Untitled Texas Attorney General Opinion ( 1973 )

TEE ATTORNEY GENEIRAL
OFTEXAB
AwrrxN. TEEXAH vu711
September 5, 1973
Honorable David R. White Opinion No. H- 97
County Attorney
i20 East North St Re: Effect of county redistricting
Uvalde, Texan 78801 upon unexpired term6 of
county commi66ionerr and
Dear Mr. White: upon local option 6tatur
Your letter of May 17, 1973, advise6 that ‘Uvalde County i6 in the
proce66 of redirtricting it6 county Commi66ioner6 PrecinctE”, and make6
the following inquirier:
“Que6tion No. 1. Our Commi66ioner6, of course.
are elected for a four year term a6 provided in Article
5-18 of the Texar Con6titution. I would al60 refer you
to Attorney General Opinion in 1945. No. o-6905. When
thi6 redi6tricting i6 done will our commi66ionerr 6erve
out their term6, even though 6ome of them do not live
in their new dirtrict?
“Quertion No, 2. What happen6 if we included a
portion of the County which ir dry with a portion of the
County which i6 wet in there new dirtrictE?”
Question No. I i6 controlled by Article 2351 l/2 (b). V. T. C. S., which
provider:
‘l(b) When boundarier of commi66ionerr precinct6 are
changed, the term6 of office of the~commirrioner6 then
in office 6hall not be affected by ruch change, and each
commi66ioner rhall be entitled to 6erve for the remain-
der of the term to which he wa6 elected even though the
change in boundarie6 may have placed hi6 rs6idence out-
ride of the precinct for which he WPE elected.”
p. 444
)1
.
.
The Honorable David R. White, page 2 (H-97)
The rtatute codified the controlling case law in exi6tence in 1965
when it wa6 adopted. In Childrers County v. Sach6e. 310 S.W.2d 414
(Tex. Civ. App. , Amarillo, 1958, writ ref’d. n. r. e. 1, the Court determined
that, where the redistricting of a county placed an incumbent County
Commi66ioner outside of hi6 precinct, the Commi66ioner had a legal
right to hold office until hi6 term expired. The Supreme Court of Texa6,
in refu6ing the application for writ of error [ChildreEs County v. Sachse,
158 Tex. 371, 312 S.W.2d 380 (1958)]. 6pecifically approved of the Court
of Civil Appeals’ holding by saying:
” . . . We approve the holding of the Court of Civil
Appeal6 that change6 in precinct boundaries do not
create a vacancy in the office of County Commi66ioner
or deprive the incumbent of the right to hold office for
the remainder of hi6 term, even though by rearon of
6uch change6 hi6 re6idence i6 not within the precinct
a6 redefined. 310 S.W.2d 414. ”
Accordingly, the answer to your firat question i6 that, after redia-
tricting, your present commi66ioner6 may 6erve out their re6pective term6
of office without relriding in the newly e6tablirhed precincts.
Your 6econd inquiry involve6 the effect of redistricting upon wet or
dry territory e6tabli6hed by previou6 local option election6.
Article 16 5 20 of the Texa6 Constitution provide6 the authority for
local option elections. Article 666-32 of the Texa6 Penal Code implement6
the con6titutional provision. The general rule ie that where the voter6. by
an election, have adopted a local option 6tatu6, 6ubEequent reorganization
of the area with new boundaries doe6 not affect the local option 6tatu6 within
the territory originally encomparred by the election. Houchins v. Plainor,
130 Tex. 413, 110 S.W.2d 549 (1937); Bullington V. Lear, 230 S.W.2d 290
(Tex. Civ. App., El Pa6o, 1950, no writ); Goodie Goodie Sandwich v. State,
138 S.W.2d 906 (Tex. Civ.App., Daila6, 1940, writ dirm’d., jmnt.cor.);
Ex Parte Pollard, 51 Tex. Grim. 448, 103 S.W. 878 (1907). And ree Attorney
General Opinion H-59 (19733 \
p. 445
The Honorable David R. White, page 3 (H-97)
You are therefore advised that area6 affected by redistricting will
retain their wet or dry status until changed by a new election called for
that purpose.
SUMMARY
L. After the redistricting of Uvalde County, the
present county commissioner6 may serve out their
term6 of office without residing in the new precinct6
established by such redistricting.
2. Area6 affected by redistricting will retain
their wet or dry status enjoyed prior to any redi6tricting
action of the commissioners court.
Very truly yours,
u Attorney General of Texa6
APPROVaD:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 446
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