                             July 24, 1972


Honorable 'ClarenceL. Darter              Opinion No. M-1176
County Attorney
Childreee County Courthouse               Re:   Authority of the Com-
Childrees, Texas 79201                          missioners Court to
                                                change Justice of the
                                                Peace precinct boundary
                                                lines and set sala'ries
                                                for Justice of the
Dear Mr. Darter:                                Peace officials

          In your recent letter, accompanied by a very able
brief, you requested the opinion of this department on the
following two questions:

          “guestion No. 1:

         When precinct boundary lines are re-drawn
         and takes part of the territory of Justice
         Precinct No. 1 and places it in an inactive
         Justice Precinct No. 2 but leave6 the resi-
         dence of the elected Justice of the Peace
         in Precinct No. 1, does a vacancy exist in
         either or both precincte?

          "Que8tion No. 2:

         No salary has been set for Justice of the
         Peace Precinct No. 2 since 1953, such ealary
         being set at $1.00 per year at that time,
         and no salary being set as of January 1,
         1972 for this office. If a higher salary
         is 8et for Justice of the Peace in Precinct
         No. 2 at this time, and in case the higher
         salary becomes a burden tp the finances of



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Honorable Clarence L. Darter, page 2,    (M-1176)



         the County, can the Justice of the Peace
         Precinct No. 2 salary be reduced to any
         amount to fit the economic condition of the
         County?"

          you have supplied with your quest&ons the following
fact situation:

         "Childress County was and is divided into
    four Justice of the Peace Precincte. Childrees
    County is also bisected by Red River, from north-
    west to southeast. The river almost divides the
    county in half. North of the river has been
    divided into two Justice of the Peace Precincts,
    Numbers 3 and 4. South of the river, there are
    also two Justice of the Peace Precincts, Numbers
    1 and 2. Justice of the Peace Precinct Number
    1 takes in most of the territory south of Red
    River, including the town of Childress. Justice
    of the Peace Precinct Number 2 includes Kirkland,
    a small community, and has only one election
    precinct. Justice of the Peace Precincts 2, 3
    and 4 have been dormant for many years, and
    there are no records of any,salaries being set
    for Justice of the Peace Precincts Numbers ,3
    and 4 for many years.

          "After the County changed from the fee
     basis to paying officials on a salary basis,
     the Commissioners Court set the salary of the
     Justice of the Peace in Precinct Number 2 at
     $1.00 per year in 1953, but there is no record
     of the Commissioners Court setting a salary for
    'Justice of the Peace Precinct Number 2 since
     1953. and as a result, Justices of the Peace
     Precincts Numbers 2. 3 and 4 have been vacant.
     and have been dormant since that time. Justice
     of the Peace Precinct Number 1 has been active
     and a Justice of the Peace for this precinct



                              -5745-
Honorable Clarence L. Darter, page 3,    (M-1176)



     has been elected each four years, whose
     salary was $4500.00, as of January 1, 1972.

            "Now, the case load has increased in
     the Justice of the Peace Court, Precinct 1,
     to the extent that the Commissioners Court
     feels that for the convenience of the
     people,   it has become necessary to enlarge
     and re-activate and to appoint another
     Justice of the Peace for the Justice of
     the Peace Precinct Number 2, and to re-draw
     the Justice of the Peace Precinct lines be-
     tween Justice of the Peace Precincts Numbers
     1 and 2, by adding more territory to the
     Justice of the Peace Precinct Number 2, and
     taking away that part from Justice of the
     Peace Precinct Number 1. This would not
     disturb Justice of the Peace Precincts
     Numbers 3 and 4, and they would remain the
     same as they have been for many years. The
     residence of the duly-elected Justice of the
     Peace Precinct Number 1 would reamin in the
     proposed new Justice of the Peace Precinct
     Number 1: he would only be losing part of
     his territory."

          For a thorough discussion of the office of Justice of
the Peace, changes in precinct boundaries, the creation of
vacancies, and the filling of vacancies, we refer you to
Attorney General's Opinions Nos. M-68,(1967), M-562 (1970),
and M-742 (1970).

          In reply to your first question, we are of the opinion
that no vacancy would result in the office of Justice of the
Peace of Precinct No. 1 if the Commissioners Court divides the
county as outlined in your fact situation. The incumbent
Justice of the Peace of Precinct Number 1 will continue to
reside in that precinct.




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Honorable Clarence L. Darter, page 4,    (M-1176)



          The Commissioners Court, under Article V, Section
18 of the Texas Constitution, clearly has the authority,
from time to time, to divide the county into Justice Pre-
cincts not less than four nor more than eight. Williams v.
Castleman, 112 Tex. 193, 247 S.W. 263 (1922).

          As to whether any division creates any vacancies,
the intention evidenced by the Court's order is material.

          In this connection, we quote from Opinion No. &l&68
(supra) the following:

         *This statement by the Court of Civil Appeals
    has led some to conclude that an 'automatic vacancy'
    occurs at any time boundaries of Justice Precincts
    are altered, whether the Commissionerscourt intended
    to abolish the precinct and to create a new precinct.
    We do not believe that the cases support this con-
    clusion, and we are convinced that a vacancy is not
    automatic under these circumstances, particularly
    where there is no expression on the part of the
    Commissioners Court's order of an intent on the
    part of the Commissioners Court to abolish an
    existing precinct and to create a new one."
    (Emphasis added.)
          II
           . . . .

         "The office of Justice of the Peace is a
    constitutional office, and the office would pre-
    sumptively remain in existence unless the order
    of the Commissioners Court abolishes existing
    precincts and creates new precincts. To the
    extent that Attorney General's Opiniona V-790
    (19491, V-1032 (1950), W-536 (1950), and C-112
    (1963) are in conflict with this opinion, they
    are to that extent overruled."




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Honorable Clarence L. Darter. page 5,    (M-1176)



          The office continuing, and there being no vacancy,
the incumbent Justice of the Peace, Precinct 1, continues in
office, absent an evident intention in the Court's order to
abolish Precinct No. 1 and form a new one.

          Included in your first question is the inquiry
whether the action of the Court in changing boundaries results
in a vacancy in Precinct No. 2.

          We understand from your inquiry that the Court has
not yet issued an order redrawing precinct lines, but contem-
plates doing so. In connection with your question concerning
a vacancy in Precinct No. 2, the intent of the Court as evidenced
by its order becomes decisive. Relying again on the language
quoted above from our Opinion No. M-68, we are of the opinion
that if the Court's order clearly abolishes Precinct No. 2 as
now formed and creates a new Precinct No. 2 as contemplated,
then No. 2 comes into existence with a vacancy in the office
of Justice of the Peace. Under Section 28 of Article V of the
Constitution of Texas, the Commissioners Court would fill the
vacancy until the next succeeding general election.

          The   answer
                     to your Question No. 2. concerning the
fixing of the salary for ,the Justice of the Peace of Precinct
No. 2 is found in Article 3912k, Vernon's Civil Statutes,
enacted by the 62nd Legislature in 1971. The provisions of
that statute are held to be constitutional in Attorney General's
Opinions Nos. M-1124 (1972) and M-972 (1972).

          Section 1 of Article 3912k provides as follows:

         "Section 1. Except as otherwise   provided by
    this Act and subject to the limitations of this Act,
    the commissioners court of each county shall fix
    the amount of compensation, office expense, travel
    expense, and all other allowances for county and
    precinct officials and employees who are paid wholly
    from county funds, but in no event shall  such sal-
    aries be set lower than they exist at the effective
    date of this Act."


                             -5748-
Honorable Clarence L. Darter, Page 6,    (M-1176)



          We are of the opinion that as the latest expression
of the Legislature this Article governs the fixing of the
salary for all Justices of the Peace except those in counties
having a population of 1,700,OOO or more. We are of the
opinion that the broad power given to the Commissioners Court
to fix salaries provides authority for the court to raise or
lower salaries, limited only to the condition that such salaries
maynot be set lower than they are as of the effective date of
the Act, January 1, 1972. Such raising or lowering may be
effected at any time during the year at any regular meeting of
the Court upon giving 10 days' notice as provided in Section
6 of Article 3912k.

          There is authority for reducing the salary of a
county official during his term of office.

          See 47 Texas Jurisprudence 2d 225, public Officers,
Section 175 for the following statement:

          “Thus, where the commissioners' court has
    Power to fix the compensation of an officer, it
    may change the amount at any time, even during
    his term of office." citing Carver v. Wheeler
    County. 200 S.W. 537 (Tex.Civ.App. 1918, no
    writ) and Baxter v. Rusk County, 11 S.W.Zd 648
     (Tex.Civ.App. 1928, no writ)

         Texas Jurisprudence continued as follows:

          "Its orders fixing the compensation of
    officers for ex officio services are not con-
    tracts or judgments against the county, and may
    be changed, modified, rgpealed, or revoked at
    any time before the money has actually been
    Paid out to the officer." citing Collingsworth
    County v. Wvers35.S.W.414.(Tex.Civ.App. 1896; no
    writ)




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Honorable Clarence L. Darter, Page 7,    (M-1176)



          There is, however, a measure of protection against
arbitrary action of the Commissioners Court. See the section
of Texas Jurisprudence 2d cited above for the following:

          "On the other hand, the district court, in the
     absence of restrictive legislation depriving it of
     the power, has authority to declare that a subse-
     quent capricious and arbitrary order of the commis-
     sioners ' court reducing the salary of an office is
     ineffectual and void." citing Anderson v. Geraghty,
     212 S.W.Zd 972 (Tex.Civ.App. 1948, no writ)

                        SUMMARY

          No vacancy will exist in Justice of the Peace
     Precinct No. 1, Childress County, where by order of
     the Commissioners Court part of the land in the
     precinct is detached and transferred to another
     precinct but Precinct No. 1 is not abolished.

          If the Court% order abolishes Precinct No. 2
     and creates a new Precinct No. 2, including land
     detached from Precinct No. 1, the new Precinct No.
     2 comes into being with a vacancy in the office of
     Justice of the Peace. The vacancy would be filled
     by order of the Court until the next succeeding qen-
     era1 election.

          The Commissioners Court has authority to fix
     the salary of Justice of the Peace of Precinct No. 2,
     and has authority to reduce that salary during his
     term of office.

                             Ver ,tirulyyours,
                                y'




Prepared by James S. Swearingen
Assistant Attorney General
                              -5750-
Honorable Clarence L. Darter, page 8,   (M-1176),


APPROVED:
OPINION COMMITTEE

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

Sally Phillips
Herschel T. Moore
James McCoy
Dunk Sullivan

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALlRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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