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 in violation 

of Article 2.04(b), 

Texas Election Code? 

You have requested the opinion of this office regarding the 

above question. In this connection you have provided us with 

the following information: 

II . . . The Commissioners' Court, on December 14, 1970, redrew and adopted new justice 

precincts for Smith County. On January 4. 1972, 

the Smith County Commissioners' Court, at its regular 

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 

the middle of the County in belt-like' fashion and 

includes all of the City of Tyler. 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, In both 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 1 and 

the City of Tyler over roads and streets ending at 

the Courthouse. 

"The population 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 1 and a much less burden for the 

other outlying justices. 

"On December 14, 1970, the Commissioners' Court, 

in order to alleviate the burdensome Court docket 

of Justice 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 in Court at the 

Courthouse and share the burden of the growing 

metropolis and its resulting case load. 

"The redrawing made by the Commissioners' Court 

of the outlying justice precincts at both meetings 

resulted in arm-like appurtenances along roads 

and streets reaching into Precinct 1 to the County 

Courthouse in Tyler. Precinct 2 was brought into 

Precinct 1 and to the Courthouse by means of Highway 2493, Highway 155, Clenwood Street North in 

Tyler, and Erwin Street East to the Courthouse, 

Precinct 3 was extended to the Courthouse in Tyler 

by means of Highway 110, Troup Highway in Tyler, 

Beckham Street North, and Erwin Street West. 

Precinct 4 was extended to the Courthouse in Tyler 

by means of Highway 271, Dixie Highway in Tyler, 

Beckham Street South in Tyler, and Erwin Street 

West. Precinct 5 was brought into Precinct 1 and 

to the Courthouse by means of Highway 69, Bow Street 

in Tyler, and Broadway Street South. 

"There are, of course, no people 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. 

"On December 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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kiYli , iurrid b= Gwen, page 3 (M-1111) 

justice precincts split and/or formed new election 

precincts within Precinct 1 which had heretofore 

exclusively been within and formed within Justice 

Precinct 1. The result was that Justice Precinct 2 

along with Precinct 1 aided in the formation of 

Election Precincts 35, 36, 33 and split 20 in Smith 

County. Precinct 3 aided in the formation of Blection Precincts 21 and 23, and as a result of the new 

drawing completely split Election Precinct 20. Justice Precinct 4 runs through Election Precinct 2 and 

20. Precinct 5 aided in the formation of Election 

Precincts 16, 12 and 34 and split Election Precincts 

11 and 20. 

"Does the fact that one or more justice precincts 

cross another justice precinct by means of a roadway, 

representing no people within the justice precinct 

which they cross, constitute a formation of an election precinct out of two or more justice precincts, or 

out of the parts of two or more justice precincts, in , 

violation of Article 2.04b of the Texas Election Code?" 

The provisions of Article 2.04(b) of the~Texas Election 

Code, reads, in part, as follows: 

"No election precinct shall be formed out 

of two or more 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 

or more congressional districts. . .'I 

The article is mandatorially prohibitive in nature; the 

formation of an election precinct from two or more justice precincts is prohibited. As the lines are presently drawn *arm-like" 

appurtenances of the outlying justice precincts (2,3,4 and 5) 

extend into justice precinct No. 1 and commonly culminate at 

the Courthouse. Your letter does not spell out the precise 

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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Bon. Curtis 1,. Owen, page 4 (M-1111) 

arms ; if the arms extend into the courthouse building, there is 

a portion of the county, within the building, which is common 

to all five justice precincts. Under the first hypothesis, the 

stated purpose would not be accomplished; under the second, the 

justice precincts would.overlap in contravention of the intent 

of Article 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 to be 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. 1 and 

part of justice precinct No. 5; election precinct No. 2 includes 

parts of justice precincts No. 1 and No. 4. As you point out, 

there are many other examples. This is clearly in contravention 

of the express prohibition of Article 2.04(b) of the Election 

Code (supra). 

Hocrc v. Campbell, 40 SW(2) 515, (Tex.Civ.App, 1932, no writ) 

is authority for the proposition that an order of the Commissioner's Court which attempts to create an election precinct which 

contains parts of more than one justice precinct is void as being 

in contravention of Article 2933, Vernon"s Civil Statutes, the 

precursor of Article 2.04 of the Texas Election Code. 

The redrawing of the precinct lines in the attempted manner 

is beyond the delegated authority of the Commissioner's Court 

and is void. The last decision of our Texas Supreme Court relating to boundaries of geographical areas from which representatives of government 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 

the maintenance of county boundaries in apportionment for Representative Districts was to be given effect I'... without regard.to 

the consequences..." These requirements were superseded only 

by the Constitution of the United States. While this case is 

not directly in point, our opinion is that it is relevant and 

supports our position that the plain language of the law relating to boundaries of political areas of the state is to be 

enforced. See also Wilson v. Weller, 214 SW2d 473, 475 (Tex. 

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

Civ. ASP. 1948, no writ), wherein the court declared that the 

Commissioner's Court could not "have and recognize election precincts including territory lying within 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 of Article 

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 of Texas 

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 

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