           THE    ATTORNEY                 GENERAL
                         OF      TEXAS

                      AUESTIN.   -rExAle   78711



                       April 22, 1970


Hon. F. A. Cerda                       Opinion No. M-612
County Attorney
Jim Hogg County                        Re:   Whether the Justice of the
Hebbronville, Texas                          Peace and Constables who are
                                             running for election to be
                                             deemed legally in the race
                                             for their respective pre-
                                             cincts in the May 2nd Primary
                                             under the stated facts and
Dear Mr. Cerda:                              circumstances.
          Your opinion request on the above captioned subject
reads, in part, as follows:
          ‘Are the Justice of the Peace and Constables
     who are running for re-electlon legally in the
     race for their respective precincts In the May
     2nd primary under the following facts and clr-
     cumstances?
          II
           . . .
          “On the 31st day of January, 1969,the
     Commlssloners’ Court passed an order re-dlstrlctlng
     the commissioners’ precincts, which said order was
     duly published in the newspaper and posted in
     several different places in the county, a copy Is
     herein attached.
          “On the 22nd day of August, 1969,the Com-
     missioners’ Court by the attached order created
     the election precincts with the same boundaries
     as the commissioners precinct, wherein they wanted
     to create the justice and constables and inadvertently
     the wording to create same was left out in the
     ordering part.
          “The deadline for filing for candidates for
     justice of peace and constables as well as others


                              -2922-
Hon. F. A. Cerda, page 2 (M-612)


     was February 2, 1970 and the candidates filed
     for positions for justice of peace and constables
     In conformity with the newly created precincts.
          "On the 9th day of March, 1970, the Commls-
     sloners' Court assed an order (copy of which Is
     herein attachedP stating that In the order of August
     22, 1969, It was their Intent to create the justice
     of peace and constable precincts and to clarify the
     matter and In addition to said order they were at
     this time establishing the new justice of peace and
     constable precincts with the same boundaries as the
     commissioners precincts created on the 31st day of
     January, 1969.
          "Discussing Is only to justice of peace and
     constable candidates. The commissioner precincts,
     election precincts and the justice of peace and
     constable precincts have the same boundaries.
          "Each person filing for these positions are
     well within their boundaries and none are affected
     adversely. They all filed with the Intention to
     run for their resp$ctlve positions within the newly
     created precincts.
          The copies of the commissioners court minutes show that
on January 31, 1969, the Commissioners Court redistricted all of
the commissioners precincts setting out descriptions by metes and
bounds for all four precincts, thereby creatl   new county commls-
                                             T
sloners precincts to be effective April 10, 19 9.
          On August 22, 1969, the Commissioners Court redistricted
all election precincts to conform to the boundaries of the new
county commissioners precincts and In said order recited the
following:
          "Whereas, the Commissioners' Court of Jim Hogg
     County, Texas, on Friday the 31st day of January, 1969,
     did pass an order changing the boundaries of Commissioners
     Precinct Nos. 1, 2, 3, and 4 of Jim Hogg County, and
          'Whereas, the voters of each of the above precincts
     are entitled to elect one (1) county commissioner, one
     (1) Justice of the Peace, and one (1) constable, and . . .
          "Now therefore, It Is ordered, adjudged and decreed
     that the County of Jim Hogg Is hereby divided Into

                           -2923-
 .   .




Hon. F. A. Cerda, page 3 (M-612)

     election precincts to be known as follows, to-wit:
     . . .
          "It Is further ordered that this order b@ pub-
     lished for three weeks (3) consecutive weeks as re-
     quired by law, and that said order shall become
     effective ,accordlng to law.
          11    ‘1
           . . .
          On March 9, 1970, the Commissioners Court passed an
order reading, In part, as follows:
           "The Commissioners' Court of Jim Ho g County,
     Texas, did on the 22nd day of August, 19fi9, pass   *
     an order specifying the new election precinct
     boundaries at which time It was the intention of the
     Commissioners Court to also create new Justice of the
     peace and Constables precinct boundaries. The said
     new Justice of the Peace and Constable precincts
     boundaries would conform to the County Commissioners'
     precinct boundaries which were created on Commissioners'
     order dated January 31 1969, and In order to clarify
     the Intent of the Ordei dated August 22, 1969 In
     addition to, with t changing the said Order if
     August 22, lgbg, E Is now Ordered, Adjudged and
     Decreed that the County of Jim Nogg, Justice of
     the Peace Precinct No. 1 and Constable Preclncl?
          1 shall have the same boundaries of the County
     C%mlssloners' Precinct No. 1 boundaries as des-
     cribed by metes and bounds In the Order of the Com-
     missloners' Court of Jim Hogg County, Texas, dated
     January 31, 1969; Justice of the Peace Precinct
     No. 2 and Constable Precinct No, 2 shall have the
     same boundaries of the County Commlssloners Precinct
     No. 2 boundaries as described by metes and bounds In
     the Order of the Commlssloners' Court of Jim Hogg
     County, Texas, dated January 31, 1969; Justice of the
     Peace Precinct No. 3 and Constable Precinct No. 3
     shall have the same boundaries of the County Commis-
     sioners Precinct No. 3 boundaries as described by
     metes and bounds In the Order of the Commissioners
     Court of Jim Hogg County, Texas, dated January 31,
     1969; Justice of the Peace No. 4 and Constable
     Precinct No. 4 shall have the same boundaries of
     the County Commlssloners Precinct No. 4 boundaries
     as described by metes and bounds In the Order of the
     Commissioners' Court of Jim Hogg County, Texas, dated
     January 31, 1969."

                          -2924-
Hon. F. A. Cerda, page 4 (M-612)


          Under the provisions of Section 65 of Article XVI of
the Texas Constitution this la an election year for the office
of Justice of the Peace but ls,nc$ an election year for the office
of Constable. The offices of constable and Justice of the Peace
In each of the new precincts came Into being vacant as of March
9, 1970, and said vacancies were to be filled by the Commissioners
Court until the next Qeneral Election. Attorney General Opinions
~~-536 (1958) and V-1032 (1950).
          The order of March 9th changed the boundaries but did
not change the numbers of the Justice precincts, there being
at all times four justice precincts as required by the Con-
stltutlon. Under the provisions of Section 65 of Article XVI
of the Texas Constitution this Is an election year for all
Justices of the Peace In single justice precincts. All such
offices are to be filled for a four year term, This holds
true for newly created as well as previously existing offices
of justice of the peace. The candidates filed for the office
of justice of the peace by the proper precinct number. The
changing of the boundaries could have affected their residence
requirements but did not do so under the facts set out In
your letter. The changing of the precinct numbers could have
affected the ldentlflcatlon of the particular office for which
a candidate sought to run but did not do so under the facts
presented. You also stated that all candidates for justice of
the peace filed with the Intention to run for their respective
positions within the newly created precincts which at the time
they filed they thought corresponded to the new County Commls-
sloners precincts. The order of March the 9th recites that the
justice precincts shall correspond to the commissioners precincts.
We have found no provision of the Election Code which would extend
the deadline for filing for justice of the peace or would require
that such candidates to amend their applications, withdraw them,
or refile their applications for the office under the facts
presented. Therefore, based upon the facts presented, we have
concluded that the candidates who filed for the offices of justice
of the peace by the February 2nd deadline are legally on the
ballot for the May 2nd primary election.
          The controlling legal question Is whether a candidate's
application filed In accordance with the Election Code but prior
to the change of boundaries of the justice precincts by the order
of the Commlssloners' Court must be treated as a nullity. The
Intention of the candidate to run for the described office Is clear
under Article 13.12 of the Election Code. If the candidate desired


                            -2925-
 .    .




Hon. F. A. Cerda, page 5 (M-612)


to withdraw for such position , authority there exists for him
to do so. Since there was no withdrawal, It Is clear that the
application was intended to &main on file for the position
described. There Is no requirement of law that the application
must describe the boundaries of the precinct but only that It be
Identified by number, and this was complied with. Since the
boundaries for the various precinct numbers came Into effect well
prior .to the election, there can be no question as to the Intent
of the voters to vote for the candidates seeking election In their
precincts.
          There Is no statutory provision governing the specific
procedure here Involved, but our Supreme Court has held that In
the absence of a statute to cover a particular procedure or method
when by virtue of a happening (resignation) It was too late for
prospective candidates to file applications to get their names on
the ballots on final date fixed by statute, the party Is free to
follow any other method In keevlnn with Its usaues and customs. If
not expre&ly prohibited by la;. -Kllday v. B&any,    139 Tex. 380,
163 S.W.2d 184 (1942).
          It la the opinion of this office that the candidate's
application under the circumstances must be deemed at least a
substantial compliance with the Election Code, and should not be
deemed a nullity. In cases of doubt, It is well settled that all
doubts should be resolved In favor of the right so to participate
as a candidate. In any event, In an election contest, It Is well
settled that elections may be contested only upon the grounds au-
thorized by the Election Code , and the Irregularity Involved here
could not be raised. Magnolia Petroleum Co: v. Jackson County
                                     30 S.W.2d 310, Tex.Clv.App.
                                    S.W.2d 896 (Tex.Clv.App. 1968,
error dlsm.). 'restedby the above considerations, we conclude
that the p&nature fill% of the candidate's application under
the facts and circumstances Is not a fatal Irregularity which
would invalidate the election of such candidate should he be
elected.
          The question of the effect of the Commissioners Court
order In changing the precinct boundaries Is not necessarily a
pertinent or controlling consideration here In view of the fore-
going considerations.
          Since under the provisions of Section 65 of Article XVI
of the Texas Constitution this Is not an election year for the
office of constable, the office of constable In each of the new

                            -2926-
Hon. F. A. Cerda, page 6 (M-612)


precincts came Into being vacant and with an unexpired term
which ends on December 31, 1972. See Attorney General's .Oplnlon
No. ww-1499 (1962).  Article lJ.ua of the Texas Election Code pre-
scribes the manner In which persons are to be nominated and elected
to fill unexpired terms. The vacancies In the offices of constable
occurred on March 9, 1970. That date Is more than five days after
the regular filing deadline of February 2, 1970, and more than
thirty days before the general primary on May 2, 1970; therefore,
the provisions of paragraph 2 (Ii) of Article 13.12a, Texas Election
Code, apply and said section declares that:
          11 . .nomlnatlon for the unexpired term shall
           .
     be made by primary election, and candidates shall
     have until the end of the twenty-fifth day preceding
     the day of the general primary In which to file appllca-
     tlons for a place on the primary ballot. The appllca-
     tlon must be received and filed In the nfflce of the
     proper chairman before the deadline, and applications
     mailed but not actually received before the deadline
     shall not be accepted for filing."
          According to our calculations the filing deadline pres-
cribed by this provision Is midnight of April 7, 1970.
          Based upon the facts as set out In your letter this
office holds that all candidates who have filed for the office
of constable for the unexpired term which ends on December 31,
1972 by midnight of April 7, 1970 and who meet all requirements
of the Election Code would legally be on the May 2nd primary
ballot for their respective constable precincts.
                       SUMMARY
          Based upon the facts and circumstances presented,
     all candidates for justice of the peace who filed by
     the February 2nd deadline are legally on the primary
     ballot for the election to be held May 2nd. Candidates
     for the unexnired term of Constable who filed by
     midnight of April 7th, 1970 who meet all elect&   law
     requirements would be legally on the May 2nd primary
     ballot.
                                          yours,

                                           &M
                                           MARTIN
                                          neral of Texas


                          -2927 -
 .   1.   *




Hon. F.       A. Cerda, page 7   (M-612)



Prepared by William J. Craig
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Acting-Co-Chairman
Ivan Wllllams
W. 0. Shultz
Arthur Sandlln
John Qrace
MEAD& F. QRIFFIN
Staff Legal Assistant
ALFRRDWALKER
Executive Assistant
NOLA WHITE
First Assistant




                                 -2928-
