      ,THEATTORNEYGENERAI.
                  OFY~C=S                ~,



Honorable Frank Ginzel              Opinion NO. c-406
County Attorney
Mitchell County                     Re: Whether certain named
Colorado City, Texas                    persons were elected
                                        Constable and Justice
                                        of the Peace under the
Dear Sir:                               stated facts.
          You have requested an oplnlcm cm whether there was
a valid election, at the general election in 1964, to fill the
offices of Constable and Justice of the Peace of Precinct 3,
Mitchell County, under the facts stated In your opinion request
as follows:
           “In April, 1963, the CommissionersCourt of
      Mitchell County, Texas, changed the various boundary
      lines of each Commissioner16Precinct In an effort
      to equalize the voting strength and roads to be
      maintained. Such order did not say anything about
  .   the Justice of the Peace Precincts; on August 10,
      1964, the CommissionersCourt, as a body, by an
      order entered on the Minutes of the Commissioners
      Court Docket, changed the Justice of the Peace
      Precinct boundary lines; of all precincts, making
      them conform and correspondwith each Commissioner16
      Precinct boundary lines conditioningsuch order,
      as applied to the Justice Precincts, to become
      effective January 1, 1965.
           “Thereafter,at the general election, held
      November 3, 1964, H. S. Hickman and Mose Allen
      received some write-in votes for Justice of the
      Peace and Constable,respectively. Both of these
      men stand ready to take office as Justice ofthe
      Peace and Constable of Precinct 3. Previously, the
      office of Justice of the Peace and Constable of
      Precinct 3 have been dormant for many years.
           “I understandboth of these gentlemen reside in
      Precinct 3, but In that part of Precinct 3 which was
      taken from Precinct 1 and added to Precinct 3 in the
      equalizationorder of the CommissionersCourt,


                           -1920-
                                                                     .




Honorable Prank Glnzel, page 2 (C-406)


     pertaining to the added territory of Commissionerof
     Precinct 3. It would seem that the office of Co&s-.
     sioner and Justice of the Peaoe,~of Precinct 3, became-
     Identicalas to territoriallimits effective January 1;
            This being so doe& the case of Brown vs Weeks>
     ;8:W.2d 839, contril the situation? If following
     the reasoning of Brown vs. Weeks, the office did not.,
     come into ,existenceuntil January 1, 1965, then it
     would appear that neither of the officialswere
     elected to this office. Both have resided in Precinct
     3 set up in 1963, for Commissioners,since then. On
     the other hand, If Brown vs. Weeks does not apply to
     this SltU?&ion,,then,bothdesire to qualify."
           You'have Informed us that at the 1964 general election
there Wt&B po candidate for either of these offices whose name was
certif%ed for a place on the ballot as a party nominee or as an
independentcandidate,and the titles of these two offices
were not printed on the ballot. The write-in votes,whichMr.      :
Hickman and Mr. Allen received were by the voters' having
written in both the title of the office and the name of the
candidate In each instance.
          If the offices of Justice of the Peace and Constable'
of Precinct No. 3, as the precinct was redefined and established
by the order of August 10, 1964, to become effective January 1,
1965, could have been filled by election at the general election
In 1964, we are of the opiniolithat these two Individualswere
validly elected by virtue of the write-in votes. Although, as
you state, the offices had been dormant for many years, they
nevertheless continued to exist as offices created by the Consti-
tutfor&/ and were eubject to being fflled at the ,generalelection,
the office of Constable for the full term of four years beginning
on January 1, 1965, and the-office of Justice of the Peace.for
the unexpired portion of                began on January 1, 1963.
Att'y Gen. Op. W-1499 (1962     In Bryant v. O'Donnell,359
S.W,2d 281 (Tex,,Civ.App.    ), the court held that write-in
vote,s.
      cast at,a primary election by the voters' havtig written

           1 Article V, Section 18 of the Texas Constitution
 provide8 td at each county shall be divided Into not less than
 four and not more than eight justice precfncts, and "in each such
 precinct there shall be elected one Justice of the Peace and one
 Constable,each of whom shall hold his office for four years * * *0n
 Article XVI, Section 65 of the Constitutionand Article 17,
.RevieedCivil Statutes, taken together, establirh current terme
 of Justices of the Peace as beginning on January 1, 1963,,and of
 Constablesas beginning on January 1, 1965,

                           -1921-
.   .   -



                                               ‘,



            Honorable Frank Glnrel, page 3 (C&6)


            in the title of the office and the name of the candidate were
            valid, and that the write-in candidate who received a majority
            of such write-in votes was validly nominated, even though the
            number of.‘write-invotes cast for the office was only a small
                        the total number of voters participatingin the
            -z%%    9 This holding would be eq lly applicable to write-
            in votes cast in a general election.39
                      However, we are of the opinion that the validity of
            the election for these two offices depends upon an entirely
            different principle and Is controlledby the holding in Brown
            v. Meeks, 96 S.W.2d 839 (Tex.Clv.App.1936, error dlsm.).
            Under the rule in that case, there was no valid election for
            Justice of the Peace or Constable as those offices were to
            exist after January 1, 1965, In any of the precincts whose
            boundaries were changed by the order of August 10, 1964.
                      In the Brown cask, the CommissionersCourt of Bexar
            County, prior to the primary election in 1936, had entered
            orders.changlngthe boundaries of the justice precincts and
            reducing the number of precincts from eight to five, and had
            provided that the changes were to be effective as of Janaury
            1, 1937. The order of the Commissioners  Court also made the



                      g In 1963, Article 13.09 of Vernon’s Texas Election
            Code was amended to prohibit the counting of write-in votes
            under these circumstancesin a primary election, by addition
            of the followingprovisions “If for any office, other than
            the party office of county chairman or precinct chairman,
            there is no candidatewhose name is to be printed on the
            general primary ballot, the title of the office shall not be
            printed on the ballot and no write-in vote for such office
            shall be counted.” There Is no similar provision with respect
            to the ballot for the Howember general election.
                      y In 1959, this office held In Attorney General’s
            Opinion No. WW-541 that the validity of an election by write-
            in votea, where the title of the office was not printed on the
            ballot, depended on whether the voters generally knew or should
            have known that an election for the office was taking place,
            and that this was a fact question, depending on all the surroundin
            circumstances,to be detarmlned initiallyby the authority charged
            w,iththe duty of canvassing the returns of the election,
            v. O’Donnell virtually overrules Opinion No. WW-541, a1th.o P
            the court said that “the facts upon which the Attorney General
            based his opinion “BJIreadily be dlqtin uished from the facts
            in the Instant case. 359 s.w.2a at 28 8 o (The court erroneously
            referred to   inlon Nb. Ww-541 as Opinion No. 0~2576, dated
            August 3, 195 -).
                        9               -1922-
Honorable Frank Qlnzel, page 4 (C-406)


followingprovision:
          “Any resident in any of the several Justice of
    the Peace
         -.   -Precincts Nos. 1 to 8, Inclusive,who -will
                                                      ._
    be after January lst, 1937, a rehldent in any of. the
    ~severalJustice of the Peace Precincts Was. 1, 2; 3,
    4 and 5, as hereinabove re=dlStrlcted,and who Is
    otherwise qualified may become a candidate for the
    office of Justice of the Peace, Constable or Public,
    Weigher In such Justice of the Peace Precinct of his
    residence,as hereinabove defined, and the several
    candidates for such offices In the several Justice
    of the Peace Precincts,as hereinabovedefined, who
    shall be duly nominated in the July, 1936, prirary,
    and duly elected at the general election in Novemheb;
    1936, shall be the duly elected Justicea of the Peace,
    Constablesand Public ,Weighersin aaid respective
    Justice of the Peace PrecInCtsiand shall respectively
    assume office January 1, 1937.
         “The qualified voters in the respective Justice
    of the Peace Precincts, as hereinabove defined, ray
    vote in any Primary or Oeneral Election for the
    candidates for Justice of the Peace, Constable and
    PubllC We.igherwho stand for election in the respectivk
    Justice of the Peace Precincts, as hereinabove defined.”
          The question presented In the case and the court’s
holding are set forth In the following quotation from the
opinion:
         “This order placed practically all the territory
    of what we will hereafter call ‘Old Precinct lo. 1
    and Old Precinct Do. 61 Into what we will hereafter
    call ‘new Precdnkt Do. 1.’ The only te,rrltoryIn 0ia
    precinct Do. 1, which was not Included in New precinct
    Do. 1, was that territo
    precincts Nos. 134 and 31” which are situatea ‘Oting
          *At the Democratic prlmry, held on July 25, 1936,
    S..If. Meeks ad Gus. Brown were’oppoelng candltitea, and
    the only candidatea,  for the office o? constable o?
    precinct 100.1, Dexar county. The election was not held
    In old precinct Wo. 1, but waa held in new precinct Ao. 1.
    Thus the Democratid executive committee attempted to
    give effect to the last two paragraphs of the Order of
    Juwe 1, 1936, which provided, In effect, that, while
    the New Precinct lo. 1 was not to come into exlrtence
    until amary 1, 1937$ persons tight become candidates
                           -1923-
.   .   -




            Honorable Frank Ginzel, page 5 (c-406)


                 and vote as though the order had gone Into
                 immediate effect; that is, on June 1, 1936, prior
                 to the primary election.
                      “Accordingto the election returns, Brown
                 received a majority of 498 votes in the territory
                 which was to constitutenew precinct No. 1, if, aa,
                 and when the order of June 1, 1936, became effective.
                      “This presents the question of whether or
                 not it was within the power of the commissioners’
                 court to authorize persons to become candidates
                 for office and vote In a precinct to be created
                 in the future, or whether such persons otherwise
                 possessed the legal right to become candidates
                 and to vote In such new precinct Ro. 1, as was
                 stated in such order.
                      “The Constitutionand statutes of this
                state, particularlyarticle 2927, R.S. 1925
                 now Article 1.05, Vernon’s Texas Election
                4-ode , prescrl,besthe qualificationsof
                cand idates. One of such qualificationsis that
                a candidate for office must reside for six months
                in the precinct in which he attempts to become
                a candidate for office. Certainly no one is at
                the present time a resident of new precinct No. 1,
                for the very simple reason that this legal entity
                does not exist at the present time. It will not
                come into existence,  according to Its own terms,
                prior to January 1, 1937. Until that time no
                legal entity in the form of a new justice precinct
                 is   in existence.      ,.*
                      “There can be no question as to the power
                 of the commieeloners~ court to create new justice
                 precincts, from time to time, for the convenience
                 of the people. This power ia given to the commis-
                 sionerel courts by the Ccnstitutlonof Texas
                 @.s.;:cle5, I 183 and by the statutes of this
                         Article 351, eubd. 1, R.C.S. 1925; State
                 ex rei. Dowlen v. Rigsby, 17 Tex.Clv.App.171,
                 4S3WS.E10271; Tuner  v. Allen (Tex.Civ.App.)254
                  .*      .
                        “The commi8slcaers~court also has the power,
                 when lawfully exercised, to pass M order redis-
                 tricting the county into new justice   of the peace
                 precincts   to become effective In the future.

                                       -1924-
                                                              -   .




    Honorable Frank Glnzel, page 6 (c-406)


         Gale et al. v. Board of Sup’rs of Oakland County,
         2-60Mlch. 399, 245 B.W. 363. Such an act, being
         legislativeIn it8 nature, may,be made to become
         eifectlve after the expiration date of the terms
         o? offices of the member8 of the commissioners’
         court passing the order, as it in no way binds
         their 8uccessors In office. Such 8uccessorsaie
         fre8 to amend or repeal syh a 1egislative”order.
         See State ex rel. Brunjes v. Bockelman (Mo.Sup.)
         240 S.W. 209.
              n***

              “However,when the commLssioner8t    court
         attempts to determlne who may become a candidate
         or vote in such new districts, It is attempting
         t0 legi8late upon a subject over which it ha8
         no juriediction. The Ugl8lature of this state
         ha8 fixed the qualification8of candidates for
         the office of constable, or any~other precinct
         officer, article 2927, R.S. 1925, and the
         commlesloners~court cannot add to or take from
         these qu&llficatione.
         (5th Ed.) vol. 1, p. 63;fle7?    micipal     corpe
             “Article 6878, R.S. 1925, likewise prescribes
        who me,yvote In a constable’8election, and this,
        of cour8e, cannot be altered in any way by the
        commlssionersscourt. The Legislature ie the
        supreme legislativepower of the state, and,..where
        an order of the commlesionerslcourt conflicts with
        a proper legls3ativeact, the order must give way
        and the act .ofthe Legislatureprevail.
              “It is therefore clearthat until January 1,
         1937, there will not be in,new precinct Bo. 1 any
         person who con vote or become a candidate for
,
         office, as such new precinct doe8 not come into
         exietence prior to that date; State v. Bockelman,
         supra.
              It folLows,thatneither Brown nor Meeks was
         eligible to become a candidate for the office of
         COnetable of new precinct lo. I9 and neither the
         people living in old precinct 80, 1, nor old
         precinct No. 6, would be’quallfied to vote for
         the precinct officers of new precinct lo. 1,
         until it ca~peInto existence on January 1, 193T0


                                -1925-
. .   -




          Honorable Prank Ginzel, page 7 (C-406)


                    “The attempted nomination of a candidate for
               constable of new precinct No. 1 before it comes
               into existence is entirely void, and no one is
               entitled to such a nomination. Cn January 1,
               1937, when the new precinct for the first time
               comes into existence, then and in that event
               it will be the duty of the commissioners’court
               to appoint new officers for the new precinct.
               State ex rel. Robblns v.’Parker, 147 Iowa, 69,
               125 N.W. 856.
                    “Weeks insists that, being a resident of
               old precinct No. 1, and having received a
               majority of the votes polled in old precinct
               No. 1, he is entitle’dto the nomlnaticn for
               constable of old precinct No. 1. The trouble
               is, there was no election held for constable
               of old precinct No. 1. None such was intended;
               the names of the candidateswere submitted to
               the voters of the proposed new precinct. Their
               names were not submitted to the voters of voting
               precincts Nos. 134 and 141, because these precincts,
               while a part of the old precinct, were not a
               part of the proposed new precinct. It is not
               reasonable to suppose that either candidate was
               running for an office that would not be in existence
               on January 1, 1937, the date set for new officers
               to qualify. It is not reaeonable to suppose that
               the officers In charge would hold a primary for
               the nomination of a candidate to an office that
               would not exist when new terms of office would
                       Cooley’s ConstitutionalLimitations
               ;%%d.)    vol. 2, pp. 1394, 1395.
                     “It appears that the commissioners1court,
               in passing  the order of June 1, 1936, thought
               they were doing a fair thing, in that they
               provided that any person who would live in the
               new precinct after January 1, 1937, could
               become a candidate in the July primary and
               the November general elections,and that any
               voter who would live in the new precinct after
               January 1, 1937, could vote at such primary and
               general elections,but the result of this order
               Is that, when the new precinct8 come into existence,
               all precinct offices will be vacant and the commis-
               sioners’ court will be charged with the duty of filling
               these precinct offices by appointment*w


                                      -1926-
Honorable Prank Ginzel, page 8, (C&6)


          We think It obvious that the voter8 who voted for '-
Mr. Hickman and Mr. Allen intended to be voting for the offices
of Justice of the Peace and Constable of Precinct No. 3 as It
would exist after January 1, 1965, rather than as it existed
oh the date of the election, for the reason, among others, that~
neither Wr. Hickman nor Mr. Allen wa8 eligible to the respective
office for old Precinct Ho. 3 because neither of them resided
within that precinct and could not legally have been declared
elected to It. Art8.  1.05 and 1.06, Vernon's Texas Election
Code. Under the holding in Brown vi l&leeks, a valid election
for Justice of the Peace or mew               Precinct No. 3
could not have been held in November, 1964, because the -
precinct was not yet in existence at that time.
            Brown v. Week8 has been cited in on1 two appellate
                            v. Valerio, 309 S.W.28 $79, 480 (Tex.
                                 Child rem County v. Sachse, 310 S.W.
               Tex.Civ.App.    199, error ref. n.r.e. lbtiTex. 371,
                     Welther of theee case,6modified its holding
                            a8 the law whlch'we should follow in
this opinion unless It ha8 been implledly overruledby some
later case.
               der8On v. Penix, 138 Tex. 596 161 S.W.2d 455
(1942), th?&reme    Court had before it a 141 Act of the
Legislature reorganizingthe 30th Judicial District, which
by-the express terms of-the Act was to take effect on January 1,
1943.  The Court held that the District Attorney for the 30th
District elected in 1982 for the term beginning January 1,
1943, should be elected from the district as reorganized.
This'holding was followed in Attorney General's Opinion c-198
(1963), which held that nominations for the office of Judge
of a ner dletrict court which was to come Into existence on
June 1, 1964, could be made at the pilmary elections held
in May, 1964.
           We feel that thehalding In llrorra v. Weeks is not in
harmony with Anderson v. Pealx, but we cannot say that It wa8
 lmnlledlu overruledby the latter ca8e. In the former caee,
 th; action was,taken by the commissionerscourt, which has -
no power except that given to It by the Constitutionor by
 the Legielature;in the latter case, as in Opinion C-19, the
,actionwas by the Deglelatureo In the Brown opinion, the court
 itself provided a ground for differentiatingthe two cases,
when It said:
            n . . +[Wp    the commisslonere~court
      attempts to de ermine who may become a candidate
      or vote in such new dlstrlcte, it Is attempting


                             -1927-
Honorable Prank Olneel, page 9 (C-406)
                                .

    to legislateupon a subject over which it has
    no jurisdiction. The Legislatureof this state
    has fixed the quallflcatlonsof candidates for
    the office of con8t+ble, or any~other precinct
    officer, art$cle 292’7,R.S. 1925, and the
    commissioners’court cannot add to or take from
    these quallflcations. . .The Legislature is the
    suprenw legislativepower of the state, and,
    where an order of the commiselonerscourt conflicts
    with a proper legislativeact, the order must
    give way and the ret of the Legislatureprevail.n
    96 S.W.2d at 842.
            Since there 18 a ground on which the cases may be
distinguished,we feel impelled to follow Brown v. &eks In
this opinion, although there 18 reason to believe that It
might be overruled if the question wa8 again brought before
the courts.    We thereforeadvise you that In our opinion no
one was elected to the office   of Justice of the Peace or
Constable of Precinct go. 3 at the~generalelection In 1964.


         Where an office 1s subject to being filled at
    the .generalelection but the title of ‘the office is
    not printed on the ballot, a valid election may be
    had through the voter8’ writing in the title of the
    office and the nm     of the candidate,and the elec-
    tion is not rendered Invalid by reason of the fact
    that only a small percentage of the voters partic-
    ipating In the general election   ‘voted on that
    particular ofiice.         t vi ;‘Do$ell, g9giW.2d
    281 Tex.Civ.App.    1        At '
    (1956 ) 18 modified        .           *Op.-
         Where an order of the Cdesioners       Court of
    Mitchell County, entered on August 10, 1964, changed
    the boundary lines o? jwtice of the peace precincts
    md provided that .thechange8 were to become effective
    on January T, 1965, a valid election for precinct
    offices for the new jurtice precincts could not be
    held at the general election in Rovember, lw,
    rrcr; theeprecInct had not yet come Into existence.
       0   .     kg 96 S.U.2d 839 (Tex.Clv.App.    1936,
    error d188i.>Aitgy G8n. Op. C-198 (1964) 18
    distinguishedherein.




                           -1928-
Honorable Prank Ginzel, page 10 (C-406)


                             Your8 very truly,
                             WAGGONRR CARR
                             Attorney General

                             BY                  ziIJaJ@

                                  Assi8tfU-h

MKw:sj
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
I&lcolm Quick
George Black
Grady Chandler
Sam Kelley
APPROVE3FORTRBATTORNEYGENERAL
BP: Stanton Stone




                          -1929-
