            PRICEDANIEL
            ATTORNEY
                 GENeRAI.
.                                  April 4, 1950

                 Hon. L. E. King            Opinion Ho. V-1032.
                 County Attorney
                 Sabine County              Re: Validity of the submitted
                 Hemphlll, Texae                CommlsslonerslCourt order
                                                changing the boundaries
                                                and number of justice pre-
                 Dear Sirr                      cincts in the County.
                           You have requested an opinion relative to the
                 validity of the Comissioners~ Court’s order changing
                 the boundaries and number of the jus$lce precincts ln
                 the County, whloh provides as follows:
                      “TRE STATE OF TEXAS
                      COUNTYOF SABIRB     I It is the order of the
                     Sabine County Comuiasicners~Court that Sabine
                     County be redlstrlctetlinto ?o\n, 4) Justice
                     Precincts Instead of Into eight (Q ) as It now
                     exists.
                           “It ia ordered that Preclnet No. 1 as it
                     now exists be combined with and lnaltie Pre-
                     cinct No. 7 as it now exists, and thathere-
                     after the Precinct will be called HemphIll
                     Precinct No. 1.
                                           -2-
                           “It is the order of the Court that Pre-
                     cinct MO. 2 shall include the now existing
                     Precincts 4. 5 and 8; that all of these three
                     PrecZncts bi,combined, and that the Geneva
                     Precinct IVo.2 a8 it will be called, shall
                     extend co-extensivewith the Outer Boundaries
                     of each of said old preolncts numbered 4, 5,
                     and 8.
                                            -3-
                              Is ordereb that the preclnot now
                             "It
                     called IVo.2, Plneland, shall be miabined
                     with Brookeland Precinct Ho. 3 as It now ex-
                     ists, and that the newly formed pealnot
                     shall be oalled Plnelyl Precinct Ro. 3.
                          “It is ordered that’the old Precinct lo.
                     6 boundaries remain the same as orlginallj




    *   .                                                                    .   *
Hon. L. E; King, page 2 (V-1032)


    described and that sale Precinct shall here-
    after be called Bronson Precinct??a.4,
         "IT Is UNDERSTOOD that the legally elect-
    ed and qualified Justices-of-the-Peace and
    Constable ln each of the four newly numbered
    Justice Precincts shall pemaln In office In
    the Justice Precinct In which they reside un-
    til their successors are elected and quall-
    fled.
          "There shall be continuous terms of Court
     in each of said four precincts and the next
     day after return day of service shall be call-
     ed a regular term of the Court.
          "Done thls 10 day of January, A.D..1949"
          Section 18 of Article V of the Constitutionof
Texas provides:
         "Raoh organized county ln the State now
    or hereafter existing, shall be dlvlded from
    time to time, for the convenlenaeof the peo-
    ple, Into precincts,not less than four and
    not more than eight, . . . In each such pre-
    cinct there shall be tiected at each biennial
    election, one justice of the peace and one
    constable,each of whom shall hold his office
    for two years and until hls successor shall
    be elected and qualified;provided that In
    any precinct In uhich there may be a city of
    8000 or more inhabitants,there shall be,,
    elected two justices of ,thepeace. . . .
          In construingthe above quoted provisions,It
was held ln Williams v. Castleman, 112 Tex. 193, 2'47S.X.
263 (19221, that:
          ” . . . The Constitutionhas prescribed
    that the power of determlnlng the number of
    justice precincts,and of dividing the county
    into them, shall be exercised 'from time to
    time,' which means it has a potential rurlst-
    ence at all times, and the division, redlvl-
    slon, or redetermlnatlonmay be made at any
    time. State.ex rel. Dowlen v. Rlgsby, 17 Tex.
    Clv. App. 171, 43 S.W. 271, 273. In this case
    the question at Issue MS aE to wha,ttime the
Hon. L. E. ging, page 3 (V-1032)


    mmIsslonera~ cqurt had authority to divldo
    or redlvlde a county into justice preclnots.
    On this Issue the Court of Civil Appeals,
    through Justice Williams, who afterwardsbe-
    came Aseoalate Justloe of thls court, aiter
    quoting section 18 o? article 5 of the Constl-
    tution, saiai
         “When the comlsslonerst aout was or-
    ganized, ln pumuance of the Constltutlonand
    the laws passed~thereunder,It possessed all
    powers conferred by both. When the court was
    once established,no leglalatlonwas needed
    to enable It to exercise the powers given by
    the above provisions, to divide the oounty
    Into preclnots, The dlrectlcm 18 plain and
    simple, and without condition or restrlbtlon,
    except that as to the number OS precinots. It
    is said that no procedure Is preaorlbed by
    which the power 'lato be exeralsed. I? any
    was neeaea, the statute auppu0a it, when it
    required that the proceedings o? the co&
    should be recorded la Its mlaute book. Rev.
    St.   1895,   art.   1554.   This   was all   that   was
    necessary. The power to dlvlae the county ln-
    to justlces~ precincts Is also glvsm.by the
    statute, but not ln temns so explicit 8s thoaa
    used ln the Constitution. Rev. St. 1895, art.
    1537.  There can be no doubt that both Constl-
    tutlon and statute conier the power, and the
    only question is as to Its extent. It Is con-
    temleathatallmltationupoathe      power18
    found in the oonstltutlonalprovision rlxlng
    the terms o? oiflce o? preolnut officers, and
    that, since they are to hold for two years, It
    follows that the preolnute oannot be ohangea
    during the terms, beams8 the power to altop
    them would practically emble the oourt to ae-
    stroy the o??lce. The language o? the Constl-
    tutltm expresses.nosuch limitation. The dl-
    vlslcu~Is to be made '?rcm time to tlme.~ The
    reason for the dlvlslon Is to be the convenI-
    once of the people; and the judge, both as to
    time and convenience,IS the court. The llmI-
    tatlon contemled for by appellant would re-
    quire the insertion In the Constitution o? a
    proviso which the court cannot read Into it.
    The only l.imltatlonimposed serves to indicate
    the mope o? the power. That linitatlonre-
.       .




                 Hon. L. E. llingjpage 4 (V-1032)


                       qu&vs as many as four, and does not allow
                       more than eight, preainate. But for It the
                       coutltymight have been cut up into as many
                       f;m;Sncts as the court saw proper to estab-
                               By It the Intention Is made more man-
                       iresi  that, within the 1iallts,the oollrtIs
                       to determlne the number. As to the time of
                       making the dlvlslon, It Is equally plain.
                       The language 8rrom time to time, for the oon-
                       venlence of the people,’ aleaply means that
                       th0 oonvenlenceof the people, as judged by
                       the court, shall oontrol In detemlning   the
                       time when a dlvlslon Is proper. The phrase
                        ‘from time to time’ repels the Idea .thatIt
                       was the pwpose to fix any particular’   the. 1It
                           In Brown v. Meeks, 96 S.W.2d 839 (Tex. Civ. App.
                 1936, error d’iem.),the Court stated:
                            “There can be no question aa to the pow-
                       er 0r the comIsslonerst oourt to oreate new
                       justioe preoinots,ima tine to time, for the
                       ooawenIenceOS the people. !I%iepower is glv-
                       en to the oomnl.ssloners~oourts by the Constl-
                       tution of Texas (artlole5, 8 18) aad by the
                       statutes o? this state. , . .
                             “It appears that the ooma.tesIonerst
                       court, In pnsslng the order of June 1, 1936,
                      thought they were aolag a ialr thlng, In that
                       they provided that any person who would live
                       ln the new precinct a?ter January 1, 1937,
            -~         could become a candidateln the July primary
                      and the November general elections,and that
                      .any voter who would live ln the new preoinct
                      after January 1, 1937, oould vote at suoh
                      primary and general eleatlom, but the result
                      0r this order is that, when the new ~reolncte
                      come Into exietenoe.al1 nreclnct o?rices
                      will be vacant and the oanmlsslonerslcourt
                      will be charned with the duty of fillian the&e
                      preoinct   offiaes bs amolntment.” (wsle
                      add0d .)
                           In Opinion V-790 thls office held that the Cm-
                 mlssloners~ Court wae authotiaedto abolish exIstIng jus-
                 tice precincts and oreate sew juetlae precincts ccaposed
    I            of the territoriesof exIeti.ng preainots which are abol-
                 ished at any time for the oonvenlenoeo? the people,
.




      Hon. L. E. King, page 5 (V-1032)


      provided that there must be at least four and not more
      than 01 t justice precincts In the county at all times.
      It was ftrther held that when such justice preclnots are
      abolished, the offlaes ln the old prealnote become va-
      cant and the officers of the newly created justice pre-
      cincts must be appointed by the Connnissloners~Court.
                In view of the foregoing you are advised that
      the Ccmmilssloners~Court o? Sabine County had the author-
      ity to redistrict the justice precincts In the county so
      as to provide that the county would consist of four jus-
      tice precincts rather than eight regardless of the terri-
      tory the jultlce precincts now Include.
                We deem It advisable, however, to point out
      that ‘when new precincts come Into existence all.pre-
      clnct offices will be vacant and the Coim&?.sIcmers’
      Court IS charged with the dutq of filllag these pre-
      cinct offices by appointment. Brown v, Neeks, supra.
                Therefore, when the order In question was pass-
      ed a vacancy was created ln the precinct offices of Sa-
      bIne County. It Is noted that the Cdssloners*     Court
      provided “that the legally elected and quall?led Justlc-
      es-of-the Peace and Conetab~each       of the four nevly
      numbered Justice Preolnots shall remain ln office ln the
      Justice R?eclnct in which hey reside until their euc-
      oessors are elected and qua11?1ed.* Since thst portion
      of the order refers to nlegally cleated justices of the
      peace and constables’It Is our opinion that such an or-
      der oould not oonstltuteappointmentsto 1111 the vacan-
      cies created by the order. You are th0rid0m further
    L advised that the Co~sslonera~ Court should now fill
      these vacancies by appointment.


                CoaunlsslonerelCourtrhave authority to
           abolish existing justloe precincts and create
           new justice precincts at any time for the con-
           venlence of the prople, provided there must
           be at least four and not more than eight jus-
           tlae precincts in the county at all times.
           When new preclncte &mW Ant0 exlstenae, all
           preclnat offloes become vacant, and the Com-
           mlssloners* Court Is c    ea with the duty of
           fllllng these meclnot -3
                                  o Ices by appointment.
~lon.L. E. ping, page 6 (V-1012)


     Tex. Conat., Art. V, BBC. 18. gqgy3$&2,;
     Castleman, 112 Tex. 193, 247 S. .
     Brown v. Meeka, 9 S.W.2d 839 (Tsx. Clv. App.
      936, error df8m.f; opinion No. V-790.
                                    Yours verg truly,
                                      PRIOE MNIEL
APPROVED1                           Attommy General

J. C. Davis, Jr.
county Affalm Division              By @.<-.:! ::,.,. .A,.:,
Charles D. Mathsvs                   0   J&n Reeves
Executive Assistaat                        Assistant

JRtmvrbh




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