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 Constables who are 

running for election to be 

deemed legally in the race 

for their respective precincts 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 respective precincts 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 order was 

duly published in the newspaper and posted in 

several different places in the county, a copy Is 

herein attached. 

“On the 22nd day of August, 1969, the Commissioners’ Court by the attached order created 

the election precincts with the same boundaries 

as the commissioners precinct, wherein they wanted 

to create the justice and constables and inadvertently 

the wording to create same was left out in the 

ordering part. 

“The deadline for filing for candidates for 

justice of peace and constables as well as others 

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

was February 2, 1970 and the candidates filed 

for positions for justice of peace and constables 

In conformity with the newly created precincts. 

"On the 9th day of March, 1970, the Commlssloners' Court 

herein attached P 

assed 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 constable precincts and to clarify the 

matter and In addition to said order they were at 

this time establishing the new justice of peace and 

constable precincts with the same boundaries as the 

commissioners precincts created on the 31st day of 

January, 1969. 

"Discussing Is only to justice of peace and 

constable candidates. The commissioner precincts, 

election precincts and the justice of peace and 

constable precincts have the same boundaries. 

"Each person filing for these positions are 

well within their boundaries and none are affected 

adversely. They all filed with the Intention to 

run for their resp$ctlve positions within the newly 

created precincts. 

The copies of the commissioners court minutes show that 

on January 31, 1969, the Commissioners Court redistricted all of 

the commissioners precincts setting out descriptions by metes and 

bounds for all four precincts, thereby creatl 

T 

new county commlssloners precincts to be effective April 10, 19 9. 

On August 22, 1969, the Commissioners Court 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 31st day of January, 1969, 

did pass an order changing the boundaries of Commissioners 

Precinct Nos. 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, adjudged and decreed 

that the County of Jim Hogg Is hereby divided Into 

-2923- 
. . 

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) consecutive weeks as required by law, and that said order shall become 

effective ,accordlng to law. 

11 ‘1 

. . . 

On March 9, 1970, the Commissioners Court passed an 

order reading, In part, as follows: 

"The Commissioners' Court of Jim Ho g County, 

Texas, did on the 22nd day of August, 19 fi 9, pass * 

an order specifying the new election precinct 

boundaries at which time It was the intention of the 

Commissioners Court to also create new Justice of the 

peace and Constables precinct boundaries. The said 

new Justice of the Peace and Constable precincts 

boundaries would conform to the County Commissioners' 

precinct boundaries which 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 if 

In 

August 22, lgbg, E Is now Ordered, Adjudged and 

Decreed that the County of Jim Nogg, Justice of 

the Peace Precinct No. 1 and Constable Preclncl? 

1 shall have the same boundaries of the County 

C%mlssloners' Precinct No. 1 boundaries as 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 Precinct No, 2 shall have the 

same boundaries of the County Commlssloners Precinct 

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 Precinct No. 3 and Constable Precinct No. 3 

shall have the same boundaries of the County Commissioners Precinct No. 3 boundaries as described by 

metes and bounds In the Order of the Commissioners 

Court of Jim Hogg County, Texas, dated January 31, 

1969; Justice of the Peace No. 4 and Constable 

Precinct No. 4 shall have the same boundaries of 

the County Commlssloners Precinct No. 4 boundaries 

as described by metes and bounds In the Order of the 

Commissioners' Court of Jim Hogg County, Texas, dated 

January 31, 1969." 

-2924- 
Hon. F. A. Cerda, page 4 (M-612) 

Under the provisions of Section 65 of Article XVI of 

the Texas Constitution this la an election year for the office 

of Justice of the Peace but ls,nc$ an election year for the office 

of Constable. The offices of constable and Justice of the Peace 

In each of the new precincts came Into being vacant as of March 

9, 1970, and said vacancies were to be filled by the Commissioners 

Court until the next Qeneral Election. 

~~-536 (1958) and V-1032 (1950). 

Attorney General 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 justice precincts as required by the Constltutlon. Under the provisions of Section 65 of Article XVI 

of the Texas Constitution this Is an election year 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 precinct number. The 

changing of the boundaries could have affected their residence 

requirements but did not do so under 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 so under the facts 

presented. You also stated that all candidates for justice of 

the peace filed with the Intention to run for their respective 

positions within the newly created precincts which at the time 

they filed they thought corresponded to the new County Commlssloners precincts. The order of March the 9th recites that the 

justice precincts shall correspond to the commissioners precincts. 

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 candidates to amend their applications, withdraw them, 

or refile their applications for the office under the facts 

presented. Therefore, based upon the facts presented, we have 

concluded that the candidates who 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 Is whether a candidate's 

application filed In accordance with the Election Code but prior 

to the change of boundaries of the justice precincts by the order 

of the Commlssloners' Court must be treated as 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 candidate desired 

-2925- 
. . 

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

to withdraw for such position , authority there exists for him 

to do so. Since there was no withdrawal, It Is clear that the 

application was intended to &main on file for the position 

described. There Is no requirement of law that the application 

must describe the boundaries of the precinct but only that It be 

Identified by number, and this was complied with. Since the 

boundaries for the various precinct numbers came Into effect well 

prior .to the election, there can be no question as to the Intent 

of the voters to vote for the candidates seeking election In their 

precincts. 

There Is no statutory provision governing the specific 

procedure here Involved, but our Supreme Court has held that In 

the absence of a statute to cover a particular procedure or method 

when by virtue of a happening (resignation) It was too late for 

prospective candidates to file applications to get their names on 

the ballots on final date fixed by statute, the party Is free to 

follow any other method In keevlnn with Its usaues and customs. If 

not expre&ly prohibited by la;. -Kllday v. B&any, 139 Tex. 380, 

163 S.W.2d 184 (1942). 

It la the opinion of this office that the candidate's 

application under the circumstances must be deemed at least a 

substantial compliance with the Election Code, and should not be 

deemed a nullity. In cases of doubt, It is well settled that all 

doubts should be resolved In favor of the right so to participate 

as a candidate. In any event, In an election contest, It Is well 

settled that elections may be contested only upon the grounds authorized by the Election Code , and the Irregularity Involved here 

could not be raised. Magnolia Petroleum Co: 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's application under 

the facts and circumstances Is not a fatal Irregularity which 

would invalidate the election of such candidate should he be 

elected. 

The question of the effect of the Commissioners Court 

order In changing the precinct boundaries Is not necessarily a 

pertinent or controlling consideration here In view of the foregoing considerations. 

Since under the provisions of Section 65 of Article XVI 

of the Texas Constitution this Is not an election year for the 

office of constable, the office of constable In each of the new 

-2926- 
Hon. F. A. Cerda, page 6 (M-612) 

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 nominated and 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 

thirty days before the general primary 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 

. . .nomlnatlon for the unexpired term shall 

be made by primary election, and candidates shall 

have until the end of the twenty-fifth day 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 Is midnight of April 7, 1970. 

Based upon the facts as set out In your letter this 

office holds that all candidates who 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 legally be on the May 2nd primary 

ballot for their respective constable precincts. 

SUMMARY 

Based upon the facts and circumstances presented, 

all candidates for justice of the peace who filed by 

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, 1970 who meet 

requirements would be legally on the 

ballot. 

all elect& law 

May 2nd primary 

yours, 

&M 

MARTIN 

neral of Texas 

-2927 - 
. 1. * 

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

Prepared by William J. Craig 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Acting-Co-Chairman 

Ivan Wllllams 

W. 0. Shultz 

Arthur Sandlln 

John Qrace 

MEAD& F. QRIFFIN 

Staff Legal Assistant 

ALFRRDWALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

-2928-