Untitled Texas Attorney General Opinion

Hon. Curtis L. Owen Opinion No. M-1111
Criminal District Attorney
Smith County Courthouse Re: Whether the current
Tyler, Texas 75701 election precincts in
Smith County were
formed in violation
of Article 2.04(b),
Dear Mr. Owen: Texas Election Code?

You have requested the opinion of this office regarding the
above question. In this connection you have provided us with
the following information:
II
. . . The Commissioners' Court, on Decem-
ber 14, 1970, redrew and adopted new justice
precincts for Smith County. On January 4. 1972,
the Smith County Commissioners' Court, at its regular
meeting in the Smith County Courthouse at Tyler,
Texas, again redrew and adopted new justice pre-
cincts for the County. Justice Precinct 1, of
Smith County, Texas, then and now stretches across
the middle of the County in belt-like' fashion and
includes all of the City of Tyler. Justice Precincts
2,3,4 and 5 constitute outlying justice precincts
and until the first aforesaid meeting of the COm-
missioners' Court, their precincts did not come
within the city limits of Tyler, In both meetings
the redrawing of the justice precincts included
the extension of Precincts 2,3,4 and 5 from the
outlying area of Smith County into Precinct 1 and
the City of Tyler over roads and streets ending at
the Courthouse.

"The population of Precinct 1 is about 60,000.
The total population of Precincts 2, 3, 4 and 5 is
about 35,000. The result before the redrawing was

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an overburdening case load for the Justice of the
Peace of Precinct 1 and a much less burden for the
other outlying justices.

"On December 14, 1970, the Commissioners' Court,
in order to alleviate the burdensome Court docket
of Justice Precinct 1, endeavored to extend each
of the outlying justice precincts over roads and
streets into Tyler ending at the Courthouse so
that these justices too could sit in Court at the
Courthouse and share the burden of the growing
metropolis and its resulting case load.

"The redrawing made by the Commissioners' Court
of the outlying justice precincts at both meetings
resulted in arm-like appurtenances along roads
and streets reaching into Precinct 1 to the County
Courthouse in Tyler. Precinct 2 was brought into
Precinct 1 and to the Courthouse by means of High-
way 2493, Highway 155, Clenwood Street North in
Tyler, and Erwin Street East to the Courthouse,
Precinct 3 was extended to the Courthouse in Tyler
by means of Highway 110, Troup Highway in Tyler,
Beckham Street North, and Erwin Street West.
Precinct 4 was extended to the Courthouse in Tyler
by means of Highway 271, Dixie Highway in Tyler,
Beckham Street South in Tyler, and Erwin Street
West. Precinct 5 was brought into Precinct 1 and
to the Courthouse by means of Highway 69, Bow Street
in Tyler, and Broadway Street South.

"There are, of course, no people living on
the surface of any of these streets and roadways.
There are, however, people and election precincts
on either side of these roadway extensions from
each outlying precinct into and through Precinct 1.

"On December 13, 1971, the Commissioners' Court
adopted new election precincts for Smith County,
Texas. The result of this redrawing was that each
of the arm-like extensions from each of the outlying

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 , iurrid b= Gwen, page 3
kiYli (M-1111)

justice precincts split and/or formed new election
precincts within Precinct 1 which had heretofore
exclusively been within and formed within Justice
Precinct 1. The result was that Justice Precinct 2
along with Precinct 1 aided in the formation of
Election Precincts 35, 36, 33 and split 20 in Smith
County. Precinct 3 aided in the formation of Blec-
tion Precincts 21 and 23, and as a result of the new
drawing completely split Election Precinct 20. Jus-
tice Precinct 4 runs through Election Precinct 2 and
20. Precinct 5 aided in the formation of Election
Precincts 16, 12 and 34 and split Election Precincts
11 and 20.

"Does the fact that one or more justice precincts
cross another justice precinct by means of a roadway,
representing no people within the justice precinct
which they cross, constitute a formation of an elec-
tion precinct out of two or more justice precincts, or
out of the parts of two or more justice precincts, in ,
violation of Article 2.04b of the Texas Election Code?"

The provisions of Article 2.04(b) of the~Texas Election
Code, reads, in part, as follows:

"No election precinct shall be formed out
of two or more justice precincts or commissioners
precincts, nor out of the parts of two or more
justice precincts or commissioners precincts: and
no election precinct shall be formed out of two
or more congressional districts. . .'I

The article is mandatorially prohibitive in nature; the
formation of an election precinct from two or more justice pre-
cincts is prohibited. As the lines are presently drawn *arm-like"
appurtenances of the outlying justice precincts (2,3,4 and 5)
extend into justice precinct No. 1 and commonly culminate at
the Courthouse. Your letter does not spell out the precise
boundary of the end of these arms. If the arms terminate at
the perimeter of the Courthouse square, the Courthouse Build-
ing (and its courtrooms) are beyond the boundaries of these

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Bon. Curtis 1,. Owen, page 4 (M-1111)

arms ; if the arms extend into the courthouse building, there is
a portion of the county, within the building, which is common
to all five justice precincts. Under the first hypothesis, the
stated purpose would not be accomplished; under the second, the
justice precincts would.overlap in contravention of the intent
of Article V, Section 18 of The Texas Constitution, which pro-
vides that every county in the State shall be divided into not
less than four and not more than eight justice precincts. It
is implicit that there is to be no overlap, and that each justice
precinct shall occupy and include specific definable,territory,
to the exclusion of any other justice precinct.

As the justice precinct lines are currently drawn, elec-
tion precinct No. 12 includes part of justice precinct No. 1 and
part of justice precinct No. 5; election precinct No. 2 includes
parts of justice precincts No. 1 and No. 4. As you point out,
there are many other examples. This is clearly in contravention
of the express prohibition of Article 2.04(b) of the Election
Code (supra).

Hocrc v. Campbell, 40 SW(2) 515, (Tex.Civ.App, 1932, no writ)
is authority for the proposition that an order of the Commission-
er's Court which attempts to create an election precinct which
contains parts of more than one justice precinct is void as being
in contravention of Article 2933, Vernon"s Civil Statutes, the
precursor of Article 2.04 of the Texas Election Code.

The redrawing of the precinct lines in the attempted manner
is beyond the delegated authority of the Commissioner's Court
and is void. The last decision of our Texas Supreme Court re-
lating to boundaries of geographical areas from which represen-
tatives of government are elected is Smith v. Craddick, 471 SW2d
375 (Tex.Sup. 1971). The Court held that the requirements of
Article III, Section 26 of the Texas Constitution relating to
the maintenance of county boundaries in apportionment for Repre-
sentative Districts was to be given effect I'...without regard.to
the consequences..." These requirements were superseded only
by the Constitution of the United States. While this case is
not directly in point, our opinion is that it is relevant and
supports our position that the plain language of the law re-
lating to boundaries of political areas of the state is to be
enforced. See also Wilson v. Weller, 214 SW2d 473, 475 (Tex.

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Hon. Curtis L. Owen, page 5 (M-1111)

Civ. ASP. 1948, no writ), wherein the court declared that the
Commissioner's Court could not "have and recognize election pre-
cincts including territory lying within more than one justice 01
commissioners precinct."

SUMMARY

The extension of outlying Justice Precincts
NOS. 2,3,4 and 5 of Smith County by arm-like
appurtenances to a common point within Justice
Precinct No. 1, when such "arms" cut across elec-
tion precincts, is in contravention of Article
2.04(b), Texas Election Code. An order of the
Commissioner's Court which attempts to do so is
without statutory authority and therefore void.

very truly,

Attobey General of Texas
t'
Prepared by Robert W. Gauss
Assistant Attorney General

APPROVED:
OPINION COMMITlEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

w. 0. Shultz
Jack Goodman
Ralph Rash
Houghton Brownlee

SAMUEL D. McDANIEL
Staff Legal Assistant

ALFREDWAlKER
Executive Assistant
NOLA WHITE
First Assistant
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