Untitled Texas Attorney General Opinion

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A NEY ~E3iEFCAI.a
~FTEXAS
PRICEDANIEL.
XrKmNEY GENERA,.
Hon. Arnold W. Franklin Opinion No. V-790
County Attorneys
Atascosa County Re: Authority of Commissioners'
Jourdanton,Texas Court to abolish justice pre-
cincts and create new precincts
in that territory,and effect
of such action upon elected
officers In the old precincts.
Dear Sir:
We refer to your letter in which you submitthe follow-
ing questions:
"Does the Commlssloners’Court, acting under
authority of ConstitutionalArticle V, Section
18, and Article 2351 of the Revised Civil Statutes
of Texas, have the authority to abolish existing
Justice Court precincts and create a new Justice
Court precinct of the territory engrossed of the
territory formerly consisting of the justice pre-
cincts so abolished?
"In event that the Commissioners'~Court may
abolish two old justice precincts and create a
new one to consist of the combined limits of the
two so abolished and appoint new officers for the
newly created precinct, then in that event what
dispositionwould be made to the elective officers
of the 0la precincts? Would the officers be
abolished with the abolishing of the old precincts?"
The authority of the Commissioners'Court to divide
counties into justice precincts is provided in Section 18 of
Article V of the State Constitution,which reads In part as fol-
lows:
"Rach organized county ln the State now or
hereafter existing. shall be divided from time
to time, for the con:
wentence of the oeoule. into
oreclncts. not less than four and not more-than
eight. The present County Courts shall make the
first division. Subsequentdlvlslons shall be
made by the.Commlssioners'Court, provided for by
Hon. Arnold W. Franklin, page 2 v-790
thFs Constitution. In each such precinct there
shall be elected at each biennial election, one
justice of the peace and one constable, each of
whom shall hold his office for two years and un-
til his successor shall be elected and qualified;
provided that in any precinct in which there may
be a city of 8,000 OP more inhabitants,there
shall beelected two justices of the peace. (Em-
phasis added throughout)
Article 2351, V.C.S. reads in part:
"Each commissionerscourt shall:
"1. Lay off their respective counties Into
precincts,not less than four, andnot more than
eight, for the selectionof justices of the peace
and constables, fix the times and places of hold-
ing justices courts, and shall establish places
in such p;ecFncte where electLons shall be held;
.,0 . . D
In State 8x. rel. Dowlen v. Rigsby, 43 S.W. 271 (error
refused), Judge Williams, writing for the Court, construing the
ConstLtutionsand statutes on the point of your inquiry, said:
"When the commissioners'court was organized,
in pursuance of the constitutionand the laws
passed thereunder,It possessed all powers con-
ferred by both; When the court was once established,
no legislation wae needed to enable it to exercise
the powers given by the above provision, to divide
the county into precincts. The direction is plain
and simple, and wlthaut conditl~onor restriction,
except that as to the.number of precincts. It is
said ~thatno procedure is prescribed by which the
power Is to be exercised. If any was needed, the,
statute supplied it, when It required that the pro-
ceedings of the court shmld be recorded in Us
minute book. Rev. St. 1895, art. 1554. This was
all that was necessary. The power to divide the
county Into justices'precincts is also given by
the statute, but not in terms so explfcit as those
used fn the constitution. Rev. St. 1895, art. 1537*
There can be no doubt that both constitutionand
statute conferthe power, and the only question is
as to Its extent. It is contended that a 1Fmitat~on
upon the power is found in the constitutionalpro-
vision fixing the terms of office of precinct of-
ficers; and that, since they are to hold for two
Hon. Arnold W. Franklin, page 3 v-790
years, it follows that the precincts cannot be
changed during the terms, because the power to
alter them would practically enable the court
to destroy the office. The language of the con-
stitution expresses no such limitation. The ai-
vision is to be made 'from time to time.' The
reason for the division is to..bethe convenience
of the people; and the judge, both as to time
and convenience,Is the court. The limitation
ccontendedfor by the appelant would require the
Insertion in the constitutionof a proviso which
the courticannot read into it. The only limita-
tion imposed serves to indicate the scope of the
power. That limitationrequires as wny as four,
ana does not allow more than eight, precincts.
But for it the county might have been cut up lntb
as many precincts as the court saw proper to es-
tablish. By It the Intention Is made more manl-
feat that, within the limits, the court Is to
determine the number. As to the time of making
thedivision, it is equally plain, The language
'from time to time, for the convenienceof the
,people,'clearly means that the convenience of the
people, as judged by the court, shall control In
determining the time when a dlvlsion is proper.
The phrase 'from time to time' repels the 2des
that it was the purpose to fix any particular time.
"If it should be urged that the provisions
contemplatea complete, and not a partial, am-
aLon, the answer La that, in effect, they are the
samee When two precincts are made out of one, or
the boundaries between two are changed and de-
fined, leaving all of the others unchanged, the
effect Is the same as if an order were entered
,..
setting out anew the boundaries of the unchanged
precincts, as well as those changed. As no form
of procedure is prescribed,there could be no i
substantialobjection to such Bctlon. The power
to establish the precincts does~.notnecessarily
conflict with the provision,~fY%Imthe terms of
office. They lplststand together. The offlce
is taken sublect tb the Dower to chanue the boun-
daries of the Dreclncts. This is no anomaly in
our law. All county offfcers whose compensation
is derived from perquisites,and therefore'de-
pends to some bxtent on the territory Ln which
they exercise their functions, hold their offices
sub$ect to lawful power to alter that territory.
While the offFce Is DroI)erty,it fs held subiect
Hon. Arnold W. Franklin - Page 4 (V-790)
“If it should be urged that the pro-
visions contemplatea complete,and not a
partial, division, the answer is that, in
effect, they are the same. When two pre-
cincts are made out of one, or the boun-
daries between two are changed and defined,
leaving all of the others unchanged, the
errect is the same as ii an order were en-
tered setting out anew the boundaries of
the unchangedprecticta, as well as those
changed. As no form of procedure is pre-
ascribed,there could be no substantialob-
jection to such action. The power to es-
tablish the precincts does not necessarily
conflict with the provision fixing the
terms of orrice. They must stand together.
The office is taken subject to the power
to change the boundaries of the precincts.
This is no anomaly in our law. All county
officers whose compensationis derived
from perquisites,and thereforedepends to
some extent on the territory in which they
exercise their functions,hold their of-
fices subject to lawful rower to alter that
territory; While the office is property
it is held subjeat to the proper exercisi
of all such powers as these. There is no
contract between the state and its offi-
cers which forbids such action.”
Also see the case of Brown v. bfeeks,96 S. W.
(2a) 839, to the same effect. We call your attention to
the following language used in the latter case:
“The attemptednominationof a candi-
date for constable of new precinct No. 1 be-
fore it comes into existence is entirely
void, and no one is entitled to such a nomi-
nation. On January 1, 1937, when the new
precinct for the first time comes into ex-
istence, then and in that event it will be
the duty of the commissioners’court to ap-
point new officers ror the new precinct.
State ex. rel. Robbins v. Parker, 147 Iowa,
69, 125 N: W. 856.
*Meek8 insists that, being a resident of
old precinct No. 1, and having received a
Hon. Arnold W. Franklin, page 5 p-790
this order, is that, when the new Precincts come
Into existence.all creclnct offices will be
vacant and the commissioners’court will be
charged with the duty of fillinn these crecinct
offices by appointment.‘I
In Carver v. Wheeler County, 200 S.W. 537, the Court
said, In part:
“While the holder of a public office ID
vested with certain rights in reference there-
to, being entitled to hold the same and receive
the emolumentsand compensationsincident to the
discharge of the duties of the office, and may
defend his rights against othera, yet the rela-
tion between the office holder and the government
under which he holds office ia not that of employ-
er and emploge, and their respective rights are
not to be determined by the application of the
general rules of contracts of employment. So
that it Is universally held that In the absence
of some inhibFtionby some superior law, the
governing body may abolish the office or change
the compensationto be paid the office holder at
any time, even during the term of the office of
-an incumbent, provided, of course, the changed
rate of compensationcannot be made to apply to
‘,
services already rendered.‘I
In view of the foregoing we are of the opinion that the
Commissioners’Court of Atascosa County is authorized to abolish
existing justice precincts and create new justice precincts com-
posed of the territory of existing precincts which are abolished
at any time for the convenienceof the people, But of course
there rmst be at least four and not more than eight justice pre-
cincts in the county at all times. The terms of office of all
officers of such abolished and changed precincts will ipso facto
terminate and the officers of the newly created precincts umst
be appointed by the Commissioners’Court.
SUMMARY
The CommissLoners’Court may abolish old
justlce precincts and re-dlvlde the county Into
new justice precincts at any time, so long as
there Is,a mlnlxmm of four and not more than
eight justice precincts In the county. When
such justice precincts are abolished the offices
In the old precbncts become vacant and the of-
ficers of the newly created justice precincts
.: .,
Ron. Arnold W. Franklin, page 6 v-790
uust be appointed by the Commlsaloners~Court.
Yours very truly,
ATTORNEYGWERAL OF TEXAS
By s/U. T. Williams
ASSiStant
WTW:wb:wc
APPROVED:
s/Joe R. Greenhill
FIRST ASSISTANT
ATTORNBYGBNRRAL