Hon. Curtis L. Owen

Criminal District Attorney Smith County Courthouse Tyler, Texas 75701

Dear Mr. **Owen:** Opinion No. M-1111

Re: Whether the current election precincts in Smith County were formed inviolation ofArticle 2.04(b), Texas Election Code?

You have requested the opinion of this office regarding the above question. In this connection you have provided uswith the following information:

II

. . .The Commissioners' Court, onDecember 14, 1970, redrew and adopted new justice precincts for Smith County. On January 4. 1972, the Smith County Commissioners' Court, at itsregular meeting in the Smith County Courthouse at Tyler, Texas, again redrew and adopted new justice precincts for the County. Justice Precinct 1, of Smith County, Texas, then and now stretches across themiddle of the County inbelt-like'fashion and includes all of the City ofTyler. Justice Precincts 2,3,4 and 5 constitute outlying justice precincts and until the first aforesaid meeting of the COmmissioners' Court, their precincts did not come within the city limits of Tyler, Inboth meetings the redrawing of the justice precincts included the extension of Precincts 2,3,4 and 5 from the outlying area of Smith County into Precinct 1and the City of Tyler over roads and streets ending at theCourthouse.

"Thepopulation of Precinct 1 is about 60,000. The total population of Precincts 2, 3, 4 and 5 is about 35,000. The result before the redrawing was

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an overburdening case load for the Justice of the Peace of Precinct 1and amuch lessburden for the other outlying justices.

"OnDecember 14, 1970, the Commissioners' Court, in order to alleviate theburdensome Court docket ofJustice Precinct 1,endeavored to extend each of the outlying justice precincts over roads and streets into Tyler ending at the Courthouse so that these justices too could sit inCourt at the Courthouse and share theburden of the growing metropolis and itsresulting case load.

"The redrawing made by the Commissioners' Court of the outlying justice precincts atboth meetings resulted in arm-like appurtenances along roads and streets reaching into Precinct 1to the County Courthouse in Tyler. Precinct 2was brought into Precinct 1and to the Courthouse by means ofHighway 2493, Highway 155, Clenwood Street North in Tyler, and Erwin Street East to the Courthouse, Precinct 3was extended to the Courthouse inTyler by means ofHighway 110, Troup Highway inTyler, Beckham Street North, and Erwin Street West. Precinct 4was extended to the Courthouse inTyler by means ofHighway 271,Dixie Highway inTyler, Beckham Street South inTyler, andErwin Street West. Precinct 5was brought into Precinct 1and to the Courthouse bymeans ofHighway 69, Bow Street inTyler, and Broadway Street South.

"There are, of course, nopeople living on the surface of any of these streets and roadways. There are,however, people and election precincts
on either side of these roadway extensions from each outlying precinct into and through Precinct 1.

"OnDecember 13, 1971, the Commissioners' Court adopted new election precincts for Smith County, Texas. The result of this redrawing was that each of the arm-like extensions from each of the outlying

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justice precincts split and/or formed new election precincts within Precinct 1which had heretofore exclusively been within and formed within Justice Precinct 1. The result was that Justice Precinct 2 along with Precinct 1aided in the formation of Election Precincts 35, 36, 33 and split 20 in Smith County. Precinct 3aided in the formation ofBlection Precincts 21and 23, and as aresult of the new drawing completely split Election Precinct 20. Justice Precinct 4runs through Election Precinct 2and 20. Precinct 5aided in the formation ofElection Precincts 16, 12 and 34 and split Election Precincts 11and 20.

"Does the fact that one ormore justice precincts
cross another justice precinct by means of aroadway, representing nopeople within the justice precinct which they cross, constitute a formation of an election precinct out of two ormore justice precincts, or out of the parts of two ormore justice precincts, in , violation ofArticle 2.04b of the Texas Election Code?"

The provisions ofArticle 2.04(b) of the~Texas Election Code, reads, inpart, as follows:

"Noelection precinct shall be formed out of two ormore justice precincts or commissioners precincts, nor out of the parts of two or more justice precincts or commissioners precincts: and
no election precinct shall be formed out of two ormore congressional districts.

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The article ismandatorially prohibitive innature; the formation of an election precinct from two ormore justice precincts isprohibited. As the lines are presently drawn *arm-like" appurtenances of the outlying justice precincts (2,3,4and 5) extend into justice precinct No. 1and commonly culminate at the Courthouse. Your letter does not spell out theprecise boundary of the end of these arms. If the arms terminate at the perimeter of the Courthouse square, the Courthouse Building (and its courtrooms) are beyond the boundaries of these

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arms ; if the arms extend into the courthouse building, there is
aportion of the county, within thebuilding, which is common to all five justice precincts. Under the first hypothesis, the statedpurpose would notbe accomplished; under the second, the justice precincts would.overlap in contravention of the intent ofArticle V, Section 18 of The Texas Constitution, which provides that every county in the State shall be divided into not less than four and not more than eight justice precincts. It is implicit that there is tobe no overlap, and that each justice precinct shall occupy and include specific definable,territory, to the exclusion of any other justice precinct.

As the justice precinct lines are currently drawn, election precinct No. 12 includes part of justice precinct No. 1and part of justice precinct No. 5;election precinct No. 2 includes parts of justice precincts No. 1andNo. 4. As you point out, there aremany other examples. This is clearly in contravention of the express prohibition ofArticle 2.04(b) of the Election Code (supra).

Hocrcv. Campbell, 40 SW(2) 515, (Tex.Civ.App, 1932, nowrit) is authority for the proposition that an order of the Commissioner's Court which attempts tocreateanelection precinct which contains parts of more than one justice precinct isvoid asbeing in contravention ofArticle 2933,Vernon"s Civil Statutes, the precursor ofArticle 2.04 of the Texas Election Code.

The redrawing of the precinct lines in the attempted manner isbeyond the delegated authority of the Commissioner's Court and isvoid. The last decision of our Texas Supreme Court relating toboundaries of geographical areas from which representatives ofgovernment are elected is Smith v.Craddick, 471 SW2d 375 (Tex.Sup. 1971). The Court held that the requirements of Article III, Section 26 of the Texas Constitution relating to themaintenance of county boundaries in apportionment forRepresentative Districts was tobe given effect I'... without regard.to the consequences..." These requirements were superseded only by the Constitution of theUnited States. While this case is not directly inpoint, our opinion is that it isrelevant and supports ourposition that the plain language of the law relating toboundaries ofpolitical areas of the state is tobe enforced. See alsoWilson v. Weller, 214 SW2d 473, 475 (Tex. -5419-,. -

Hon. Curtis L. Owen, page 5 (M-1111)

Civ. ASP. 1948, nowrit), wherein the court declared that the Commissioner's Court could not "have and recognize election precincts including territory lyingwithin more than one justice 01 commissioners precinct."

SUMMARY

The extension of outlying Justice Precincts NOS. 2,3,4 and 5 of Smith County by arm-like appurtenances to a common point within Justice Precinct No. 1,when such "arms" cut across election precincts, is in contravention ofArticle 2.04(b), Texas Election Code. An order of the Commissioner's Court which attempts to do so is without statutory authority and therefore void.

very truly,

Attobey General ofTexas t' Prepared by Robert W. Gauss Assistant Attorney General

APPROVED: OPINION COMMITlEE

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

w. 0. Shultz Jack Goodman Ralph Rash Houghton Brownlee

SAMUEL D. McDANIEL Staff Legal Assistant

ALFREDWAlKER Executive Assistant NOLA WHITE First Assistant -5420-