Untitled Texas Attorney General Opinion ( 1974 )

April 25, 1974
The Honorable Lynn Cooksey Opinion No. H- 282
District Attorney
412 Texas Blvd. Re: Whether Articles 2.04b and
Texarkana, Texas 7550 1 2.05 of the Election Code require
that boundaries of county election
and commissioners precincts be
made to conform to city ward and
Dear Mr. Cooksey: election precinct boundaries
You have asked whether it is mandatory, under Articles 2.04b and
2.05 of the Election Code, Vernon’s Texas Civil Statutes, for the commis-
sioners court to change the boundaries 02 existing county election and
commissioner precincts to conform to the boundaries of newly formed
city wards and election districts within the city of Texarkana.
You advise that in August of 1969, the commissioners court re-
established all election precincts of the county in accordance with Article
2.04 of the Election Code. Within the city of Texarkana, which has a
population in excess of 10,000 and is divided into six city wards, four
wards, because of the excessive number of qualified voters, were each
divi.ded into two county election precincts. The city councilmen were
elected at large and not from one man wards or precincts.
In January, 1972, the Commissioners Court reformed commissioners
precincts to conform to the one-man, one-vote mandate of the United States
Supreme Court. New commissioner precinct lines were made to oonform
to the then existing election precinct lines.
In December of 1972, the city council of the city of Texarkana made
drastic changes in the boundaries of all six of the city wards in order to
absorb newly annexed areas and to give each ward an equal number in
population. In February of 1973, the city council, in calling for an election
p* 1314
The Honorable Lynn Cooksey, page 2 (H-282)
for city officers, provided for twelve new city election precincts, dividing
each of the six new wards into two election precincts.
You state, “The new city election precincts bear little resemblance
to the previously established county election precincts. ” Apparently the
boundaries of nine of the twelve new city election precincts do not coin-
cide with county election precinct boundaries and the city has requested
the comtiissioners court to change the boundaries of the county election
precincts within the city to conform to the new city wards and city election
precincts.
Article 2.04 of the Election Code provides, in part:
“(a) Each county shall be divided into convenient
election precincts by the Commissioners Court of the
county, each of which precincts shall be differently
numbered and described by natural or artificial bounda-
ries or survey lines by an order entered upon the minutes
of the Court. At any July or August term, the Court
may make su.ch changes in the election precincts as they
deem proper, by such order entered upon the minutes
of the Court. When such an order is entered, they shall
immediately thereafter publish in some newspaper in
the county for three consecutive weeks a notice of the
entry of such order, giving a brief description in general
terms of the changes made, without the necessity of
including in such notice the field notes or other detailed
description of the precinct boundaries. If there be no
newspaper in the county, thencopy of such order shall
be posted in some public place in each election precinct
in the county which is affected by the order.
“(b) No election precinct shall be formed out of
two or more justice precincts or commissioners precincts,
nor out of the parts of two or more justice precincts or
commissioners precincts; and no election precinct shall
be formed out of two or more congressional districts or
p. 1315
The Honorable Lynn Cooksey, page 3 (H-282)
state senatorial districts or state representative
districts, nor out of the parts of two or more such
districts. If in September of any year there exists
any election precinct in the county which does not
comply with the fore~going requirements, the commis-
sioners court shall make the necessary changes
before the first day of October, either at a regular
meeting or at a special meeting called for that
purpose; and the order shall be published as pro-
vided in Paragraph (a) ,of this section. Subject to
the provisions of the first sentence of this paragraph,
no election precinct shall have resident therein less
than LOO nor more than 2000 voters as ascertained
by the number of registered voters for the last pre-
ceding presidential general election year; provided,
however, that in precincts in which voting machines
or devices have been adopted for use in accordance
with Section 79 or Section 80 of this Code, the maxi-
mum number of voters shall be 3000. There shall
be a minimum of one election precinct wholly con-
tained within each commissioners precinct. ” (Acts
1973, 63rd Leg., ch. 542, p. 1408).
“(c) In cities and towns having ten thousand or
more inhabitants, each ward shall constitute an elec-
tion precinct unless there shall reside in said ward
more than two thousand qualified voters. In such
cities and towns , no precinct shall be made out of parts
of two wards; and no precinct shall include territory
outside the corporate Li.mi.ts of the city or town unless
the Commissioners Court finds that adjacent unincor-
porated territory is so situated that it cannot be formed
into or i,ncluded within an election precinct wholly out-
side t~he cit:y, of suitable size and shape and containing
a suitable number of voters. If the Commissioners
Court finds this condition to exist, it may include such
territory in a precinct or preci,ncts formed within the
ciiy or town, and the Iindin, = of the Commissioners Court
shall be conclusive. ” (Acts 19671 60th Leg., ch. 723, p. 1863).
The Honorable Lynn Cooksey, page 4 (H-282)
Article 2.05 provides:
“The election precincts for municipal elections
and the location of the polling place in each precinct
shall be designated by the governing body of the muni-
cipality. The governing body may combine two or
more county election precincts into one municipal
precinct, but shall not include parts of one county
precinct in more than one municipal precinct. The
certified list of qualified voters for all county election
precincts in which voters reside who are to vote at a
polling place designated by the governing body shall be
used at such polling place. In all cities and towns in
which the number of voters at the last general muni-
cipal election does not exceed four hundred in number,
only one polling place shall be-opened at any municipal
election; and all officers of such cities and towns to
be elected shall be voted for at such polling place. ”
Also pertinent is language of Article 5, $ 18, of the Texas Constitution
which requires that each county in the State be divided from time to time
“for the convenience of the people ” into not less than four nor more than
ei.ght precincts to be occupied by a justice of the peace and a constable and,
in like manner, into four commissioners precincts.
As we construe the statute, it was the intent of the Legislature that
the county election precincts coincide as much as possible with the city
wards. This normally would be achieved by cooperation between the two.
If a cooperat,ive effort fails to provide the needed changes, then, one must
first look to the Constitutions of the United States and of this State to deter-
mine which local governmental entity is required to make the necessary ad-
justments.
Any scheme for districting a county into commissioners districts is
subject to the mandates of Avery v. Midland County, 390 U.S. 474 (1968)
in which the one-man one-vote requirement of Reynolds v. Sims, 377 U.S.
533 (1964) applied to apporti,onments for local government as well as state
legislatures.
p* 1317
The Honorable Lynn Cooksey, page 5 (H-282)
“Although the forms and functions of local government
and the relationships among the various units are
matters of state concern, it is now beyond question
that a State’s political subdivisions must comply with
the Fourteenth Amendment . . . .
“When the State apportions its legislature, it
must have due regard for the Equal Protection Clause.
Similarly, when the State delegates lawmaking power
to local government and provides for the election of
local officials from districts specified by statute,
ordinance or local charter, it must insure that those
qualified to vote have the right to an equally effective
voice in the election process. . . .” (390 U.S. at 480)
In Attorney General Opinion H-32 (1973) we held that the holding of
Averv v. Midland County, supra, applied to the election of commissioners
and that it was not permissible for the members of the commissioners court
to be apportioned among single-member distr’ic ts of substantially unequal
population.
The county government also has a state constitutional duty to draw
boundaries for commissioner precincts and justice of the peace precincts.
Texas Constitution, Article 5, 5 18. To the extent that a city election
precinct crosses justice of the peace and commissioner precinct lines and
thus would require the redrawing of these constitutionally mandated districts,
the city is under an obligation to revise its precinct boundaries to avoid
the conflict. You have not advised us whether this is the situation in Bowie
County.
It is our opinion, in this case, that the city has the primary duty to
draw its precinct lines to conform to those of the county. Of course, since
election precincts are the building blocks on which larger districts are
constructed, it may be possible that some cities whose councilmen are
elected by the voters of a particular district would have a constitutional
duty to alter their precinct lines in an effort to conform to the one-man,
one-vote principle. According to the facts you have. submitted, that is not
the situation in this case.
p. 1318
The Honorable Lynn Cooksey, page 6 (H-282)
SUMMARY
A county is not required to alter its election
precincts, which were drawn in contemplation of
Avery v. Midland County, to conform to the election
precincts of a city which does not elect its councilmen
by individual districts.
Very truly yours,
I .
$&&2&?
CA
JOHN L. HILL
/ / Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1319