Untitled Texas Attorney General Opinion

OF TEXAS Auu-rm. TEXAS 78711 JOaN r.. am..r. A-~ OIENERAX. December 10, 1965 Honorable Frank Stovall Opinion No. C-566 District Attorney 64th Judicial District Re: Status of the office of Courthouse Justice of the Peace, Plainview, Texas Precinct No. 1, Place No. 2, Hale County, Texas. Dear Sir: Your request for an opinion of this office reads as follows: "The ConnnlssionersCourt in Hale County, Texas has requested that I write you, seeking your opinion concerning a Justice of the Peace election held in the general election of November, 1964. A more formal and detailed fact statement is attached to this letter. HOWever, briefly stating, a Mr. R. A, Vernon, a write-in candidate, was elected to the office of Justice of the Peace, Precinct No. 1, Place No. 2, in the general election held in November, 1964. Thereafter, Mr. Vernon requested that the Hale County Commissioners Court give sanction to this office, and ask for a clarification of his duties and responslblllties. Mr. Vernon feels that such office is in existence and that he is offlcially.entitled to the same, by reason of Section 18, Art. 5 of the Constitution, and Art. 2375, Revised Civil Statutes. Notwithstanding the Hale County ConanissionersCourt feels that since there is already a Justice of the Peace serving this particular precinct, there is no necessity for a second Justice of the Peace and that to sanction such office would not be to the public lnterest. "This situation has given'rise to the following questions and problems which invite your opinion and clarification, to-wit: -2730- Hon. Frank Stovall, page 2 (C-566) "1. Did such an office as Justice of the Peace, Precinct No. 1, Place No. 2 exist at the time of the general election in November, 1964? "2. Does such an office exist now, and if so, is R. A. Vernon the duly elected and quali- fied office holder? "3. Assuming that such office is in existence and R. A. Vernon is the holder thereof, then what is the responsibility of the IialeCounty Connnis- sioners Court insofar as paying Mr. Vernon a salary, providing him with office facilities in the court house or otherwise, and how should his official duties be conmingled with the currently existing Justice of the Peace?" Article V, Section 18 of the Texas,Constitution provides: "Each organized county in the State,now or hereafter existing, shall be divided from time to time, for the convenience of the people, into precincts, not less than four and not more than eight. Divisions shall be made by the Comnis- sioners Court prwided for by this Constitution. In each such precinct there shall be elected one Justice of the Peace and one Constable. each of whom shall hold his office for four years and until his successor shall be elected and qualified; provided that in any precinct in which there may be a city of 8,000 or more inhabitants, there shall be elected two Justices of the Peace. * * *" Article 2375, Texas Revised Civil Statutes, reads: ‘Where there is a city of eight thousand inhabitants or more in a justice precinct, two justices of the peace shall be elected." -2731- Hon. Frank Stovall, page 3 (C-566) Supplementing the facts stated above, we have been furnished with the following additional facts. Hale County is divided into four justice of the peace precincts, and Precinct No. 1 contains all of the City of Plainview. The federal cen- suses of 1930, 1940,,1950, and 1960 each has shown Plainview as having a population of more than 8,000, the 1960 population being 18,735. The Commissioners Court of Hale County has never entered an order declaring that Plainview has a popu- lation of more than 8,000, or declaring the office of Justice of the Peace, Precinct No. 1, Place No. 2, to be in existence. Neither has it ever made a finding that the population of Plainview has decreased since 1960 or that the city does not in fact contain in excess of 8,000 inhabitants. Prior to 1964, a Justice of the Peace for Place No. 2 had never been elected or appointed. In the Republican primary of 1964, a nomination was made for Justice of the Peace, Precinct No. 1, Place NO. 2, and was certified to the County Clerk of Hale County. No candi- date was certified for that office by any other political party. The office was listed on the general election ballot for 1964 under the Republican Party column, together with the name of the Republican nominee, and was also listed in the write-in column. In the general election, R. A. Vernon, running as a write-in candidate, received 2337 votes and the Republican nominee received 1366 votes for the office. The Coannissioners Court listed the office and the number of votes cast for each of the candidates on its report of the official canvass of the election. Q1 January 1, 1965, Mr. Vernon took the oath of office and made bond, and the bond and oath were recorded in the office of the County Clerk of Hale County on January 5, 1965. Hwever , the County Judge of Hale County has never issued a certificate of election to Mr. Vernon, and has never reported his name to the Secretary of State as having qualified for the office. In Attorney General's Opinion No. &2847 (1940), the question presented was whether it was mandatory on the commis- sioners court to recognize the fact that a city wholly within a justice precinct haa more than 8,000 inhabitants, according ,to the most recent federal census, and to provide for the -2732- Hon. Frank StoVall, page 4 (c-566) election, or to appoint, a second justice of the peace for that precinct. In response to this question, the opinion held: "We believe that the provisions of the Consti- tution above quoted and Article 2315, Vernon's Annotated Civil Statutes, prwiding 'Where there is a city of 8,000 inhabitants or more in a justice precinct, two Justices of the Peace shall be elected' is mandatory and cannot agree with your conclusion that these provisions are directory only. Therefore, you are respectfully advised that it is the opinion of this Department that where a city is located in a justice precinct and has a population of 8,000 inhabitants or more as showuby the last preceding Federal census, as in the instant case, it is mandatory that the commissioners court appoint another Justice of the Peace for such precinct. unless the commis- sioners should determine and find as a matter of fact that since the first day of April, 1940, the date as of which the last Federal Census was taken, the population of the city had decreased and has now a population of less than 8,000 inhabitants." In support of this holding, the opinion quoted from the case of Williams v. Castleman, 112 Tex. 193. 247 S.W. 263 (19221, which will be discussed later in this opinion. In 1953, the Court of Civil Appeals handed down an opinion in Meredith v. Sharp, 256 S.W.2d 870 (Te~.Civ.App. 1953, error ref. n.r.e., 152 Tex. 437,259 s.W.za 1721, which held that the creation of an additional justice court in a precinct con- taining a city over.8.000 was not mandatory, but was within the discretion of the coasaissionerscourt upon its determination as to whether the second office was needed “for the convenience of the people." The reasoning of the Court of Civil Appeals was stated as follows: "We are in accord with the conclusions of law as filed by the trial court that the 'Constitution confides in the Coannissioners'Court the authority -2733- . Hon. Prank Stwall, page 5 (C-566) to create a justice of the peace court as here sought: that the convenience of the people is the basic purpose for designating such an additional justice court: and that the creation of'such an additional justice of the peace court is a dis- cretionary act of the Commissioners~ Court and not a ministerial function of such court.' This record is absent any showing or any attempt to show that the creation of such an additional justice court would be for the convenience of the people. The action of the trial court in denying this application for a writ of mandamus is sus- tained.' "We cannot escape the import of the use of the term 'for the convenience of the people' in Sec. 18, supra; 16 C.J.S., Constitutional Law, Sec. 23. The~latitude so granted the Connnission- ers' Court to create not less than four and not more than eight such precincts, and the power to change the boundaries of such precincts from time to time emphasizes the intent to vest discretion- ary powers in the Commissioners9 Court in deter- mining whether or not the creation of such addi- tional court would be for the~conveidence of the people, that is, suitable, appropriate or advisable to meet the needs of the people. This discretion- ary power on the part of the Conmissioners' Court is fully recognfsed in Williams v. Castleman, 112 Tex. 193, 247 S.W. 263, * * *." The Meredith case arose as a mandams proceeding against the ConunissionersCourt of Gregg County, brought by a "resident citizen, taxpayer and voter" in the justice precinct in Gregg County containing the city of Longview, which according to the undisputed evidence had a population in excess of 8,000, to com- pel the Commissioners Court to create the office of Justice of the Peace, Place No. 2 for that precinct. Upon application for writ of error, the Supreme Court of Texas stamped the ap- plication "Refused. No Reversible Error,* with the following explanation for its action: -2734- , Hon. Frank Stwall, page 6 (C-566) 'Under our view petitioner has no interest, financially or otherwise, which would authorize him to maintain this suit. Yett v. Cook, 115 Tex. 205,,281 S.W. 837. The trial court should therefore have dismissed the suit rather than deny the writ, but since the practical effect of the two orders is the same, no purpose would be served in granting the writ to re- form the judgment. The application is there- fore stamped Refused. No Reversible Error." Since, according to the Supreme Court's action, the Court of Civil Appeals should not have taken jurisdiction of the case for the purpose of ruling on the merits of the plain- tiff's contention, its opinion cannot be looked upon as prec- edent for the proposition that creation of the second office of justice of the peace is discretionary with the ccamaissioners court. However, the fact that the Court of Civil Appeals had relied on the Supreme Court's opinion in Willianm v. Castleman, the same authority on which the Attorney General had relied in Opinion No. G-2847, and had reached a contrary result, Qointed.Up the desirability of reviewing the holding in Opinion G-2847, and of again analyzing the opinion in the Williams case. In Willialnav. Castleman, the Camaiaaionera Court of Stephens County in 1921had entered an order which (1) declared that the city of Breckenridge, located .injustice precinct No. 1, was a city of over 8,000 population: (2) adjudged #at another justice court was necessary in the Qrecinct, and (3) created another justice court for the precinct, designating it as Place No. 2. The order recited that the administration of the law in the county and the service of the people of the precinct de- manded and required the erection of the additional court. The cossnissioneracourt appointed a justice for the new court, who qualified in the manner required by law and entered upon the I active discharge of the duties of the office. Shortly after- ward, the justice of the peace for precinct No. 1 who had been elected in 1920 brought an action against the appointee for injunction, alleging among other things that the office to which the defendant had been appointed did not lawfully exist because the federal census for 1920 ahwed Breckenridge as -2735- Hon. Frank StOVall, page 7 (C-566) having a population of only 1,846 inhabitants and the comnis- aioners court was not authorized to determine the population on any basis other than the number of inhabitants as shown by the federal census. The case reached the Supreme Court on questions certi- fied to it by the Court of Civil AQQealS, the first two of which were as follows: "(1) Were the commissioners1 court of Stephens county authorized under the law and Constitution to create the office of justice of the peace, precinct No. 1, place No. 2? "(2) If they were so authorized, did they follow the proper method of determining the population of Breckenridge, and can that deter- mination and order be collaterally attacked?" The Suprems Court answered the .firstquestion in the affirmative, and answered the second question by stating that the method pursued by the conuniasioneracourt, though not ex- clusive, was a proper method, and that the determination and order of the court could not be collaterally attacked. After stating that it was a matter of common knowledge that Brecken- ridge, previously but a thriving village, on the discovery of one of the great oil fields of the world adjacent to it be- came a city almost overnight, the Court held that the conunis- aionera court was not required to rely on the census reports but could ascertain the population as they would any other fact. 247 S.W. at p. 269. In reaching its holdings, the Supreme Court traced the history of Article V, Section 18 of the present Constitution, from which the Court drew two conclusions (247 S.W. at p. 266): (1) That from the beginning the dominant constitutional purpose has been to divide the county into justice precincts "for the convenience of the people." -2736 . . Hon. FrarikStwall, page 8 (C-566) (2) That the change from those prwisiona of previous Conatitutiona which left the number of the justices of the peace or justice precincts to the determination of the Legislature, to the language of Article V, Section 18 of the present Constitution, "wherein the number of justice pre- cincts la confided to the limited discretion of local authoritiear was the result, not of any fortuitous circumstance, but of experience." From these conclusions, the Court made the follwing observations: "The purpose to leave this determination to local authorities, having been reached from experience and mature consideration, must also be given a controlling effect in the interpre- tation and construction of this section of the Constitution. "T&e fact that * * * the conunissioners~ court Lwag/ selected as the constitutional agency to divide the county into justice precincts evidences a specific purpose to remove the en- tire subject from the domain of state action, except such reasonable legislative action as might,be convenient to render the exercise of the power more effective and uniform." On the basis of this statement, we believe Article 2375 of the Revised Civil Statutes cannot be given any weight in determining the question at hand, because the subject has been removed from the domain of legialative action by the Con- stitution. We must look solely to the Conatitution, as con- strued by the Supreme Court, for guidance. It is clear that the conuniaaioneracourt la invested with discretionary power to determine the number of justice pre- cincta, within the limits stated in the Constitution, and that "the convenience of the people" is the criterion for the exer- cise of that discretion. The following quotation from the opinion in Williams v. Castleman indicates that the Supreme -2731- Hon. Frank Stovall, page 9 (C-566) Court considered the proviso concerning the number of justices in a precinct containing a city of 8,000 or more inhabitants as being subject Taoa similar discretion baaed upon the same criterion; "It is plain from section 18, art. 5, of the Constitution that its prims purpose in not fixing definitely the nuniberof justice pre- cincts in any county, and the number of justices in any particular wecinct, was, as it states, 'the convenience of the people': that is, to give the commissioners' court some discretion so that the number of precincts may be made to meet the changing needs of the ,people. "The object of the Constitution in pro- viding for two justices of the peace in pre- cincts containing 8,000 or more inhabitants is the sanm as that declared in the previous para- graph of the same section--that is, for the con- venience of the people. No method of determining the population is given in this section or else- where in the Constitution;. The determination of the population by aoms authority is necessary to set in motion the process by which.two justices are to be elected, or a vacancy in the office filled by appointment. The Constitution con- tains no express direction, either to the electorate or to the appointive power, as to hw or when this question of population is to be determined, nor is any prwiaion made in the statutes therefor. * * * But legislation was not necessary to enable the cosaaiaafonera~court to exercise any of the powers given in this pro- vision of the Constitution." 247 S.W. at p. 267. ~Baphaaia added throughout.) Further on in the opinion, the Court said that "we believe that the entira m is confided to the comiasioners~ court, and that the court of any particular county is empowered to divide it into precincts, and to designate or afterwards determine which of those precincts contains cities of 8,000 or -2730- hon. Frank Stovall, page lo (C-566) more inhabitants." 247 S.W. at Q. 268. The Court sunnnariaedits views in the follwing state- ment, upon which opinion G-2847 relied: "~Theconmnissionera'court, by a valid order, having determined that there was in justice precinct No. 1 of Stephens county, a city of over 8,000 people, upon the official announce- ment of such fact, and the entry of the order, the office of an 'additionaljustice of the peace for the precinct, created by the Consti- tution, but awaitinq the determination of fact bv the conunissioners'court (the aqencv deaiqnated bv the Constitution for such ouroose), cams into being, and thencefoward was an existing office. * * *'I 247 S.W. at p. 270. .' Taking the opinion as a whole, we believe the Court ~waa saying that the matter of whether there were to be two justices in a precinct containing a city of 8,000 or more inhabitants was confided to the discretion of the commissioners court. The Constitution had created the second office in the sense that it had made provision whereby the office could be brought into being, but the office would not actually exist unless and until the cosaniaaioneracourt made an official determination of the facts necessary to activate the.prwiao, namely. that the precinct contained a city of 8,000 or more inhabitants and that the second office was needed for the con- venience of the people. 'Attorney~General'aOpinion No. W-1251 (1962) follwed the holding.of the Court of Civil Appeal8 in Meredith v. Sharp and werrkled the earlier opinion No. G-2847. It might appear that Opinion No. WW-1251 was baaed on the aaaumption'that the Court of Civil Appeals opinion was a controlling precedent, rather than upon a reconsideration of. the soundness of opinion No. G-2847. ,In any event, we nw hold that under the terwa of Article V, Section 18.of the Constitution, as construed by the SripremeCourt in Willfame v. Caatleman, the second office of justice of-the.peace in a precinct containing a'city of 8,000 or more inhabitants does not cams into existence unless and -2739- . . - Hon.,Frank Stovall, page 11 (C-566) until the corenissioneracourt has so deciared. Since the corn missioners court has not entered an order to that effect with respect to Precinct No. 1 of Hale County, the office of Justice of the peace, Place No. 2 for that precinct has never come into being and the attempted election to fill the nonexistent office was a nullity. The fact that the office was listed on the 1964 general election ballot cannot operate as an implied finding by the com- missioners court that the office was in existence, because the comrniasionerscourt had nothing to do with making up the ballot for the election. Neither can any such effect be given to the'fact that the coanaisaionerscourt listed the votes cast for the office on its official record of canvass, because the court was acting in a ministerial capacity in mking the can- vasa,and .had no discretion to exclude votes reported on the official .returns of the,precinct election judges. Fercfuaonv. Huoqina, 122 Tex. 95, 52 S.W.Zd 904 (1932). Your first and second questions are answered in the negative. In view offour holding on these queations,.it la unnecessary to answer your third question. SUMARY Under the terms of Article V, Section 18 of the Texas Constitution, as.construed In Williams v: Castleman, 112 Tex. 193, 247 S.W. 263 (19221, the office of justice of the peace, ,placeNo. 2, in 'a precinct containing a city of 8,000 or more inhabitants does~not corn into existence unless and until the comniaaionera court has de- c&ared that the precinct contains a city of 8,000 or more inhabitants and-that the second office is needed-for the convenience of the people. -2740- Hon. Frank Stwall, page 12 (C-566) Yours very truly, WAGGONER CARR AttOMey General Aaaistant MRW:ra APPR(IVED: OPINI~CmMITTEE W. 0. Shulta, Chairman John Reeves Phillip Crawford Robert Owen Robert Flwera APPROVED FOR THE ATT- GENERAL By: T. B. Wright -274 l-