April 25, 1974

The Honorable Lynn Cooksey District Attorney 412 Texas Blvd. Texarkana, Texas 7550 1

Dear Mr. Cooksey: Opinion No. H- 282

Re: Whether Articles 2.04b and

2.05 of the Election Code require that boundaries ofcounty election and commissioners precincts be made to conform to city ward and election precinct boundaries

You have asked whether it is mandatory, under Articles 2.04b and 2.05 ofthe Election Code, Vernon’s Texas Civil Statutes, for the commissioners court to change the boundaries 02existing county election and commissioner precincts to conform tothe boundaries ofnewly formed city wards and election districts within the city of Texarkana.

You advise that inAugust of 1969, the commissioners court reestablished all election precincts ofthe county in accordance with Article 2.04 oftheElection Code. Within the city ofTexarkana, which has a population in excess of 10,000 and is divided into six city wards, four wards, because ofthe excessive number ofqualified voters, were each divi.ded into two county election precincts. The city councilmen were elected at large and not from one man wards or precincts.

InJanuary, 1972, the Commissioners Court reformed commissioners precincts to conform to the one-man, one-vote mandate ofthe United States Supreme Court. New commissioner precinct lines were made to oonform tothe then existing election precinct lines.

In December of 1972, the city council ofthe city of Texarkana made drastic changes in the boundaries ofall six ofthe city wards in order to absorb newly annexed areas and togive each ward an equal number in population. In February of 1973, the city **council,** in calling for an election

p* 1314The Honorable Lynn Cooksey, page 2 (H-282)

for city officers, provided for twelve new city election precincts, dividing each ofthe six new wards into two election precincts.

You state, “The new city election precincts bear little resemblance tothe previously established county election precincts. ” Apparently the boundaries ofnine ofthe twelve new city election precincts do not coincide with county election precinct boundaries and the city has requested the comtiissioners court to change the boundaries ofthe county election precincts within the city to conform tothe new city wards and city election precincts.

Article 2.04 ofthe Election Code provides, in part:

“(a) Each county shall be divided into convenient election precincts by the Commissioners Court ofthe county, each ofwhich precincts shall be differently numbered and described by natural or artificial boundaries or survey lines by an order entered upon the minutes ofthe Court. At any July or August term, the Court may make su.ch changes in the election precincts as they deem proper, by such order entered upon the minutes ofthe Court. When such an order is entered, they shall immediately thereafter publish in some newspaper in the county for three consecutive weeks anotice ofthe entry of such order, giving abrief description in general terms ofthe changes made, without the necessity of including in such notice the field notes or other detailed description ofthe precinct boundaries. Ifthere be no newspaper in the county, thencopy of such order shall be posted in some public place in each election precinct in the county which is affected by the order.

“(b) No election precinct shall be formed out of two or more justice precincts or commissioners precincts,
nor out ofthe parts oftwo or more **justice** precincts or commissioners precincts; and noelection precinct shall be formed out oftwo or **more** congressional districts or

p. 1315The Honorable Lynn Cooksey, page 3 (H-282)

state senatorial districts or state representative districts, nor out ofthe parts oftwo or more such districts. IfinSeptember of any year there exists any election precinct inthe county which does not comply with the fore~going requirements, the commissioners court shall make the necessary changes before the first day of October, either at a **regular** meeting or at aspecial meeting called for that purpose; and the order shall be published as provided in Paragraph (a) ,ofthis section. Subject to the provisions ofthe first sentence ofthis paragraph,
no election precinct shall have resident therein less than LOOnor more than 2000 voters as ascertained by the number ofregistered voters for the last preceding presidential general election year; provided, however, that in precincts inwhich voting machines
or devices have been adopted for use inaccordance with Section 79or Section 80ofthis Code, the maximum number ofvoters shall be 3000. There shall be aminimum ofone election precinct wholly contained within each commissioners precinct. ” (Acts 1973, 63rd Leg., ch. 542, p. 1408).

“(c) Incities and towns having ten thousand or more inhabitants, each ward shall constitute an election precinct unless there shall reside in said ward
more than two thousand qualified voters. In such cities and towns , no precinct shall be made out ofparts oftwo wards; and noprecinct shall include territory outside the corporate Li.mi.ts ofthe city or town unless the Commissioners Court finds that adjacent unincorporated territory is so situated that it cannot be formed into or i,ncluded within an election precinct wholly outside t~hecit:y, of suitable size and shape and containing
asuitable number ofvoters. Ifthe Commissioners Court finds this condition to exist, it may include such territory inaprecinct or preci,ncts formed within the ciiy or town, and the Iindin,=ofthe Commissioners Court shall be conclusive. ” (Acts 19671 60th Leg., ch. 723, p. 1863).The Honorable Lynn Cooksey, page 4 (H-282)

Article 2.05 provides:

“The election precincts for municipal elections and the location ofthe polling place in each precinct shall be designated by the governing body ofthe municipality. The governing body may combine two or more county election precincts into one municipal precinct, but shall not include parts ofone county precinct in more than one municipal precinct. The certified list ofqualified voters for all county election precincts inwhich voters reside who are tovote ata polling place designated by the governing body shall be used at such polling place. Inall cities and towns in which the number ofvoters at the last general municipal election does not exceed four hundred in number, only one polling place shall be-opened at any municipal election; and all officers ofsuch cities and towns to be elected shall be voted for at such polling place. ”

Also pertinent is language ofArticle 5, $18, oftheTexas Constitution which requires that each county in the State be divided from time totime

“for the convenience ofthe people ” into not less than four nor more than ei.ght precincts to be occupied byajustice ofthe peace and aconstable and, in like manner, into four commissioners precincts.

As we construe the statute, it was the intent ofthe Legislature that the county election precincts coincide as much as possible with the city wards. This normally would be achieved by cooperation between the two. Ifacooperat,ive effort fails to provide the needed changes, then, one must first look tothe Constitutions ofthe United States and ofthis State todetermine which local governmental entity is required to make the necessary adjustments.

Any scheme for districting acounty into commissioners districts is subject tothe mandates ofAvery v. Midland County, 390 U.S. 474 (1968) inwhich the one-man one-vote requirement ofReynolds v.Sims, 377 U.S. 533 (1964) applied toapporti,onments for local government as well as state legislatures.

p* 1317The Honorable Lynn Cooksey, page 5 (H-282)

“Although the forms and functions of local government and the relationships among the various units are matters ofstate concern, it is now beyond question that aState’s political subdivisions must comply with the Fourteenth Amendment

. . . .

“When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance or local charter, it must insure that those qualified tovote have the right toan equally effective voice in the election process. . . .” (390 U.S. at 480)

InAttorney General Opinion H-32 (1973) we held that the holding of Averv v. Midland County, supra, applied tothe election of commissioners and that itwas not permissible for the members ofthe commissioners court tobe apportioned among single-member distr’ic ts ofsubstantially unequal population.

The county government also has a state constitutional duty to draw boundaries for commissioner precincts and justice ofthe peace precincts. Texas Constitution, Article 5, 518. To the extent that acity election precinct crosses justice ofthe peace and commissioner precinct lines and thus would require the redrawing ofthese constitutionally mandated districts, the city is under an obligation to revise its precinct boundaries toavoid the conflict. You have not advised us whether this is the situation in Bowie County.

It is our opinion, in this case, that the city has the primary duty to draw its precinct lines to conform tothose ofthe county. Ofcourse, since election precincts are the building blocks onwhich larger districts are constructed, it may be possible that some cities whose councilmen are elected by the voters ofaparticular district would have aconstitutional duty toalter their precinct lines inan effort to conform tothe one-man, one-vote principle. According tothe facts you have. submitted, that is not the situation in this case.

p. 1318The Honorable Lynn Cooksey, page 6 (H-282)

SUMMARY

A county is not required toalter its election precincts, which were drawn in contemplation of Avery v. Midland County, to conform to the election precincts ofacity which does not elect its councilmen by individual districts. Very truly yours,



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JOHN L. HILL / / Attorney General of Texas

DAVID M. KENDALL, Chairman Opinion Committee

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