## THE ATTORNEY GENERAL OF TEXAS

AUESTIN. -rExAle 78711

Hon. F. A. Cerda County Attorney Jim Hogg County Hebbronville,Texas

Dear Mr. Cerda: April 22, 1970

Opinion No. M-612
Re: Whether the Justice of the Peace and Constableswho are running for election to be deemed legally in the race for their respectiveprecincts in the May 2nd Primary under the stated facts and circumstances.
Your opinion request on the above captioned subject reads, in part, as follows:

‘Are the Justice of the Peace and Constables who are running for re-electlon legally in the race for their respectiveprecincts In the May 2nd primary under the following facts and clrcumstances? II

. . . “On the 31st day of January, 

## 1969, the Commlssloners’ Court passed an order re-dlstrlctlng the commissioners’precincts,which said orderwas duly published in the newspaperand posted in severaldifferent places in the county, a copy Is herein attached.
“On the 22nd day of August, 

## 1969, the Commissioners’ Courtby the attached order created the election precinctswith the same boundaries as the commissionersprecinct,wherein they wanted to create the justiceand constablesand inadvertently the wording to create same was left out in the ordering part. “Thedeadline for filing for candidates for justice of peace and constablesas well as others

-2922-Hon. F. A. Cerda, page 2 (M-612)

was February 2, 1970 and the candidatesfiled for positions for justice of peace and constables In conformitywith the newly createdprecincts.
"On the 9th day of March, 1970, the Commlssloners' Court herein attachedPassed an order (copy of which Is stating that In the order of August 22, 1969, It was their Intent to create the justice of peace and constableprecinctsand to clarify the matter and In addition to said order they were at this time establishing the new justice of peace and constableprecincts with the sameboundaries as the commissionersprecincts created on the 31st day of January, 1969. "Discussing Is only to justice of peace and constable candidates. The commissionerprecincts, election precincts and the justiceof peace and constableprecincts have the sameboundaries. "Eachperson filing for thesepositions are well within their boundaries and none are affected adversely. They all filed with the Intention to run for their resp$ctlvepositionswithin the newly created precincts. The copies of the commissionerscourtminutes show that on January 31, 1969, the CommissionersCourt redistrictedall of the commissionersprecincts setting out descriptionsby metes and bounds for all four precincts, thereby creatl T new county commlsslonersprecincts to be effectiveApril 10, 19 9.

On August 22, 1969, the CommissionersCourt redistricted all election precincts to conform to the boundaries of the new county commissioners precincts and In said order recited the following:"Whereas, the Commissioners'Court of Jim Hogg County,Texas, on Friday the 31stday of January, 1969, did pass an order changing the boundaries of Commissioners PrecinctNos. 1, 2, 3, and 4 of Jim Hogg County, and 'Whereas, the voters of each of the above precincts are entitled to elect one (1)county commissioner,one (1) Justice of the Peace, and one (1) constable,and

. . . "Now therefore, It Is ordered,adjudgedand decreed that the County of Jim Hogg Ishereby divided Into

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Hon. F. A. Cerda, page 3 (M-612)

election precincts to be known as follows, to-wit:

. . ."It Is further ordered that this order b@ published for three weeks (3) consecutiveweeks as required by law, and that said order shall become effective ,accordlngto law. 11 ‘1

. . . On March 9, 1970, the CommissionersCourt passed an order reading, In part, as follows:

"The Commissioners'Court of Jim Ho g County, fi Texas, did on the 22nd day of August, 19 9, pass * an order specifying the new electionprecinct boundaries at which time It was the intention of the CommissionersCourt to also createnew Justice of the peace and Constables precinctboundaries. The said new Justice of the Peace and Constableprecincts boundarieswould conform to the County Commissioners' precinct boundarieswhich were created on Commissioners' order dated January 31 1969, and In order to clarify the Intent of the Ordei dated August 22, 1969 addition to, with t changing the said Order ifIn August 22, lgbg, E Is now Ordered,Adjudged and Decreed that the County of Jim Nogg, Justice of the Peace PrecinctNo. 1 and Constable Preclncl? 1 shallhave the same boundariesof the County C%mlssloners' PrecinctNo. 1 boundariesas described by metes and bounds In the Order of the Commissloners' Court of Jim Hogg County,Texas, dated January 31, 1969; Justice of the Peace Precinct No. 2 and Constable PrecinctNo, 2 shall have the same boundaries of the County CommlsslonersPrecinct No. 2 boundaries as described by metes and bounds In the Order of the Commlssloners'Court of Jim Hogg County,Texas, dated January 31, 1969; Justice of the Peace PrecinctNo. 3 and Constable PrecinctNo. 3 shallhave the same boundaries of the County Commissioners PrecinctNo. 3 boundariesas described by metes and bounds In the Order of the Commissioners Court of Jim Hogg County, Texas,dated January 31, 1969; Justice of the PeaceNo. 4 and Constable PrecinctNo. 4 shall have the same boundaries of the County Commlssloners PrecinctNo. 4 boundaries as describedby metes and bounds In the Order of the Commissioners'Court of Jim Hogg County,Texas, dated January 31, 1969."

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Under the provisions of Section 65 of Article XVI of the Texas Constitution this la an electionyear for the office of Justice of the Peace but ls,nc$an electionyear for the office of Constable. The offices of constable and Justice of the Peace In each of the new precincts came Into being vacantas of March 9, 1970, and said vacancieswere to be filledby the Commissioners Court until the next Qeneral Election. ~~-536 (1958)andV-1032 (1950). AttorneyGeneral Opinions

The order of March 9th changed the boundaries but did not change the numbers of the Justice precincts,there being at all times four justiceprecincts as requiredby the Constltutlon. Under the provisions of Section65 of Article XVI of the Texas Constitution this Is an electionyear for all Justices of the Peace In single justice precincts. All such offices are to be filled for a four year term, This holds true for newly created as well as previously existing offices of justice of the peace. The candidates filed for the office of justice of the peace by the proper precinctnumber. The changing of the boundaries couldhave affected theirresidence requirements but did not do sounder the facts set out In your letter. The changing of the precinct numbers could have affected the ldentlflcatlon of the particular office for which a candidate sought to run but did not do sounder the facts presented. You also stated that all candidatesfor justice of the peace filedwith the Intention to run for their respective positions within the newly created precinctswhich at the time they filed they thought corresponded to the new County Commlsslonersprecincts. The order of March the 9th recites that the justice precincts shall correspond to the commissionersprecincts. We have found no provision of the Election Code which would extend the deadline for filing for justice of the peace or would require that such candidatesto amend their applications,withdraw them, or refile their applications for the officeunder the facts presented. Therefore,based upon the facts presented,we have concluded that the candidateswho filed for the offices of justice of the peace by the February 2nd deadline are legally on the ballot for the May 2nd primary election.

The controlling legal question Iswhether a candidate's application filed In accordancewith the Election Code but prior to the change of boundaries of the justiceprecinctsby the order of the Commlssloners'Court must be treatedas a nullity. The Intention of the candidate to run for the described office Is clear under Article 13.12 of the Election Code. If the candidatedesired

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Hon. F. A. Cerda, page 5 (M-612)

to withdraw for suchposition, authority there exists for him to do so. Since therewas no withdrawal, It Is clear that the applicationwas intended to &main on file for the position described. There Is no requirement of law that the application must describe the boundaries of the precinctbut only that It be Identifiedby number,and this was compliedwith. Since the boundaries for the variousprecinct numberscame Into effect well prior .tothe election, there can be no questionas to the Intent of the voters to vote for the candidates seekingelection In their precincts.

There Is no statutoryprovisiongoverning the specific procedure here Involved,but our Supreme Courthas held that In the absence of a statute to cover a particularprocedure or method when by virtue of a happening (resignation)It was too late for prospective candidates to file applicationsto get their names on the ballots on final date fixed by statute,the party Is free to follow any othermethod In keevlnn with Itsusaues and customs. If not expre&ly prohibitedby la;. -Kllday v. B&any, 139 Tex. 380, 163S.W.2d 184 (1942).

It la the opinion of this office that the candidate's applicationunder the circumstancesmust be deemed at least a substantial compliancewith the Election Code, and should not be deemed a nullity. In cases of doubt, It iswell settled that all doubts shouldbe resolved In favor of the right so to participate as a candidate. In any event, In an election contest, It Is well settled that electionsmay be contestedonlyupon the grounds authorizedby the Election Code, and the IrregularityInvolved here could not be raised. Magnolia PetroleumCo: v. Jackson County 30 S.W.2d 310, Tex.Clv.App.

error dlsm.). S.W.2d 896 (Tex.Clv.App. 1968,

'rested by the above considerations,we conclude that the p&nature fill% of the candidate'sapplicationunder the facts and circumstances Is not a fatal Irregularitywhich would invalidatethe election of such candidateshould he be elected. The question of the effect of the Commissioners Court order In changingthe precinct boundaries Is not necessarily a pertinent or controlling considerationhere In view of the foregoing considerations.

Sinceunder the provisions of Section 65 of Article XVI of the Texas Constitution this Is not an electionyear for the office of constable, the office of constable In each of the new
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precincts came Into being vacant and with an unexpired term which ends on December 31, 1972. No. ww-1499(1962). See Attorney General's .Oplnlon Article lJ.ua of the Texas Election Code prescribes the manner In which persons are to be nominatedand elected to fill unexpired terms. The vacancies In the offices of constable occurred on March 9, 1970. That date Is more than five days after the regular filing deadline of February 2, 1970, and more than thirtydays before the generalprimary on May 2, 1970; therefore, the provisions of paragraph 2 (Ii) of Article 13.12a,Texas Election Code, apply and said section declares that:

11

. . .nomlnatlonfor the unexpired term shall be made by primary election,and candidates shall have until the end of the twenty-fifthday preceding the day of the general primary In which to file appllcatlons for a place on the primary ballot. The appllcatlon must be received and filed In the nfflce of the proper chairman before the deadline, and applications mailed but not actually received before the deadline shall not be accepted for filing." According to our calculations the filing deadline prescribed by this provision Ismidnight of April 7, 1970.

Based upon the facts as set out In your letter this office holds that all candidateswho have filed for the office of constable for the unexpired term which ends on December 31, 1972 by midnight of April 7, 1970 and who meet all requirements of the Election Code would legallybe on the May 2nd primary ballot for their respective constableprecincts.
SUMMARY Based upon the facts and circumstancespresented, all candidates for justice of the peace who filedby the February 2nd deadline are legally on the primary ballot for the election to be held May 2nd. Candidates for the unexnired term of Constable who filed by midnight of April 7th, 1970who meet requirements would be legally on the ballot. all elect& law May 2nd primary

yours, 

# &M

MARTIN neral of Texas

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Hon. F. A. Cerda, page 7 (M-612)

Preparedby William J. Craig Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Acting-Co-Chairman IvanWllllams W. 0. Shultz Arthur Sandlln John Qrace
MEAD& F. QRIFFIN Staff Legal Assistant
ALFRRDWALKER Executive Assistant
NOLA WHITE First Assistant

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