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A NEY ~E3iEFCAI.a 

~FTEXAS 

PRICEDANIEL. 

XrKmNEY GENERA,. 

Hon. Arnold W. Franklin Opinion No. V-790 

County Attorneys 

Atascosa County Re: Authority of Commissioners' 

Jourdanton, Texas Court to abolish justice precincts and create new precincts 

in that territory, and effect 

of such action upon elected 

officers In the old precincts. 

Dear Sir: 

We refer to your letter in which you submitthe following questions: 

"Does the Commlssloners’ Court, acting under 

authority of Constitutional Article V, Section 

18, and Article 2351 of the Revised Civil Statutes 

of Texas, have the authority to abolish existing 

Justice Court precincts and create a new Justice 

Court precinct of the territory engrossed of the 

territory formerly consisting of the justice precincts so abolished? 

"In event that the Commissioners'~ Court may 

abolish two old justice precincts and create a 

new one to consist of the combined limits of the 

two so abolished and appoint new officers for the 

newly created precinct, then in that event what 

disposition would be made to the elective officers 

of the 0la precincts? Would the officers be 

abolished with the abolishing of the old precincts?" 

The authority of the Commissioners' Court to divide 

counties into justice precincts is provided in Section 18 of 

Article V of the State Constitution, which reads In part as follows : 

"Rach organized county ln the State now or 

hereafter existing. shall be divided from time 

to time, for the con: wentence of the oeoule. into 

oreclncts. not less than four and not more-than 

eight. The present County Courts shall make the 

first division. Subsequent dlvlslons shall be 

made by the.Commlssioners' Court, provided for by 
Hon. Arnold W. Franklin, page 2 v-790 

thFs Constitution. In each such precinct there 

shall be elected at each biennial election, one 

justice of the 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 in any precinct in which there may 

be a city of 8,000 OP more inhabitants, there 

shall beelected two justices of the peace. (Emphasis added throughout) 

Article 2351, V.C.S. reads in part: 

"Each commissioners court shall: 

"1 . Lay off their respective counties Into 

precincts, not less than four, andnot more than 

eight, for the selection of justices of the peace 

and constables, fix the times and places of holding justices courts, and shall establish places 

in such p;ecFncte where electLons shall be held; 

., 0 . . D 

refused), 

In State 8x. rel. Dowlen v. Rigsby, 43 S.W. 271 (error 

Judge Williams, writing for the Court, construing the 

ConstLtutions and statutes on the point of your inquiry, said: 

"When the commissioners' court was organized, 

in pursuance of the constitution and the laws 

passed thereunder, It possessed all powers conferred by both; When the court was once established, 

no legislation wae needed to enable it to exercise 

the powers given by the above provision, to divide 

the county into precincts. The direction is plain 

and simple, and wlthaut conditl~on or restriction, 

except that as to the.number of precincts. It is 

said ~that no procedure is prescribed by which the 

power Is to be exercised. If any was needed, the, 

statute supplied it, when It required that the proceedings of the court shmld be recorded in Us 

minute book. Rev. St. 1895, art. 1554. This was 

all that was necessary. The power to divide the 

county Into justices' precincts is also given by 

the statute, but not in terms so explfcit as those 

used fn the constitution. Rev. St. 1895, art. 1537* 

There can be no doubt that both constitution and 

statute conferthe power, and the only question is 

as to Its extent. It is contended that a 1Fmitat~on 

upon the power is found in the constitutional provision fixing the terms of office of precinct officers; and that, since they are to hold for two 
Hon. Arnold W. Franklin, page 3 v-790 

,.. 

years, it follows that the precincts cannot be 

changed during the terms, because the power to 

alter them would practically enable the court 

to destroy the office. The language of the constitution expresses no such limitation. The aivision is to be made 'from time to time.' The 

reason for the division is to..be the convenience 

of the people; and the judge, both as to time 

and convenience, Is the court. The limitation 

ccontended for by the appelant would require the 

Insertion in the constitution of a proviso which 

the courti cannot read into it. The only limitation imposed serves to indicate the scope of the 

power. That limitation requires as wny as four, 

ana does not allow more than eight, precincts. 

But for it the county might have been cut up lntb 

as many precincts as the court saw proper to establish. By It the Intention Is made more manlfeat that, within the limits, the court Is to 

determine the number. As to the time of making 

thedivision, it is equally plain, The language 

'from time to time, for the convenience of the 

,people,' clearly means that the convenience of the 

people, as judged by the court, shall control In 

determining the time when a dlvlsion is proper. 

The phrase 'from time to time' repels the 2des 

that it was the purpose to fix any particular time. 

"If it should be urged that the provisions 

contemplate a complete, and not a partial, amaLon, the answer La that, in effect, they are the 

same e When two precincts are made out of one, or 

the boundaries between two are changed and defined, leaving all of the others unchanged, the 

effect Is the same as if an order were entered 

setting out anew the boundaries of the unchanged 

precincts, as well as those changed. As no form 

of procedure is prescribed, there could be no i 

substantial objection to such Bctlon. The power 

to establish the precincts does~.not necessarily 

conflict with the provision,~fY%Im the terms of 

office. They lplst stand together. The offlce 

is taken sublect tb the Dower to chanue the boundaries of the Dreclncts. This is no anomaly in 

our law. All county offfcers whose compensation 

is derived from perquisites, and therefore'depends to some bxtent on the territory Ln which 

they exercise their functions, hold their offices 

sub$ect to lawful power to alter that territory. 

While the offFce Is DroI)erty, it fs held subiect 
Hon. Arnold W. Franklin - Page 4 (V-790) 

“If it should be urged that the provisions contemplate a complete, and not a 

partial, division, the answer is that, in 

effect, they are the same. When two precincts are made out of one, or the boundaries between two are changed and defined, 

leaving all of the others unchanged, the 

errect is the same as ii an order were entered setting out anew the boundaries of 

the unchanged precticta, as well as those 

changed. As no form of procedure is preascribed, there could be no substantial objection to such action. The power to establish the precincts does not necessarily 

conflict with the provision fixing the 

terms of orrice. They must stand together. 

The office is taken subject to the power 

to change the boundaries of the precincts. 

This is no anomaly in our law. All county 

officers whose compensation is derived 

from perquisites, and therefore depends to 

some extent on the territory in which they 

exercise their functions, hold their offices subject to lawful rower to alter that 

territory; While the office is property 

it is held subjeat to the proper exercisi 

of all such powers as these. There is no 

contract between the state and its officers which forbids such action.” 

Also see the case of Brown v. bfeeks, 96 S. W. 

(2a) 839, to the same effect. We call your attention to 

the following language used in the latter case: 

“The attempted nomination of a candidate for constable of new precinct No. 1 before it comes into existence is entirely 

void, and no one is entitled to such a nomination. On January 1, 1937, when the new 

precinct for the first time comes into existence, then and in that event it will be 

the duty of the commissioners’ court to appoint new officers ror the new precinct. 

State ex. rel. Robbins v. Parker, 147 Iowa, 

69, 125 N: W. 856. 

*Meek8 insists that, being a resident of 

old precinct No. 1, and having received a 
Hon. Arnold W. Franklin, page 5 p-790 

this order, is that, when the new Precincts come 

Into existence. all creclnct offices will be 

vacant and the commissioners’ court will be 

charged with the duty of fillinn these crecinct 

offices by appointment .‘I 

In Carver v. Wheeler County, 200 S.W. 537, the Court 

said, In part: 

“While the holder of a public office ID 

vested with certain rights in reference thereto, being entitled to hold the same and receive 

the emoluments and compensations incident to the 

discharge of the duties of the office, and may 

defend his rights against othera, yet the relation between the office holder and the government 

under which he holds office ia not that of employer and emploge, and their respective rights are 

not to be determined by the application of the 

general rules of contracts of employment. So 

that it Is universally held that In the absence 

of some inhibFtion by some superior law, the 

governing body may abolish the office or change 

the compensation to be paid the office holder at 

any time, even during the term of the office of 

-an incumbent, provided, of course, the changed 

rate of compensation cannot be made to apply to 

‘, services already rendered .‘I 

In view of the foregoing we are of the opinion that the 

Commissioners’ Court of Atascosa County is authorized to abolish 

existing justice precincts and create new justice precincts composed of the territory of existing precincts which are abolished 

at any time for the convenience of the people, But of course 

there rmst be at least four and not more than eight justice precincts in the county at all times. The terms of office of all 

officers of such abolished and changed precincts will ipso facto 

terminate and the officers of the newly created precincts umst 

be appointed by the Commissioners’ Court. 

SUMMARY 

The CommissLoners’ Court may abolish old 

justlce precincts and re-dlvlde the county Into 

new justice precincts at any time, so long as 

there Is, a mlnlxmm of four and not more than 

eight justice precincts In the county. When 

such justice precincts are abolished the offices 

In the old precbncts become vacant and the officers of the newly created justice precincts 
.: ., 

Ron. Arnold W. Franklin, page 6 v-790 

uust be appointed by the Commlsaloners~ Court. 

WTW:wb:wc 

APPROVED: 

s/Joe R. Greenhill 

FIRST ASSISTANT 

ATTORNBYGBNRRAL 

Yours very truly, 

ATTORNEYGWERAL OF TEXAS 

By s/U. T. Williams 

ASSiStant