Untitled Texas Attorney General Opinion ( 2000 )

OFFICE OF THE hTTOP.NE” GENERAL. STATE OF TEXAS
JOHN CORNYN
May 4,200O
The Honorable John T. Smithee Opinion No. JC-0217
Chair, House Committee on Insurance
Texas House of Representatives Re: Whether Randall County may be divided
P.O. Box 2910 into fewer than four justice of the peace and
Austin, Texas 78768-2910 constable precincts (RQ-0156-K)
Dear Representative Smithee:
You ask this office to interpret article V, section 1S(a) ofthe Texas Constitution as amended
by vote of the people on November 2, 1999. In particular, you wish to know whether Randall
County, Texas may divide itself into fewer than four justice of the peace and constable precincts
under this article. We conclude that, although as ofNovember 2, 1999, Randall County was divided
into four such precincts, it may nevertheless do so.
As you point out, article V, section 18(a) of the Texas Constitution governs the division of
the counties of Texas into justice of the peace and constable precincts. Generally, such division is
a function of population. In the 76th Texas Legislature, article V, section 1S(a) was amended so as
to increase such population brackets. Before its amendment, the section read in part,
“Notwithstanding the population requirements of this subsection, Chambers County, from time to
time, for the convenience of the people, shall be divided into not less than two and not more than six
precincts.” TEX. CONST.art. V, 5 18(a) (amended Nov. 2, 1999). During the floor debate on the
amendment, the words “and Randall County” were added to this provision. H.J. OFTEX.,76th Leg.,
R.S. 1548 (Apr. 29,1999). This addition formed part of the amendment approved by the people on
November 2,1999. Accordingly, had there been no other relevant amendments to section 1S(a), then
upon the adoption of the amendment by the people, Randall County would unquestionably have had
the right to reduce the number of its precincts from four to two if it wished to do so.
However the issue is complicated by the addition of yet another amendment to the section.
As approved by the voters, the last sentence of section 18(a) now reads, “Notwithstanding the
population requirements of this subsection, any county that is divided into four or more precincts
on November 2, 1999, shall continue to be divided into not less than four precincts.” TEX.CONST.
art. V, 5 18(a). Pursuant to this sentence, any and all counties which were divided into four or more
precincts as of the date the amendment passed must remain divided into at least four precincts.
Randall County, as you inform us, is such a county.
The Honorable John T. Smithee - Page 2 (X-0217)
You point out that the engrossed version of House Joint Resolution 71, sent from the House
to the Senate, read in pertinent part. “any county may continue to be divided into not less than
four precincts.” See Tex. H.J. Res. 71,76th Leg., R.S. (1999) (engrossed version). However, you
further note that an amendment changing the term from “may” to “shall” was made and passed on
the Floor ofthe Senate and that the House concurred. See S.J. OFTEX., 76th Leg., R.S. 1881 (May
18,1999). Thus, it was the “shall” language which was submitted to and approved by the electorate.
Accordingly, the “shall” language is the law of Texas.
“Shall” in this sentence is clearly mandatory rather than permissive. See Albertson’s Inc. v.
Sinclair, 984 S.W.2d 958,961 (Tex. 1999) (“shall” generally construed as mandatory unless legis-
lative intent suggests otherwise). Therefore a county may not be divided into fewer than four
precincts if it were not so divided before November 2, 1999.
We are therefore presented with the question of how to resolve this seeming contradiction.
As a general matter, when interpreting the Texas Constitution, we must attempt to avoid a
construction that renders any provision inoperative. See Spradlin v. Jim Walter Homes, Inc., 9
S.W.3d 473,475 (Tex. App.-Dallas 2000, pet. tiled). Here we may avoid treating the addition of
Randall County to the Chambers County provision as inoperative by treating it as a specific
exception to the general rule of the last sentence, see Oakley v. State, 830 S.W.2d 107, 110 (Tex.
Crim. App. 1992) (enbanc); Clapp Y. State, 639 S.W.2d 949,952 (Tex. Crim. App. 1982) (enbanc).
Accordingly, we conclude that Randall County, pursuant to the specific authority provided it by
article V, section 18(a) of the Texas Constitution, may divide itself into fewer than four justice of
the peace and constable precincts.
You further ask whether, should it so divide itself, Randall County may still retain four
precincts for the purpose of electing county commissioners. We conclude that it not only may, but
must do so. Article V, section 18(b) of the Constitution provides that, “Each county shall be
divided into four commissioners precincts.” There are no population brackets in section 18(b).
Every county in Texas, from Harris County to Loving County, is so divided. Accordingly, Randall
County must remain so divided.
The Honorable John T. Smithee Page 3 (JC-0217)
SUMMARY
Randall County, pursuant to the specific authority provided
it by article V, section 18(a) of the Texas Constitution, may divide
itself into fewer than four justice of the peace and constable precincts.
However, pursuant to article V, section 18(b), it must remain divided
into four commissioners precincts.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General - Opinion Committee