Untitled Texas Attorney General Opinion ( 1974 )

_,s THE ATI-ORNEY GENERAL
.. oe7rExAs ”
AUrrrIlV.- 78711
January 29, 1974
The Honorable Ned Granger Opt&n No. H- 220
COWlty AttOMey
County of Travis. Rc: Muat all Justicea .of the Peace
Austin, Texas and Constables run at the next general
election when prior to that election
all the justice precinct boundary
.
: linea are.changed and the precinct8 are
, ‘. renumbered. ~
:
Dear Mr. Graxqer:
You havg adviied UB that the Commimeioner8 Court of Travir County, on
July 9. 1973. paseed an order, effective January 1. 1974, redistricting the
six justice:precincta.md changing the boundarieq of each of them. On December
10,. 19iS. t&a ~Commiroioner.# Courk. changdd the bolndsriecr of ‘each of the con-
atables precincts to c~onform to the justiizeprecinctrr. theme.changes likewire
to be effective as of Januar.y 1, 1974.’ You have not advised ua of ~theresidence
of the juatfccae or of the terms ofoffice of each jurtice or constable.
i’! ., ,~,
Your question is whether thenofficee of the justices of the peace and of
the con&abler are vacant aa of January 1, 1974.
”
Section ig:of +ti&e 5’of ‘the .Co&itution of Texas providea, in part:
&ach%ganised co&y,in the State now or here-
after existing, Aall be divided from time to time, for
the convenience of the people, into precincta,. not lea8
than.four and not more than eight. Divieionn #hall be
made by the Commisclionere Court provided for by this
Constitution. In each such precinct there, shall be elected
one Justice of the Peace and one Constable, each of whom
p. 1025
The Honorable Ned Granger, page 2 (H-220)
shall hold his office for four years and until his successor
lhall be elected and qualified . . . . Each county shall
in like manner be divided into four commissioners pre-
cincts in each of which there shall be elected by the qual-
ified voters thereof one County Commissioner, who shall
hold his office for four years and until his successor shall
be elected and qualified. . . . *I (emphaeie added)
Article 5, Sec. 24 provides:
“County Judges, county attorneys, clerks of the
District and County Courts, justices of the peace,
constables, and other county officers, may be rsmoxed
by the Judges of the District Court6 for incompetency,
official misconduct, habitual drunkenness, or other
causes defined by law, upon the cause therefor being.
set forth in writing and the finding of its truth by a
jury. ” .(emphasis added)
In Childress County v. Sachse, 310 S.W.2d 414 (Tex. Civ. App. , Amarillo,
1958) Sachse had been elected commissioner of Childress County, commencing
January 1, 1955. The Commissioners Court changed the precinct boundary
lines effective April 1, 1955 and the County Judge declared Sachse’s office vacant,
since he did not reside in the newly described precinct. In affirming the district
court order awarding Sachsqback salary, the Court of Civil Appeals quoted from
20 C. J. S., Counties, Sec. 77, p. 840 as follows:
“While a change of boundary lines of commissioner
districts, or a redistricting, does not deprive a county
commissioner of the right to hold office for the rest of
his term, although by reason of the change his residence
is without the district from which he was elected, pro-
.
vided it is still within the county, still he does not by
becoming a resident of another district, become entitled
to succeed the official in that district after the expiration
of his term. ”
The Court held that Sachse never was legally removed from office and his
office was never legally vacated or abolished. He had a constitutional and legal
p. 1026
. ’
The Honorable Ned Grange;, page 3 (H-220)
right to serve as commissioner of the precinct untilhis term expired by law.
The Supreme Court, in refusing the application for writ of error, at 312 S.W.
2d 380 (Tex. 1958) stated as ite per curiam opinion:
“The application for writ of error is refused.
N6 revereible error. We approve the holding of the
Court of Civil Appeals that changes in precinkt bound-
aries do not create a Fcancy in the office of County
Commissioner or deprive the incumbent of the right
to hold office for the remafnder of his term, even
though by rearon of such change6 his residence is not
within the precinct ds redefined. 310 S.‘W. 2d 414. ”
This office, neverthelisi, iss&d optnionb holding that the Sachse case
did not apply and that justice precfncts were abolished and vacated upon a
redistricting.’ ,See.for instance, ‘Attoiney General Opinion WW-536 (1958);
Attorney General Opinion C-112 (1963). ‘And Tompare Attorney General Opinion8
V-1032 (1950) and~ktorney General Gpinion’V-1218 (i951).
However, in 1970 the Court of Civil Appeals at Dallas had before it the
‘ca&‘of ‘McGuire ‘v. Hu’ghkr, 452 S.W.2d 29 (Tex.. Civ. .App. ,’ 1970,. no writ).
`` The”question there was whether abolition by.the commissioners Court of one
of two justices of the Reace within a precinit had the legal effect of reducing the
four year term of onesof’the justice6 to two years. The Court,’ in ‘answering
.
the question said:-- ’’
I,.!
. . . The conetitutiorial provision is clesr and ``,’
unembiguou~ ~ihdtfolkowing the’firet t+o;year t&m of.
the ‘uneven numbered office (ae w&e Place No. i) there-
after,’ all jurtic&e.bf the:p&ce would be eiected ior the
term provided for ‘in the Constitution.~ namely, four years.
We hold that under such constitutional mandate the term
of office to which Relator McGuire wan elected in 1968
was for a period of four years, ending December 31. 1972.
“It has been declared in many cases that a public
office is property. . . . This is certainly true in the
sense that a person elected to an office established by
p. 1027
: .
. . The Honorable Ned Granger, page 4 (H-220)
law, and duly qualified for rame by taking the oath
of office, has a property right to the poeclesrion of the
office and enjoyment6 of it6 rights and emoluments all
of which the Constitution protect6 and the court6 will
enforce. . . . Judge McGuire was duly and legally
placed into porreeaion of hi6 office in 1968 for a con-
stitutional term of four yeare. During that period
the ha6 the vested right and privilege to exercire the
official dutier of ths office and to receive the com-
pensation provided by law. Such may not be denied
him by administrative edict or as a re8ult of the
Commissioner6 Court’6 action in abolinhing another
office in the same precinct. To 6anction such would
open wide a Pandora’s Box of uncertainty and con-
fusion. I’ (452 S. W. 2d at 31-32) See al60 Villarreal
v. Bustamante, 400 S.W.2d 231 (Tex. Civ. App.,
San Antonio, 1972, no writ); Attorney General Gpin-
ion H-97 (1973).
It i6 our opinion therefore that justices of the peace and constables elected
to a full term (as ,opposed to being elected to fill an unexpired term) are entitled
to 6erve the full four year6 in office and that a redistricting of their precincts
by the commislrioners court doe6 not vacate their office. In this opinion we do
not consider the effect of a court-ordered reapportionment.
The conclurion of thi6 opinion i.6 dirtinguinhable from the rituation con-
ddered in Attorney General Opinion H-219 (1974) relating to State Board of
Education dirtricts. There term8 were cut 6hort pursuant to a statutory 8cheme
ending all State Board terms at the general election immediately following a
decennial reapportionment.
SUMMARY
Justices of the peace and constables, elected to
a full term, are entitled to serve the entire four years
p. 1028
.
. .
.I
The Honorable Ned Granger, pege 5 (H-220)
and a redietricting of their precincts by the commi6-
sioners court fesulting in a justice or constable not
living in his precinct, does not vacate hi6 office.
Your6 very truly,
VED:
.u JOHN L. HILL
Attorney. General of Texas
\/7
, First
W/t2
DAVID M. KENDALL,. Chairman
Opinion Committee
p. 1029