Untitled Texas Attorney General Opinion ( 2002 )

*- OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
February 12,2002
The Honorable Tom Ramsay Opinion No: JC-0462
Chair, County Affairs Committee
Texas House of Representatives Re: Effect on a constable’s duties when his precinct
P.O. Box 2910 is abolished by redistricting (RQ-0432-JC)
Austin, Texas 78768-2910
Dear Representative Ramsay:
You inquire about the duties of a constable whose precinct was abolished as a result of
redistricting and who has been has been reassigned to another precinct in which an elected constable
serves. Article V, section 18(c) of the Texas Constitution provides that a constable serves out his
term in the precinct in which he resides, even though the precinct to which he was elected was
abolished by a change of boundaries or his continued service temporarily results in extra constables
serving in a precinct. The constable’s legal duties and powers are not changed by the change of
boundaries, and the commissioners court continues to set his salary and expenses and to approve the
appointment of his deputies as it did before the precinct boundaries were redrawn.
You inform us that the Bexar County Commissioners Court recently accomplished a
redistricting of the justice of the peace and constable precincts.’ The constable of precinct five was
elected to a four-year term in the year 2000 and his term began in 2001. Longoria Letter, supra note
1, at 1. In August of 2001, the commissioners court redrew the precinct boundary lines, effectively
abolishing constable precinct five, and placed the constable of precinct five in precinct one. Id. The
court then designated the constable of precinct one as the constable of the newly drawn precinct one
in Bexar County. Id. Your questions relate to the duties of the constable elected to the abolished
precinct five.
Article V, section 18(a) authorizes the commissioners court of each county to divide the
county into precincts, the number of precincts depending upon the population classification
applicable to the county. Id. 9 18( a ) ( i.e., counties with a population of 50,000 or more shall be
‘Letter from Honorable Tom Ramsay, Chair, County Affairs Committee, Texas House of Representatives, to
Honorable John Cornyn, Texas Attorney General (Sept. 12, 2001) ( on file with Opinion Committee) [hereinafter
Request Letter]; Letter from Honorable John A. Longoria, Texas House of Representatives, to Honorable Tom Ramsay,
Chair, County Affairs Committee, Texas House of Representatives (Sept. 5,200l) (on file with Opinion Committee)
[hereinafter Longoria Letter].
The Honorable Tom Ramsay - Page 2 (JC-0462)
divided into not less than four and not more than eight precincts, counties with a population of
18,000 or more but less than 50,000 shall be divided into not less than two and not more than eight
precincts). Under this provision, the commissioners court may redraw precinct boundaries as needed
for the convenience of the people. State ex rel. Dowlen v. Rigsby, 17 Tex. Civ. App. 171,43 S.W.
271 (Tex. Civ. App. 1897), writ reyd, 91 Tex. 351,43 S.W. 1101 (Tex. 1897)per curiam. With
certain exceptions, one justice of the peace and one constable are elected in each precinct to a four-
year term of office. See TEX. CONST. art. V, § 18(a) (circumstances where two or more justices of
the peace may be elected in a precinct).
When the commissioners court redraws precinct lines, some of the county’s commissioners,
justices of the peace and constables may no longer reside in the precincts to which they were elected.
See Harris County Comm ‘rs Court v. Moore, 420 U.S. 77 (1975) (abstention doctrine invoked in suit
by justices of the peace and constables displaced by boundary changes because of unsettled state law
issues). The Texas Supreme Court determined in Tarrant County v. Ashmore, 635 S.W.2d 417,421
(Tex. 1982), cert denied, 459 U.S. 1038 (1982), that justices of the peace and constables who were
removed from office by the redrafting of precinct boundary lines had no claim for salaries for
the unserved portion of their terms. However, article V, section 18 of the Texas Constitution as
amended now provides that a justice of the peace or constable whose precinct is abolished by the
redrafting of precinct lines will serve out the term for which he or she was elected. See TEX. CONST.
art. V, 8 18(c).
Pursuant to a 1983 amendment, article V, section 18 of the Texas Constitution provides that
when the boundaries of the precincts are changed, each justice and constable in office or elected to
a term of office shall
serve in the precinct in which the person resides for the term to which
each was elected or appointed, even though the change in boundaries
places the person’s residence outside the precinct for which he was
elected or appointed, abolishes the precinct for which he was elected
or appointed, or temporarily results in extra Justices or Constables
serving in a precinct. When, as a result of a change of precinct
boundaries, a vacancy occurs in the office of Justice of the Peace or
Constable, the Commissioners Court shall fill the vacancy by
appointment until the next general election.
TEX. CONST. art. V, 5 18(c); Act ofMay 19,1983,68thLeg., R.S., 1983 Tex. Gen. Laws 6721,6722
(adopted Nov. 8, 1983); 1985 Tex. Gen. & Spec. Laws, Votes on Proposed Amends. to Texas
Constitution 1875-l 985, App., at C- 19. Other sections of this amendment authorize certain counties
to have fewer justices of the peace and constable precincts than formerly. See FISCAL NOTE, H. J.R.
No. 91, 68th Leg., R.S. (1983). Subsection 18(c) provides for a transition in office for justices of
the peace, constables, and county commissioners each time their precinct boundaries are changed.
The Honorable Tom Ramsay - Page 3 (JC-0462)
See TEX. LEG. COUNCILINFO.REP. No. 83-4, ANALYSIS OFPROPOSEDCONSTITUTIONAL AMENDMENTS
APPEARINGON Nov. 8,1983 BALLOT, at 8 (Aug. 1983); see also TEX. Lot. GOV’T CODE ANN. 4
81.021(b) (Vernon 1999) (preserving the term of office of commissioner, justice of the peace, or
constable when a precinct boundary change places the officer’s residence outside the precinct for
which he or she was elected); Tex. Att’y Gen. LO-93-45 (when precinct boundaries are changed,
article V, section 18(c) of the Texas Constitution requires that each incumbent will serve in the new
precinct in which he or she resides on the effective date of the change).
The constable of former precinct five and the elected constable of precinct one are now both
serving in precinct one. Your questions relate to the rights and duties of the constable of former
precinct five in his new precinct.
You first ask what the constable’s duties are as constable of precinct one. No provision of
law changes a constable’s duties in a precinct where two constables are temporarily serving because
of a boundary change. A constable is a peace officer within article 2.12 of the Code of Criminal
Procedure and therefore has the various powers and duties assigned by statute to peace officers. See
TEX. CODE CRIM. PROC. ANN. art. 2.12(2) (Vernon Supp. 2002); see also id. arts. 2.13 (duties of
peace officers); 6.05-.07 (Vernon 1997 & Supp. 2002) (p revention of threatened injuries and deaths).
Chapter 86 of the Local Government Code sets out the duties specifically required of constables.
Section 86.021 of the Local Government Code requires a constable to execute and return “each
process, warrant, and precept that is directed to the constable and is delivered by a lawful officer.”
See TEX. Lot. GOV’T CODE ANN. 8 86.021(a) (Vernon Supp. 2002); see also id. (b)-(d) (additional
responsibilities in service of process). Each constable in precinct one is authorized to serve the
papers directed to him by a district or county court, see TEX. R. CIV. PROC. 15 (Vernon 1979), or by
the commissioners court, see TEX. LOC. GOV’T CODE ANN. 8 81.022(a) (Vernon 1999). Section
86.021 also provides that the constable “shall attend each justice court held in the precinct.” Id.
9 86.02 1(e). In the usual case, there is one constable in each justice precinct, and one constable will
attend each justice court in the precinct. See TEX. CONST. art. V, 9 18(a) (one justice of the peace and
one constable elected in each precinct, except that in precincts and counties with certain population
characteristics, two or more justices may be elected). We believe it will be consistent with section
86.021 of the Local Government Code if one of the two constables in precinct one attends each
justice court in precinct one. Seegenerally Tex. Att’y Gen. LO-98-101 (constable must attend each
session of justice court, whatever may be the purpose for which the court is sitting).
You ask what rights and responsibilities the constable has in directing the activities of
deputies in the “new” precinct. Article V, section 18 of the Texas Constitution does not provide that
the deputy constables in the former precinct five will serve in precinct one with the elected constable.
Accordingly, if the constable of former precinct five wishes to have a deputy or deputies subordinate
to him, he must apply to the commissioners court pursuant to section 86.01 l(a) of the Local
Government Code, showing that it is necessary to appoint a deputy to handle the business of the
precinct and stating the name of the proposed deputy in the application. See TEX. Lot. GOV’T CODE
ANN. 5 86.01 l(a) (Vernon 1999). The commissioners court “shall approve and confirm the
The Honorable Tom Ramsay - Page 4 (JC-0462)
appointment of the deputy only if the commissioners court determines that the constable needs a
deputy to handle the business originating in the precinct. ” Id. If the commissioners court authorizes
a deputy for the constable, the constable will have the usual rights and responsibilities’in directing
the activities of that deputy. See id. 8 86.01 l(b), (c),* see also 35 DAVID B. BROOKS, COUNTY AND
SPECIAL DISTRICT LAW 9 20.10 (Texas Practice 1989 8z Supp. 2001). He will not have a right to
direct the activities of deputies assigned to the other constable of precinct one.
You ask what salary the constable is to receive. A constable’s salary and expenses are set
by the commissioners court pursuant to chapter1 52, Subchapter B of the Local Government Code
at the appropriate time in the county budget cycle. See TEX. LOC. GOV’T CODE ANN. 8 152.011 -.013
(Vernon 1999). This mode of salary-setting applies whether the individual is constable of precinct
five or of precinct one. See generally Ector County v. Stringer, 843 S.W.2d 477,479 (Tex. 1992);
Vondy v. Comm’rs Court of Uvalde County, 714 S.W.2d 417 (Tex. App.-San Antonio 1986, writ
ref d n.r.e.); Tex. Att’y Gen. Op. No. JC-0389 (2001) (salaries of constables must reflect their duties
under statute).
The constable’s legal duties and powers are not changed when precinct five is abolished and
he becomes a constable of precinct one. Each constable in precinct one receives the salary and
expenses allocated by the commissioners court. See generaZZy Tex. Att’y Gen. Op. No. JC-0389
(2001) (authority of commissioners court to determine salaries for constables). Each constable
supervises the deputies whose appointment has been approved by the commissioners court. There
will be issues of a practical nature about allocating the work in the precinct between the two
constables with identical powers and duties, but these are not resolved by statute.
The Honorable Tom Ramsay - Page 5 (JC-0462)
SUMMARY
Pursuant to article V, section 18(c) of the Texas Constitution,
a constable will serve out his term of office in the precinct in which
he resides when the precinct to which he was elected was abolished
by a change of boundaries, even though his continued service
temporarily results in extra constables serving in a precinct. The
legal duties and powers of a constable are not changed by the
abolition of the precinct to which he was elected through the
redrawing of precinct boundaries. The commissioners court continues
to set the constable’s salary and expenses and to approve the
appointment of his deputies as it did before the precinct boundaries
were redrawn.
JOHN CORNYN
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee