January 5, 1972
Hon. F. B. Lloyd, Jr. Opinion No, M- 1037
District Attorney
P. 0. Box 965 Re: Several questions relating to
Alice, Texas 78332 the validity of County Com-
missioner's precincts and
Dear Mr. Lloyd: county election precincts.
In your request for an opinion you state the following:
"Prior to August 11, 1970, Jim Wells County
was divided into certain Commissioners and
Election Precincts.
"On August 11, 1970, the Commissioners Court
re-dlstricted the Commissioners' precincts In an
attempt to comply with the l-Man, l-Vote Rule.
At that time, a suit had been filed in Federal
Court seeking to have the County Commissioners'
precincts re-dlstrlcted; after the Order of
August 11, 1971, was entered, the Federal suit
was dismissed. No orders concerning the re-
districting had ever been entered by the Federal
Court. In order to accomplish the Commissioners'
precinct re-dfstrfcting, It was necessary to
rearrange the then existing Election Precincts
because the new Commissioners' precinct lines
would have passed through several different
election precincts, in contravention of Section
(b) of Article 2.04 of the Texas Election Code
which provides that no Election Precinct shall
be formed out of two or more Commlssloners'
precincts. Several new Election PrecSncts
were created and the boundary lines of several
old Election PrecSncts were changed in order
to accomplish this purpose.
"On October 4, 1971, a special meeting of
the Commissioners' Court was held to hear the
-5064-
Hon. F. B. Lloyd, page 2 (M-1037)
protests of an attorney for several citizens
of Jim Wells County, who pointed out to the
Commissioners' Court that after the Order of
August 11, 1970, changing the Election Precincts,
had been passed> no publication had been made In
any newspaper giving notice of such Order, as
required by Section (a) of Article 2.04, Texas
Election Code.
"At the October 4, 1971, Commissioners
Court meeting, an order was entered rescinding
the Order of August 11, 1970 . . .'
We presume, from this statement of facts, that the order
of October 4, 1971, intended to rescind the entire order of August
11, 1970.
You have requested an opinion on the following questions:
"1. Was the Order entered on August 11,
1970, void because of the failure to publish
the notice required by Sec. (a) of Article 2.04,
Texas Election Code?
"2. If so, was the action of the Commissioners
Court in redistricting the Commissioners' precincts
void because of the prohibition of Section (b) of
.Artlcle 2.04, Texas Election Code, against Voting
Precincts being formed out of two or more Com-
missioners' Precincts?
“3. Did the Commissioners Court have the
authority, on October 4, 1971, to rescind the
Order of August 11, 19701
“4 . If so, is the Order of October 4, 1971,
a copy of which is attached, sufficient to ac-
complish this purpose or should the Order spe-
cifically provide that the Commissioners and
the Election Precincts, as they existed prior
to August 11, 197'0,were relnstated?
“5 . Is it necessary that notice by publica-
tion be made of the Order of October 4, 1971,
under Sectfon (a), Article 2.04, Texas Election
Code?"
-5065-
Hon. F. B. Lloyd, page 3 (M-1037)
You state in your letter that the Commissioners were
aware on October 4, 1971, of Attorney General's Opinions 0-4623
and v-266.
It would seem that the precise inquiry posed by your
Question No. 1 was the subject of the two above-mentioned At-
torney General's Opinions. Our Opinion No. 0-4623 (1942) held
that the requirement of publication of notice of election pre-
cinct lines under Article 2933, Vernon's Civil Statutes (the
predecessor statute to Article 2.04, Texas Election Code) is
mandatory and failure to comply Is fatal. Our 0 inion No.
v-266 (1947) is to the same effect. Article 2.0E (a), Texas
Election Code, contains the same mandatory provision as to
publication of notice of chanfieof election precinct lines;
that the Commissioners Court shall Immediately thereafttr
publish . . . a notice of the entry of such order, . . .
We adhere to our interpretation of the law as set forth in
those opinions, and therefore, in answer to your first question,
we have concluded that Insofar as the order of August 11, 1970,
~related to changing the election precinct lines, it was void for
failure to publish immediately the notice of change In accordance
with the mandatory requirements of Article 2.04 of the Texas
Election Code. We will discuss hereafter the remainder of the
Order relating to the boundaries of Commissioners precinct lines.
Your second question relates to the Invalidity of the
action of the Commissioners Court In redistricting the Commls-
sioners precincts within the county. It is unnecessary for us
to pass upon this questfon since the Commissioners Court has
set aside Its previous order changing the Commissioners precincts.
Since these precinct lines will have to be redefined the question
of whether this change was an Inseparable part of the order
changing election precinct lines Is now moot.
Wfth reference to your third question, you are advised
that the Commissioners Court did have the discretionary authority,
bs its Order of October 4, 1971, to rescind the prior Order of
A&St 11, 1970. The Commissfoners Court may change Commissioners
precinct boundaries at any time. Turner v. Allen, 254 S.W. 630
(Tex.Clv.App. 1923, error dfsm.); Article V Section 18, Constitu-
tion of Texas. With reference to your quesilon, your attention IS
Invited to the case of Wilson v. Waller, 214 S.W.2d 473 (Tex.Civ.
App. 1948, no writ) whfmeld that the Commissioners Court Order
Is Invalid and should be set aside where ft sought to redefine
corresponding boundary lines of several Commissioners and Justice
Precincts and several electfon precincts, yet did not transfer
-5066-
. -
Hon. F. B. Lloyd, page 4 (M-1037)
an entire election precinct from one Commissioners precinct to
another but rather only part of an election precinct. Article
2.04 of the Election Code also provides that election precincts
may not cross Commissioners precinct lines and requires the
Court to cause the necessary changes to prevent this situation.
The duty of the Commissioners Court to reform the several precinct
lines to comply with statutory and constitutional requirements Is
a continuing one. See Attorney General's Opinion No. M-606 (1970)
and Avery v. Midland County, 390 U.S. 474 (1968). In view of the
attempted change in precinct boundaries to conform to the void
change In election precincts and the resulting confusion, we have
concluded it was properly within the discretionary powers of the
Commissioners Court to rescind Its August 11th Order in toto,
even if such entire rescission may have been unnecessary from a
legal standpoint.
In reply to your fourth question, we advise that the
Order of October 4, 1971, was sufficient to accomplish the pur-
pose of rescinding the entire Order of August 11, 1970. It
necessarily follows that the status of the precinct lines as
of August 11, 1970, remains unchanged.
Answering your fifth question and In view of our fore-
going discussion, you are advised that it is not necessary that
notice by ublication be made of the Order of October 4, 1971, under
Section (aP , Article 2.04, Texas Election Code.
SUMMARY
The Commissioners Court Order of August 11,
1970, insofar as it related to changing the
election precinct lines was void for failure to
publish immediately the notice of changes in
accordance with the mandatory requirements of
Article 2.04, Texas Election Code.
Because the Commlssloners Court set aside
and rescinded in toto Its Order of August 11,
1970, the question of whether the change in Com-
missioners precinct lines was an inseparable part
of the Order changing election precinct lines is
now moot, and the policy of the Attorney General's
office prohibits it from rendering an opinion on
unnecessary and moot que~stions.
The Commissioners Court was within its
proper discretionary authority in rescinding
-5067-
Hon. F. B. Lloyd, page 5 (M-1037)
the Order of August 11, 1970, by Its Order of
October 4, 1971, which was sufficient to ac-
complish such purpose, thereby leaving the
status of the precinct lines as of August 11,
1970, unchanged.
It was not necessary that notice by pub-
lication be made of the rescindin Order of
October 4, 1971, under Section (aB of Article
2.04, Texas Election Code,
truly yours,
Prepared by Robert W. Gauss
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Bill Craig
Houghton Brownlee
Slg Aronson
Bart Bollng
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
,First Assistant
-5066-