HonorableEd Keys

County Attorney Ward County Monahans, Texas

Dear sir: Opinion NO. c-500

Re: Whether a person presently residing In Commissioner’s PrecinctNo. 2, but who will be living In a new precinct
on January 1, 

## 1967, Is ellglble to run for Commlssloner of PrecinctNo. 2 in the 

## 1966 election,under the facts stated.

In your letter requestingan opinion on the aboveoaptlonedquestion,you state that the commissioners’ precincts in Ward County have been changed, effectiveJanuary 1, 1967, and that a8 a result of the precinctboundary changes some people presentlyresiding In Precinct 2 will reside in another precinct on the effectivedate of the changes. Quoting from your letter, you state further:

“Article23514, R.C.S., clearly states that perso s presently living in Precinct 2 but who wl

El~llve’lnanother precinct on said date can run for CommissionerIn their new oreclnct In the 1966 aeneral election. How- bver, the questlon I 6ave to pose Can the person presentlyresiding 2 but who will be living In a new on said date run for Commissioner Precinct 21”
Article 23513, Texas Revised In 

## 1965

(Acts 59th Leg., Civil Statutes,enacted



## 1965, ah. 664, p. 1523), reads in part as follows: is this: In Precinct precinct in 

## 1966

in

“(a) Whenever the Commissioners Court change8 the boundariesof commissionersprecincts or of ~justlce precincts, It may specifyHon. Ed Kefs, page 2 (C-580)

in its order a future date, not later than the first day of January followingthe next genera~l

election, on which the changes shall become effective. If an election for any precinct office Is held before the effective date of the order, the office shall be filled at the electionby the voters of the precinct
as It will exist on the effectivedate of the change In boundaries. A person who has resided within the territoryembraced in the
new boundaries for the, length of time required to be eligible to hold the offloe shall not be rendered ineligibleby virtue of the precinct'snot having been In exiatence for that length of time."

Article 1.05 of Vernon's Texas Election Code, as amended In 

## 1963,

provides in part as follows:

"NO person shall be eligible to be a candidate for, or to be elected or appointed to, any public office In this state unless he shall be eligible to hold such officeunder the Constitution

and laws of this state, and unless he Is a citizen of the United States and shall have resided In this state for a period of twelve montha next precedingthe date of any primary,general or special election at which he offers himself as a candidateor next preaedlng the date of his appointment,

a8 the case may be, and for any office which Is less than state-wide,shall have,residedfor six months next preceding such election in the district, county,precinct,municipalityor other political subdivision for whloh the office Is to be fllled~; provided,however, that the foregoingresidence requirementsshall not apply to any office for which the Constitutionor statutesof the United States or of this state prescriberesidence quallficat.lons

In conflictherewith,and In case of conflict the ~r~i+$one of such other laws shall control.

In Brown v. Weeks, 96 S.W.2d 839 (Tex.Clv.App. 

## 1936,

error dism.), th Commissioners Court of.Bexar County,prior to the primary election In 

## 1936, had entered an order changing

-2802-Hon. Ed Keys, page 3 (c-580)

the boundaries of the justiceprecinctsand had specifiedthat the ohangeswere to be effectiveas of January 1, 1937. The order further provided that the nominationand election of justiceprecinct officers In the 1936 elections should be In accordanoewith the precinctsas they would exist on and after January 1, 1937. In an election contest over the office of constable for new PrecinctNo. 1, the Court of Civil Appeals held that the portion of the order providing for the nomination and election of officers for the new precinctswas void, as It was not within the power of the commissioners court to authorize persons to become candidatesfor office and vote in a precinct to be created in the future. The basis for the,declslon Is stated In the followingquotation from the opinion, 96 S.W.2d at pp. 841-042:

“The Conktltutlon and statutes of this state, particularly ~artlale

2927, R.S. 1925 /iiow Article 1.05, Vernon’8 Texas Election code7,~prescrlbe the qualifications of canrldates. One of such quallflcatlons Is that a candidatefor officemust reside for six months in the precinct in which he attempts to become a candidatefor office. Certainly
no one Is at the present time a resident of
new precinct No. 1, for the very simple reason that this legal entity does not exist at the present tlme.’ It will not come Into existence,according to Its own terms, prior to January 1, 1937. Until that time no legal entity in the form of a new justiceprecinct 1s In existence.

“There can be no question as to the power of the commissioners1 court to create
new justiceprecincts,Prom time to time, for the convenienceof the people. **4i

“The commissioners’ court also has the power, when lawfully exercised,to pass an order redistricting the county into new justice of the peace precincta to become effective in the future. ***

“However,

when the commissioners’ court attempts to determinewho may become a candidate or vote in such new districts, It Is attemptingto legislateupon a subject over

-2803-Hon. EB Keys, page 4 (c-580)

which it has no jurisdiction. The Legislature of this state has fixed the quallflcatlona of candidatesfor the office of constable,or any other precinct officer, article 2927, R.S.1925, and the commissioners’ court cannot add to or take from these quallflcatlone.”

The holding in Brown v. Weeks wa8 applicableto commlssloners~

precinctsas well a8 justiceprecincts,

In our opinion, the purpose of paragraph (a) of Article 23513 Is to supply the legislativeauthority,found lacking In the Brown case, In accordancewmreolnct for the election of precinct officers boundarieswhich are to become effective in the future, and to make it clear that the precinct residencerequirementprescribedby Article 1.05 of the Election Code for seekingand holding the precinct offices shall be determined with reference to the boundariesof the precincts aa’tbey will exist tipon

the effectivedate of the changes. Thus, a fierson who on the date of the flrat primary election In 1966 will have resided for six months in the territoryembracedwithin new Commissioners’

PrecinctNo. 2 of Ward County will meet the precinct residence requirementto be a candidate for nominationfor commlssloner of that precinct,althoughhe may be living in a precinct of a differentnumber under the old designation. We do not find any indicationof an Intent to do away with the necessity for meeting the precinct residencerequirement as prescribedand clarified in these two statutes. A person living in territory comprised in old PrecinctNo, 2 but which Is transferredto some other precinctunder the new order will not meet the residence requirementfor commlssloner of new PrecinctNo. 2 and will not be eligible to run for that office.

SUWMARY

Where the commissioners court has adopted~
an order changing the boundariesof commissionera’ precincts,to become effectiveon January 1, 1967, the precinct residencerequirementfor running for county ccmnnisaioner in the 1966 elections Is to be determinedwith referenceto the boundariesas they will exist after the effectivedate of the order. A person residing in territorypresently comprised In Commlssloners

PrecinctNo. 2 but which Is transferred to some other precinctunder the new order will not meet the residencerequlrementfor commlssloner of new PrecinctNo. 2 and will not be eligible to run for that office In the 1966 electlons. Art. 1.05, Vernon’s Texas Election Code,, .

Hon. Ed Keys, page.5 (C-580)

and Art. 23514, Texas Revised Clvll~Statutes (Acts 59th Leg., 1965, ch. 664, p. 1523):

Yours very truly,

WAGGONER CARR Attorney General

Assistant

MKW:ra

APPROVED: OPINION COMMITTEE

W. V. Oeppert, Chairman John Reeves Dean Arrlngton Ralph Rash, Marietta Payne

APPROVEDFOR TRFi

ATTORNJZY

GENERAL BY: T. B. Wright

-2805-