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                     A         NEY     ~E3iEFCAI.a
                          ~FTEXAS

PRICEDANIEL.
XrKmNEY GENERA,.




Hon. Arnold W. Franklin      Opinion No. V-790
County Attorneys
Atascosa County              Re: Authority of Commissioners'
Jourdanton,Texas                 Court to abolish justice pre-
                                 cincts and create new precincts
                                 in that territory,and effect
                                 of such action upon elected
                                 officers In the old precincts.
Dear Sir:
         We refer to your letter in which you submitthe follow-
ing questions:
      "Does the Commlssloners’Court, acting under
      authority of ConstitutionalArticle V, Section
      18, and Article 2351 of the Revised Civil Statutes
      of Texas, have the authority to abolish existing
      Justice Court precincts and create a new Justice
      Court precinct of the territory engrossed of the
      territory formerly consisting of the justice pre-
      cincts so abolished?
     "In event that the Commissioners'~Court may
     abolish two old justice precincts and create a
     new one to consist of the combined limits of the
     two so abolished and appoint new officers for the
     newly created precinct, then in that event what
     dispositionwould be made to the elective officers
     of the 0la precincts? Would the officers be
     abolished with the abolishing of the old precincts?"
         The authority of the Commissioners'Court to divide
counties into justice precincts is provided in Section 18 of
Article V of the State Constitution,which reads In part as fol-
lows:
          "Rach organized county ln the State now or
     hereafter existing. shall be divided from time
     to time, for the con:
                         wentence of the oeoule. into
     oreclncts. not less than four and not more-than
     eight. The present County Courts shall make the
     first division. Subsequentdlvlslons shall be
     made by the.Commlssioners'Court, provided for by
Hon. Arnold W. Franklin, page 2        v-790


    thFs Constitution. In each such precinct there
    shall be elected at each biennial election, one
    justice of the peace and one constable, each of
    whom shall hold his office for two years and un-
    til his successor shall be elected and qualified;
    provided that in any precinct in which there may
    be a city of 8,000 OP more inhabitants,there
    shall beelected two justices of the peace. (Em-
    phasis added throughout)
        Article 2351, V.C.S. reads in part:
         "Each commissionerscourt shall:
         "1. Lay off their respective counties Into
    precincts,not less than four, andnot more than
    eight, for the selectionof justices of the peace
    and constables, fix the times and places of hold-
    ing justices courts, and shall establish places
    in such p;ecFncte where electLons shall be held;
    .,0 . . D
        In State 8x. rel. Dowlen v. Rigsby, 43 S.W. 271 (error
refused), Judge Williams, writing for the Court, construing the
ConstLtutionsand statutes on the point of your inquiry, said:
         "When the commissioners'court was organized,
   in pursuance of the constitutionand the laws
   passed thereunder,It possessed all powers con-
   ferred by both; When the court was once established,
   no legislation  wae needed to enable it to exercise
   the powers given by the above provision, to divide
   the county into precincts. The direction is plain
   and simple, and wlthaut conditl~onor restriction,
   except that as to the.number of precincts. It is
   said ~thatno procedure is prescribed by which the
   power Is to be exercised. If any was needed, the,
   statute supplied it, when It required that the pro-
   ceedings of the court shmld be recorded in Us
   minute book. Rev. St. 1895, art. 1554. This was
   all that was necessary. The power to divide the
   county Into justices'precincts is also given by
   the statute, but not in terms so explfcit as those
   used fn the constitution. Rev. St. 1895, art. 1537*
   There can be no doubt that both constitutionand
   statute conferthe power, and the only question is
   as to Its extent. It is contended that a 1Fmitat~on
   upon the power is found in the constitutionalpro-
   vision fixing the terms of office of precinct of-
   ficers; and that, since they are to hold for two
      Hon. Arnold W. Franklin, page 3        v-790


          years, it follows that the precincts cannot be
          changed during the terms, because the power to
          alter them would practically enable the court
          to destroy the office. The language of the con-
          stitution expresses no such limitation. The ai-
          vision is to be made 'from time to time.' The
          reason for the division is to..bethe convenience
          of the people; and the judge, both as to time
          and convenience,Is the court. The limitation
         ccontendedfor by the appelant would require the
          Insertion in the constitutionof a proviso which
          the courticannot read into it. The only limita-
          tion imposed serves to indicate the scope of the
          power. That limitationrequires as wny as four,
          ana does not allow more than eight, precincts.
          But for it the county might have been cut up lntb
          as many precincts as the court saw proper to es-
          tablish. By It the Intention Is made more manl-
          feat that, within the limits, the court Is to
          determine the number. As to the time of making
          thedivision, it is equally plain, The language
           'from time to time, for the convenienceof the
          ,people,'clearly means that the convenience of the
          people, as judged by the court, shall control In
          determining the time when a dlvlsion is proper.
          The phrase 'from time to time' repels the 2des
          that it was the purpose to fix any particular time.
              "If it should be urged that the provisions
         contemplatea complete, and not a partial, am-
         aLon, the answer La that, in effect, they are the
         samee When two precincts are made out of one, or
         the boundaries between two are changed and de-
         fined, leaving all of the others unchanged, the
         effect Is the same as if an order were entered
,..
         setting out anew the boundaries of the unchanged
         precincts, as well as those changed. As no form
         of procedure is prescribed,there could be no           i
         substantialobjection to such Bctlon. The power
         to establish the precincts does~.notnecessarily
         conflict with the provision,~fY%Imthe terms of
         office. They lplststand together. The offlce
         is taken sublect tb the Dower to chanue the boun-
         daries of the Dreclncts. This is no anomaly in
         our law. All county offfcers whose compensation
         is derived from perquisites,and therefore'de-
         pends to some bxtent on the territory Ln which
         they exercise their functions, hold their offices
         sub$ect to lawful power to alter that territory.
         While the offFce Is DroI)erty,it fs held subiect
Hon. Arnold W. Franklin - Page 4 (V-790)


           “If it should be urged that the pro-
    visions contemplatea complete,and not a
    partial, division, the answer is that, in
     effect, they are the same. When two pre-
    cincts are made out of one, or the boun-
    daries between two are changed and defined,
     leaving all of the others unchanged, the
    errect   is the same as ii an order were en-
    tered setting out anew the boundaries of
    the unchangedprecticta, as well as those
    changed. As no form of procedure is pre-
    ascribed,there could be no substantialob-
    jection to such action. The power to es-
    tablish the precincts does not necessarily
    conflict with the provision fixing the
    terms of orrice.    They must stand together.
    The office is taken subject to the power
    to change the boundaries of the precincts.
    This is no anomaly in our law. All county
    officers whose compensationis derived
    from perquisites,and thereforedepends to
    some extent on the territory in which they
    exercise their functions,hold their of-
    fices subject to lawful rower to alter that
    territory; While the office is property
    it is held subjeat to the proper exercisi
    of all such powers as these. There is no
    contract between the state and its offi-
    cers which forbids such action.”
          Also see the case of Brown v. bfeeks,96 S. W.
(2a) 839, to the same effect. We call your attention to
the following language used in the latter case:
         “The attemptednominationof a candi-
    date for constable of new precinct No. 1 be-
    fore it comes into existence is entirely
    void, and no one is entitled to such a nomi-
    nation. On January 1, 1937, when the new
    precinct for the first time comes into ex-
    istence, then and in that event it will be
    the duty of the commissioners’court to ap-
    point new officers ror the new precinct.
    State ex. rel. Robbins v. Parker, 147 Iowa,
    69, 125 N: W. 856.
    *Meek8 insists that, being a resident of
    old precinct No. 1, and having received a
Hon. Arnold W. Franklin, page 5        p-790


    this order, is that, when the new Precincts come
    Into existence.all creclnct offices will be
    vacant and the commissioners’court will be
    charged with the duty of fillinn these crecinct
    offices by appointment.‘I
         In Carver v. Wheeler County, 200 S.W. 537, the Court
said, In part:
         “While the holder of a public office ID
    vested with certain rights in reference there-
    to, being entitled to hold the same and receive
    the emolumentsand compensationsincident to the
    discharge of the duties of the office, and may
    defend his rights against othera, yet the rela-
    tion between the office holder and the government
    under which he holds office ia not that of employ-
    er and emploge, and their respective rights are
    not to be determined by the application of the
    general rules of contracts of employment. So
    that it Is universally held that In the absence
    of some inhibFtionby some superior law, the
    governing body may abolish the office or change
    the compensationto be paid the office holder at
    any time, even during the term of the office of
   -an incumbent, provided, of course, the changed
    rate of compensationcannot be made to apply to
   ‘,
    services already rendered.‘I
         In view of the foregoing we are of the opinion that the
Commissioners’Court of Atascosa County is authorized to abolish
existing justice precincts and create new justice precincts com-
posed of the territory of existing precincts which are abolished
at any time for the convenienceof the people, But of course
there rmst be at least four and not more than eight justice pre-
cincts in the county at all times. The terms of office of all
officers of such abolished and changed precincts will ipso facto
terminate and the officers of the newly created precincts umst
be appointed by the Commissioners’Court.
                           SUMMARY
         The CommissLoners’Court may abolish old
    justlce precincts and re-dlvlde the county Into
    new justice precincts at any time, so long as
    there Is,a mlnlxmm of four and not more than
    eight justice precincts In the county. When
    such justice precincts are abolished the offices
    In the old precbncts become vacant and the of-
    ficers of the newly created justice precincts
                                                           .:   .,




Ron.   Arnold W. Franklin, page 6         v-790


       uust be appointed by the Commlsaloners~Court.
                               Yours very truly,
                           ATTORNEYGWERAL       OF TEXAS
                               By s/U. T. Williams
                                    ASSiStant
WTW:wb:wc

APPROVED:
s/Joe R. Greenhill
FIRST ASSISTANT
ATTORNBYGBNRRAL
