PRICEDANIEL
ATTORNEY
GENeRAI.
. April 4, 1950
Hon. L. E. King Opinion Ho. V-1032.
County Attorney
Sabine County Re: Validity of the submitted
Hemphlll, Texae CommlsslonerslCourt order
changing the boundaries
and number of justice pre-
Dear Sirr cincts in the County.
You have requested an opinion relative to the
validity of the Comissioners~ Court’s order changing
the boundaries and number of the jus$lce precincts ln
the County, whloh provides as follows:
“TRE STATE OF TEXAS
COUNTYOF SABIRB I It is the order of the
Sabine County Comuiasicners~Court that Sabine
County be redlstrlctetlinto ?o\n, 4) Justice
Precincts Instead of Into eight (Q ) as It now
exists.
“It ia ordered that Preclnet No. 1 as it
now exists be combined with and lnaltie Pre-
cinct No. 7 as it now exists, and thathere-
after the Precinct will be called HemphIll
Precinct No. 1.
-2-
“It is the order of the Court that Pre-
cinct MO. 2 shall include the now existing
Precincts 4. 5 and 8; that all of these three
PrecZncts bi,combined, and that the Geneva
Precinct IVo.2 a8 it will be called, shall
extend co-extensivewith the Outer Boundaries
of each of said old preolncts numbered 4, 5,
and 8.
-3-
Is ordereb that the preclnot now
"It
called IVo.2, Plneland, shall be miabined
with Brookeland Precinct Ho. 3 as It now ex-
ists, and that the newly formed pealnot
shall be oalled Plnelyl Precinct Ro. 3.
“It is ordered that’the old Precinct lo.
6 boundaries remain the same as orlginallj
* . . *
Hon. L. E; King, page 2 (V-1032)
described and that sale Precinct shall here-
after be called Bronson Precinct??a.4,
"IT Is UNDERSTOOD that the legally elect-
ed and qualified Justices-of-the-Peace and
Constable ln each of the four newly numbered
Justice Precincts shall pemaln In office In
the Justice Precinct In which they reside un-
til their successors are elected and quall-
fled.
"There shall be continuous terms of Court
in each of said four precincts and the next
day after return day of service shall be call-
ed a regular term of the Court.
"Done thls 10 day of January, A.D..1949"
Section 18 of Article V of the Constitutionof
Texas provides:
"Raoh organized county ln the State now
or hereafter existing, shall be dlvlded from
time to time, for the convenlenaeof the peo-
ple, Into precincts,not less than four and
not more than eight, . . . In each such pre-
cinct there shall be tiected at each biennial
election, one justice of the peace and one
constable,each of whom shall hold his office
for two years and until hls successor shall
be elected and qualified;provided that In
any precinct In uhich there may be a city of
8000 or more inhabitants,there shall be,,
elected two justices of ,thepeace. . . .
In construingthe above quoted provisions,It
was held ln Williams v. Castleman, 112 Tex. 193, 2'47S.X.
263 (19221, that:
” . . . The Constitutionhas prescribed
that the power of determlnlng the number of
justice precincts,and of dividing the county
into them, shall be exercised 'from time to
time,' which means it has a potential rurlst-
ence at all times, and the division, redlvl-
slon, or redetermlnatlonmay be made at any
time. State.ex rel. Dowlen v. Rlgsby, 17 Tex.
Clv. App. 171, 43 S.W. 271, 273. In this case
the question at Issue MS aE to wha,ttime the
Hon. L. E. ging, page 3 (V-1032)
mmIsslonera~ cqurt had authority to divldo
or redlvlde a county into justice preclnots.
On this Issue the Court of Civil Appeals,
through Justice Williams, who afterwardsbe-
came Aseoalate Justloe of thls court, aiter
quoting section 18 o? article 5 of the Constl-
tution, saiai
“When the comlsslonerst aout was or-
ganized, ln pumuance of the Constltutlonand
the laws passed~thereunder,It possessed all
powers conferred by both. When the court was
once established,no leglalatlonwas needed
to enable It to exercise the powers given by
the above provisions, to divide the oounty
Into preclnots, The dlrectlcm 18 plain and
simple, and without condition or restrlbtlon,
except that as to the number OS precinots. It
is said that no procedure Is preaorlbed by
which the power 'lato be exeralsed. I? any
was neeaea, the statute auppu0a it, when it
required that the proceedings o? the co&
should be recorded la Its mlaute book. Rev.
St. 1895, art. 1554. This was all that was
necessary. The power to dlvlae the county ln-
to justlces~ precincts Is also glvsm.by the
statute, but not ln temns so explicit 8s thoaa
used ln the Constitution. Rev. St. 1895, art.
1537. There can be no doubt that both Constl-
tutlon and statute conier the power, and the
only question is as to Its extent. It Is con-
temleathatallmltationupoathe power18
found in the oonstltutlonalprovision rlxlng
the terms o? oiflce o? preolnut officers, and
that, since they are to hold for two years, It
follows that the preolnute oannot be ohangea
during the terms, beams8 the power to altop
them would practically emble the oourt to ae-
stroy the o??lce. The language o? the Constl-
tutltm expresses.nosuch limitation. The dl-
vlslcu~Is to be made '?rcm time to tlme.~ The
reason for the dlvlslon Is to be the convenI-
once of the people; and the judge, both as to
time and convenience,IS the court. The llmI-
tatlon contemled for by appellant would re-
quire the insertion In the Constitution o? a
proviso which the court cannot read Into it.
The only l.imltatlonimposed serves to indicate
the mope o? the power. That linitatlonre-
. .
Hon. L. E. llingjpage 4 (V-1032)
qu&vs as many as four, and does not allow
more than eight, preainate. But for It the
coutltymight have been cut up into as many
f;m;Sncts as the court saw proper to estab-
By It the Intention Is made more man-
iresi that, within the 1iallts,the oollrtIs
to determlne the number. As to the time of
making the dlvlslon, It Is equally plain.
The language 8rrom time to time, for the oon-
venlence of the people,’ aleaply means that
th0 oonvenlenceof the people, as judged by
the court, shall oontrol In detemlning the
time when a dlvlslon Is proper. The phrase
‘from time to time’ repels the Idea .thatIt
was the pwpose to fix any particular’ the. 1It
In Brown v. Meeks, 96 S.W.2d 839 (Tex. Civ. App.
1936, error d’iem.),the Court stated:
“There can be no question aa to the pow-
er 0r the comIsslonerst oourt to oreate new
justioe preoinots,ima tine to time, for the
ooawenIenceOS the people. !I%iepower is glv-
en to the oomnl.ssloners~oourts by the Constl-
tution of Texas (artlole5, 8 18) aad by the
statutes o? this state. , . .
“It appears that the ooma.tesIonerst
court, In pnsslng the order of June 1, 1936,
thought they were aolag a ialr thlng, In that
they provided that any person who would live
ln the new precinct a?ter January 1, 1937,
-~ could become a candidateln the July primary
and the November general elections,and that
.any voter who would live ln the new preoinct
after January 1, 1937, oould vote at suoh
primary and general eleatlom, but the result
0r this order is that, when the new ~reolncte
come Into exietenoe.al1 nreclnct o?rices
will be vacant and the oanmlsslonerslcourt
will be charned with the duty of fillian the&e
preoinct offiaes bs amolntment.” (wsle
add0d .)
In Opinion V-790 thls office held that the Cm-
mlssloners~ Court wae authotiaedto abolish exIstIng jus-
tice precincts and oreate sew juetlae precincts ccaposed
I of the territoriesof exIeti.ng preainots which are abol-
ished at any time for the oonvenlenoeo? the people,
.
Hon. L. E. King, page 5 (V-1032)
provided that there must be at least four and not more
than 01 t justice precincts In the county at all times.
It was ftrther held that when such justice preclnots are
abolished, the offlaes ln the old prealnote become va-
cant and the officers of the newly created justice pre-
cincts must be appointed by the Connnissloners~Court.
In view of the foregoing you are advised that
the Ccmmilssloners~Court o? Sabine County had the author-
ity to redistrict the justice precincts In the county so
as to provide that the county would consist of four jus-
tice precincts rather than eight regardless of the terri-
tory the jultlce precincts now Include.
We deem It advisable, however, to point out
that ‘when new precincts come Into existence all.pre-
clnct offices will be vacant and the Coim&?.sIcmers’
Court IS charged with the dutq of filllag these pre-
cinct offices by appointment. Brown v, Neeks, supra.
Therefore, when the order In question was pass-
ed a vacancy was created ln the precinct offices of Sa-
bIne County. It Is noted that the Cdssloners* Court
provided “that the legally elected and quall?led Justlc-
es-of-the Peace and Conetab~each of the four nevly
numbered Justice Preolnots shall remain ln office ln the
Justice R?eclnct in which hey reside until their euc-
oessors are elected and qua11?1ed.* Since thst portion
of the order refers to nlegally cleated justices of the
peace and constables’It Is our opinion that such an or-
der oould not oonstltuteappointmentsto 1111 the vacan-
cies created by the order. You are th0rid0m further
L advised that the Co~sslonera~ Court should now fill
these vacancies by appointment.
CoaunlsslonerelCourtrhave authority to
abolish existing justloe precincts and create
new justice precincts at any time for the con-
venlence of the prople, provided there must
be at least four and not more than eight jus-
tlae precincts in the county at all times.
When new preclncte &mW Ant0 exlstenae, all
preclnat offloes become vacant, and the Com-
mlssloners* Court Is c ea with the duty of
fllllng these meclnot -3
o Ices by appointment.
~lon.L. E. ping, page 6 (V-1012)
Tex. Conat., Art. V, BBC. 18. gqgy3$&2,;
Castleman, 112 Tex. 193, 247 S. .
Brown v. Meeka, 9 S.W.2d 839 (Tsx. Clv. App.
936, error df8m.f; opinion No. V-790.
Yours verg truly,
PRIOE MNIEL
APPROVED1 Attommy General
J. C. Davis, Jr.
county Affalm Division By @.<-.:! ::,.,. .A,.:,
Charles D. Mathsvs 0 J&n Reeves
Executive Assistaat Assistant
JRtmvrbh
.