                                     The Attorney         General of Texas

JIM MATTOX
                                                      June 21, 1984
Attorney General


Supreme Court Building             Honorable Romeo Flares                Opinion No. JM-174
P. 0. BOX 12546
Austin, TX. 76711. 2546
                                   County Attorney
5121475.2501                       Jim Wells County Courthouse           Re: Whether a justice precinct
Telex 910/674-1367                 200 North Almond                      which contains a city of 8.000
Telecopier   51214750266           P. 0. Drawer 2080                     or more must elect two justices
                                   Alice, Texas   78333                  of the peace
714 Jackson, suite 700
Dallas, TX. 75202.4506             Dear Mr. Flores:
2141742.6944
                                        You have requested our opinion regarding the effect of article
                                   2375, V.T.C.S., which provides:
4624 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
915/533-3464                                    Where there is a city of eight thousand
                                             inhabitants or more in a justice precinct, two
                                             justices of the peace shall be elected.
-1     Texas, Suite 700
     Mon. TX. 77002-3111
                                   You have asked whether this provision is mandatory.
7131223.5666

                                        The determination of the number of justice precincts in a county
606 Broadway, Suite 312            is made pursuant to article V, section 18 of the Texas Constitution as
Lubbock. TX. 79401-3479            amended in 1983. Obviously. this constitutional nrovision sunersedes
6061747-5236
                                   any contrary statutory pr&i.sions. Section 18 provides in pertinent
                                   part as follows:
4309 N. Tenth, Suite B
McAllen, TX. 76501-1665                        Each county in the State with a population of
5121662.4547
                                            30,000 or more, according to the most recent
                                            federal census, from time to time, for the
200 Main Plaza, Suite 400                   convenience of the people, shall be divided into
San Antonio, TX. 76205-2797                 not less than four and not more than eight
51212254191                                 precincts.   Each county in the State with a
                                            population of 18,000 or more but less than 30,000,
 An Equal Opportunity/
                                            according to the most recent federal census, from
Affirmative    Action   Employer            time to time, for the convenience of the people,
                                            shall be divided into not less than two and not
                                            more than five precincts. Each county in the
                                            State with a population of less than 18,000,
                                            according to the most recent federal census, from
                                            time to time, for the convenience of the people,
                                            shall be designated as a single precinct or, if
                                            the Commissioners Court determines that the county
                                            needs more than one precinct, shall be divided
                                            into not more than four precincts. The division
                                            or designation shall be made by the Commissioners


                                                           p. 765
Honorable Romeo Flores - Page 2   (JM-174)




          Court provided 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 18,000 or more inhabitants, there shall be
          elected two Justices of the Peace.       (Emphasis
          added).

The 1980 census population of Jim Wells County is 36,498.         The
underlined portion of section 18 above had, before the amendment,
provided for two justices of the peace in any precinct containing a
city of 8,000 or more. Article 2375, V.T.C.S., wss not amended by the
legislature in 1983 and to the extent that it requires a different
number of justice precincts than that required by the Texas
Constitution, it is invalid. We believe that your question becomes,
therefore, whether the constitution requires or only permits the
election of two justices of the peace, place one and plsce two, in a
precinct containing a city of 18,000 population.

     The Texas Supreme Court in Williams v. Castleman, 247 S.W. 263
(Tex. 1922), held that under article V, section 18, the commissioners
court had discretion to determine and enter a finding that a city
contained a population of more than 8,000.         In that case the
commissioners court had consulted the city postmaster and the local
chamber of commerce to determine the population of the city' of
Breckenridge. and it found that the city had a population of more than
8,000 and thereupon created a justice of the peace place two in that
precinct. This finding of a city's population or the failure to do so
is subject to a charge of abuse of discretion, fraud, or
arbitrariness. The commissioners court is not limited to the federal
census in determining the population of a city for the purposes of
article V, section 18. In the absence of fraud, abuse of discretion,
or capriciousness, a commissioners court finding whether a city
contains a population of 8,000 or more cannot be attacked. The court
held that the complaining party in the case, the justice of the peace
place one, did not show that the commissioners court finding that the
city of Breckenridge contained the population of more than 8,000 was
an abuse of discretion and that he was therefore not entitled to
relief.

     The implication of the Williams case is that, if a city within a
justice precinct clearly contains a population of more than 8,000 (now
18,000) it would be an abuse of discretion for the commissioners court
to find otherwise. In this sense, the provision of article 18
requiring two justices of the peace in a precinct containing such a
city is mandatory, although the operative facts -- that is the
population of the city -- is a matter for determination by the
commissioners court. We believe that the language of section 18 is



                              p. 766
Honorable Romeo Flores - Page 3   (JM-174)




clear that there "shall" be elected two justices of the peace in a
precinct containing a city of more than 18,000 population.

     Opinions from this office and Texas courts, however, have
confused the issue as to whether or not section 18 is mandatory.
Attorney General Opinion O-2847 (1940) concluded that section 18 was
mandatory.   That opinion reflects that the 1940 federal census
population of the city of Lufkin, located within a justice of the
peace precinct, was 9,500 inhabitants. The opinion stated that the
commissioners court is not bound by the federal census in determining
the population of a city and may find that the population has
decreased since the last census. The appeals court in Grant v.
Ammerman. 451 S.W.2d 777 (Tex. Civ. App. - Texarkana 1970, writ ref'd
n.r.e.), also held that section 18 was mandatory as to the appointment
of a second justice. The court held that the commissioners court did
not have the authority to abolish one of the two justice positions in
a justice of the peace precinct containing the city of Marshall, which
had a population of over 8,000. The opinion did not discuss the
Williams case nor did it conclude that the commissioners court had
abused its discretion. It simply held that the word "shall" is
mandatory and requires two justices of the peace to be elected in a
precinct containing a city of 8.000 inhabitants.          We believe,
nevertheless, that this case was correctly decided.

     The appeals court in Meredith v. Sharp, 256 S.W.2d 870 (Tex. Civ.
APP. - Texarkana), writ ref'd n.r.e. per curia*, 259 S.W.2d 172 (Tex.
1953). held that the provisions of section 18 regarding two justices
of the peace in a precinct containing a city of 8,000 was not
mandatory, but rather that it was within the discretion of the
commissioners court to allow two justices of the peace to be elected
in a single precinct if "for the convenience of the people." We
believe that this decision was in error and, in any event, the supreme
court in refusing a writ of error stated that the case should have
been dismissed by the trial court. &,     259 S.W.2d 172 (Tex. 1953).
The appeals court in Meredith apparently was confused by the language
in section 18 which provides that the number of justice of the peace
precincts and their boundaries are to be determined by the
commissioners court "for the convenience of the people" upon a
relevant finding of population -- a finding involving some discretion.
We believe that this phrase is not applicable to the requirement that
two justices of the peace be elected in a precinct containing a city
of, now, 18,000, because the population has been determined and there
is no longer any discretion to be exercised. In that pre-1983 case a
taxpayer of Gregg County sued the commissioners court to compel it to
create a place two for a justice of the peace precinct containing the
city of Longview which without dispute contained more than 8,000
inhabitants.

     The Meredith court found that the creation of an additional
justice of the peace position was a discretionary act on the part of
the commissioners court which was permitted if found to be for the



                              p. 767
Honorable Romeo Flores - Page 4    (JM-174)




convenience of the people. The opinion relied on the Williams v.
Castleman case for the proposition that the commissioners court has
discretion in establishing justice of the peace precincts and their
lines. We believe, as we indicated before, that this proposition was
based on a misreading of Williams because the discretion discussed in
the Williams case pertained to the finding that a city has the
requisite population.     Attorney General Opinion WW-1251 (1962)
followed the Meredith case and concluded that the Gray County
Commissioners Court could abolish one of the two justice of the peace
positions in a precinct containing~the city of Pampa with a population
of more than 24,000. This opinion was wrongly decided and is hereby
overruled.

     Attorney General Opinion C-566 (1965) concerned the election to
justice of the peace precinct one, place two in Hale County, which
wholly contained the city of Plainview, with a population of more than
18,000 under the federal census. The commissioners court of Hale
County had never entered an order declaring the population of
Plainview to be more than 8,000 in creating a place two position. The
attorney general found that, unless and until the cotmaissionerscourt
declares a city to be over 8,000 (now 18,000 population) and orders
the creation of a place two position, candidates may not file for such
a non-existent office. This opinion is correct to the extent that it
requires some action on the part of the commissioners court before a
place two position is created. To the extent, however, that the
opinion held that the place two position must be determined by the
commissioners court to be "for the convenience of the people," it is
overruled. As we have stated above, the only discretion that a
commissioners court has is in determining the population of a city.
Once that population is determined to be in excess of 18,000
population, it does not have discretion to find that the convenience
of the people does not require a place two position.

                            SUMMARY

             Article V, section 18 of the Texas Constitution
          requires the election of two justices of the peace
          in a precinct if it is determined by the
          commissioners court that the precinct contains a
          city of more than 18,000 inhabitants.




                                        Attorney General of Texas

TOM GREEN
First Assistant Attorney General


                              p. 768
    Honorable Romeo Flores - Page 5    (JM-174)


P




    DAVID R. RICHARDS
    Executive Assistant Attorney General

    Prepared by David Brooks
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Rick Gilpin, Chairman
    David Brooks
    Colin Carl
    Susan Garrison
    Jim Moellinger
    Nancy Sutton




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