Grant v. Ammerman

ON MOTION FOR REHEARING

Appellees have filed a MOST EXCELLENT BRIEF in their attempt to set aside the opinion of this Court handed down on January 13, 1970. They bring forward twelve points of error.

It seems that they rely on that provision of Art. 5, Sec. 18 of the Constitution of Texas, which provides that the commissioners court may divide the county into various justice precincts of not less than four and not more than eight, “for the convenience of the people”. Then, they place much emphasis on the opinion of the Supreme Court of Texas in Grant v. Am-merman et al., 1969, 437 S.W.2d 547, in which the Supreme Court made the following statement:

“The county has not changed the precinct boundaries for a long period of time, but the city has expanded by the annexation of additional territory so that parts of the city are now located in and are served by Justice Precincts 1 and 3, as well as 5.”

It is doubtful that the Supreme Court had before them the orders of the commissioners court that were entered on September 28, 1965, in which it described Justice Precinct 5 as follows:

“Being all of commissioners Precinct No. 2, as above described, TOGETHER *782WITH ALL OF THE TERRITORY LOCATED WITHIN THE CITY LIMITS of the City of Marshall, Texas.”

By construing the description of Justice Precinct No. 5 as containing ALL OF THE TERRITORY LOCATED WITHIN the city limits of the City of Marshall, Texas, it includes all the additional territory that has been added to the City of Marshall, Texas. In the annexation- of additional territory, the city automatically extended the justice precinct lines of Justice Precinct 5. We did not construe Art. 2375, V.A.T.C.S. in the original opinion, but we only constructed that part of the constitution which provides:

“ * * * provided that m 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 reads as follows:

“Where there is a city of eight thousand inhabitants or more in a justice precinct, two justices of the peace shall he elected.”

It seems that the article is also mandatory because the word “SHALL” is used.

If the commissioners court had provided in the order entered on September 28, 1965, that Justice precinct 5 shall be described as follows:

“Being all of commissioners precinct No. 2, as above described, together with all of the territory ‘THAT IS NOW’ located within the City Limits of Marshall, Texas” ;

then, when the city added more territory to the City of Marshall, Texas, that would have eliminated the necessity of electing two (2) Justices of the Peace in Precinct 5 as a matter of law. That way, all of the territory located within the City Limits of Marshall, Texas, would not lie “wholly” within one justice precinct.

We note further that in any justice precinct that contains all of a city with 8,000 or more inhabitants that require two (2) justices of the peace, there are no provisions for the election of two (2) constables.

A careful examination of the records in this case does not describe Justice Precincts 1 and 3 of Harrison County, Texas, as containing any portion of the territory located within the City of Marshall, Texas. If they did, we would still stand by our original construction that we handed down in our original judgment.

The points are overruled.

The motion for rehearing is overruled.