### TIEE AYITORNES GENERAL OP1\EXAS

Hon. Roger Gorrell County Attorney Bailey County Hulashoe, Texas 79347 Opinion No. M- 606
Ke: Several questions concerning election orecincts. and reDear Mr. Gorrell: lated quektions, which arise **by** reason of redefining the boundaries of the County Commissioners Precincts of Bailey County.
In **your** office concerning recent **letter** requesting an opinion 

### of this election questions raised by the redistricting

. . __- of your county **conmwisloners** precinctsyou set out tne follwing 

### factsand questionswhich we quote as follows:

"On December 30, 1969 three citizens **of** 

### Bailey County sued the CommissionersCourt of 

### Bailey County to re-district **the county**  **commissioners** precincts in linewith the decision of the United States Supreme Court in Midland County versus Avery. "TheCommissioners Court then held a series of meetings and passed 

### an Orderto be effective January 19, 1970 re-districting this county to comply with **the rules**  laid down ia the Supreme Court Case, "On February 10, 1970 **the four**  commissioners filed an answer in the above law suit. This law 

### suithas nw beendismissed,and thereis no **litigation** pending. 1,



### ...TheCommissioners **Court** 

### has not asyet passedamotionredefiningelection 

### precinctsas we werewaiting for the July **or** August Term 

### as prescribed in the Election 

### Code,Article2.04, SectionA.

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"The County was re-districted and the Order 'passed**so** as to leave all **four** commissioners in then new precincts. We do not have a contest in Precinct 2, but do have a contest in Precinct 4, .whereboth the incumbent and his opponent live in the boundary of old commissionersprecinct 4, and will both reside within the boundary of the new commissionersprecinct' 4, as passed by motion on January 19, 1970. "The questionswe have are:. "a. Are persons living in the new commissionersprecincts 2 and 4 authorized to vote in the May Primary and run off if any? "b.Must the Commissioners **Court** wait until its July or Auguet Term to pass a motion redefining county election precincts?

**“ C.**  If the Commissioners Court passes **an** Order at the July or **August** Term redefining county election precincts,how will this affect the General Election in **November** taking into consideration the apparent conflict between Section E of Article 2.04 **of** the Election Code and SectionA **of** Article 2351 l/2 in the Second Sentence thereof?" Article 2.04 of the Texas Election Code reads in part as follows:

"(a) Each county shall be divided into convenient election precincts by the Commissioners Court **of** the county, each of which precincts shall be differently numbered and described by natural or artificial boundaries or survev linesbv an order entered upon the minutes of the Court. A^tany July or Augustterm, the Court may make such changes in the election precincts as they deem proper, bv such order entered upon the minutes of the Court.
... "(b) No election precinct shall be forrnsd out of two or more justice precincts or commissioners precincts, nor out of the parts of two **or more**  justiceprecincts or commissionersprecincts;

....

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If in Septemher of anyyear there exists any election precinct in the county which does not comply wi-ththe foregoing requirements, the commissioners court shall make the necessary changes before the first day of **October,** either at a regularmeeting or at a specialmeeting called for that purpose; ... II

.... "(efChanges in election precincts shall **not become**  operative in the holding **of** elections until the beginning of the followingvoting 

### year. The CommissionersCourt shall cause to be made **out** and delivered to the County Tax Collector before the first day of each September a certified copy of such last order 

### for the year following;provided, hwever, that any order entered during the **month of**  September, as provided in Paragraph (b)of this Section, ,shallbe delivered to the Tax Collector f orthwdttg." (Underscoringadded). Article 5.01 and 5.02 of the Texas Election Coda set out the requirements for voting. Article 5.01 denies suffrage to certain classes of persons, but 

### ia otherwise not relevant to the questions before us: **Article** 5.02 reads as follows:

“Art. 5.02. Every person **subject** to none of the foregoingdisqualificationswho shall have attained the age of twenty-oneyears and who shall be a citizen of the United 

### Statesandwho shall have resided in this state one year next preceding an election 

### and the last six months within the district or 

### countyin which such 

### personoffers **to** vote, and who shall have registered as 

### a **voter,** shall **be** deemed a qualified elector. **No** 

### pason shall be permitted to 

### vote unless he has registered in accordancewith **the** provisions of this code. The provisions of this **section, as**  modified **by** Sections 35 and 39 of this code, shall apply to all elections, whether held **by** the state, **by a**  county, municipality, **or** other political subdivision of the state, or by a political party." (Underscoringadded).
We answer your first question as follows. **All persons,**  otherwise qualified as voters, who have residedwithin the county for six months immediatelypreceding the election, may

**-2895-**Hon. Roger 

### Gorrell,Page 4 (M-606)

vote in the May primary and run-off, if any. **Voters** in

. the newly created commissionersprecincts vote for the **county** commissioner **of** the commissioner'sprecinct in which the voter is a resident, even though election precincts cross the newly created commissionersprecincts.

Article 2.04 sets **out** the time for making changes in election precincts and contains similar wording as 

### former Article 2933, Vernon's Civil Statutes. These changes may be made only during the July and August terms of the Court, and during the month 

### of September,**in the**  **year** 1970. Article 2.04, Election Code; Wilson v. Weller, 214 S.W.ld 473 (Tex.Civ.App.1948); Hogg v. Campbell 48 S.W.ld 515 **h~.Ci~.App.** 1932). Your second questio; is therefore answered in the affirmative.

In answer to your third question, you are advised **that** the changes **in** election precincts do not become operative until the beginning of the followingvoting year. **Articles** 2.04(e) and 5.14a, Texas Election Code. Counties~ have been held to be subject to the one-man vote rule, and no substantialvariation may exist **from** equal population 

### in drawing districts 

### forunits of local government **having** general governmentalpowers 

### over the entire geographic area served by the body. **(1968).** Avetyv. Kidland County, 390 U.S. **474**

Election rxecmcts changes or substantialvariations are not involved in this 

### matter.- SUMMARY ------- **After** 

### theCountyCommissioners precincts of Bailey County 

### were redefined as to boundaries 

### in January 1970: (a) Voters in the newly created commissioners precincts vote for the county commissioner of the counnissioner's

precinct in which the voter is a resident. Election Code, Art. 5.02. (b) Changes in the boundaries of county election precinctsmap he made only during the July and August terms of the Court and the **month** of September, 1970. Election Code, Art. 2.04, (cl **These** changes in boundaries of election precincts do not **become** effective until the following voting year. Election Code, Art. 2.04(e), 5:14(a).

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### Hon.RogerGorrell,Page 5 (M-606)

ey Generalof 

### Texas Preparedby WilliamJ. **Craig Assistant**  

### AttorneyGeneral APPRDVED: OPINIONCCHMXTTEE KernsTaylor,Chairman W. E.Allen,ActingCo-Chairman John Banks Rexwhite RalphRash GlennDrown MEADEF. GRIEFIN StaffLegalAssistant
ALFREDMAXXER ExecutiveAssistant NOLAWHITE FirstAssistant

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