Hon. Curtis L. Owen                   Opinion No. M-1111
Criminal District Attorney
Smith County Courthouse               Re:   Whether the current
Tyler, Texas 75701                          election precincts in
                                            Smith County were
                                            formed in violation
                                            of Article 2.04(b),
Dear Mr. Owen:                              Texas Election Code?

     You have requested the opinion of this office regarding the
above question.  In this connection you have provided us with
the following information:
           II
            . . . The Commissioners' Court, on Decem-
     ber 14, 1970, redrew and adopted new justice
     precincts for Smith County. On January 4. 1972,
     the Smith County Commissioners' Court, at its regular
     meeting in the Smith County Courthouse at Tyler,
     Texas, again redrew and adopted new justice pre-
     cincts for the County. Justice Precinct 1, of
     Smith County, Texas, then and now stretches across
     the middle of the County in belt-like' fashion and
     includes all of the City of Tyler. Justice Precincts
     2,3,4 and 5 constitute outlying justice precincts
     and until the first aforesaid meeting of the COm-
     missioners' Court, their precincts did not come
     within the city limits of Tyler, In both meetings
     the redrawing of the justice precincts included
     the extension of Precincts 2,3,4 and 5 from the
     outlying area of Smith County into Precinct 1 and
     the City of Tyler over roads and streets ending at
     the Courthouse.

          "The population of Precinct 1 is about 60,000.
     The total population of Precincts 2, 3, 4 and 5 is
     about 35,000. The result before the redrawing was

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        an overburdening case load for the Justice of the
        Peace of Precinct 1 and a much less burden for the
        other outlying justices.

             "On December 14, 1970, the Commissioners' Court,
        in order to alleviate the burdensome Court docket
        of Justice Precinct 1, endeavored to extend each
        of the outlying justice precincts over roads and
        streets into Tyler ending at the Courthouse so
        that these justices too could sit in Court at the
        Courthouse and share the burden of the growing
        metropolis and its resulting case load.

              "The redrawing made by the Commissioners' Court
        of the outlying justice precincts at both meetings
        resulted in arm-like appurtenances along roads
        and streets reaching into Precinct 1 to the County
        Courthouse in Tyler. Precinct 2 was brought into
        Precinct 1 and to the Courthouse by means of High-
        way 2493, Highway 155, Clenwood Street North in
        Tyler, and Erwin Street East to the Courthouse,
        Precinct 3 was extended to the Courthouse in Tyler
        by means of Highway 110, Troup Highway in Tyler,
        Beckham Street North, and Erwin Street West.
        Precinct 4 was extended to the Courthouse in Tyler
        by means of Highway 271, Dixie Highway in Tyler,
        Beckham Street South in Tyler, and Erwin Street
        West.   Precinct 5 was brought into Precinct 1 and
        to the Courthouse by means of Highway 69, Bow Street
        in Tyler, and Broadway Street South.

             "There are, of course, no people living on
        the surface of any of these streets and roadways.
        There are, however, people and election precincts
        on either side of these roadway extensions from
        each outlying precinct into and through Precinct 1.

             "On December 13, 1971, the Commissioners' Court
        adopted new election precincts for Smith County,
        Texas. The result of this redrawing was that each
        of the arm-like extensions from each of the outlying

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    , iurrid b= Gwen, page 3
kiYli                             (M-1111)



     justice precincts split and/or formed new election
     precincts within Precinct 1 which had heretofore
     exclusively been within and formed within Justice
     Precinct 1. The result was that Justice Precinct 2
     along with Precinct 1 aided in the formation of
     Election Precincts 35, 36, 33 and split 20 in Smith
     County.  Precinct 3 aided in the formation of Blec-
     tion Precincts 21 and 23, and as a result of the new
     drawing completely split Election Precinct 20. Jus-
     tice Precinct 4 runs through Election Precinct 2 and
     20.  Precinct 5 aided in the formation of Election
     Precincts 16, 12 and 34 and split Election Precincts
     11 and 20.

          "Does the fact that one or more justice precincts
     cross another justice precinct by means of a roadway,
     representing no people within the justice precinct
     which they cross, constitute a formation of an elec-
     tion precinct out of two or more justice precincts, or
     out of the parts of two or more justice precincts, in     ,
     violation of Article 2.04b of the Texas Election Code?"

     The provisions of Article 2.04(b) of the~Texas Election
Code, reads, in part, as follows:

          "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. . .'I

     The article is mandatorially prohibitive in nature; the
formation of an election precinct from two or more justice pre-
cincts is prohibited.  As the lines are presently drawn *arm-like"
appurtenances of the outlying justice precincts (2,3,4 and 5)
extend into justice precinct No. 1 and commonly culminate at
the Courthouse.  Your letter does not spell out the precise
boundary of the end of these arms. If the arms terminate at
the perimeter of the Courthouse square, the Courthouse Build-
ing (and its courtrooms) are beyond the boundaries of these


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Bon. Curtis 1,. Owen, page 4     (M-1111)



arms ; if the arms extend into the courthouse building, there is
a portion of the county, within the building, which is common
to all five justice precincts. Under the first hypothesis, the
stated purpose would not be accomplished; under the second, the
justice precincts would.overlap in contravention of the intent
of Article V, Section 18 of The Texas Constitution, which pro-
vides that every county in the State shall be divided into not
less than four and not more than eight justice precincts.   It
is implicit that there is to be no overlap, and that each justice
precinct shall occupy and include specific definable,territory,
to the exclusion of any other justice precinct.

     As the justice precinct lines are currently drawn, elec-
tion precinct No. 12 includes part of justice precinct No. 1 and
part of justice precinct No. 5; election precinct No. 2 includes
parts of justice precincts No. 1 and No. 4.   As you point out,
there are many other examples.  This is clearly in contravention
of the express prohibition of Article 2.04(b) of the Election
Code (supra).

     Hocrc v. Campbell, 40 SW(2) 515, (Tex.Civ.App, 1932, no writ)
is authority for the proposition that an order of the Commission-
er's Court which attempts to create an election precinct which
contains parts of more than one justice precinct is void as being
in contravention of Article 2933, Vernon"s Civil Statutes, the
precursor of Article 2.04 of the Texas Election Code.

     The redrawing of the precinct lines in the attempted manner
is beyond the delegated authority of the Commissioner's Court
and is void. The last decision of our Texas   Supreme Court re-
lating to boundaries of geographical areas from which represen-
tatives of government are elected is Smith v. Craddick, 471 SW2d
375 (Tex.Sup. 1971). The Court held that the requirements of
Article III, Section 26 of the Texas Constitution relating to
the maintenance of county boundaries in apportionment for Repre-
sentative Districts was to be given effect I'...without regard.to
the consequences..."  These requirements were superseded only
by the Constitution of the United States. While this case is
not directly in point, our opinion is that it is relevant and
supports our position that the plain language of the law re-
lating to boundaries of political areas of the state is to be
enforced.  See also Wilson v. Weller,  214 SW2d 473, 475 (Tex.

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     Hon. Curtis L. Owen, page 5          (M-1111)


     Civ. ASP. 1948, no writ), wherein the court declared that the
     Commissioner's Court could not "have and recognize election pre-
     cincts including territory lying within more than one justice 01
     commissioners precinct."

                             SUMMARY

               The extension of outlying Justice Precincts
          NOS. 2,3,4 and 5 of Smith County by arm-like
          appurtenances to a common point within Justice
          Precinct No. 1, when such "arms" cut across  elec-
          tion precincts, is in contravention of Article
          2.04(b), Texas Election Code. An order of the
          Commissioner's Court which attempts to do so is
          without statutory authority and therefore void.

                                            very truly,




                                   Attobey      General of Texas
                                       t'
     Prepared by Robert W. Gauss
     Assistant Attorney General

     APPROVED:
     OPINION COMMITlEE

     Kerns Taylor, Chairman
     W. E. Allen, Co-Chairman

     w. 0. Shultz
     Jack Goodman
     Ralph Rash
     Houghton Brownlee

     SAMUEL D. McDANIEL
     Staff Legal Assistant

     ALFREDWAlKER
     Executive Assistant
     NOLA WHITE
     First Assistant
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