Honorable Ernest Guinn County Attorney El Paso County El Paso, Texas

Dear Sir: Opinion No. O-4425

‘

_ Re: Does the action ofthe Commissioners’ Cou,rt inchanging the boundaries and/or the numbers ofthe election precincts within the county in accordance with the law (Article 2933, R.C.S.) create a vacancy inthe office ofparty 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 ifthe Commissioners’ Court’s action resulted inthe placing of two such duly elected precinct committeemen finthe same new election precinct who, nevertheless, have not changed their residences ?

Your letter ofFebruary 12, 1942, requesting the opinion ofthis department upon the above questions, omitting the formal parts, is set **out** below:

“The Commissioners’ **Court,** in accordance with Article 2933 ofthe 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 ofArticle 3118, who fall within the boundaries ofnewly numbered election precincts. For example, the committee-man elected for election precinct No. 15noti resides in election precinct No. 12with somewhat changed boundari.es. He has not, ofcourse, changed his residence, the change.

Honorable Ernest Guinn, Page 2 O-4425

being entirely caused by the action ofthe Commissioners’ Court under Article 2933.

“Is the committee-man inquestion entitled torepresent Precinct No. 12as the executive committee-man, or is there a vacancy existing which necessitates the appointment of anew committee-man, inaccordance with Article 31181 The committeeman, ofcourse, elected for old election Precinct No. 12now 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 inwhich his residence falls under the new boundaries, what action. should be taken incase the reformation ofthe precinct boundaries and the re-numbering ofthe precincts results intwo committeemen, whose residences have notbeen changed, falling within the
same election precinct?

“It is my opinion that the proper construction ofthe two Articles in question, to-wit: Article 3118and Article 2933, r~esults inthe conclusion that a change in the election precincts necessitates the appointment ofnew members for each ofthe changed precincts.

“In a number of cases, the election precincts were changed innumber only and not inboundaries, would this make a difference ?

“It is my opinion that a change inthe numbers ofthe 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 inyour letter. For your easy reference in connection with the discussion that follows they are here sat down infull:

“Art. 2933. Each~comm&sioners **court may,**  ifthey deem itproper, **at** each **August** fer~m ofthe’~cbu’rt, divide their respective counties, and counties attached thereto for judicial purposes, into convenient election precincts, each ofwhich shall be differently numbered and w,. ~~ ed by natural or artificial boundaries or survey lines by an order%0 be entered upon the minutes ofthe **court.** They shall immediately thereafter publish such order in some newspaper in the county for three consecutive weeks. Ifthere be nonewspaper inthe county, then such copy of such order shall be posted inI -

Honorable Ernest Guinn, Page 3 O-4425

some public place ineach precinct in the county. No election precinct shall be formed out oftwo or more justic~e precincts; .nor out ofthe parts oftwo or more justice precincts. The commissioners court shall cause tobe made out and delivered tothe county tax collector, before the first day ofeach 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 tohold primary elections for nominations of its candidates, a county executive coi-omittee. tobe composed ofa county chairman, and
one member for each election precinct in such county; the committeeman from such election precinct shall be chairman ofhis election precinct, and the said county chairman shall be elected onthe general primary election day; the county chairman by the qualified voters ofthewhole county, and the precinct chairman by the qualified voters oftheir respective election precincts. Said county and precinct chairman shall **assume** the duties oftheir respective offices onSaturday following the run-off primary immediately after the committee has declared the~‘results ofthe primary election.. Said county chairman shall be ix-officio a member of the executive comniittei ofall districts ofwhich his county is a part,~and the district committee thus formed shall elect its own chairman. Any vacancy in the office ofchairman, county or precinct, or any member of such committee shall be filled by a majority vote ofsaid executive committee. The list ofelection 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. Ifthere are no‘requests filed for candidates for county and precinct chairman, a b~lank space shall be left onthe 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 ofthis department previously rendered. We think.that your request of this department might be fairly considered from either one oftwo 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, 27and 29), the question ofwhether or not vacancies exist .under the circumstances described by you is a question offact tobe considered and decided by the party executive committee ofthe county inthe light ofall the facts relating tothe subject. The Attorney General’s Department is not required and could not reasonably be expected topass upon questions offact and as a matter ofpoil~y it does not attempt to do so for the understandable reason that all the facts which should be considered could not be known tothis department, asHonorable Ernest Guinn, Page 4 **O-4425**

well as itcould 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 ajury or court under proper rules ofevidence.

The other viewpoint is that your questions involve matters oflaw which require an interpretation ofthe powers and duties ofcommissioners’ courts and ofthe authority and privileges ofpolitical 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 tobe ofwhatever assistance we can toyou, you are entitled to have the benefit of **our** interpretation ofthe law, and any doubts about the matter we think should be resolved inyour favor.

We begin our discussion with the pertinent cons$itutional provisions, first as to the commissioners’ **court:**

Article V, Section 18. Each organized county inthe State now or hereafter existing, shall be divided from time to time, for the convenience ofthe 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, onejustice ofthe 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 inany precinct in which there may be a city of8000 **or** more inhabitants, there shall be elected twojustices ofthe peace. Each county shall inlike manner be divided into four rommissioner’s precincts in each ofwhich 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 andjurisdiction over all county business, as is conferred by this Constitution and the laws ofthe State, or as may be hereafter prescribed.” (Underscoring **ours)**

The above Article describes the general powers ofthe **com** missioners’ court, and taken together with Article 2933, supra, describes thenparticular powers of such commissioners’ court as they relate to **your** questions. **As** may later. appear in detail herein, the powers ofthe commissioners’ court are clearly shown tobe limited powers.Honorable Ernest &inn, Page 5 O-4425

Next we .take up the provisions of our Constitution which the courts have held are tobe applied topolitical party organization. These provisions are found inthe Bill ofRights.as follows:

“ARTICLE I,SECTION 2. All political power is inherent in the people, and all free governments are founded
ontheir authority, and instituted for their benefit. The faith ofthe people ofTexas stands pledged to the preservation of arepublican form ofgovernment, and, subject to this limitation only, they have at all times the inalienable right toalter, reform or abolish their government in such
manner as they may think expedient.”

“ARTICLE I, SECTION 27. The citizens shall have the right, in apeaceable manner, to assemble together for their common good; and apply tothose invested with the powers ofgovernment for redress ofgrievances or other purposes, by petition, address or remonstrance.”

“ARTICLE I, SECTION 29. To guard against transgressions ofthe high powers herein delegated, we declare that everything in this ‘Bill **of**Rights’ is excepted out of thegeneral powers of government, and shall forever remain inviolate, and all laws contrary thereto, or tothe 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** ofTexas have with uniformity applied these constitutional provisions topolitical 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 inwhich party nominees shall be elected, regulate the manner inwhich they shall hold a primary and pass such directory legislation regarding ~theorganization oftheir committees as that contained.in Article 3118,supra.

We pass now to a review ofsome ofthe reported **court** opinions bearing upon these Articles ofthe Constitution and the statutes. The courts ofthis State have confirmed the power ofthe commiss~ioners’ court **to** divide their respective counties and the countiesHonorable Ernest Guinn, Page 6 O-4425

attached thereto for judicial purposes into election precincts, provided that in so doing they follow the directions ofthe 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 inthis respect within the meaning, purpose and intent ofthe statutes. See Dubose v. Wood, Civ. App., 162S. W. 3;WiUiams v. Woods, Civ. App., 162S. W. 1031;Hogg v. Campbell (Civ. Ape.), 48S. 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 ofthis 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., 74S. W. (2d) 113,the Supreme **Court** ofTexas, speaking .through the late Chief justice Cureton, in a scholarly opinion inwhich he quotes extensively from De Tocqueville’s “Democracy inAmericaa and from Story on the Constitution, Vol. 2,Sections 1893and 1894,lays down the following rule:

1. “Right to organize and maintain a political party is guaranteed by Bill ofRights and legislative power respecting political parties is limited tolegislation securing public peace and good order and tomaking effective the right of assembly, petition, etc., as guaranteed by Bill ofRights. (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 ofRights including privilege of determining policies ofparty and its membership (Const. Art. I, Sections 2, 27, 29).”

We quote a few sentences from this opinion inthe language of Justice Cureton:

“Since the right to organize and maintain a political party is one guaranteed by the Bill ofRights ofthis State, itnecessarily follows that every privilege essential or reasonably appropriate tothe exercise ofthat right is likewise guaranteed, including, of course, the privilege ofHonorable Ernest Guinn, Page 7 O-4425

determining the policies ofthe party and its membership. .Without the privilege ofdetermining the power ofa 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, ofnecessity are tobe 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 ofthe 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 inour Nation to the principles there enunciated inthe following paragraph quoted from the opinion:

Y

. a
. The Supreme **Court** ofthe state has decided, in a case definitely involving the point, that the legislature of Texas has not essayed tointe,rfere, and indeed may not interfere, with the constituti&al liberty ofcitizens to organize,= party and to determine the qualifications of its members. If inthe 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 toprescribe or to limit the membership ofa political party, and it is now settled that ithas no power so todo. 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 ofthe right ofthe party to exist, to define its membership, and to adopt such policies
as to ii shall seem wise. In the light ofthe 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 tothe mandate of the state convention respecting eligibility toparticipate inthe organization’s deliberations, is state action.”Honorable Ernest Guinn, Page 8 O-4425

Corpus Juris Secundum inVol. 29, page 117,Section 86, citing opinions from states other than Texas, some ofwhich 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 ina township or ward different from that which they were elected .Q not effect the term ofthe incumbent. ? the absence ofstatutory provisions specifying the leng hofa term of
a partyco,mmit.t.ee. or governing committee rules tothe contrary, the presumption is that the members ofsuch 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 tothe heart of**your** problem and because of their persuasive force, and perhaps clarifying effect, we advert briefly totwo ofthem.

In InRe Prospect Park Borough Election Dists., 146Atl. 28, the Supreme Court ofPennsylvania held that decree of Court of Quarter Sessions, inthe exercise of its power under Const. Art. 8, Section 11,to divide Boroughs into election districts, that the two existing districts ofa borough be divided into five in a specified manner, did not operate toabolish the old district with the effect ofterminating the tenure of one previously elected tothe constitutional office ofminority inspector ofone ofthe two original districts.

InWilliamson, et al v. Killough. Judge, 46S. W. (2d) 24, the Supreme Court ofArkansas speaks as follows:

“While the members ofthe committee are elected in the township or city ward inwhich they reside, they be,come. upon their election members ofthe county committee, and the authorities appear tobe unanimous, that after such election, the right to discharge the functions of a committeeman is not affected by a subsequent change ofboundary lines which would place the residence ofthe committeemen inanother township or ward, and this change oflines doe,snot automatically or otherwise affect the incumbent, but the committeeman, ifHonorable Ernest Guinn, Page 9 O-4425

he remains otherwise eligible, continues as such until his successor is elected pursuant to the provisions ofthe **law regulat**  ing the election,”

Inthis same case theArkansas Supreme Court quotes from
an opinion ofthe Supreme Court ofMinnesota speaking through Mr. Justice Mitchell as follows:

“In our opinion an order redistricting a county is merely prospective in its operation as tothe election and qualifications ofmembers oftheboard of commissioners, and inno way affects the right tothe office ofthose previously elected. There is nothing inthelanguage ofthe statutes to indicate that a redistricting is intended to have any retrospective operation.” Norwood
v.Holden, 45Minn. 313,47N. W. 971,912.

The Arkansas Court then refers to the case of Olsen v. Merrill, 5P. (2d) 226, where after an extensive review ofthe authorities itwas held by theSupreme Court ofUtah that members ofthe Board of Education of cities ofthe second class are entitled toserve as members ofthe board for the remainder oftheir terms notwithstanding an ordinance redistricting the city placed them outside the boundaries ofthe 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 inlines 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 tothe township or ward inwhich they reside, but they, in conjunction with other committeemen similarly elected, are~committeemen for the county, and changes in the lines oftheir townships or wards donot affect their eligibility, for the reason that such changes
are prospective intheir nature so far as the incumbents affected are concerned. We find~no divisions inthe authorities
onthis subject.”- -

Honorable Ernest Guinn, Page 10 **O-4425**

Therefore you are respectfully advised that it is the considered opinion ofthis department that the commissioners’ court by redistricting the election precincts ofyour county did not cause or create vacancies inthe 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 ofthe 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 ofthe same precinct. We think these committeemen unless otherwise disqualified would be entitled toretain their county executive committee membership until the next general primary election, atwhich time precinct committeemen should be elected inthe 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