966) (interrogatories); State v. Keeton, 487 S.W.2d 775, 780 (Tex.Civ.App.—Amarillo 1972, writ ref'd n.r.e.), appeal after remand, 487 S.W.2d 775 (Tex.Civ.App.—Amarillo 1972, writ refd n.r.e.) (no admission of party opponent by Attorney General under this statute).

. Such an act is "not authorized by Article 4, Section 12; it contravenes Article 3, Section 5; and it is repugnant to Article 3, Sections 17 and 40, and Article 4, Section 8, and there are other propositions supporting such a conclusion.” Id.

. In his dissent, Justice Mauzy transparently belittles Relators by emphasizing their political party affiliation. Whether any person before this court is a Republican, Democrat or Independent has no bearing on the issues. Moreover, each justice has taken a solemn oath which obligates each of us to apply the law impartially, regardless of the perceived disability of a party’s political affiliation.

. Indeed, it is difficult to see how such actions could ever be reviewed based on this argument. See Public Utility Comm’n v. Cofer, 754 S.W.2d 121, 126-27 (Tex.1988) (Culver, J., dissenting, joined by Spears, J.).

. Prohibitions on suspension of the laws partially restate the principle of separation of powers. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis, art. I, § 28, author’s comment at 85 (1977). Such a prohibition was first declared in the English Bill of Rights of 1689. Id. at 83. As is pointed out *736in the plurality opinion, the agreed judgment in Quiroz did not even purport to hold S.B. 31 unconstitutional, but nevertheless enjoined its use.

. Of course, a redistricting plan ordered by a federal court, as contrasted with one ordered by a state court, is binding on the state under the Supremacy Clause. Upham v. White, 639 S.W.2d 301 (Tex.1982). “The requirement of the United States Constitution takes precedence and any inconsistency therewith in the Texas Constitution is thereby vitiated." Smith v. Craddick, 471 S.W.2d 375, 377 (Tex.1971).

The federal courts did not participate in the reapportionment debate for most of the first 200 years of United States history. Bickerstaff, Reapportionment by State Legislatures: A Guide for the 1980's, 34 SW.L.J. 607, 609-10 (1980). In 1962, the United States Supreme Court finally entered the reapportionment fray when it decided Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The Baker court, however, did not define a remedy for the federal courts to apply when it ruled that a reapportionment plan was unconstitutional. Id. at 198, 82 S.Ct. at 699-700. Justice Douglas, in his concurring opinion, suggested that the district court might direct the state to eliminate the defects in the reapportionment plan or that the district court’s mere suggestion that reapportionment is necessary might stimulate legislative action. Id. at 250 n. 5, 82 S.Ct. at 727 n. 5 (Douglas, J., concurring). The Baker court did not suggest that the district court actually perform the reapportionment itself.

The Supreme Court first approved a federal district court’s remedial apportionment plan in Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1393-94, 12 L.Ed.2d 506 (1964). Since Reynolds, the Supreme Court has repeatedly supported federal district courts’ exercise of the "unwelcome obligation” to reapportion when the state legislature fails to do so. Wise v. Lipscomb, 437 U.S. 535, 540, 98 S.Ct. 2493, 2497, 57 L.Ed.2d 411 (1978); Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 1834, 52 L.Ed.2d 465 (1977). But the district court’s authority to adopt reapportionment plans for state elections rests on the fact that, when the power is exercised, a federal court is exercising authority over state legislation. Baker, 369 U.S. at 210, 82 S.Ct. at 706.

. In arriving at this conclusion, the plurality opinion has imported 35 years of federal court decisions, since the Supreme Court first approved a federal district court’s remedial apportionment plan in Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1393-94, 12 L.Ed.2d 506 (1964), and overlaid it on more than 100 years of Texas Constitutional jurisprudence. But the legal history of this state should not be so readily rewritten. As Justice Holmes wrote: “Upon this point a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.). Some of these federal court decisions incorporated today include: American *737Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990); Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982); McDaniel v. Sanchez, 452 U.S. 130, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981); Connor v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1976); White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973); Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Connor v. Williams, 404 U.S. 549, 92 S.Ct. 656, 30 L.Ed.2d 704 (1972); Sixty-seventh Minnesota State Senate v. Beens, 406 U.S. 187, 92 S.Ct. 1477, 32 L.Ed.2d 1 (1972); Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Ely v. Klahr, 403 U.S. 108, 91 S.Ct. 1803, 29 L.Ed.2d 352 (1971); Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Parsons v. Buckley, 379 U.S. 359, 85 S.Ct. 503, 13 L.Ed.2d 352 (1965) (per curiam); Dickinson v. Indiana State Election Bd., 933 F.2d 497 (7th Cir.1991); Chisom v. Roemer, 853 F.2d 1186 (5th Cir.1988), cert. denied, 488 U.S. 955, 109 S.Ct. 390, 102 L.Ed.2d 379 (1988); Soules v. Kauaians for Nukolii Campaign Committee, 849 F.2d 1176 (9th Cir.1988); Gjerstein v. Board of Election Comm’rs, 791 F.2d 472 (7th Cir.1986); Seastrunk v. Burns, 772 F.2d 143 (5th Cir.1985); Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177 (4th Cir.1983); Ripon Society, Inc. v. National Republican Party, 525 F.2d 548 (D.C.Cir.1975); Wallace v. House, 515 F.2d 619 (5th Cir.1975); Turner v. McKeithen, 490 F.2d 191 (5th Cir.1973); Sheffield v. Itawamba County Bd. of Supervisors, 439 F.2d 35 (5th Cir.1971); Daly v. United States, 483 F.2d 700 (8th Cir.1973); Taylor v. Monroe County Bd. of Supervisors, 421 F.2d 1038 (5th Cir.1970); Montano v. Lee, 401 F.2d 214 (2nd Cir.1968); Seamon v. Upham, 536 F.Supp. 931 (E.D.Tex.1982) (Seamon I), vacated sub nom., Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982); Seamon v. Upham, 536 F.Supp. 1030 (E.D.Tex.1982) (Seamon II); Terrazas v. Clements, 537 F.Supp. 514 (N.D.Tex.1982) (Terrazas I); Terrazas v. Clements, 581 F.Supp. 1319 (N.D.Tex.1983) (Terrazas II); Kilgarlin v. Martin, 252 F.Supp. 404 (S.D.Tex.1966), reversed sub nom., Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967); Bush v. Martin, 224 F.Supp. 499 (S.D.Tex.1963) (Bush I), aff'd, 376 U.S. 222, 84 S.Ct. 709, 11 L.Ed.2d 656 (1964); Bush v. Martin, 251 F.Supp. 484 (S.D.Tex.1966) (Bush II); Graves v. White, 378 F.Supp. 640 (W.D.Tex.1974) (Graves II), vacated sub nom., White v. Regester, 417 U.S. 906, 94 S.Ct. 2601, 41 L.Ed.2d 210 (1974); Graves v. White, 446 F.Supp. 560 (W.D.Tex.1977) (Graves IV), aff’d sub nom., Briscoe v. Escalante, 435 U.S. 901, 98 S.Ct. 1444, 55 L.Ed.2d 492 (1978); Graves v. Barnes, 343 F.Supp. 704 (W.D.Tex.1972), aff’d, 409 U.S. 808, 93 S.Ct. 62, 34 L.Ed.2d 68 (1972). Of course, substantive decisions by the federal courts are binding on our court under the Supremacy Clause of the United States Constitution. Upham v. White, 639 S.W.2d 301 (Tex.1982). But it does not follow that just because the federal judiciary has injected itself into the politically charged atmosphere of reapportioning state legislatures that we ought to blindly follow.

The plurality also relies on the assumption of this power by other state courts to support its conclusion that Texas courts likewise have such authority. See e.g., Fumarolo v. Chicago Bd. of Education, 142 Ill.2d 54, 153 Ill.Dec. 177, 566 N.E.2d 1283 (1990); State v. Gage, 377 P.2d 299 (Wyo.1963); Midway Orchards v. County of Butte, 220 Cal.App.3d 765, 269 Cal.Rptr. 796 (1990); Resident Electors of the Pennsbury School Bd. v. Pennsbury School Bd., 132 Pa.Cmwlth. 362, 572 A.2d 1303 (1990); Butcher v. Bloom, 415 Pa. 438, 203 A.2d 556 (1964); Newbold v. Osser, 425 Pa. 478, 230 A.2d 54 (1967); Board of Directors of the Hazleton Area School Dist. v. Valley Education Ass’n, 107 Pa.Cmwlth. 110, 527 A.2d 1091 (1987); Board of Directors of the Hazleton Area School Dist. v. Valley Education Ass’n, 105 Pa.Cmwlth. 565, 524 A.2d 1083 (1987). However, the fact that other state’s courts have assumed the authority to order reapportionment can be nothing more than of academic interest when deciding what the Texas Constitution and the Texas case law have to say about the division of government power in Texas.