### _, s 

## THE 

## ATI-ORNEY GENERAL

. . oe7rExAs ” AUrrrIlV.- 78711
January 29, 1974
The Honorable Ned Granger **COWlty AttOMey**  County of Travis. Austin, Texas

. :

, ‘
.: Dear Mr. Graxqer: Opt&n No. H- 220 Rc: Muat all Justicea .ofthe Peace and Constables run at the next general election when prior to that election all thejustice precinct boundary linea are.changed and the precinct8 are renumbered. ~

You havg adviied UBthat the Commimeioner8 Court of Travir County, on July 9. 1973. paseed an order, effective January 1. 1974, redistricting the six justice:precincta.md changing the boundarieq of each ofthem. On December 10,. 19iS. t&a ~Commiroioner.# Courk.changdd the bolndsriecr of‘each of the conatables precincts to c~onformto thejustiizeprecinctrr. theme.changes likewire to be effective as of Januar.y 1, 1974.’ You have **not** advised ua of~theresidence of the juatfccae or ofthe terms ofoffice of each jurtice or constable.

i’! ., ,~, Your question is whether then officee ofthejustices of the peace andof the con&abler are vacant aa ofJanuary 1, 1974. ” Section ig:of 

### +ti&e 5’of ‘the.Co&itution of Texas providea, inpart:

&ach%ganised co&y,in the State now or hereafter existing, Aall be divided from time to time, for the convenience of thepeople, into precincta,. **not** lea8 than.four andnot more than eight. Divieionn #hall be made by the Commisclionere Court provided for by this Constitution. In each such precinct there, shall be elected one Justice of the Peace and one Constable, each of whom

p. 1025The Honorable Ned Granger, page 2 (H-220)

shall hold his office for four years anduntil his successor l hall be elected and qualified
. . . . Each county shall inlike manner be divided into **four** commissioners pre**cincts** in each of which there shall be elected by the qualified voters thereof one County Commissioner, who shall hold his office 

### for four **years** anduntil his **successor** shall be elected and qualified.
. . .*I(emphaeie added) Article 5, Sec. 24 provides:

“County Judges, county attorneys, clerks of the District and County Courts, justices of the peace, constables, and other county officers, may be rsmoxed by the Judges of the District Court6 for incompetency, official misconduct, habitual drunkenness, or other causes defined by law, upon the cause therefor being. set forth inwriting and the finding of its truth by a jury. ” .(emphasis added) In Childress County v. Sachse, 310S.W. 2d 414 (Tex. Civ. App. , Amarillo, 1958) Sachse had been elected commissioner of Childress County, commencing January 1, 1955. The Commissioners Court changed the precinct boundary lines effective April 1, 1955 andthe County Judge declared Sachse’s office vacant, since he did not reside in the newly described precinct. Inaffirming the district court order awarding Sachsqback salary, the Court of Civil Appeals quoted from 

### 20 C.J.S., Counties, Sec. 77, p. 840 as follows: “While a change of boundary lines of commissioner districts, or a redistricting, does not deprive a county commissioner of the right to hold office for the rest of his term, although by reason of the change his residence is without the district from which he was elected, pro-

. vided it is still within the county, still he does not by becoming a resident of another district, become entitled to succeed the official in that district after the expiration of his term. ” The Court held that Sachse never was legally removed from office and his office was never legally vacated or abolished. He had a constitutional and legal

p. 1026. ’

The Honorable Ned **Grange;,** page 3 **(H-220)** right to serve as commissioner **of** the precinct untilhis term expired bylaw. The Supreme Court, in refusing the application for writ of error, at 312S. W. 2d 380 (Tex. 1958) stated as ite per curiam opinion: “The application for writ of error is refused. N6 revereible error. We approve the holding **of** the Court of Civil Appeals that changes inprecinkt boundaries do not create a Fcancy in the office of County Commissioner or deprive the incumbent **of** the right to hold office for the remafnder **of** his term, even thoughby **rearon** of **such** change6 his residence is not within theprecinct ds redefined. 310S.‘W. 2d 414. ” This office, neverthelisi, iss&d optnionb holding that the Sachse case did not apply andthatjustice precfncts were abolished andvacated upona redistricting.’ ,See.for instance, ‘Attoiney General Opinion WW-536 (1958); Attorney General Opinion C-112 (1963). ‘And Tompare Attorney General Opinion8 V-1032 (1950) and~ktorney General Gpinion’V-1218 (i951). However, in 1970 the Court of Civil Appeals at Dallas had before it the

**‘ ca&** **‘ of**  ‘McGuire ‘v. Hu’ghkr, 452 S.W. **2d** 29 (Tex.. Civ. .App. ,’ 1970,. nowrit).
~~The”question there **was**whether abolition by.the commissioners Court of one of twojustices of the Reace within a precinit had the legal effect of reducing the four year term of onesof’the justice6 to two years. The Court,’ in ‘answering the question said:-- ’ ’ . I,.!

. . .The conetitutiorial provision is clesr and~~ ,’ unembiguou~ ~ihdtfolkowing the’firet t+o;year t&m of. the‘unevennumbered office (ae w&e Place No. i) thereafter,’ all jurtic&e.bf the:p&ce would be eiected 

### ior the term provided for ‘inthe Constitution.~ namely, four years. We hold that under such constitutional mandate the term of office towhich Relator McGuire wan elected in 1968 was for a period of four years, ending December 31. 1972.

“It has been declared inmany cases that a public office is property. . . . This is certainly true in the sense that a person elected to an office established by

p. 1027: .

. . The Honorable Ned Granger, page 4 (H-220)

law, and duly qualified for rame by taking the oath of office, has a property right to the poeclesrion of the office and enjoyment6 of it6 rights and emoluments all ofwhich the Constitution **protect6** and the court6 will enforce.
. . . Judge McGuire was duly andlegally placed into porreeaion of hi6 office in 1968 for a constitutional term of four yeare. During thatperiod theha6the vested right and privilege to exercire the official dutier ofths office and to receive the compensation provided by law. Such may notbe denied him by administrative edict or as **a** re8ult of the Commissioner6 Court’6 action in abolinhing another office inthe same precinct. To 6anction suchwould openwide a Pandora’s Box of uncertainty and confusion. I’ (452 S.W. 2d at 31-32) See al60 Villarreal v. Bustamante, 400 S.W. 2d 231 (Tex. Civ. App., SanAntonio, 1972, nowrit); Attorney General GpinionH-97 (1973). It i6 our opinion therefore thatjustices of the peace and constables elected to a full term (as ,opposed to being elected to fill an unexpired term) are entitled to 6erve the full four year6 in office and that a redistricting oftheir precincts by the commislrioners court doe6 notvacate their office. Inthis opinion we do not consider the effect of a court-ordered reapportionment. The conclurion of thi6 opinion i.6dirtinguinhable from the rituation conddered in Attorney General Opinion **H-219** (1974) **relating** to State Board of Education dirtricts. There term8 were cut 6hort pursuant to a statutory 8cheme ending all State Board terms at the general election immediately following a decennial reapportionment. SUMMARY Justices of the peace and constables, elected to a full term, are entitled to serve the entire four years

p. 1028.

. .

.I The Honorable **Ned** 

### Granger, pege 5 (H-220)

and a redietricting of their precincts by the commi6- sioners court fesulting in 

### ajustice 

### or constable not living in his precinct, does not vacate hi6 office. Your6 very truly,

VED: \/7

, First W/t2
DAVID M. KENDALL,. Chairman 

# .u JOHN L. HILL Attorney. General of Texas

Opinion Committee

p. 1029