                               OF TEXAS
                          Auu-rm. TEXAS      78711
  JOaN   r.. am..r.
A-~         OIENERAX.    December 10, 1965


     Honorable Frank Stovall        Opinion No. C-566
     District Attorney
     64th Judicial District         Re:   Status of the office of
     Courthouse                           Justice of the Peace,
     Plainview, Texas                     Precinct No. 1, Place No. 2,
                                          Hale County, Texas.
     Dear Sir:

                 Your request for an opinion of this office reads as
     follows:

                "The ConnnlssionersCourt in Hale County, Texas
           has requested that I write you, seeking your opinion
           concerning a Justice of the Peace election held in
           the general election of November, 1964. A more
           formal and detailed fact statement is attached to
           this letter. HOWever, briefly stating, a Mr. R. A,
           Vernon, a write-in candidate, was elected to the
           office of Justice of the Peace, Precinct No. 1,
           Place No. 2, in the general election held in
           November, 1964. Thereafter, Mr. Vernon requested
           that the Hale County Commissioners Court give
           sanction to this office, and ask for a clarification
           of his duties and responslblllties. Mr. Vernon
           feels that such office is in existence and that he
           is offlcially.entitled to the same, by reason of
           Section 18, Art. 5 of the Constitution, and Art.
           2375, Revised Civil Statutes. Notwithstanding
           the Hale County ConanissionersCourt feels that
           since there is already a Justice of the Peace
           serving this particular precinct, there is no
           necessity for a second Justice of the Peace and
           that to sanction such office would not be to the
           public lnterest.

                 "This situation has given'rise to the following
            questions and problems which invite your opinion
            and clarification, to-wit:
                                   -2730-
Hon. Frank Stovall, page 2   (C-566)



          "1. Did such an office as Justice of the
     Peace, Precinct No. 1, Place No. 2 exist at the
     time of the general election in November, 1964?

          "2. Does such an office exist now, and if
     so, is R. A. Vernon the duly elected and quali-
     fied office holder?

         "3. Assuming that such office is in existence
    and R. A. Vernon is the holder thereof, then what
    is the responsibility of the IialeCounty Connnis-
    sioners Court insofar as paying Mr. Vernon a salary,
    providing him with office facilities in the court
    house or otherwise, and how should his official
    duties be conmingled with the currently existing
    Justice of the Peace?"

         Article V, Section 18 of the Texas,Constitution provides:

         "Each organized county in the State,now or
    hereafter existing, shall be divided from time to
    time, for the convenience of the people, into
    precincts, not less than four and not more than
    eight. Divisions shall be made by the Comnis-
    sioners Court prwided for by this Constitution.
    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 and
    until his successor shall be elected and qualified;
    provided that in any precinct in which there may
    be a city of 8,000 or more inhabitants, there shall
    be elected two Justices of the Peace. * * *"

         Article 2375, Texas Revised Civil Statutes, reads:

          ‘Where there is a city of eight thousand
     inhabitants or more in a justice precinct, two
     justices of the peace shall be elected."




                             -2731-
Hon. Frank Stovall, page 3 (C-566)



          Supplementing the facts stated above, we have been
furnished with the following additional facts. Hale County is
divided into four justice of the peace precincts, and Precinct
No. 1 contains all of the City of Plainview. The federal cen-
suses of 1930, 1940,,1950, and 1960 each has shown Plainview
as having a population of more than 8,000, the 1960 population
being 18,735. The Commissioners Court of Hale County has
never entered an order declaring that Plainview has a popu-
lation of more than 8,000, or declaring the office of Justice
of the Peace, Precinct No. 1, Place No. 2, to be in existence.
Neither has it ever made a finding that the population of
Plainview has decreased since 1960 or that the city does not
in fact contain in excess of 8,000 inhabitants. Prior to
1964, a Justice of the Peace for Place No. 2 had never been
elected or appointed.

          In the Republican primary of 1964, a nomination was
made for Justice of the Peace, Precinct No. 1, Place NO. 2, and
was certified to the County Clerk of Hale County. No candi-
date was certified for that office by any other political party.
The office was listed on the general election ballot for 1964
under the Republican Party column, together with the name of
the Republican nominee, and was also listed in the write-in
column. In the general election, R. A. Vernon, running as a
write-in candidate, received 2337 votes and the Republican
nominee received 1366 votes for the office. The Coannissioners
Court listed the office and the number of votes cast for each
of the candidates on its report of the official canvass of the
election. Q1 January 1, 1965, Mr. Vernon took the oath of
office and made bond, and the bond and oath were recorded in
the office of the County Clerk of Hale County on January 5,
1965. Hwever , the County Judge of Hale County has never
issued a certificate of election to Mr. Vernon, and has never
reported his name to the Secretary of State as having qualified
for the office.

           In Attorney General's Opinion No. &2847 (1940), the
question presented was whether it was mandatory on the commis-
sioners court to recognize the fact that a city wholly within
a justice precinct haa more than 8,000 inhabitants, according
,to the most recent federal census, and to provide for the


                            -2732-
Hon. Frank StoVall, page 4   (c-566)




election, or to appoint, a second justice of the peace for
that precinct. In response to this question, the opinion held:

           "We believe that the provisions of the Consti-
     tution above quoted and Article 2315, Vernon's
     Annotated Civil Statutes, prwiding 'Where there
     is a city of 8,000 inhabitants or more in a justice
     precinct, two Justices of the Peace shall be
     elected' is mandatory and cannot agree with your
     conclusion that these provisions are directory
     only. Therefore, you are respectfully advised
     that it is the opinion of this Department that
     where a city is located in a justice precinct
     and has a population of 8,000 inhabitants or more
     as showuby the last preceding Federal census,
     as in the instant case, it is mandatory that the
     commissioners court appoint another Justice of
     the Peace for such precinct. unless the commis-
     sioners should determine and find as a matter of
     fact that since the first day of April, 1940,
     the date as of which the last Federal Census was
     taken, the population of the city had decreased
     and has now a population of less than 8,000
     inhabitants."

          In support of this holding, the opinion quoted from
the case of Williams v. Castleman, 112 Tex. 193. 247 S.W. 263
(19221, which will be discussed later in this opinion.

          In 1953, the Court of Civil Appeals handed down an
opinion in Meredith v. Sharp, 256 S.W.2d 870 (Te~.Civ.App. 1953,
error ref. n.r.e., 152 Tex. 437,259 s.W.za 1721, which held that
the creation of an additional justice court in a precinct con-
taining a city over.8.000 was not mandatory, but was within
the discretion of the coasaissionerscourt upon its determination
as to whether the second office was needed “for the convenience
of the people." The reasoning of the Court of Civil Appeals
was stated as follows:

          "We are in accord with the conclusions of law
     as filed by the trial court that the 'Constitution
     confides in the Coannissioners'Court the authority

                              -2733-
.



    Hon. Prank Stwall,   page 5 (C-566)



        to create a justice of the peace court as here
        sought: that the convenience of the people is the
        basic purpose for designating such an additional
        justice court: and that the creation of'such an
        additional justice of the peace court is a dis-
        cretionary act of the Commissioners~ Court and
        not a ministerial function of such court.' This
        record is absent any showing or any attempt to
        show that the creation of such an additional
        justice court would be for the convenience of the
        people. The action of the trial court in denying
        this application for a writ of mandamus is sus-
        tained.'

             "We cannot escape the import of the use of
        the term 'for the convenience of the people' in
        Sec. 18, supra; 16 C.J.S., Constitutional Law,
        Sec. 23. The~latitude so granted the Connnission-
        ers' Court to create not less than four and not
        more than eight such precincts, and the power to
        change the boundaries of such precincts from time
        to time emphasizes the intent to vest discretion-
        ary powers in the Commissioners9 Court in deter-
        mining whether or not the creation of such addi-
        tional court would be for the~conveidence of the
        people, that is, suitable, appropriate or advisable
        to meet the needs of the people. This discretion-
        ary power on the part of the Conmissioners' Court
        is fully recognfsed in Williams v. Castleman, 112
        Tex. 193, 247 S.W. 263, * * *."

              The Meredith case arose as a mandams proceeding against
    the ConunissionersCourt of Gregg County, brought by a "resident
    citizen, taxpayer and voter" in the justice precinct in Gregg
    County containing the city of Longview, which according to the
    undisputed evidence had a population in excess of 8,000, to com-
    pel the Commissioners Court to create the office of Justice
    of the Peace, Place No. 2 for that precinct. Upon application
    for writ of error, the Supreme Court of Texas stamped the ap-
    plication "Refused. No Reversible Error,* with the following
    explanation for its action:



                                 -2734-
    ,




        Hon. Frank Stwall, page 6 (C-566)



                 'Under our view petitioner has no interest,
            financially or otherwise, which would authorize
            him to maintain this suit. Yett v. Cook, 115 Tex.
            205,,281 S.W. 837. The trial court should
            therefore have dismissed the suit rather than
            deny the writ, but since the practical effect
            of the two orders is the same, no purpose
            would be served in granting the writ to re-
            form the judgment. The application is there-
            fore stamped Refused. No Reversible Error."

                  Since, according to the Supreme Court's action, the
        Court of Civil Appeals should not have taken jurisdiction of
        the case for the purpose of ruling on the merits of the plain-
        tiff's contention, its opinion cannot be looked upon as prec-
        edent for the proposition that creation of the second office
        of justice of the peace is discretionary with the ccamaissioners
        court. However, the fact that the Court of Civil Appeals had
        relied on the Supreme Court's opinion in Willianm v. Castleman,
        the same authority on which the Attorney General had relied
        in Opinion No. G-2847, and had reached a contrary result,
        Qointed.Up the desirability of reviewing the holding in
        Opinion G-2847, and of again analyzing the opinion in the
        Williams case.

                  In Willialnav. Castleman, the Camaiaaionera Court of
        Stephens County in 1921had entered an order which (1) declared
        that the city of Breckenridge, located .injustice precinct No. 1,
        was a city of over 8,000 population: (2) adjudged #at another
        justice court was necessary in the Qrecinct, and (3) created
        another justice court for the precinct, designating it as Place
        No. 2. The order recited that the administration of the law
        in the county and the service of the people of the precinct de-
        manded and required the erection of the additional court. The
        cossnissioneracourt appointed a justice for the new court, who
        qualified in the manner required by law and entered upon the
I       active discharge of the duties of the office. Shortly after-
        ward, the justice of the peace for precinct No. 1 who had been
        elected in 1920 brought an action against the appointee for
        injunction, alleging among other things that the office to
        which the defendant had been appointed did not lawfully exist
        because the federal census for 1920 ahwed Breckenridge as

                                    -2735-
Hon. Frank   StOVall,   page 7 (C-566)



having a population of only 1,846 inhabitants and the comnis-
aioners court was not authorized to determine the population
on any basis other than the number of inhabitants as shown by
the federal census.

          The case reached the Supreme Court on questions certi-
fied to it by the Court of Civil AQQealS, the first two of
which were as follows:

          "(1) Were the commissioners1 court of Stephens
     county authorized under the law and Constitution to
     create the office of justice of the peace, precinct
     No. 1, place No. 2?

          "(2) If they were so authorized, did they
     follow the proper method of determining the
     population of Breckenridge, and can that deter-
     mination and order be collaterally attacked?"

          The Suprems Court answered the .firstquestion in the
affirmative, and answered the second question by stating that
the method pursued by the conuniasioneracourt, though not ex-
clusive, was a proper method, and that the determination and
order of the court could not be collaterally attacked. After
stating that it was a matter of common knowledge that Brecken-
ridge, previously but a thriving village, on the discovery of
one of the great oil fields of the world adjacent to it be-
came a city almost overnight, the Court held that the conunis-
aionera court was not required to rely on the census reports
but could ascertain the population as they would any other
fact. 247 S.W. at p. 269.

          In reaching its holdings, the Supreme Court traced
the history of Article V, Section 18 of the present Constitution,
from which the Court drew two conclusions (247 S.W. at p. 266):

          (1) That from the beginning the dominant
     constitutional purpose has been to divide the
     county into justice precincts "for the convenience
     of the people."



                                -2736
.    .



    Hon. FrarikStwall,   page 8 (C-566)



              (2) That the change from those prwisiona
         of previous Conatitutiona which left the number
         of the justices of the peace or justice precincts
         to the determination of the Legislature, to the
         language of Article V, Section 18 of the present
         Constitution, "wherein the number of justice pre-
         cincts la confided to the limited discretion of
         local authoritiear was the result, not of any
         fortuitous circumstance, but of experience."

              From these conclusions, the Court made the follwing
    observations:

              "The purpose to leave this determination to
         local authorities, having been reached from
         experience and mature consideration, must also
         be given a controlling effect in the interpre-
         tation and construction of this section of the
         Constitution.

              "T&e fact that * * * the conunissioners~
         court Lwag/ selected as the constitutional agency
         to divide the county into justice precincts
         evidences a specific purpose to remove the en-
         tire subject from the domain of state action,
         except such reasonable legislative action as
         might,be convenient to render the exercise of
         the power more effective and uniform."

              On the basis of this statement, we believe Article
    2375 of the Revised Civil Statutes cannot be given any weight
    in determining the question at hand, because the subject has
    been removed from the domain of legialative action by the Con-
    stitution. We must look solely to the Conatitution, as con-
    strued by the Supreme Court, for guidance.

              It is clear that the conuniaaioneracourt la invested
    with discretionary power to determine the number of justice pre-
    cincta, within the limits stated in the Constitution, and that
    "the convenience of the people" is the criterion for the exer-
    cise of that discretion. The following quotation from the
    opinion in Williams v. Castleman indicates that the Supreme

                                -2731-
Hon. Frank Stovall, page 9 (C-566)



Court considered the proviso concerning the number of justices
in a precinct containing a city of 8,000 or more inhabitants
as being subject Taoa similar discretion baaed upon the same
criterion;

          "It is plain from section 18, art. 5, of
     the Constitution that its prims purpose in not
     fixing definitely the nuniberof justice pre-
     cincts in any county, and the number of justices
     in any particular wecinct, was, as it states,
     'the convenience of the people': that is, to
     give the commissioners' court some discretion so
     that the number of precincts may be made to meet
     the changing needs of the ,people.

          "The object of the Constitution in pro-
     viding for two justices of the peace in pre-
     cincts containing 8,000 or more inhabitants is
     the sanm as that declared in the previous para-
     graph of the same section--that is, for the con-
     venience of the people. No method of determining
     the population is given in this section or else-
     where in the Constitution;. The determination of
     the population by aoms authority is necessary
     to set in motion the process by which.two justices
     are to be elected, or a vacancy in the office
     filled by appointment. The Constitution con-
     tains no express direction, either to the
     electorate or to the appointive power, as to hw
     or when this question of population is to be
     determined, nor is any prwiaion made in the
     statutes therefor. * * * But legislation was
     not necessary to enable the cosaaiaafonera~court
     to exercise any of the powers given in this pro-
     vision of the Constitution." 247 S.W. at p. 267.
     ~Baphaaia added throughout.)

          Further on in the opinion, the Court said that "we
believe that the entira m       is confided to the comiasioners~
court, and that the court of any particular county is empowered
to divide it into precincts, and to designate or afterwards
determine which of those precincts contains cities of 8,000 or


                            -2730-
hon. Frank Stovall, page lo (C-566)



more inhabitants." 247 S.W. at Q. 268.

          The Court sunnnariaedits views in the follwing   state-
ment, upon which opinion G-2847 relied:

          "~Theconmnissionera'court, by a valid order,
     having determined that there was in justice
     precinct No. 1 of Stephens county, a city of
     over 8,000 people, upon the official announce-
     ment of such fact, and the entry of the order,
     the office of an 'additionaljustice of the
     peace for the precinct, created by the Consti-
     tution, but awaitinq the determination of fact
     bv the conunissioners'court (the aqencv deaiqnated
     bv the Constitution for such ouroose), cams into
     being, and thencefoward was an existing office.
     * * *'I 247 S.W. at p. 270.
                                                  .'
           Taking the opinion as a whole, we believe the Court
~waa saying that the matter of whether there were to be two
justices in a precinct containing a city of 8,000 or more
 inhabitants was confided to the discretion of the commissioners
 court. The Constitution had created the second office in the
 sense that it had made provision whereby the office could be
brought into being, but the office would not actually exist
 unless and until the cosaniaaioneracourt made an official
determination of the facts necessary to activate the.prwiao,
namely. that the precinct contained a city of 8,000 or more
 inhabitants and that the second office was needed for the con-
venience of the people.

            'Attorney~General'aOpinion No. W-1251 (1962) follwed
the holding.of the Court of Civil Appeal8 in Meredith v. Sharp
and werrkled    the earlier opinion No. G-2847. It might appear
that Opinion No. WW-1251 was baaed on the aaaumption'that the
Court of Civil Appeals opinion was a controlling precedent,
rather  than upon a reconsideration of. the soundness of opinion
No. G-2847. ,In any event, we nw hold that under the terwa of
Article V, Section 18.of the Constitution, as construed by the
SripremeCourt in Willfame v. Caatleman, the second office of
justice of-the.peace in a precinct containing a'city of 8,000
or more inhabitants does not cams into existence unless and

                             -2739-
.   .   -


        Hon.,Frank Stovall, page 11 (C-566)



        until the corenissioneracourt has so deciared. Since the corn
        missioners court has not entered an order to that effect with
        respect to Precinct No. 1 of Hale County, the office of Justice
        of the peace, Place No. 2 for that precinct has never come into
        being and the attempted election to fill the nonexistent office
        was a nullity.

                  The fact that the office was listed on the 1964 general
        election ballot cannot operate as an implied finding by the com-
        missioners court that the office was in existence, because the
        comrniasionerscourt had nothing to do with making up the ballot
        for the election. Neither can any such effect be given to
        the'fact that the coanaisaionerscourt listed the votes cast
        for the office on its official record of canvass, because the
        court was acting in a ministerial capacity in mking the can-
        vasa,and .had no discretion to exclude votes reported on the
        official .returns of the,precinct election judges. Fercfuaonv.
        Huoqina, 122 Tex. 95, 52 S.W.Zd 904 (1932).

                 Your first and second questions are answered in the
        negative. In view offour holding on these queations,.it la
        unnecessary to answer your third question.

                                SUMARY

                  Under the terms of Article V, Section 18 of
             the Texas Constitution, as.construed In Williams v:
             Castleman, 112 Tex. 193, 247 S.W. 263 (19221,
             the office of justice of the peace, ,placeNo. 2,
             in 'a precinct containing a city of 8,000 or
             more inhabitants does~not corn into existence
             unless and until the comniaaionera court has de-
             c&ared that the precinct contains a city of 8,000
             or more inhabitants and-that the second office
             is needed-for the convenience of the people.




                                    -2740-
Hon. Frank Stwall,   page 12 (C-566)



                              Yours very truly,

                              WAGGONER CARR
                              AttOMey  General




                                         Aaaistant

MRW:ra

APPR(IVED:
OPINI~CmMITTEE

W. 0. Shulta, Chairman
John Reeves
Phillip Crawford
Robert Owen
Robert Flwera

APPROVED FOR THE ATT-      GENERAL
By:  T. B. Wright




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