I concur in the judgment rendered. However, I would hold that TEX. CONST. art. XVI, § 65, required that the election for the office of Justice of the Peace, Precinct No. One of Bexar County, Texas, be held in the years 1984 and each four years thereafter. Fishing v. El Paso CountyDemocratic Executive Committee, 534 S.W.2d 886 (Tex. 1976).
The third paragraph of § 65 requires that were there are two Justices of the Peace in a single precinct, the person elected to the place with an uneven number serve for an initial term of two years, but that thereafter, the term of that office would be four years.
The question arises in the case by reason of the fact that in Precincts One and Three of Bexar County two Justices were established as authorized by TEX. CONST. art. V, § 18(a) at a time when these precincts had within their boundaries a city of 8,000 inhabitants. After art. V, § 18(a) was amended to require two courts in a precinct "in which there may be a city of 18,000 or more inhabitants," on October 29, 1985, the Bexar County Commissioners Court redistricted all of the Justice of the Peace precincts and created new Justice precinct positions. Thereafter, on December 19, 1985, the Commissioner's Court passed an order abolishing the Place Two positions in Precinct One, Two, and Three, effective December 3, 1986. *Page 411
The order abolishing these positions was before this court previously and was determined not to violate TEX. CONST. art. V, § 18(a). We did not at that time consider the question as to whether the order violated TEX. CONST. art. XVI, § 65 requiring that the terms of the office of certain county officials be staggered to avoid the necessity of these officials running for office in the same year. McCraw v.Vickers, 717 S.W.2d 738 (Tex.App. — San Antonio 1986, writ ref'd n.r.e.).
The question is again raised in this case as to the power of the Commissioner's Court to abolish a Justice of the Peace position. In addition to the authority cited in McGraw v.Vickers, supra, I consider the holding supported by other cases in which the authority to abolish was never questioned.McGuire v. Hughes, 452 S.W.2d 29 (Tex.Civ.App. — Dallas 1970, no writ); Villanueva v. Harville, 419 S.W.2d 711 (Tex.Civ.App. — San Antonio 1967, no writ);Carver v. Wheeler County, 200 S.W. 537 (Tex.Civ.App. — Amarillo 1918, no writ).
It appears that the Supreme Court of Texas considered that art. V, § 18, was a grant of power from the people of this State sufficient to authorize an order abolishing all "Justice Precincts and each of the offices therein. . . ." TarrantCounty v. Ashmore, 635 S.W.2d 417, 419, 423 (Tex. 1982). Finally, in Grant v. Ammerman, 437 S.W.2d 547 (Tex. 1969), the Court, in a case similar to the one under consideration, refused to require by mandamus the reinstatement of the office of Justice of the Peace, Place 1, Justice Precinct 5 of Harrison County which had been abolished by order of the Commissioner's Court, because the relator had an adequate remedy in the district court to challenge the order. The court also stated at page 549: ". . . whether the office was in existence or has been abolished was and is a disputed question . . ." It would appear that if the court lacked power to abolish the position, there could be no dispute but that the position had not been abolished. See State ex. rel. Dowlenv. Rigsby, 17 Tex. Civ. App. 171, 43 S.W. 271, writdenied, 91 Tex. 351, 43 S.W. 1101 (1897).
TEX. CONST. art. V, § 18(a) provides:
[E]ach county in the State with a population of 30,000 or more, according to the most recent federal census, from time to time, for the convenience of the people, shall be divided into not less than four nor more than eight precincts . . . 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 18,000 or more inhabitants, there shall be elected two Justices of the Peace.
This constitutional provision not only authorizes two Justices of the Peace in precincts not within the exception to the general rule.
Art. 2351 1/2(b) provides:
(b) When boundaries of . . . justice precincts are changed, the terms of office of the . . . justices of the peace . . . then in office shall not be affected by such change, and each of them shall be entitled to serve for the remainder of the term to which he was elected even though the change in boundaries may have placed his residence outside of the precinct for which he was elected.
The Justices of the Peace for Precincts One and Three, Place No. 1, had been elected in 1984 and were "then in office" when the Commissioner's Court passed the "Justice of the Peace/Constable Redistricting Plan '19B'," and were entitled to serve the balance of the terms to which they were elected. The plaintiffs in this case were not "in office" on October 29, 1985, when the redistricting plan was enacted nor on December 31, 1986, when the order abolishing Place No. Two became effective. The Justices of the Peace for Place No. One, were the only Justices of the Peace authorized by law for Precincts One and Three. Telles v. Sample, 500 S.W.2d 677 (Tex.Civ.App. — El Paso 1973, writ ref'd n.r.e.).
In Fashing v. El Paso County Democratic Exec.Comm., 534 S.W.2d 886, 889-90 (Tex. 1976), the Supreme Court held,
*Page 412Articles 5, § 30 and 16, § 65 are companion amendments and while Article 5, § 30
clearly sets the general term of office, it does not function independent of the qualifications of Article 16, § 65. Section 65 of Article 16 is not merely a transitional provision but fully limits, qualifies and schedules the four year terms set by Section 30 of Article 5; both as to offices in existence in November 1954, and those created thereafter.* * * * * *
Offices created after November 1954, whose first election is at an intervening general election and not on the proper schedule, are not initially elected to a full four year term but are elected only for the remainder of the unexpired term as it is determined by § 65.
The same reasoning is applicable here. The election to be held in 1988 for the office of Justice of the Peace, Precincts One and Three will be for a term of two years. No election was required in 1986 and the plaintiffs are entitled to no relief because the office to which they sought election was abolished before they were entitled to assume office.
The "Justice Abolition Order" was not void for the reason asserted by appellants, in that it did not violate Article XVI, § 65.
I concur in the opinion of Justice BISSETT on the other questions discussed.