Untitled Texas Attorney General Opinion

. . THE ATNBIZNEY GENERAL OFTEXAS January 22, 1970 Honorable Ted Butler Opinion No. M- 562 Criminal District Attorney Bexar County Courthouse Re : Constitutionality of San Antonio, Texas 78204 Paragraph (a) of Article 2351-l/2, V.C.S., and Dear Mr. Butler: related questions. Your recent request for an opinion of this office arises out of an order of the Commissioners Court of Bexar County entered on October 9, 1967, a copy of which was at- tached to your letter. The effect of the order in question is to reduce the number of justice precincts in Bexar County from eight to five. The order provides in part that "Justice of the Peace and Constable PrecinctssThree, Four, Five, Six, Seven and Eight, . . . are hereby abolished,eliminated and terminated effective as of January 1, 1969, and that Justice of the Peace and Constable Precincts Three, Four, and Five are hereby created and established as.04 January 1, 1969, . . .II Thereafter the order sets forth the territorial limits of the new precincts. The order further specifically provides that Precinct No. 1 and Precinct No. 2 were not abolished, elimi- nated and terminated by the order. The order then provides that the offices of Justice of the Peace and Constable .in the newly created precincts were to be filled in the follow- ing manner: "IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Commissioners Court of Bexar County, Texas, that in the elections to be held in the year 1968 the aforementioned offices shall be filled at said elections by the voters of the respective precincts as they will exist on the effective date of January 1, 1969, and that any person who has resided within the territory embraced in the new precincts for the length of time required to be eligible to hold the office shall not be rendered ineligible by virtue of the precinct's not hav- ing been in existence for that length of time. "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the elections to be held in the year 1968 shall be for a two year term beginning January 1, -2681- . . Hon. Ted Butler, page 2 (M-562) 1969, and expiring December 31, 1970, for Justices of the Peace of Precincts Three, Four and Five, and for a four year term beginning January 1, 1969, and expiring December 31, 1972, for Justice of the Peace, Precinct One, Place One, and for Constables of Precincts One, Two, Three, Four and Five." This provision of the order of the Commissioners Court was entered pursuant to Paragraph (a) of Article 2351-l/2 of Vernon's Civil Statutes, which reads as follows: "(a) Whenever the Commissioners Court changes the boundaries of commissioners pre- cincts or of justice precincts, it may specify in its order a future date, not later than the first day of January following.the next general election, on which the changes shall become ef- fective.. If an election for any precinct office is he&d before the effective date of the order, the office shall be filled at the election by the voters of the precinct as it will exist on the effective date of the change in boundaries. A person who has resided within the territory embraced in the new boundaries for the length of time required to be eligible to hold the : office shall not be rendered ineligible by virtue of the precinct's not having been in existence for that length of time." Based upon these facts, you state in your letter that one of the Justices of the Peace elected pursuant to the order of the Commissioners Court at the general election in 1968 has raised the following questions: 1. “Was the order of the Commissioners Court establishing the term of office for Justices of the Peace of Precinct Three, Four and Five for two years, Beginning on January lst, 1969 and ending.on December 31st, 1970, constitutional?" 2. "Were the Justices of the Peace of Pre- cinct Three, Four and Five who.were elected at the General Election in November 1968 elected for a two year term or a four year term?" ~3. "Do the Justices of the Peace of Precincts -2682- Hon. Ted Butler, page 3 (M-562) Three, Four and Five have to file for the Primary Election of their respective parties and if nomi- nated run for election in the General Election of November, 19701" Under the provisions of Section 18 of Article V of the Constitution of T8xas, the power to divide the county from time to time into justice precincts of not more than eight or less than four is exclusively lodged in the commissioners courts of the respective counties of this State. Williams v. Castleman, 112 Tex. 193, 247 S.W. 263 (1923); Dowlin v. Rigsby 43 (TeX.CiV.ADD. 1897. error ref.). In the exercise 0; its ex- clusive po&r to change precinct boundaries, the commissioners court can abolish an existing precinct and create a new pre- cinct composed of the one abolished and a part of another with- out redistricting the whole county. .Hastings v. Townsend, 136 S.W. 1143 (Tex.Civ.App. 1911, no writ). Therefore, it ii clear that the Commissioners Court of.Bexar County had the authority to abolish Precincts Three, Four, Five, Six, B8ven and Eight and create three new precincts from the territory of the ones abolished, leaving Pr8cincts One and Two unchanged and unaf- fectod by the order. The'courts,of this State have ,long followed the rule that upon the effective date of an'order, such as the one entered by the Commissioners Court of Bexar County, the old $recincts and precinct offices cease to exist, and, as of that date, the new orecincts come into existence with the Drecinct . offices vacahi . Williams v. Castleman, 112 Tax. 199, 247 S.W. 263 (1923); Dowlin v. Rigsb 43 S.W. 271 tT8x.Civ.A~~. 1897, error ref.); Brown v. Meeks, S.W.Zd 839 (Tex.Civ.App. 1936, error dism.1. However, the offices in orecincts that are unaffected by such order remain undisturbed hnd the persons holding such offices are entitled to occupy them for the tana to which they were elected: State v. Akin, 112 TOM. 603, 79 S.W. 805 (1904). ,We must now determine whether the method prescrib8d by the Commissioners Court to fill the vacancies in Precincts Three, Four and Five, as authorired by Paragraph (a) of Article 2351-l/2, was proper. Section 28 of.Article V of the Consti- tution of Texas provid8e as follows: "VaCanCi8s in the OffiC8.0& judges Of the Supreme.Court,,the Court of Criminal Appeals, thenCourt of Civil Appeals and.&8 District Courts shall be filled by the Gouirnor until th8 n8Xt..SUCC88dingGeneral,Election; and -2683- . . Hon. Ted Butler, page 4 (M-562) vacancies in the office of County Judge and Justices of the Peace shall be filled by the Commissioners Court until the next succeeding General Election." This provision of the Constitution clearly provides for vacancies in the office of JUStiC8 of the Peace to be filled by the Commissioners Court until the next general election. The power of the Commissioners Court to fill vacancies by ap- pointment under the authority of this provision of the Consti- tution is exclusive and the Legislature has no authority to authorize,or provide for the filling of such vacancies in any other manner. Stat8 v. Valentine, 198 S.W. 1006 (Tex.Civ.App. 1917, error ref.). Therefore, Paragraph (a) of Article 2351-l/2 and that portion of the order of the Commissioners Court of Bexar County which was entered in conformity with this statute, are unconstitutional because they provide for a method of fill- ing the vacancies in the office of Justice of the Peace of Pre- cincts Three.,Four and Five by election and are in direct con- flict with.the above quoted constitutional provision. They are further invalid as attempts to provide for the election of persons to fill an office not in existence at the time of the election, Brown v. Meeks, 96 S.W.Zd 839 (Tex.Civ.App. 1939, error dism.1. With reference to the terms of office of Justice of the Peace of Precincts Three, Four and Five as they came into existence on January 1, 1969, we must look to those provisions of the Constitution relating to that office. Under the pro- visions of Section 18 of Article V and Section 64 of Article XVI of the Constitution of Texas, the term of office of Justice of the Peace is four years. Section 65 of Article XVI of the COnStitUtiOn Of T8XaS reads, in part, as fOllOWS: "The following officers elected at the General Election in November, 1954, and there- after, shall serve for the full terms provided in this Constitution: II . . . (j) Justices of the Peace. II . . . "In any district, county or precinct where any of the aforementioned offices is of such nature that two (2) or more persons hold such office, with the result that candidates file,for -2684- . . . Hon. Ted Butl8r, page 5 (M-562) 'Place No. 1,' ‘Place No. 2,' etc., the officers elected at the Grneral Election in November, 1954, shall serve for a term of two (2) years if the designation of their office is an uneven num- ber, and for a term of fOUr (4) years if the d8Sig- nation of their office is an even number. There- after, all such officers shall be elected for the tenaS provided in this Constitution." Upon authority of the foragoing constitutional pro- visions, the offices of JuStiCe of the P8ace in all precincts having a Single Justice of the Peace are to be filled for a term of four years at the general election in NOVemb8r of the years 1954, 1958, 1962, 1966, 1970, 1974, 8tC. Therefore, when Precincts Three, Four and FiV8 cam8 into existence on January 1, 1969, the office of Justice of the Peace in such precincts cam8 into existence with a term of office which ex- pires on December 31, 1970. A new four-year term for such of- fices will begin on January 1, 1971. Attorney G8n8ral's Opinions WW-1292 (1962), C-147 (1963) and C-235 (1964). Since the term of office of Justice of the P8aC8 is fixed by the Constitution, the Commissioners Court of Bexar County had no authority to provide for a two-year term of office for JUStiC8S of the Peace of Precincts Thr88, Four and Five when they came into existence on January 1, 1969. Adverting to your first question, you are advised that the Commission8rs Court of ,Bexar County had no authority to establish a term Of Office for JUStic8 Of the PeaC8 Of Pre- cincts Three, Four and Five for a period of two years beginning January 1, 1969, and ending D8C8lnb8r31, 1970. Although the expiration date of the tarm fixed by the Conmissioners Court coincides with ths expiration date of the term provided by the Constitution, the provision of the Commissioners' order per- taining to the term of office of Justices of the Peace for Precincts Three, Four and Five is void b8CaUS8 it attempts to prescribe,a term of office which ie contrary to that fixed by the COnstitUtiOn. With regard to your second question, since Paragraph (a) of Article 2351-l/2 and that portion of the Order of the Commissioners Court entered in conformity therewith are un- conatitutional because they prOVid8 for the filling of vacancies in tha office of JUStiC8 of the Peace by election rather than appointm8nt of the Commissioners Court, you are advised that the election of Justices of the Peaca for Precincts Three, Four and Five at thd November, 1968, general election was invalid. -2685- Hon. Ted Butler, page 6 (M-562) Since the Commissioners Court of Bexar County has not filled the vacancies in the office of Justice of the Peace of Pre- cincts Three, Four and Five by appointment under Section 28 of Article V of the Constitution of Texas, and the persons who purported to have been elected to such offices at the general election in November, 1968, have attempted to qualify for such offices and have occupied and exercised the powers of such offices under color of said election.,they are de facto of- ficers and their acts while occupying such offices are valid. 47 Tex.Jur.Zd 307-313, 324-327, Public Officers, 9253-255, S264. In answer to your third question, you are advised that the offices of Justice of the Peace of Precincts Three, Four and Five of Bexar County are subject to being filled,at the general election in November, 1970, for a term of four years beginning January 1, 1971; and persons desiring to run for such offices as the nominees of a party which holds pri- mary elections should file as a candidate for nomination to such office in the party primaries. SUMMARY When the order of the Commissioners Court of Bexar County abolishing Precincts Three, Four, Five, Six, Seven and Eight and creating from the same territory Precincts Three, Four and Five be- came effective on January 1, 1969, .the offices of Justice of the Peace of Precincts Three through Eight ceased to exist and ther.offices.ofJustice of the'Peace of Precincts Three, Four and Five came into being with an existing vacancy. Para- graph (a) of Article 2351-l/2, V.C.S., authorizing the election of persons to fill the offices of Justice of the Peace created under such circum- stances, is unconstitutional because it is in conflict with the exclusive power of the Com- missioners Court to fill such vacancies by ap- pointment under Section 20 of Article V, Consti- tution of Texas. Persons purporting to hold such offices by virtue of elections held in conformity with Paragraph (a) of Article 2351-l/2, V.C.S., are de facto officers and their acts are valid. Justices of the Peace for Precincts Three, Four and Five of Bexar County should be elected -26S6- . . . - . Hon. Ted Butler, page 7 (M-562) at the general election to be held in November, 1970, for a four-year term beginning January 1, 1971. General.of Texas Prepared by W. 0. Shultz Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman Alfred Walker, Co-Chairman Earl Hines Ray McGregor Bill Allen Bill Corbusier MEADE F. GRIFFIN Staff Legal.Assistant NOLA WHITE First Amistant -2687- ,I