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~FTEXAS

PRICEDANIEL. XrKmNEY GENERA,.

Hon. Arnold W. Franklin OpinionNo. V-790 County Attorneys Atascosa County Re: Authority of Commissioners' Jourdanton,Texas Court to abolish justiceprecincts 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 ArticleV, Section 18, and Article 2351 of the Revised Civil Statutes of Texas, have the authorityto abolish existing Justice Court precinctsand create a new Justice Court precinct of the territory engrossedof the territory formerly consistingof the justiceprecincts so abolished?

"In event that the Commissioners'~ Court may abolish two old justice precinctsand create a new one to consist of the combined limits of the two so abolishedand appoint new officers for the newly created precinct, then in that event what dispositionwould be made to the elective officers of the 0la precincts? Would the officersbe abolishedwith the abolishingof the old precincts?"

The authorityof the Commissioners' Court to divide counties into justiceprecincts is provided in Section 18 of ArticleV of the State Constitution, which reads In part as follows :

"Rach organizedcounty ln the State now or hereafter existing. shall be divided from time wentenceof the oeoule. into to time, for the con: oreclncts.not less than four and not more-than eight. The present County Courts shall make the first division. Subsequentdlvlslons shall be made by the.Commlssioners' Court, provided for byHon. 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 justicesof the peace. (Emphasis added throughout)

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

"Each commissioners court shall:

"1

. Lay off their respectivecounties Into precincts,not less than four, andnot more than eight, for the selection of justicesof the peace and constables,fix the times and places of holding justicescourts, and shall establishplaces in such p;ecFnctewhere electLons shall be held;

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refused),

In State 8x. rel. Dowlen v. Rigsby, 43 S.W. 271 (error Judge Williams,writing for the Court, construingthe ConstLtutions

and statuteson the point of your inquiry, said:

"When the commissioners' court was organized, in pursuance of the constitution and the laws passed thereunder,It possessedall 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.numberof precincts. It is said ~that

no procedure is prescribedby 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 explfcitas 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 constitutionalprovision fixing the terms of office of precinct officers; and that, since they are to hold for twoHon. Arnold W. Franklin, page 3 v-790

,.. years, it follows that the precinctscannot be

changed during the terms, because the power to alter them would practicallyenable the court to destroy the office. The languageof the constitutionexpressesno 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 ccontendedfor by the appelantwould require the Insertion in the constitutionof a provisowhich the courti

cannot read into it. The only limitation imposed serves to indicate the scope of the power. That limitationrequires 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 precinctsas 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 equallyplain, The language 'fromtime to time, for the convenienceof the ,people,'

clearlymeans that the convenienceof the people, as judgedby the court, shall control In determiningthe time when a dlvlsion is proper. The phrase 'fromtime to time' repels the 2des that it was the purpose to fix any particulartime.

"If it shouldbe urged that the provisions contemplatea complete,and not a partial, amaLon, the answer La that, in effect, they are the
samee When two precinctsare made out of one, or the boundariesbetween two are changed and defined, leaving all of the othersunchanged, 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 substantialobjection to such Bctlon. The power to establishthe precinctsdoes~.not necessarily conflictwith 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 offfcerswhose compensation is derived from perquisites,and therefore'depends to some bxtent on the territoryLn 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 subiectHon. 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 boundariesof the unchangedprecticta,as well as those changed. As no form of procedure is preascribed,

there could be no substantialobjection to such action. The power to establish the precinctsdoes not necessarily conflictwith the provision fixing the terms of orrice. They must stand together. The office is taken subject to the power to change the boundariesof the precincts. This is no anomaly in our law. All county officerswhose compensationis derived from perquisites,

and thereforedepends 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 contractbetween 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 attentionto the followinglanguageused in the latter case:

“The attemptednominationof a candidate for constableof new precinctNo. 1 before it comes into existenceis 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. Robbinsv. Parker, 147 Iowa, 69, 125 N: W. 856.

*Meek8 insiststhat, being a resident of old precinctNo. 1, and having received aHon. Arnold W. Franklin, page 5 p-790

this order, is that, when the new Precinctscome Into existence.all creclnct officeswill be vacant and the commissioners’ court will be chargedwith 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 vestedwith certain rights in reference thereto, being entitledto hold the same and receive the emolumentsand compensationsincident 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 respectiverights are not to be determinedby the applicationof the general rules of contracts of employment. So that it Is universallyheld that In the absence of some inhibFtionby some superior law, the governingbody may abolish the office or change the compensationto 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 compensationcannot be made to apply to ‘, servicesalready rendered.‘I

In view of the foregoingwe are of the opinion that the Commissioners’

Court of Atascosa County is authorized to abolish existing justice precinctsand create new justiceprecinctscomposed of the territory of existingprecinctswhich are abolished at any time for the convenienceof the people, But of course there rmst be at least four and not more than eight justiceprecincts in the county at all times. The terms of office of all officers of such abolishedand changed precinctswill ipso facto terminateand the officers of the newly created precinctsumst be appointedby the Commissioners’ Court.

SUMMARY

The CommissLoners’ Court may abolish old justlceprecinctsand re-dlvlde the county Into new justiceprecinctsat any time, so long as there Is,

a mlnlxmm of four and not more than eight justiceprecincts In the county. When such justiceprecinctsare abolished the offices In the old precbnctsbecome vacant and the officers of the newly created justiceprecincts.: .,

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

uust be appointedby 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