Honorable Ernest Guinn 

County Attorney 

El Paso County 

El Paso, Texas 

Dear Sir: 

Opinion No. O-4425 

‘_ 

Re: Does the action of the Commissioners’ Cou,rt in changing 

the boundaries and/or the 

numbers of the election precincts within the county in 

accordance with the law (Article 2933, R.C.S.) create a 

vacancy in the office of party 

precinct committeemen who 

have been duly elected as the 

kiw directs (Article 3118, R.~C.S.) 

when such precinct committeemen have not moved their residence ? Would a vacancy exist 

if the Commissioners’ Court’s 

action resulted in the placing of 

two such duly elected precinct 

committeemen fin the same new 

election precinct who, nevertheless, 

have not changed their residences ? 

Your letter of February 12, 1942, requesting the opinion of this department upon the above questions, omitting the formal parts, is set out below: 

“The Commissioners’ Court, in accordance with Article 2933 

of the Revised Civil Statutes, changed the boundaries of many of 

its election precincts. As,a result thereof, there are a number of 

precinct committee-men, elected under the terms of Article 3118, 

who fall within the boundaries of newly numbered election precincts. 

For example, the committee-man elected for election precinct No. 

15 noti resides in election precinct No. 12 with somewhat changed 

boundari.es. He has not, of course, changed his residence, the change 
. 

Honorable Ernest Guinn, Page 2 O-4425 

being entirely caused by the action of the Commissioners’ Court 

under Article 2933. 

“Is the committee-man in question entitled to represent 

Precinct No. 12 as the executive committee-man, or is there a 

vacancy existing which necessitates the appointment of a new 

committee-man, in accordance with Article 31181 The committeeman, of course, elected for old election Precinct No. 12 now falls 

within an entirely different precinct. 

“In the event that you hold that the man elected as precinct committee-man may continue to act as such for the precinct 

in which his residence falls under the new boundaries, what action. 

should be taken in case the reformation of the precinct boundaries 

and the re-numbering of the precincts results in two committeemen, whose residences have not been changed, falling within the 

same election precinct? 

“It is my opinion that the proper construction of the two 

Articles in question, to-wit: Article 3118 and Article 2933, r~esults 

in the conclusion that a change in the election precincts necessitates 

the appointment of new members for each of the changed precincts. 

“In a number of cases, the election precincts were changed 

in number only and not in boundaries, would this make a difference ? 

“It is my opinion that a change in the numbers of the precincts ,would not necessitate a new appointment, but that the committee-man elected for such precinct wouldcontinue to se.rve.” 

The.answer.to your ques.tions necessarily involves an analysis and 

construction of the two statutes cited in your letter. For your easy reference 

in connection with the discussion that follows they are here sat down in full: 

“Art. 2933. Each~ comm&sioners court may, if they deem 

it proper, at each August fer~m of the’~cbu’rt, divide their respective 

counties, and counties attached thereto for judicial purposes, into 

convenient election precincts, each of which shall be differently 

numbered and w,. ed ~~ by natural or artificial boundaries or survey lines by an order%0 be entered upon the minutes of the court. 

They shall immediately thereafter publish such order in some newspaper in the county for three consecutive weeks. If there be no newspaper in the county, then such copy of such order shall be posted in 
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Honorable Ernest Guinn, Page 3 O-4425 

some public place in each precinct in the county. No election precinct 

shall be formed out of two or more justic~e precincts; .nor out of the parts 

of two or more justice precincts. The commissioners court shall cause 

to be made out and delivered to the county tax collector, before the first 

day of each September a certified copy of such last order for the year following.” 

“Art. 3118. There shall be for each political party required by 

this law to hold primary elections for nominations of its candidates, a 

county executive coi-omittee. to be composed of a county chairman, and 

one member for each election precinct in such county; the committeeman 

from such election precinct shall be chairman of his election precinct, 

and the said county chairman shall be elected on the general primary 

election day; the county chairman by the qualified voters of the whole 

county, and the precinct chairman by the qualified voters of their respective election precincts. Said county and precinct chairman shall assume 

the duties of their respective offices on Saturday following the run-off 

primary immediately after the committee has declared the~‘results of the 

primary election.. Said county chairman shall be ix-officio a member of 

the executive comniittei of all districts of which his county is a part,~and 

the district committee thus formed shall elect its own chairman. Any vacancy in the office of chairman, county or precinct, or any member of 

such committee shall be filled by a majority vote of said executive committee. The list of election precinct chairman and the county chairnien 

so elected, shall be certified by the county convention to the county 

clerk, along with the other nominees of said party. If there are no ‘requests filed for candidates for county and precinct chairman, a b~lank 

space shall be left on the ticket beneath the designation of such position.” 

The questions propounded by you present an interesting situation and 

one which so far as our search reveals has not been directly passed upon by any 

opinions of this department previously rendered. We think.that your request of 

this department might be fairly considered from either one of two viewpoints. 

The first is that under the broad powers conferred by the Constitution upon political parties, or reserved by that instrument to the people and the organizations 

through which they choose to express their political will (Constitution of Texas, 

Article I, Sections 2, 27 and 29), the question of whether or not vacancies exist 

.under the circumstances described by you is a question of fact to be considered 

and decided by the party executive committee of the county in the light of all the 

facts relating to the subject. The Attorney General’s Department is not required 

and could not reasonably be expected to pass upon questions of fact and as a matter of poil~y it does not attempt to do so for the understandable reason that all 

the facts which should be considered could not be known to this department, as 
Honorable Ernest Guinn, Page 4 O-4425 

well as it could to the persons immediately involved and because they 

could not be presented here as fully as they could to a fact finding body 

such as a jury or court under proper rules of evidence. 

The other viewpoint is that your questions involve matters 

of law which require an interpretation of the powers and duties of commissioners’ courts and of the authority and privileges of political party 

organizations under our Constitution and our statutes as they relate to 

your particular problem. This is the view that we prefer to take, since 

we wish to be of whatever assistance we can to you, you are entitled to 

have the benefit of our interpretation of the law, and any doubts about 

the matter we think should be resolved in your favor. 

We begin our discussion with the pertinent cons$itutional 

provisions, first as to the commissioners’ court: 

Article V, Section 18. Each organized county in the 

State now or hereafter existing, shall be divided from time to 

time, for the convenience of the people, into precincts, not less 

than four and not more than eight. The present County Courts 

shall make the first division. Subsequent divisions shall be 

made by the Commissioners’ Court, provided for by this 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 ,until his. successor 

shall be elected and qualified; provided that in any precinct in 

which there may be a city of 8000 or more inhabitants, there shall 

be elected two justices of the peace. Each county shall in like manner be divided into four rommissioner’s precincts in each of which 

there shall be elected by the qualified voters thereof one county 

commissioner, who shall hold this office for two years and until 

his successor shall be elected and qualified. The county commissioners so chosen, with the county judge, as presiding officer, 

shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as 

is conferred by this Constitution and the laws of the State, or as 

may be hereafter prescribed.” (Underscoring ours) 

The above Article describes the general powers of the commissioners’ court, and taken together with Article 2933, supra, describes 

then particular powers of such commissioners’ court as they relate to your 

questions. As may later. appear in detail herein, the powers of the commissioners’ court are clearly shown to be limited powers. 
Honorable Ernest &inn, Page 5 O-4425 

Next we .take up the provisions of our Constitution which 

the courts have held are to be applied to political party organization. 

These provisions are found in the Bill of Rights.as follows: 

“ARTICLE I, SECTION 2. All political power is inherent in the people, and all free governments are founded 

on their authority, and instituted for their benefit. The 

faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to 

this limitation only, they have at all times the inalienable 

right to alter, reform or abolish their government in such 

manner as they may think expedient.” 

“ARTICLE I, SECTION 27. The citizens shall have 

the right, in a peaceable manner, to assemble together for 

their common good; and apply to those invested with the 

powers of government for redress of grievances or other 

purposes, by petition, address or remonstrance.” 

“ARTICLE I, SECTION 29. To guard against transgressions of the high powers herein delegated, we declare 

that everything in this ‘Bill of Rights’ is excepted out of 

the general powers of government, and shall forever remain 

inviolate, and all laws contrary thereto, or to the following 

provisions, shall be void.” 

As you see, the powers and privileges here conferred, reserved, or safeguarded are not limited and the Constitution expressly 

forbids the restriction of such powers or any interference with the 

lawful and peaceful exercise thereof. The courts of Texas have with 

uniformity applied these constitutional provisions to political party organizations and have held, as will more fully appear hereafter, that 

not even the Legislature has the right to interfere with the broad powers 

thus conferred upon them, though the Legislature may provide for the 

manner in which party nominees shall be elected, regulate the manner 

in which they shall hold a primary and pass such directory legislation 

regarding ~the organization of their committees as that contained.in 

Article 3118, supra. 

We pass now to a review of some of the reported court 

opinions bearing upon these Articles of the Constitution and the statutes. The courts of this State have confirmed the power of the commiss~ioners’ court to divide their respective counties and the counties 
Honorable Ernest Guinn, Page 6 O-4425 

attached thereto for judicial purposes into election precincts, provided that in so doing they follow the directions of the statute (Article 2933, R.C.S.). But these opinions hold that the commissioners’ 

courts are strictly limited by such statute and must keep their action in this respect within the meaning, purpose and intent of the 

statutes. See Dubose v. Wood, Civ. App., 162 S. W. 3; WiUiams v. 

Woods, Civ. App., 162 S. W. 1031; Hogg v. Campbell (Civ. Ape.), 

48 S. W. (2d) 515. 

Having satisfied ourselves that the commissioners’ courts 

may change the election precincts, we must now ascertain whether 

such court in the exercise of this power may .remove a political party 

precinct chairman by altering the numbers or the boundaries of his 

precinct, thus “moving his precinct out from under him” so to speak. 

In Bell, et al. v. Hill, County Clerk, et al., 74 S. W. (2d) 

113, the Supreme Court of Texas, speaking .through the late Chief 

justice Cureton, in a scholarly opinion in which he quotes extensively 

from De Tocqueville’s “Democracy in Americaa and from Story on 

the Constitution, Vol. 2, Sections 1893 and 1894, lays down the following rule: 

1. “Right to organize and maintain a political party 

is guaranteed by Bill of Rights and legislative power respecting political parties is limited to legislation securing public peace and good order and to making effective 

the right of assembly, petition, etc., as guaranteed by 

Bill of Rights. (Const. Art. I, Sections 2, 27, 29).” 

2. “Every privilege essential or reasonably appropriate to exercise of right to organize and maintain a 

political party is guaranteed. under Bill of Rights including privilege of determining policies of party and its membership (Const. Art. I, Sections 2, 27, 29).” 

We quote a few sentences from this opinion in the language of 

Justice Cureton: 

“Since the right to organize and maintain a political 

party is one guaranteed by the Bill of Rights of this State, 

it necessarily follows that every privilege essential or 

reasonably appropriate to the exercise of that right is 

likewise guaranteed, including, of course, the privilege of 
Honorable Ernest Guinn, Page 7 O-4425 

determining the policies of the party and its membership. 

.Without the privilege of determining the power of a political association and its membership, the right to organize 

such an association would be a mere mockery. We think 

these rights; that is, the right to determine the membership 

of a political party and to determine its poli&ies, of necessity are to be exercised by the state convention of such party, 

and cannot, under any circumstances, be conferred upon a 

state or governmental agency,” 

In Grovey v. Townsend, 295 U. S. Rep;.,. the Supreme Court 

of the United States in an opinion written by Justice Roberts quotes favorably from the Bell v.Hill case, supra, and gives the endorsement ‘of 

the highest court in our Nation to the principles there enunciated in the 

following paragraph quoted from the opinion: 

Y 

. a . The Supreme Court of the state has decided, 

in a case definitely involving the point, that the legislature of Texas has not essayed to inte,rfere, and indeed 

may not interfere, with the constituti&al liberty of citizens to organize,= party and to determine the qualifications of its members. If in the past the legislature has 

attempted to infringe that right and such infringement has 

not been gainsaid by the courts, the fact constitutes no 

reason for our disregarding the considered decision of 

the state’s highest court. The legislative assembly of 

the state, so far as we are advised, has never attempted 

to prescribe or to limit the membership of a political 

party, and it is now settled that it has no power so to do. 

The state, as its highest tribunal holds, though it ~has 

guaranteed the liberty to organize political parties, may 

legislate for their governance when formed and for the 

method whereby they may nominate candidates, but must 

do so with full recognition of the right of the party to exist, to define its membership, and to adopt such policies 

as to ii shall seem wise. In the light of the principles SO 

announced, we are unable to characterize the managers of 

the primary election as state officers in such sense, that 

any action taken by them in obedience to the mandate of 

the state convention respecting eligibility to participate 

in the organization’s deliberations, is state action.” 
Honorable Ernest Guinn, Page 8 O-4425 

Corpus Juris Secundum in Vol. 29, page 117, Section 86, 

citing opinions from states other than Texas, some of which will be 

more fully examined hereinafter, goes even more directly to the 

point here under consideration as follows: 

“Mere boundary changes, subsequent to election, 

which place the residence of committeemen in a township or ward different from that which they were elected 

.Q not effect the term of the incumbent. 

? 

the absence 

of statutory provisions specifying the leng h of a term of 

a partyco,mmit.t.ee. or governing committee rules to the 

contrary, the presumption is that the members of such 

committee are to continue to serve from their election 

until the next primary election, unless they resign, die 

or are removed for cause.” 

We believe that no further authority is necessary in order 

to answer your questions but there ar.e decisions of other jurisdiction 

which go more nearly to the heart of your problem and because of 

their persuasive force, and perhaps clarifying effect, we advert briefly 

to two of them. 

In In Re Prospect Park Borough Election Dists., 146 Atl. 

28, the Supreme Court of Pennsylvania held that decree of Court of 

Quarter Sessions, in the exercise of its power under Const. Art. 8, 

Section 11, to divide Boroughs into election districts, that the two existing districts of a borough be divided into five in a specified manner, did 

not operate to abolish the old district with the effect of terminating the 

tenure of one previously elected to the constitutional office of minority 

inspector of one of the two original districts. 

In Williamson, et al v. Killough. Judge, 46 S. W. (2d) 24, 

the Supreme Court of Arkansas speaks as follows: 

“While the members of the committee are elected in 

the township or city ward in which they reside, they be,come. 

upon their election members of the county committee, and 

the authorities appear to be unanimous, that after such election, the right to discharge the functions of a committeeman is 

not affected by a subsequent change of boundary lines which 

would place the residence of the committeemen in another 

township or ward, and this change of lines doe,s not automatically or otherwise affect the incumbent, but the committeeman, if 
Honorable Ernest Guinn, Page 9 O-4425 

he remains otherwise eligible, continues as such until his successor is elected pursuant to the provisions of the law regulating the election,” 

In this same case the Arkansas Supreme Court quotes from 

an opinion of the Supreme Court of Minnesota speaking through Mr. Justice Mitchell as follows: 

“In our opinion an order redistricting a county is merely 

prospective in its operation as to the election and qualifications 

of members of the board of commissioners, and inno way affects the right to the office of those previously elected. There 

is nothing in the language of the statutes to indicate that a redistricting is intended to have any retrospective operation.” Norwood 

v. Holden, 45 Minn. 313, 47 N. W. 971, 912. 

The Arkansas Court then refers to the case of Olsen v. Merrill, 

5 P. (2d) 226, where after an extensive review of the authorities it was held 

by the Supreme Court of Utah that members of the Board of Education of 

cities of the second class are entitled to serve as members of the board for 

the remainder of their terms notwithstanding an ordinance redistricting the 

city placed them outside the boundaries of the municipal ward for which they 

were elected. The Arkansas Court then cites a long line of authorities and 

appends this comment: 

“It is true these are cases where officers were removed 

by changes in lines from the wards or district or township in 

which they were elected, whereas in the instant case the committeemen are not officers, but that fact does not affect the 

legal principles which control. The controlling legal principle 

is that the committeemen were elected at an election made 

legal by the primary election law, and for a definite time, not 

yet expired, and it is true also that upon their election they 

became county committeemen, although elected by townships 

or wards. Their functions are not confined to the township or 

ward in which they reside, but they, in conjunction with other 

committeemen similarly elected, are~committeemen for the 

county, and changes in the lines of their townships or wards 

do not affect their eligibility, for the reason that such changes 

are prospective in their nature so far as the incumbents affected are concerned. We find~no divisions in the authorities 

on this subject.” 
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Honorable Ernest Guinn, Page 10 O-4425 

Therefore you are respectfully advised that it is the considered opinion of this department that the commissioners’ court by redistricting the election precincts of your county did not cause or create vacancies 

in the offices of po.litical party precinct comm,itteemen even though such 

redistricting changed the numbers and the boundaries of some of the old 

precincts so that the residences of some of the committeemen are now in 

.differently numbered or differently bounded precincts. Our opinion is 

still the same even though two precinct chairmen of old precincts now 

find their residences within the boundaries or numbers of the same precinct. We think these committeemen unless otherwise disqualified would 

be entitled to retain their county executive committee membership until 

the next general primary election, at which time precinct committeemen 

should be elected in the manner and from the precincts provided by the 

statutes (Art. 3118. R.C.S.). 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By (S) ROBT. F. CHERRY’ 

Robert F. Cherry 

Assistant 

APPROVED APR 8.1942 

GRQVER SELLERS 

. . - 

FIRST ASSISTANT 

ATTORNEY GENERAL 

RFC:LM 

APPROVED 

Op.inion Committee 

By B. W. B. 

Chairman