Case Information

*1 April 25, 1974 Lynn Cooksey Opinion No. H- 282 District Attorney

412 Texas Blvd. Re: Whether Articles 2.04b and Texarkana, Texas 7550 1 2.05 of the Election Code require

that boundaries of county election and commissioners be made to conform to city ward and Dear Mr. Cooksey:

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

You advise that in August of 1969, the commissioners re- established all election of the county in accordance with Article 2.04 of the Election Code. Within the city of Texarkana, which has a population in excess of 10,000 and is divided into six city wards, four wards, because of the excessive number of qualified voters, were each divi.ded into two county election The city councilmen were elected at large and not from one man wards or precincts.

In January, 1972, the Commissioners Court reformed commissioners to the one-man, one-vote mandate of the United States Supreme Court. New commissioner lines were made to oonform to the then existing lines.

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

p* 1314 *2 for city officers, provided for twelve new city election precincts, dividing each of the six new wards into two election precincts.

You state, “The new city election precincts bear little resemblance to the previously established county election precincts. ” Apparently the boundaries of nine of the twelve new city election precincts do not coin- cide with county election precinct and the city has requested the comtiissioners to change the boundaries of the county precincts within the city to the new city wards and city election 2.04 of the Election Code provides, in part:

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

“(b) No election shall be formed out of two or more justice or commissioners precincts, nor out of the parts of two or more or justice commissioners precincts; and no election shall be formed out of two or congressional

state senatorial or state representative districts, nor out of the parts of two or more such districts. If in September of any year there exists any election in the county which does not comply with the fore~going requirements, the commis- sioners shall make the necessary changes before the first day of October, either at a regular meeting or at a special meeting called for that purpose; and the order shall be published as pro- vided in Paragraph (a) ,of this section. Subject the provisions of the first sentence of this paragraph, no election shall have resident therein less than LOO nor more than 2000 voters as ascertained by the number of registered voters the last pre- ceding presidential general year; provided, however, that in precincts in which voting machines or devices have been adopted for use in accordance with Section 79 or Section 80 of this Code, the maxi- mum number of voters shall be 3000. There shall be a minimum of one election wholly con- tained within each commissioners precinct. ” (Acts 1973, 63rd Leg., ch. 542, p. 1408).

“(c) In cities and towns having ten thousand more inhabitants, each ward shall constitute an elec- tion precinct unless there shall reside in said ward than two thousand qualified voters. In such cities and towns , no precinct shall be made out of parts of two wards; and no precinct shall include territory outside the corporate Li.mi.ts of the city or town unless the Commissioners Court finds that adjacent unincor- porated territory is so situated that it cannot be formed into or i,ncluded within an election precinct wholly out- side t~he cit:y, of suitable size and shape and containing a suitable number of voters. If the Commissioners Court finds this condition to exist, it may include such territory in a precinct or preci,ncts formed within the ciiy or town, and the Iindin, = of the Commissioners Court shall be conclusive. ” (Acts 19671 60th Leg., ch. 723, p. 1863). *4 2.05 provides:

“The election for municipal elections and the location of the polling place in each precinct shall be designated by the governing body of the muni- cipality. The governing body may combine two or county election into one municipal precinct, but shall not include parts of one county in more than one municipal precinct. The certified list of qualified voters for all county election in which voters reside who are to vote at a polling place designated by the governing body shall be used at such polling place. In all cities and towns which the number of voters at the last general muni- cipal does not exceed four hundred in number, only one polling place shall be-opened at any municipal election; and all officers of such cities and towns be elected shall be voted for at such polling place. ” Also pertinent is language of Article 5, $ 18, of the Texas Constitution which requires that each county in the State be divided from time to time “for the convenience of the people ” into not less than four nor more than ei.ght precincts to be occupied by a justice of the peace and a constable and, into four commissioners in like manner,

As we construe the statute, it was the intent of the Legislature that the county coincide as much as possible with the city wards. This normally would be achieved by cooperation between the two. If a cooperat,ive effort fails to provide the needed changes, then, one must first look to the Constitutions of the United States and of this State to deter- mine which local governmental entity is required to make the necessary ad- justments.

Any scheme for districting a county into commissioners is subject to the mandates of Avery 390 U.S. 474 (1968) in which the one-man one-vote requirement of Reynolds v. Sims, 377 U.S. 533 (1964) applied to apporti,onments local government as well as state legislatures.

p* 1317 *5 “Although the forms and functions of local government and the relationships among the various units are matters of state concern, it is now beyond question that a State’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 the election of local officials from districts specified by statute, ordinance local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process. . . .” (390 U.S. at 480) In Attorney General Opinion H-32 (1973) we held that the holding Averv supra, applied to the election of commissioners and that it was not permissible for the members of the commissioners to be apportioned among single-member distr’ic ts of substantially unequal population.

The county government also has a state constitutional duty to draw boundaries for commissioner and justice of the peace precincts. 5, 5 18. To the extent that a city election Texas Constitution, crosses justice of the peace and commissioner lines and thus would require the redrawing of these constitutionally mandated districts, the city is under an obligation to revise its precinct to avoid 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 to those of the county. Of course, since are the building blocks on which larger are constructed, it may be possible that some cities whose councilmen are elected by the voters of a particular district would have a constitutional duty to alter their precinct lines in an effort to the one-man, According to the facts you have. submitted, that is not one-vote principle. the situation in this case.

SUMMARY A county is not required to alter its election precincts, which were drawn in contemplation Avery to the election of a city which does not elect its councilmen by individual districts.

Very truly yours, I . $&&2&? CA

JOHN L. HILL / / Attorney General of Texas DAVID M. KENDALL, Chairman

Opinion Committee