Untitled Texas Attorney General Opinion ( 1970 )

TIEE AYITORNES GENERAL
OP1\EXAS
Hon. Roger Gorrell Opinion No. M- 606
County Attorney
Bailey County Ke: Several questions concerning
Hulashoe, Texas 79347 election orecincts. and re-
lated quektions, which arise
by reason of redefining the
boundaries of the County
Commissioners Precincts of
Dear Mr. Gorrell: Bailey County.
In your recent letter requesting an opinion of this
office concerning election
. questions
. raised by the redistricting
__-
of your county conmwisloners precincts you set out tne follwing
facts and questions which we quote as follows:
"On December 30, 1969 three citizens of Bailey
County sued the Commissioners Court of Bailey
County to re-district the county commissioners
precincts in line with the decision of the United
States Supreme Court in Midland County versus
Avery.
"The Commissioners Court then held a series
of meetings and passed an Order to be effective
January 19, 1970 re-districting this county to
comply with the rules laid down ia the Supreme
Court Case,
"On February 10, 1970 the four commissioners
filed an answer in the above law suit. This law
suit has nw been dismissed, and there is no
litigation pending.
1,
...The CommissionersCourt has not as yet
passed a motion redefining election precincts as
we were waiting for the July or August Term as
prescribed in the Election Code, Article 2.04,
Section A.
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Hon. Roger Gorrell, Page 2 (~-606)
"The County was re-districted and the Order
'passed so as to leave all four commissioners in then
new precincts. We do not have a contest in Precinct
2, but do have a contest in Precinct 4, .where both
the incumbent and his opponent live in the boundary
of old commissioners precinct 4 , and will both reside
within the boundary of the new commissioners precinct'
4, as passed by motion on January 19, 1970.
"The questions we have are:.
"a. Are persons living in the new
commissioners precincts 2 and 4 authorized
to vote in the May Primary and run off if any?
"b. Must the Commissioners Court wait
until its July or Auguet Term to pass a
motion redefining county election precincts?
“C. If the Commissioners Court passes
an Order at the July or August Term redefining
county election precincts, how will this
affect the General Election in November taking
into consideration the apparent conflict
between Section E of Article 2.04 of the
Election Code and Section A of Article 2351
l/2 in the Second Sentence thereof?"
Article 2.04 of the Texas Election Code reads in part
as follows:
"(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
boundaries or survev lines bv an order entered upon
the minutes of the Court. A^tany July or August-
term, the Court may make such changes in the election
precincts as they deem proper, bv such order entered
upon the minutes of the Court. ...
"(b) No election precinct shall be forrnsdout
of two or more justice precincts or commissioners
precincts, nor out of the parts of two or more
justice precincts or commissioners precincts; ....
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Hon. Roger Correll, Page 3 (M-606)
If in Septemher of anyyear there exists any
election precinct in the county which does not
comply wi-th the foregoing requirements, the
commissioners 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; ...
II
....
"(ef Changes in election precincts shall not
become operative in the holding of elections until
the beginning of the following voting year. The
Commissioners Court shall cause to be made out and
delivered to the County Tax Collector before the
first day of each September a certified copy of
such last order for the year following; provided,
hwever, that any order entered during the month of
September, as provided in Paragraph (b) of this
Section, ,shall be delivered to the Tax Collector
forthwdttg." (Underscoring added).
Article 5.01 and 5.02 of the Texas Election Coda
set out the requirements for voting. Article 5.01 denies
suffrage to certain classes of persons, but ia otherwise
not relevant to the questions before us: Article 5.02 reads
as follows:
“Art. 5.02. Every person subject to none of the
foregoing disqualifications who shall have attained
the age of twenty-one years and who shall be a citizen
of the United States and who shall have resided in this
state one year next preceding an election and the last
six months within the district or county in which
such person offers to vote, and who shall have registered
as a voter, shall be deemed a qualified elector. No
pason shall be permitted to vote unless he has registered
in accordance with the provisions of this code. The
provisions of this section, as modified by Sections 35
and 39 of this code, shall apply to all elections,
whether held by the state, by a county, municipality,
or other political subdivision of the state, or by a
political party." (Underscoring added).
We answer your first question as follows. All persons,
otherwise qualified as voters, who have resided within the
county for six months immediately preceding the election, may
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Hon. Roger Gorrell, Page 4 (M-606)
vote in the May primary and run-off, if any. Voters in .
the newly created commissioners precincts vote for the
county commissioner of the commissioner's precinct in
which the voter is a resident, even though election precincts
cross the newly created commissioners precincts.
Article 2.04 sets out the time for making changes
in election precincts and contains similar wording as former
Article 2933, Vernon's Civil Statutes. These changes
may be made only during the July and August terms of the Court,
and during the month of September,in the year 1970.
Article 2.04, Election Code; Wilson v. Weller, 214 S.W.ld
473 (Tex.Civ.App. 1948); Hogg v. Campbell 48 S.W.ld 515
h~.Ci~.App. 1932). Your second questio; is therefore
answered in the affirmative.
In answer to your third question, you are advised
that the changes in election precincts do not become
operative until the beginning of the following voting year.
Articles 2.04(e) and 5.14a, Texas Election Code. Counties~
have been held to be subject to the one-man vote rule, and
no substantial variation may exist from equal population
in drawing districts for units of local government having
general governmental powers over the entire geographic area
served by the body. Avetyv. Kidland County, 390 U.S. 474
(1968). Election rxecmcts changes or substantial variations
are not involved in this matter.-
SUMMARY
-------
After the County Commissioners precincts
of Bailey County were redefined as to boundaries
in January 1970:
(a) Voters in the newly created commissioners
precincts vote for the county commissioner of the
counnissioner'sprecinct in which the voter is a
resident. Election Code, Art. 5.02.
(b) Changes in the boundaries of county
election precincts map he made only during the July
and August terms of the Court and the month of
September, 1970. Election Code, Art. 2.04,
(cl These changes in boundaries of election
precincts do not become effective until the following
voting year. Election Code, Art. 2.04(e), 5:14(a).
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. .
Hon. Roger Gorrell, Page 5 (M-606)
ey General of Texas
Prepared by William J. Craig
Assistant Attorney General
APPRDVED:
OPINION CCHMXTTEE
Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman
John Banks
Rex white
Ralph Rash
Glenn Drown
MEADE F. GRIEFIN
Staff Legal Assistant
ALFRED MAXXER
Executive Assistant
NOLA WHITE
First Assistant
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