Untitled Texas Attorney General Opinion ( 1965 )

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-