                                                          April          25,     1974



The    Honorable               Lynn       Cooksey                     Opinion               No.        H-      282
District         Attorney
412 Texas           Blvd.                                             Re:             Whether               Articles           2.04b        and
Texarkana,               Texas         7550 1                                         2.05        of     the Election                Code     require
                                                                                      that    boundaries                    of county        election
                                                                                      and     commissioners                      precincts              be
                                                                                      made          to conform               to city        ward        and
Dear       Mr.      Cooksey:                                                          election              precinct         boundaries


           You      have        asked      whether            it is      mandatory,                    under          Articles         2.04b        and
2.05      of the     Election            Code,          Vernon’s            Texas            Civil          Statutes,          for     the    commis-
sioners          court     to change          the       boundaries                02 existing                  county        election         and
commissioner                   precincts         to conform                to the           boundaries                 of newly         formed
city   wards         and       election       districts             within        the        city        of    Texarkana.


           You      advise        that     in August            of 1969,              the     commissioners                      court        re-
established          all       election       precincts              of the county  in accordance    with Article
2.04      of the Election               Code.      Within            the city of Texarkana,     which has a
population          in excess             of 10,000           and     is    divided               into        six    city    wards,          four
wards,       because             of the     excessive             number                of qualified                 voters,         were      each
divi.ded     into        two     county      election           precincts.                   The         city        councilmen             were
elected      at large            and     not from          one       man         wards            or     precincts.


           In January,             1972,      the Commissioners         Court  reformed     commissioners
precincts          to conform              to the one-man,     one-vote     mandate    of the United   States
Supreme           Court.          New       commissioner                       precinct             lines           were     made       to oonform
to the     then      existing           election         precinct              lines.


           In December                 of 1972,         the    city        council           of the           city     of    Texarkana              made
drastic      changes            in the      boundaries                of all          six    of the           city     wards         in order           to
absorb       newly         annexed         areas         and      to give             each        ward          an equal         number            in
population.              In February               of   1973,       the        city      council,               in calling           for     an election




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The     Honorable            Lynn          Cooksey,            page        2       (H-282)




for    city     officers,          provided            for     twelve          new       city      election           precincts,               dividing
each     of the      six     new        wards         into     two        election         precincts.


          You       state,         “The       new      city     election           precincts              bear        little       resemblance
to the        previously           established               county         election            precincts.            ”      Apparently               the
boundaries           of nine         of the         twelve         new      city        election          precincts             do not coin-
cide    with      county       election             precinct          boundaries                 and      the city           has      requested
the    comtiissioners                   court        to change             the     boundaries                 of the      county            election
precincts          within      the         city     to conform              to the        new      city       wards          and      city         election
precincts.


          Article           2.04     of the         Election          Code         provides,              in part:


                                    “(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           bounda-
                      ries     or       survey         lines        by an order                 entered            upon       the minutes
                      of the        Court.            At     any     July        or August              term,         the      Court
                      may make    su.ch changes  in the election   precincts as they
                      deem proper,     by such order   entered   upon the minutes
                      of the        Court.            When         such        an order            is    entered,              they        shall
                      immediately                   thereafter             publish         in    some          newspaper               in
                      the     county          for     three        consecutive                weeks           a notice          of the
                      entry        of      such      order,          giving        a brief         description                 in general
                      terms          of the         changes          made,             without          the    necessity              of
                      including             in such          notice        the field            notes         or     other      detailed
                      description                 of the      precinct            boundaries.                      If there        be no
                      newspaper                   in the     county,           thencopy           of such            order         shall
                      be posted              in     some      public           place      in each             election         precinct
                      in the        county          which       is    affected            by the         order.


                                    “(b)      No     election         precinct             shall        be formed              out     of
                      two     or     more           justice        precincts             or     commissioners                       precincts,
                      nor     out       of the       parts         of two         or    more        justice           precincts              or
                      commissioners                        precincts;             and     no election                precinct              shall
                      be formed               out of two             or    more          congressional                    districts           or




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The   Honorable            Lynn         Cooksey,                page     3          (H-282)




                  state       senatorial                districts            or      state      representative
                  districts,                nor      out    of the parts                  of two      or      more         such
                  districts.                 If in September                    of     any year             there       exists
                  any      election            precinct              in the         county         which         does        not
                  comply           with        the fore~going                  requirements,                      the      commis-
                  sioners              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;              and       the      order        shall        be published                 as    pro-
                  vided         in Paragraph                    (a) ,of this           section.          Subject  to
                  the provisions                     of the first              sentence             of this paragraph,
                  no election                precinct            shall       have         resident            therein          less
                  than      LOO nor            more           than      2000         voters         as ascertained
                  by the number                      of registered                   voters         for     the     last      pre-
                  ceding         presidential                   general           election           year;        provided,
                  however,               that      in precincts                 in which             voting         machines
                  or     devices            have        been         adopted          for      use        in accordance
                  with      Section            79 or          Section          80 of this            Code,          the      maxi-
                  mum        number               of voters             shall        be     3000.           There          shall
                  be a minimum                       of one          election          precinct            wholly          con-
                  tained         within           each        commissioners                     precinct.              ” (Acts
                  1973,         63rd         Leg.,         ch.        542,      p.     1408).


                                “(c)        In cities           and    towns          having          ten     thousand             or
                  more        inhabitants,                    each      ward          shall        constitute            an elec-
                  tion     precinct               unless         there         shall        reside         in said         ward
                  more          than        two      thousand           qualified              voters.            In such
                  cities        and         towns , no precinct                        shall       be made             out     of parts
                  of two         wards;           and       no precinct                shall        include         territory
                  outside          the       corporate                Li.mi.ts of the              city     or    town        unless
                  the      Commissioners                         Court         finds        that     adjacent            unincor-
                  porated          territory               is    so    situated             that     it cannot            be formed
              into         or     i,ncluded             within         an election              precinct            wholly           out-
                  side      t~he cit:y,           of     suitable            size      and      shape         and       containing
              a suitable                    number            of voters.          If the Commissioners
                  Court         finds         this      condition            to exist,  it may include                             such
                  territory             in a precinct                  or    preci,ncts              formed            within        the
                  ciiy     or     town,           and      the Iindin, = of the Commissioners                                           Court
                  shall      be conclusive.                      ”     (Acts         19671      60th        Leg.,       ch. 723, p. 1863).
The       Honorable                  Lynn         Cooksey,              page        4         (H-282)




               Article          2.05        provides:


                                         “The             election          precincts               for         municipal               elections
                             and     the      location              of the      polling             place           in each         precinct
                             shall       be designated                    by the governing                           body        of the muni-
                             cipality.                 The      governing             body          may          combine            two     or
                             more        county              election          precincts                 into       one       municipal
                             precinct,              but        shall      not include                parts             of one       county
                             precinct             in more              than     one      municipal                     precinct.            The
                             certified             list       of qualified              voters            for       all    county         election
                             precincts              in which            voters           reside               who       are      to vote        at a
                             polling         place            designated            by the               governing               body      shall         be
                             used      at     such           polling        place.            In all            cities        and       towns       in
                             which         the number                   of voters             at     the        last      general          muni-
                             cipal       election              does       not exceed                four         hundred            in number,
                             only      one        polling           place       shall         be-opened                   at any        municipal
                             election;            and         all   officers            of such               cities       and      towns        to
                             be elected                 shall       be voted            for    at such                 polling       place.        ”


               Also        pertinent              is      language            of Article                 5,     $ 18, of the Texas                     Constitution
which           requires             that         each         county         in the State                    be divided            from        time          to time
“for       the        convenience                 of the people                ” into         not         less         than      four     nor      more            than
ei.ght         precincts             to be occupied                     by a justice                 of the            peace        and     a constable               and,
in      like     manner,              into        four         commissioners                       precincts.


               As     we      construe                 the     statute,         it was             the        intent       of the        Legislature                that
the county               election            precincts                 coincide          as        much          as       possible         with        the     city
wards.                This      normally                would          be achieved                  by cooperation                       between          the       two.
If a cooperat,ive                     effort           fails        to provide              the      needed               changes,          then,         one       must
first          look    to the         Constitutions                     of the       United              States           and     of this       State          to deter-
mine           which         local       governmental                     entity         is    required                   to make         the     necessary                 ad-
justments.


               Any       scheme             for        districting             a county              into        commissioners                      districts             is
subject             to the mandates                          of Avery          v.    Midland                  County,            390 U.S.             474      (1968)
in which              the     one-man                  one-vote           requirement                     of Reynolds                   v. Sims,          377 U.S.
533 (1964)               applied           to apporti,onments                         for      local            government                as     well         as    state
legislatures.




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The     Honorable                 Lynn        Cooksey,           page         5        (H-282)




                         “Although             the forms              and functions                      of     local        government
                         and      the    relationships                 among             the various                    units       are
                         matters          of state          concern,               it is          now         beyond         question
                         that      a State’s          political             subdivisions                      must         comply         with
                         the Fourteenth                 Amendment                      . .        . .


                                      “When          the    State       apportions                     its     legislature,                it
                         must        have       due     regard          for       the     Equal               Protection              Clause.
                         Similarly,              when       the State             delegates                   lawmaking               power
                         to local        government                 and provides                        for     the        election        of
                          local      officials         from        districts              specified               by statute,
                         ordinance             or     local      charter,               it must               insure         that     those
                         qualified            to vote       have       the        right           to an equally                   effective
                         voice       in the         election          process.                .    .    .”       (390        U.S.     at 480)


           In Attorney                General          Opinion            H-32           (1973)          we      held        that     the holding             of
Averv  v. Midland   County,    supra,    applied to the                                                        election          of commissioners
and that it was not permissible       for the members                                                           of the         commissioners                   court
to be apportioned                    among           single-member                       distr’ic             ts of substantially                  unequal
population.


           The         county        government                also     has        a state              constitutional                    duty    to draw
boundaries               for      commissioner                   precincts              and        justice            of the        peace        precincts.
Texas         Constitution,               Article           5,     5 18.          To     the       extent         that        a city       election
precinct          crosses            justice        of the peace               and        commissioner                          precinct          lines       and
thus    would           require          the     redrawing             of these               constitutionally                      mandated            districts,
the    city      is     under        an obligation               to revise              its       precinct              boundaries               to avoid
the    conflict.               You    have       not advised                us whether                    this        is    the     situation       in Bowie
County.


           It is        our     opinion,            in this       case,           that     the city              has        the     primary         duty       to
draw       its    precinct            lines      to conform                 to those              of the         county.              Of course,           since
election         precincts              are     the building                blocks            on which                larger         districts          are
constructed,                   it may     be possible                 that     some           cities            whose          councilmen               are
elected          by     the voters            of a particular                  district                would          have        a constitutional
duty    to alter           their        precinct           lines      in an effort                     to conform                 to the        one-man,
one-vote              principle.            According              to the facts                   you         have.        submitted,            that     is not
the    situation           in this        case.




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The   Honorable       Lynn         Cooksey,          page        6      (H-282)




                                              SUMMARY


                          A county            is   not    required               to alter    its    election
                  precincts,         which         were      drawn           in contemplation             of
                  Avery       v.   Midland          County,           to conform             to the    election
                  precincts         of a city        which           does        not elect    its    councilmen
                  by individual         districts.


                                                            Very        truly       yours,

                                                           I .
                                                    $&&2&?
                                                         CA
                                                            JOHN            L.    HILL
                                                   / /      Attorney              General      of   Texas




DAVID     M.   KENDALL,               Chairman
Opinion    Committee




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