Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN ATTORNEY GENERAL
Honorable H. W. Hooper County Attorney Yookum County Plains, Texas
Dear Sir:
Opinion No. 0-2114 Re: Has the Commissioners Court the authority to establish a new justice precinet without regard to whether the present justice requires within the bound of the newly organized justice precinet?
Your recent request for an opinion of this department upon the above stated question has been received.
We quote from your letter as follows:
"The following circumstances have arisen in Yoakum County. A justice of the Peace was duly elected for Precinet 2 last summer. He has made bond and qualified by taking the oath of Office. He was killed by the Grand Jury last month in two counts for Forgery. He is supposed to have broken his neck some time ago and is now in the Veterans Hospital in Amurillo where he will probably remain for man months. His precinet includes a vast oil field, thousands in population, and his docket is copjested.
"Either through inability or through unwillingness he has refused to act. Efforts have been made to get him to resign which he refuses to do unless the Forgery counts are dismissed which is, of course, out of the question. An emergency exists.
*2 Honorable H. M. Hooper, Page 2 "I have advised the Commisgioners Court that since there are only 4 justice preoincts in the county, they have a perfect right to, for the public benefit create a new justice preoinct composing the east one-half of the preoinct for which this man is Justice. A Commissioner contends that this cannot be done and a new Justice appointed for the reason that the Present Justice resides in the said east one half of the present preoinct. "I have based my opinion on Article V, Section 18 of the Constitution, as well as upon articles 2351, 2377, and 5970, and the decisions cited thereunder. "I would appreciate your opinion as to whether the Commisgioners Court has the authority to establish such preoinct without regard to whether the present Justice resides within the bounds of the newly organized preoinct."
Article 5, Section 18 of the Constitution, and Article 2351, subdivision 1, Vernon's Annotated Civil Statutes require the Commisgioners' Court of each oounty to lay off the county into justice preoincts not less than four nor more than eight in number.
The case, State v. Rigaby, 43 S. W. 271, holds in effect that the Commisgioners' Court in the exercise of its powers may merge two preoincts into one or may re-define the boundaries of the two preoincts of a county, leaving the other preoincts unchanged.
The case, Hasting, et al v. Townsend, County Attorney, 136 S. W. 1143, holds among other things, that the Commisgioners' Court has power to change the boundaries of the justice preoinct at will.
The case of Brown v. Meek, 96 S. W. (2d) 839, holds that "the Commisgioners' Court has power, when law-
*3 Honorable H. M. Hooper, Page 3
fully exercised to pass an order re-districting the county into new justice of the peace precinets to become effective in the future and that the Commissioners' Court has power to create new justice precinets for the convenience of the people."
Furthermore, changes may be made in the territory of the precinet during the term of office of an elected justice. Texas Juris., Vol. 26, p. 793. (Also see the case of Ward v. Bond, 1058. W. (2d) 590.)
In view of the foregoing authorities, the Commissioners' Court has the power and authority to merge justice precinets, re-define the boundaries of said precinets, etc., at any time within the discretion of the Commissioners' Court, provided that the number of justice precinets shall not be less than four nor more than eight in number in any county. In the event the Commissioners' Court establishes a new justice precinet composed of the east one-half of the present precinet No. 2, and gives or assigns a new and different precinet number to said newly established precinet, there would be no justice of the peace for said precinet, notwithstanding the fact that the present justice of the peace of precinet No. 2 resides in the new precinet. The Commissioners' Court would be authorized by virtue of Article 2355 to appoint a justice of the peace for the new precinet.
We are enclosing herewith a copy of our opinion No. 0-2361, touching a on a vacancy in the office of justice of the peace.
Trusting that we have fully answered your inquiry, we are
Very truly yours
ATTORNEY GENERAL OF TEXAS
Amelutition
By
Ardell Williams
Assistant
AW100