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                THE     ATNBIZNEY        GENERAL
                           OFTEXAS



                          January 22, 1970

    Honorable Ted Butler             Opinion No. M- 562
    Criminal District Attorney
    Bexar County Courthouse          Re : Constitutionality of
    San Antonio, Texas 78204              Paragraph (a) of Article
                                          2351-l/2, V.C.S., and
    Dear Mr. Butler:                      related questions.
              Your recent request for an opinion of this office
    arises out of an order of the Commissioners Court of Bexar
    County entered on October 9, 1967, a copy of which was at-
    tached to your letter. The effect of the order in question
    is to reduce the number of justice precincts in Bexar County
    from eight to five. The order provides in part that "Justice
    of the Peace and Constable PrecinctssThree, Four, Five, Six,
    Seven and Eight, . . . are hereby abolished,eliminated and
    terminated effective as of January 1, 1969, and that Justice
    of the Peace and Constable Precincts Three, Four, and Five are
    hereby created and established as.04 January 1, 1969, . . .II
    Thereafter the order sets forth the territorial limits of the
    new precincts. The order further specifically provides that
    Precinct No. 1 and Precinct No. 2 were not abolished, elimi-
    nated and terminated by the order. The order then provides
    that the offices of Justice of the Peace and Constable .in
    the newly created precincts were to be filled in the follow-
    ing manner:
                "IT IS FURTHER ORDERED, ADJUDGED AND DECREED
           by the Commissioners Court of Bexar County, Texas,
           that in the elections to be held in the year
           1968 the aforementioned offices shall be filled
           at said elections by the voters of the respective
           precincts as they will exist on the effective date
           of January 1, 1969, and that any person who has
           resided within the territory embraced in the new
           precincts for the length of time required to be
           eligible to hold the office shall not be rendered
           ineligible by virtue of the precinct's not hav-
           ing been in existence for that length of time.
                "IT IS FURTHER ORDERED, ADJUDGED AND DECREED
           that the elections to be held in the year 1968
           shall be for a two year term beginning January 1,


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    Hon. Ted Butler, page 2 (M-562)


          1969, and expiring December 31, 1970, for
          Justices of the Peace of Precincts Three, Four
          and Five, and for a four year term beginning
          January 1, 1969, and expiring December 31, 1972,
          for Justice of the Peace, Precinct One, Place
          One, and for Constables of Precincts One, Two,
          Three, Four and Five."
              This provision of the order of the Commissioners
    Court was entered pursuant to Paragraph (a) of Article 2351-l/2
    of Vernon's Civil Statutes, which reads as follows:
                 "(a) Whenever the Commissioners Court
          changes the boundaries of commissioners pre-
          cincts or of justice precincts, it may specify
          in its order a future date, not later than the
          first day of January following.the next general
          election,   on which the changes shall become ef-
          fective.. If an election for any precinct office
          is he&d before the effective date of the order,
          the office shall be filled at the election by
          the voters of the precinct as it will exist on
          the effective date of the change in boundaries.
          A person who has resided within the territory
          embraced in the new boundaries for the length
          of time required to be eligible to hold the      :
          office shall not be rendered ineligible by
          virtue of the precinct's not having been in
          existence for that length of time."
              Based upon these facts, you state in your letter
    that one of the Justices of the Peace elected pursuant to the
    order of the Commissioners Court at the general election in
    1968 has raised the following questions:
               1. “Was the order of the Commissioners Court
          establishing the term of office for Justices of
          the Peace of Precinct Three, Four and Five for
          two years, Beginning on January lst, 1969 and
          ending.on December 31st, 1970, constitutional?"
               2. "Were the Justices of the Peace of Pre-
          cinct Three, Four and Five who.were elected at the
          General Election in November 1968 elected for a
          two year term or a four year term?"
              ~3. "Do the Justices of the Peace of Precincts


                            -2682-
Hon. Ted Butler, page 3 (M-562)


    Three, Four and Five have to file for the Primary
    Election of their respective parties and if nomi-
    nated run for election in the General Election of
    November, 19701"

              Under the provisions of Section 18 of Article V of
the Constitution of T8xas, the power to divide the county from
time to time into justice precincts of not more than eight or
less than four is exclusively lodged in the commissioners courts
of the respective counties of this State. Williams v. Castleman,
112 Tex. 193, 247 S.W. 263 (1923); Dowlin v. Rigsby 43
(TeX.CiV.ADD.     1897. error ref.). In the exercise 0; its ex-
clusive po&r to change precinct boundaries, the commissioners
court can abolish an existing precinct and create a new pre-
cinct composed of the one abolished and a part of another with-
out redistricting the whole county. .Hastings v. Townsend, 136
S.W. 1143 (Tex.Civ.App. 1911, no writ). Therefore, it ii clear
that the Commissioners Court of.Bexar County had the authority
to abolish Precincts Three, Four, Five, Six, B8ven and Eight
and create three new precincts from the territory of the ones
abolished, leaving Pr8cincts One and Two unchanged and unaf-
fectod by the order.
          The'courts,of this State have ,long followed the rule
that upon the effective date of an'order, such as the one entered
by the Commissioners Court of Bexar County, the old $recincts
and precinct offices cease to exist, and, as of that date, the
new orecincts come into existence with the Drecinct
                                            .        offices
vacahi . Williams v. Castleman, 112 Tax. 199, 247 S.W. 263
(1923); Dowlin v. Rigsb   43 S.W. 271 tT8x.Civ.A~~. 1897, error
ref.); Brown v. Meeks,    S.W.Zd 839 (Tex.Civ.App. 1936, error
dism.1. However,  the offices in orecincts that are unaffected
by such order remain undisturbed hnd the persons holding such
offices are entitled to occupy them for the tana to which they
were elected: State v. Akin, 112 TOM. 603, 79 S.W. 805 (1904).
         ,We must now determine whether the method prescrib8d
by the Commissioners Court to fill the vacancies in Precincts
Three, Four and Five, as authorired by Paragraph (a) of Article
2351-l/2, was proper. Section 28 of.Article V of the Consti-
tution of Texas provid8e as follows:
          "VaCanCi8s in the OffiC8.0& judges Of the
     Supreme.Court,,the Court of Criminal Appeals,
     thenCourt of Civil Appeals and.&8 District
     Courts shall be filled by the Gouirnor until
     th8 n8Xt..SUCC88dingGeneral,Election; and


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    Hon. Ted Butler, page 4 (M-562)


          vacancies in the office of County Judge and
          Justices of the Peace shall be filled by the
          Commissioners Court until the next succeeding
          General Election."
              This provision of the Constitution clearly provides
    for vacancies in the office of JUStiC8 of the Peace to be filled
    by the Commissioners Court until the next general election.
    The power of the Commissioners Court to fill vacancies by ap-
    pointment under the authority of this provision of the Consti-
    tution is exclusive and the Legislature has no authority to
    authorize,or provide for the filling of such vacancies in any
    other manner. Stat8 v. Valentine, 198 S.W. 1006 (Tex.Civ.App.
    1917, error ref.). Therefore, Paragraph (a) of Article 2351-l/2
    and that portion of the order of the Commissioners Court of
    Bexar County which was entered in conformity with this statute,
    are unconstitutional because they provide for a method of fill-
    ing the vacancies in the office of Justice of the Peace of Pre-
    cincts Three.,Four and Five by election and are in direct con-
    flict with.the above quoted constitutional provision. They
    are further invalid as attempts to provide for the election of
    persons to fill an office not in existence at the time of the
    election, Brown v. Meeks, 96 S.W.Zd 839 (Tex.Civ.App. 1939,
    error dism.1.
               With reference to the terms of office of Justice of
    the Peace of Precincts Three, Four and Five as they came into
    existence on January 1, 1969, we must look to those provisions
    of the Constitution relating to that office. Under the pro-
    visions of Section 18 of Article V and Section 64 of Article
    XVI of the Constitution of Texas, the term of office of Justice
    of the Peace is four years. Section 65 of Article XVI of the
    COnStitUtiOn  Of T8XaS reads, in part, as fOllOWS:
               "The following officers elected at the
          General Election in November, 1954, and there-
          after, shall serve for the full terms provided
          in this Constitution:
                II
                 . . . (j) Justices of the Peace.
                II
                 . . .
               "In any district, county or precinct where
          any of the aforementioned offices is of such
          nature that two (2) or more persons hold such
          office, with the result that candidates file,for

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        Hon. Ted Butl8r, page 5 (M-562)


              'Place No. 1,' ‘Place No. 2,' etc., the officers
              elected at the Grneral Election in November,
              1954, shall serve for a term of two (2) years if
              the designation of their office is an uneven num-
              ber, and for a term of fOUr (4) years if the d8Sig-
              nation of their office is an even number. There-
              after, all such officers shall be elected for the
              tenaS provided in this Constitution."
                  Upon authority of the foragoing constitutional pro-
        visions, the offices of JuStiCe of the P8ace in all precincts
        having a Single Justice of the Peace are to be filled for a
        term of four years at the general election in NOVemb8r of the
        years 1954, 1958, 1962, 1966, 1970, 1974, 8tC. Therefore,
        when Precincts Three, Four and FiV8 cam8 into existence on
        January 1, 1969, the office of Justice of the Peace in such
        precincts cam8 into existence with a term of office which ex-
        pires on December 31, 1970. A new four-year term for such of-
        fices will begin on January 1, 1971. Attorney G8n8ral's
        Opinions WW-1292 (1962), C-147 (1963) and C-235 (1964). Since
        the term of office of Justice of the P8aC8 is fixed by the
        Constitution, the Commissioners Court of Bexar County had no
        authority to provide for a two-year term of office for JUStiC8S
        of the Peace of Precincts Thr88, Four and Five when they came
        into existence on January 1, 1969.
                   Adverting to your first question, you are advised
        that the Commission8rs Court of ,Bexar County had no authority
        to establish a term Of Office for JUStic8 Of the PeaC8 Of Pre-
        cincts Three, Four and Five for a period of two years beginning
        January 1, 1969, and ending D8C8lnb8r31, 1970. Although the
        expiration date of the tarm fixed by the Conmissioners Court
        coincides with ths expiration date of the term provided by the
        Constitution, the provision of the Commissioners' order per-
        taining to the term of office of Justices of the Peace for
        Precincts Three, Four and Five is void b8CaUS8 it attempts to
        prescribe,a term of office which ie contrary to that fixed by
        the COnstitUtiOn.
                  With regard to your second question, since Paragraph
        (a) of Article 2351-l/2 and that portion of the Order of the
        Commissioners Court entered in conformity therewith are un-
        conatitutional because they prOVid8 for the filling of vacancies
        in tha office of JUStiC8 of the Peace by election rather than
        appointm8nt of the Commissioners Court, you are advised that
        the election of Justices of the Peaca for Precincts Three, Four
        and Five at thd November, 1968, general election was invalid.


                                -2685-
Hon. Ted Butler, page 6 (M-562)


Since the Commissioners Court of Bexar County has not filled
the vacancies in the office of Justice of the Peace of Pre-
cincts Three, Four and Five by appointment under Section 28 of
Article V of the Constitution of Texas, and the persons who
purported to have been elected to such offices at the general
election in November, 1968, have attempted to qualify for such
offices and have occupied and exercised the powers of such
offices under color of said election.,they are de facto of-
ficers and their acts while occupying such offices are valid.
47 Tex.Jur.Zd 307-313, 324-327, Public Officers, 9253-255,
S264.
           In answer to your third question, you are advised
that the offices of Justice of the Peace of Precincts Three,
Four and Five of Bexar County are subject to being filled,at
the general election in November, 1970, for a term of four
years beginning January 1, 1971; and persons desiring to run
for such offices as the nominees of a party which holds pri-
mary elections should file as a candidate for nomination to
such office in the party primaries.
                      SUMMARY
          When the order of the Commissioners Court
     of Bexar County abolishing Precincts Three, Four,
     Five, Six, Seven and Eight and creating from the
     same territory Precincts Three, Four and Five be-
     came effective on January 1, 1969, .the offices of
     Justice of the Peace of Precincts Three through
     Eight ceased to exist and ther.offices.ofJustice
     of the'Peace of Precincts Three, Four and Five
     came into being with an existing vacancy. Para-
     graph (a) of Article 2351-l/2, V.C.S., authorizing
     the election of persons to fill the offices of
     Justice of the Peace created under such circum-
     stances, is unconstitutional because it is in
     conflict with the exclusive power of the Com-
     missioners Court to fill such vacancies by ap-
     pointment under Section 20 of Article V, Consti-
     tution of Texas. Persons purporting to hold such
     offices by virtue of elections held in conformity
     with Paragraph (a) of Article 2351-l/2, V.C.S.,
     are de facto officers and their acts are valid.

          Justices of the Peace for Precincts Three,
     Four and Five of Bexar County should be elected


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              Hon. Ted Butler, page 7 (M-562)


                    at the general election to be held in November,
                    1970, for a four-year term beginning January 1,
                    1971.




                                                       General.of Texas

              Prepared by W. 0. Shultz
              Assistant Attorney General
              APPROVED:
              OPINION COMMITTEE
              Kerns Taylor, Chairman
              Alfred Walker, Co-Chairman
              Earl Hines
              Ray McGregor
              Bill Allen
              Bill Corbusier
              MEADE F. GRIFFIN
              Staff Legal.Assistant
              NOLA WHITE
              First Amistant




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