Honorable  Ernest   Guinn
County Attorney
El Paso County
El Paso, Texas

Dear   Sir:

                                         Opinion No. O-4425
                                         Re:   Does the action of the Com-
                                               missioners’    Cou,rt in changing
                                               the boundaries    and/or the
                                               numbers of the election pre-
                                               cincts within the county in
                                                accordance   with the law (Arti-
                                               cle 2933, R.C.S.) create a
                                               vacancy in the office of party
                                               precinct committeemen       who
                                               have been duly elected as the
                                               kiw directs (Article    3118, R.~C.S.)
                                               when such precinct committee-
                                               men have not moved their resi-
                                                dence ? Would a vacancy exist
                                    ‘_         if the Commissioners’      Court’s
                                               action resulted in the placing of
                                               two such duly elected precinct
                                               committeemen     fin the same new
                                               election precinct who, nevertheless,
                                               have not changed their residences    ?

       Your letter of February      12, 1942, requesting    the opinion of this depart-
ment upon the above questions,     omitting the formal     parts, is set out below:

        “The Commissioners’        Court,   in accordance  with Article   2933
  of the Revised Civil Statutes, changed the boundaries         of many of
  its election precincts.     As,a result thereof, there are a number of
  precinct committee-men,        elected under the terms of Article      3118,
  who fall within the boundaries       of newly numbered election precincts.
  For example, the committee-man           elected for election precinct No.
  15 noti resides   in election precinct No. 12 with somewhat changed
  boundari.es.   He has not, of course, changed his residence,         the change
                                                                               .



 Honorable   Ernest   Guinn,   Page   2                                  O-4425




    being entirely caused      by the action   of the Commissioners’   Court
    under Article  2933.

             “Is the committee-man     in question entitled to represent
    Precinct   No. 12 as the executive committee-man,      or is there a
    vacancy existing which necessitates     the appointment of a new
    committee-man,     in accordance  with Article  31181 The committee-
    man, of course, elected for old election Precinct      No. 12 now falls
    within an entirely different precinct.

            “In the event that you hold that the man elected as pre-
    cinct committee-man    may continue to act as such for the precinct
    in which his residence   falls under the new boundaries,   what action.
    should be taken in case the reformation    of the precinct boundaries
    and the re-numbering    of the precincts results in two committee-
    men, whose residences     have not been changed, falling within the
    same election precinct?

             “It is my opinion that the proper construction   of the two
    Articles  in question, to-wit: Article  3118 and Article 2933, r~esults
    in the conclusion that a change in the election precincts    necessitates
    the appointment of new members      for each of the changed precincts.

            “In a number of cases, the election precincts were changed
    in number only and not in boundaries,  would this make a difference ?

             “It is my opinion that a change in the numbers of the pre-
    cincts ,would not necessitate  a new appointment, but that the commit-
    tee-man elected for such precinct wouldcontinue     to se.rve.”

             The.answer.to    your ques.tions necessarily   involves an analysis and
construction  of the two statutes cited in your letter.   For your easy reference
in connection with the discussion   that follows they are here sat down in full:

              “Art. 2933. Each~ comm&sioners      court may, if they deem
    it proper, at each August fer~m of the’~cbu’rt, divide their respective
    counties, and counties attached thereto for judicial purposes,      into
    convenient election precincts,   each of which shall be differently
    numbered and w,.       ed
                            ~~ by natural or artificial  boundaries   or sur-
    vey lines by an order%0 be entered upon the minutes of the court.
    They shall immediately    thereafter  publish such order in some news-
    paper in the county for three consecutive    weeks.    If there be no news-
    paper in the county, then such copy of such order shall be posted in
    I       -




Honorable       Ernest    Guinn,   Page   3                                              O-4425




    some public place in each precinct in the county. No election precinct
    shall be formed out of two or more justic~e precincts; .nor out of the parts
    of two or more justice precincts.     The commissioners      court shall cause
    to be made out and delivered    to the county tax collector,   before the first
    day of each September   a certified copy of such last order for the year fol-
    lowing.”

                  “Art.    3118. There    shall   be for each political   party   required   by
    this law to hold primary       elections for nominations of its candidates,       a
    county executive coi-omittee. to be composed of a county chairman,              and
    one member for each election precinct in such county; the committeeman
    from such election precinct shall be chairman of his election precinct,
    and the said county chairman         shall be elected on the general primary
    election day; the county chairman by the qualified voters of the whole
    county, and the precinct chairman by the qualified voters of their respec-
    tive election precincts.      Said county and precinct chairman         shall assume
    the duties of their respective       offices on Saturday following the run-off
    primary    immediately     after the committee has declared the~‘results of the
    primary    election..   Said county chairman      shall be ix-officio   a member of
    the executive comniittei       of all districts  of which his county is a part,~and
    the district committee thus formed shall elect its own chairman.               Any va-
    cancy in the office of chairman,         county or precinct,   or any member     of
    such committee       shall be filled by a majority     vote of said executive com-
    mittee.    The list of election precinct chairman and the county chairnien
    so elected, shall be certified       by the county convention to the county
    clerk, along with the other nominees of said party.            If there are no ‘re-
    quests filed for candidates       for county and precinct chairman,       a b~lank
    space shall be left on the ticket beneath the designation of such position.”

               The questions propounded by you present an interesting         situation and
 one which so far as our search reveals       has not been directly passed upon by any
 opinions of this department    previously   rendered.    We think.that your request of
this department     might be fairly considered    from either one of two viewpoints.
 The first is that under the broad powers conferred        by the Constitution upon politi-
 cal parties, or reserved   by that instrument to the people and the organizations
through which they choose to express       their political will (Constitution   of Texas,
Article   I, Sections 2, 27 and 29), the question of whether or not vacancies exist
.under the circumstances     described   by you is a question of fact to be considered
 and decided by the party executive committee of the county in the light of all the
 facts relating to the subject.    The Attorney General’s     Department    is not required
 and could not reasonably    be expected to pass upon questions of fact and as a mat-
 ter of poil~y it does not attempt to do so for the understandable       reason that all
 the facts which should be considered      could not be known to this department,      as
Honorable     Ernest   Guinn,   Page   4                                     O-4425




well as it could to the persons  immediately   involved and because they
could not be presented   here as fully as they could to a fact finding body
such as a jury or court under proper rules of evidence.

                The other viewpoint is that your questions    involve matters
of law which require    an interpretation  of the powers and duties of com-
missioners’   courts and of the authority and privileges    of political party
organizations   under our Constitution and our statutes as they relate to
your particular   problem.    This is the view that we prefer to take, since
we wish to be of whatever     assistance  we can to you, you are entitled to
have the benefit of our interpretation    of the law, and any doubts about
the matter we think should be resolved      in your favor.

                  We begin our discussion   with the pertinent      cons$itutional
provisions,    first as to the commissioners’    court:


                Article   V, Section 18. 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.          The present County Courts
     shall make the first division.        Subsequent divisions       shall be
     made by the Commissioners’           Court, provided for by this Consti-
     tution. In each such precinct there shall be elected at each bien-
     nial election, one justice of the peace and one constable,              each of
     whom shall hold his office for two years and ,until his. successor
     shall be elected and qualified;       provided that in any precinct in
     which there may be a city of 8000 or more inhabitants,                there shall
     be elected two justices      of the peace.    Each county shall in like man-
     ner be divided into four rommissioner’s           precincts     in each of which
     there shall be elected by the qualified voters thereof one county
     commissioner,      who shall hold this office for two years and until
     his successor     shall be elected and qualified.       The county commis-
     sioners so chosen, with the county judge, as presiding              officer,
     shall compose the County Commissioners              Court,   which shall ex-
     ercise such powers and jurisdiction          over all county business,        as
     is conferred    by this Constitution and the laws of the State, or as
     may be hereafter      prescribed.”      (Underscoring     ours)


                The above Article   describes  the general   powers of the com-
missioners’    court, and taken together with Article    2933, supra, describes
thenparticular   powers of such commissioners’      court as they relate to your
questions.    As may later. appear  in detail herein, the powers of the com-
missioners’    court are clearly  shown to be limited powers.
Honorable   Ernest   &inn,   Page   5                                    O-4425




             Next we .take up the provisions  of our Constitution which
the courts have held are to be applied to political party organization.
These provisions  are found in the Bill of Rights.as  follows:

              “ARTICLE     I, SECTION   2. All political power is in-
      herent in the people, and all free governments      are founded
      on their authority, and instituted for their benefit.     The
      faith of the people of Texas stands pledged to the preserva-
      tion of a republican    form of government,   and, subject to
      this limitation only, they have at all times the inalienable
      right to alter, reform or abolish their government       in such
      manner as they may think expedient.”

             “ARTICLE     I, SECTION     27. The citizens shall have
      the right, in a peaceable    manner, to assemble      together for
      their common good; and apply to those invested with the
      powers of government      for redress   of grievances    or other
      purposes,  by petition, address     or remonstrance.”

              “ARTICLE      I, SECTION    29. To guard against trans-
      gressions   of the high powers herein delegated, we declare
      that everything    in this ‘Bill of Rights’ is excepted out of
      the general powers of government,        and shall forever remain
      inviolate, and all laws contrary thereto, or to the following
      provisions,   shall be void.”

              As you see, the powers and privileges         here conferred,       re-
 served, or safeguarded       are not limited and the Constitution expressly
 forbids the restriction     of such powers or any interference         with the
 lawful and peaceful exercise       thereof.  The courts of Texas have with
 uniformity applied these constitutional       provisions    to political party or-
 ganizations   and have held, as will more fully appear hereafter,             that
 not even the Legislature      has the right to interfere    with the broad powers
 thus conferred    upon them, though the Legislature        may provide for the
 manner in which party nominees shall be elected, regulate the manner
 in which they shall hold a primary        and pass such directory       legislation
 regarding   ~the organization    of their committees     as that contained.in
 Article   3118, supra.

              We pass now to a review of some of the reported      court
  opinions bearing upon these Articles     of the Constitution and the stat-
  utes. The courts of this State have confirmed      the power of the commis-
  s~ioners’ court to divide their respective   counties and the counties
Honorable   Ernest   Guinn,   Page   6                                 O-4425




attached thereto for judicial purposes into election precincts,   pro-
vided that in so doing they follow the directions  of the statute (Arti-
cle 2933, R.C.S.).  But these opinions hold that the commissioners’
courts are strictly limited by such statute and must keep their ac-
tion in this respect within the meaning, purpose and intent of the
statutes.   See Dubose v. Wood, Civ. App., 162 S. W. 3; WiUiams    v.
Woods, Civ. App., 162 S. W. 1031; Hogg v. Campbell   (Civ. Ape.),
48 S. W. (2d) 515.

           Having satisfied  ourselves  that the commissioners’   courts
may change the election precincts,    we must now ascertain   whether
such court in the exercise  of this power may .remove a political party
precinct chairman by altering the numbers or the boundaries      of his
precinct, thus “moving his precinct out from under him” so to speak.

            In Bell, et al. v. Hill, County Clerk, et al., 74 S. W. (2d)
113, the Supreme Court of Texas, speaking .through the late Chief
justice Cureton, in a scholarly     opinion in which he quotes extensively
from De Tocqueville’s     “Democracy     in Americaa  and from Story on
the Constitution,   Vol. 2, Sections 1893 and 1894, lays down the follow-
ing rule:

            1. “Right to organize    and maintain a political party
      is guaranteed   by Bill of Rights and legislative   power re-
      specting political parties is limited to legislation    secur-
      ing public peace and good order and to making effective
      the right of assembly,    petition, etc., as guaranteed   by
      Bill of Rights.   (Const. Art. I, Sections 2, 27, 29).”

            2.  “Every privilege    essential   or reasonably appro-
      priate to exercise    of right to organize and maintain a
      political party is guaranteed. under Bill of Rights includ-
      ing privilege   of determining    policies of party and its mem-
      bership (Const. Art. I, Sections 2, 27, 29).”

       We quote a few sentences      from   this opinion   in the language   of
 Justice Cureton:

            “Since the right to organize       and maintain a political
      party is one guaranteed        by the Bill of Rights of this State,
      it necessarily    follows that every privilege      essential  or
      reasonably     appropriate    to the exercise   of that right is
      likewise guaranteed,       including, of course, the privilege    of
Honorable   Ernest   Guinn,    Page   7                                      O-4425




        determining    the policies of the party and its membership.
       .Without the privilege     of determining  the power of a politi-
        cal association   and its membership,     the right to organize
        such an association     would be a mere mockery.       We think
       these rights; that is, the right to determine the membership
       of a political party and to determine      its poli&ies, of necess-
        ity are to be exercised     by the state convention of such party,
       and cannot, under any circumstances,         be conferred   upon a
        state or governmental      agency,”

             In Grovey v. Townsend,    295 U. S. Rep;.,. the Supreme Court
of the United States in an opinion written by Justice Roberts quotes fav-
orably from the Bell v.Hill case, supra, and gives the endorsement     ‘of
the highest court in our Nation to the principles  there enunciated in the
following paragraph   quoted from the opinion:

              Y. a . The Supreme Court of the state has decided,
       in a case definitely involving the point, that the legisla-
       ture of Texas has not essayed to inte,rfere, and indeed
       may not interfere,       with the constituti&al        liberty of citi-
       zens to organize,=       party and to determine         the qualifica-
       tions of its members.         If in the past the legislature        has
       attempted to infringe that right and such infringement                  has
       not been gainsaid by the courts, the fact constitutes no
       reason for our disregarding          the considered       decision of
       the state’s highest court.         The legislative      assembly     of
       the state, so far as we are advised, has never attempted
       to prescribe     or to limit the membership           of a political
       party, and it is now settled that it has no power so to do.
       The state, as its highest tribunal holds, though it ~has
       guaranteed     the liberty to organize       political parties,      may
       legislate   for their governance       when formed and for the
       method whereby they may nominate candidates,                   but must
       do so with full recognition        of the right of the party to ex-
       ist, to define its membership,         and to adopt such policies
       as to ii shall seem wise.         In the light of the principles         SO
       announced, we are unable to characterize                the managers      of
       the primary      election as state officers        in such sense, that
       any action taken by them in obedience to the mandate of
       the state convention respecting          eligibility    to participate
       in the organization’s       deliberations,     is state action.”
Honorable      Ernest   Guinn, Page   8                                  O-4425




              Corpus Juris Secundum in Vol. 29, page 117, Section 86,
citing opinions from states other than Texas, some of which will be
more fully examined hereinafter,    goes even more directly to the
point here under consideration   as follows:

                  “Mere boundary changes, subsequent to election,
          which place the residence      of committeemen      in a town-
          ship or ward different from that which they were elected
         .Q not effect the term of the incumbent.            the absence
          of statutory provisions    specifying   the leng? h of a term of
          a partyco,mmit.t.ee.  or governing committee rules to the
          contrary,   the presumption    is that the members      of such
         committee are to continue to serve from their election
          until the next primary    election, unless they resign, die
          or are removed for cause.”

              We believe that no further authority is necessary      in order
to answer your questions but there ar.e decisions     of other jurisdiction
which go more nearly to the heart of your problem and because of
their persuasive  force, and perhaps clarifying   effect, we advert briefly
to two of them.

              In In Re Prospect    Park Borough Election Dists., 146 Atl.
28, the Supreme Court of Pennsylvania        held that decree of Court of
Quarter Sessions,    in the exercise   of its power under Const. Art. 8,
Section 11, to divide Boroughs    into election districts,  that the two exist-
ing districts  of a borough be divided into five in a specified manner, did
not operate to abolish the old district with the effect of terminating       the
tenure of one previously    elected to the constitutional   office of minority
inspector of one of the two original districts.

                In Williamson,  et al v. Killough. Judge, 46 S. W. (2d) 24,
the Supreme      Court of Arkansas   speaks as follows:

                 “While the members     of the committee   are elected in
         the township or city ward in which they reside,      they be,come.
         upon their election members      of the county committee,    and
         the authorities  appear to be unanimous, that after such elec-
         tion, the right to discharge   the functions of a committeeman     is
         not affected by a subsequent change of boundary lines which
         would place the residence    of the committeemen      in another
         township or ward, and this change of lines doe,s not automatical-
         ly or otherwise   affect the incumbent, but the committeeman,       if
 Honorable   Ernest   Guinn, Page    9                                    O-4425




       he remains otherwise    eligible, continues as such until his suc-
       cessor  is elected pursuant to the provisions  of the law regulat-
       ing the election,”

               In this same case the Arkansas  Supreme Court quotes from
  an opinion of the Supreme Court of Minnesota   speaking through Mr. Jus-
 tice Mitchell as follows:

               “In our opinion an order redistricting    a county is merely
       prospective   in its operation as to the election and qualifications
       of members     of the board of commissioners,     and inno way af-
       fects the right to the office of those previously    elected.  There
       is nothing in the language of the statutes to indicate that a redis-
       tricting is intended to have any retrospective     operation.”   Norwood
       v. Holden, 45 Minn. 313, 47 N. W. 971, 912.

               The Arkansas    Court then refers to the case of Olsen v. Merrill,
5 P. (2d) 226, where after an extensive review of the authorities     it was held
by the Supreme Court of Utah that members        of the Board of Education of
cities of the second class are entitled to serve as members      of the board for
the remainder    of their terms notwithstanding   an ordinance redistricting  the
city placed them outside the boundaries     of the municipal ward for which they
were elected.    The Arkansas   Court then cites a long line of authorities  and
appends this comment:

               “It is true these are cases where officers          were removed
       by changes in lines from the wards or district or township in
       which they were elected, whereas           in the instant case the com-
       mitteemen are not officers,        but that fact does not affect the
       legal principles    which control.      The controlling    legal principle
       is that the committeemen        were elected at an election made
       legal by the primary election law, and for a definite time, not
       yet expired, and it is true also that upon their election they
       became county committeemen,            although elected by townships
       or wards.     Their functions are not confined to the township or
       ward in which they reside, but they, in conjunction with other
       committeemen       similarly   elected, are~committeemen         for the
       county, and changes in the lines of their townships or wards
       do not affect their eligibility,     for the reason that such changes
       are prospective      in their nature so far as the incumbents af-
       fected are concerned.        We find~no divisions     in the authorities
       on this subject.”
                                                                                   -    -




Honorable   Ernest   Guinn,   Page   10                                            O-4425




                 Therefore    you are respectfully   advised that it is the consid-
ered opinion of this department        that the commissioners’    court by redistrict-
 ing the election precincts     of your county did not cause or create vacancies
 in the offices of po.litical party precinct comm,itteemen even though such
redistricting   changed the numbers and the boundaries         of some of the old
precincts    so that the residences     of some of the committeemen       are now in
.differently numbered or differently       bounded precincts.     Our opinion is
still the same even though two precinct chairmen of old precincts            now
find their residences     within the boundaries    or numbers of the same pre-
cinct.    We think these committeemen        unless otherwise   disqualified  would
be entitled to retain their county executive committee membership             until
the next general primary       election, at which time precinct committeemen
should be elected in the manner and from the precincts           provided by the
statutes (Art. 3118. R.C.S.).

                                                       Very   truly yours

                                                  ATTORNEY        GENERAL          OF TEXAS

                                                  By   (S)    ROBT.    F. CHERRY’

                                                              Robert   F. Cherry
                                                                       Assistant
APPROVED      APR    8.1942

 GRQVER   SELLERS
.. -
 FIRST ASSISTANT
 ATTORNEY    GENERAL                                           APPROVED
                                                               Op.inion Committee
RFC:LM                                                         By B. W. B.
                                                                    Chairman
