Untitled Texas Attorney General Opinion ( 1942 )

Honorable Ernest Guinn
County Attorney
El Paso County
El Paso, Texas
Dear Sir:
Opinion No. O-4425
Re: Does the action of the Com-
missioners’ Cou,rt in changing
the boundaries and/or the
numbers of the election pre-
cincts within the county in
accordance with the law (Arti-
cle 2933, R.C.S.) create a
vacancy in the office of party
precinct committeemen who
have been duly elected as the
kiw directs (Article 3118, R.~C.S.)
when such precinct committee-
men have not moved their resi-
dence ? Would a vacancy exist
‘_ if the Commissioners’ Court’s
action resulted in the placing of
two such duly elected precinct
committeemen fin the same new
election precinct who, nevertheless,
have not changed their residences ?
Your letter of February 12, 1942, requesting the opinion of this depart-
ment upon the above questions, omitting the formal parts, is set out below:
“The Commissioners’ Court, in accordance with Article 2933
of the Revised Civil Statutes, changed the boundaries of many of
its election precincts. As,a result thereof, there are a number of
precinct committee-men, elected under the terms of Article 3118,
who fall within the boundaries of newly numbered election precincts.
For example, the committee-man elected for election precinct No.
15 noti resides in election precinct No. 12 with somewhat changed
boundari.es. He has not, of course, changed his residence, the change
.
Honorable Ernest Guinn, Page 2 O-4425
being entirely caused by the action of the Commissioners’ Court
under Article 2933.
“Is the committee-man in question entitled to represent
Precinct No. 12 as the executive committee-man, or is there a
vacancy existing which necessitates the appointment of a new
committee-man, in accordance with Article 31181 The committee-
man, of course, elected for old election Precinct No. 12 now falls
within an entirely different precinct.
“In the event that you hold that the man elected as pre-
cinct committee-man may continue to act as such for the precinct
in which his residence falls under the new boundaries, what action.
should be taken in case the reformation of the precinct boundaries
and the re-numbering of the precincts results in two committee-
men, whose residences have not been changed, falling within the
same election precinct?
“It is my opinion that the proper construction of the two
Articles in question, to-wit: Article 3118 and Article 2933, r~esults
in the conclusion that a change in the election precincts necessitates
the appointment of new members for each of the changed precincts.
“In a number of cases, the election precincts were changed
in number only and not in boundaries, would this make a difference ?
“It is my opinion that a change in the numbers of the pre-
cincts ,would not necessitate a new appointment, but that the commit-
tee-man elected for such precinct wouldcontinue to se.rve.”
The.answer.to your ques.tions necessarily involves an analysis and
construction of the two statutes cited in your letter. For your easy reference
in connection with the discussion that follows they are here sat down in full:
“Art. 2933. Each~ comm&sioners court may, if they deem
it proper, at each August fer~m of the’~cbu’rt, divide their respective
counties, and counties attached thereto for judicial purposes, into
convenient election precincts, each of which shall be differently
numbered and w,. ed
~~ by natural or artificial boundaries or sur-
vey lines by an order%0 be entered upon the minutes of the court.
They shall immediately thereafter publish such order in some news-
paper in the county for three consecutive weeks. If there be no news-
paper in the county, then such copy of such order shall be posted in
I -
Honorable Ernest Guinn, Page 3 O-4425
some public place in each precinct in the county. No election precinct
shall be formed out of two or more justic~e precincts; .nor out of the parts
of two or more justice precincts. The commissioners court 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 fol-
lowing.”
“Art. 3118. There shall be for each political party required by
this law to hold primary elections for nominations of its candidates, a
county executive coi-omittee. to be composed of a county chairman, and
one member for each election precinct in such county; the committeeman
from such election precinct shall be chairman of his election precinct,
and the said county chairman shall be elected on the general primary
election day; the county chairman by the qualified voters of the whole
county, and the precinct chairman by the qualified voters of their respec-
tive election precincts. Said county and precinct chairman shall assume
the duties of their respective offices on Saturday following the run-off
primary immediately after the committee has declared the~‘results of the
primary election.. Said county chairman shall be ix-officio a member of
the executive comniittei of all districts of which his county is a part,~and
the district committee thus formed shall elect its own chairman. Any va-
cancy in the office of chairman, county or precinct, or any member of
such committee shall be filled by a majority vote of said executive com-
mittee. The list of election precinct chairman and the county chairnien
so elected, shall be certified by the county convention to the county
clerk, along with the other nominees of said party. If there are no ‘re-
quests filed for candidates for county and precinct chairman, a b~lank
space shall be left on the ticket beneath the designation of such position.”
The questions propounded by you present an interesting situation and
one which so far as our search reveals has not been directly passed upon by any
opinions of this department previously rendered. We think.that your request of
this department might be fairly considered from either one of two viewpoints.
The first is that under the broad powers conferred by the Constitution upon politi-
cal parties, or reserved by that instrument to the people and the organizations
through which they choose to express their political will (Constitution of Texas,
Article I, Sections 2, 27 and 29), the question of whether or not vacancies exist
.under the circumstances described by you is a question of fact to be considered
and decided by the party executive committee of the county in the light of all the
facts relating to the subject. The Attorney General’s Department is not required
and could not reasonably be expected to pass upon questions of fact and as a mat-
ter of poil~y it does not attempt to do so for the understandable reason that all
the facts which should be considered could not be known to this department, as
Honorable Ernest Guinn, Page 4 O-4425
well as it could to the persons immediately involved and because they
could not be presented here as fully as they could to a fact finding body
such as a jury or court under proper rules of evidence.
The other viewpoint is that your questions involve matters
of law which require an interpretation of the powers and duties of com-
missioners’ courts and of the authority and privileges of political party
organizations under our Constitution and our statutes as they relate to
your particular problem. This is the view that we prefer to take, since
we wish to be of whatever assistance we can to you, you are entitled to
have the benefit of our interpretation of the law, and any doubts about
the matter we think should be resolved in your favor.
We begin our discussion with the pertinent cons$itutional
provisions, first as to the commissioners’ court:
Article V, Section 18. Each organized county in the
State now or hereafter existing, shall be divided from time to
time, for the convenience of the people, into precincts, not less
than four and not more than eight. The present County Courts
shall make the first division. Subsequent divisions shall be
made by the Commissioners’ Court, provided for by this Consti-
tution. In each such precinct there shall be elected at each bien-
nial election, one justice of the peace and one constable, each of
whom shall hold his office for two years and ,until his. successor
shall be elected and qualified; provided that in any precinct in
which there may be a city of 8000 or more inhabitants, there shall
be elected two justices of the peace. Each county shall in like man-
ner be divided into four rommissioner’s precincts in each of which
there shall be elected by the qualified voters thereof one county
commissioner, who shall hold this office for two years and until
his successor shall be elected and qualified. The county commis-
sioners so chosen, with the county judge, as presiding officer,
shall compose the County Commissioners Court, which shall ex-
ercise such powers and jurisdiction over all county business, as
is conferred by this Constitution and the laws of the State, or as
may be hereafter prescribed.” (Underscoring ours)
The above Article describes the general powers of the com-
missioners’ court, and taken together with Article 2933, supra, describes
thenparticular powers of such commissioners’ court as they relate to your
questions. As may later. appear in detail herein, the powers of the com-
missioners’ court are clearly shown to be limited powers.
Honorable Ernest &inn, Page 5 O-4425
Next we .take up the provisions of our Constitution which
the courts have held are to be applied to political party organization.
These provisions are found in the Bill of Rights.as follows:
“ARTICLE I, SECTION 2. All political power is in-
herent in the people, and all free governments are founded
on their authority, and instituted for their benefit. The
faith of the people of Texas stands pledged to the preserva-
tion of a republican form of government, and, subject to
this limitation only, they have at all times the inalienable
right to alter, reform or abolish their government in such
manner as they may think expedient.”
“ARTICLE I, SECTION 27. The citizens shall have
the right, in a peaceable manner, to assemble together for
their common good; and apply to those invested with the
powers of government for redress of grievances or other
purposes, by petition, address or remonstrance.”
“ARTICLE I, SECTION 29. To guard against trans-
gressions of the high powers herein delegated, we declare
that everything in this ‘Bill of Rights’ is excepted out of
the general powers of government, and shall forever remain
inviolate, and all laws contrary thereto, or to the following
provisions, shall be void.”
As you see, the powers and privileges here conferred, re-
served, or safeguarded are not limited and the Constitution expressly
forbids the restriction of such powers or any interference with the
lawful and peaceful exercise thereof. The courts of Texas have with
uniformity applied these constitutional provisions to political party or-
ganizations and have held, as will more fully appear hereafter, that
not even the Legislature has the right to interfere with the broad powers
thus conferred upon them, though the Legislature may provide for the
manner in which party nominees shall be elected, regulate the manner
in which they shall hold a primary and pass such directory legislation
regarding ~the organization of their committees as that contained.in
Article 3118, supra.
We pass now to a review of some of the reported court
opinions bearing upon these Articles of the Constitution and the stat-
utes. The courts of this State have confirmed the power of the commis-
s~ioners’ court to divide their respective counties and the counties
Honorable Ernest Guinn, Page 6 O-4425
attached thereto for judicial purposes into election precincts, pro-
vided that in so doing they follow the directions of the statute (Arti-
cle 2933, R.C.S.). But these opinions hold that the commissioners’
courts are strictly limited by such statute and must keep their ac-
tion in this respect within the meaning, purpose and intent of the
statutes. See Dubose v. Wood, Civ. App., 162 S.W. 3; WiUiams v.
Woods, Civ. App., 162 S.W. 1031; Hogg v. Campbell (Civ. Ape.),
48 S. W. (2d) 515.
Having satisfied ourselves that the commissioners’ courts
may change the election precincts, we must now ascertain whether
such court in the exercise of this power may .remove a political party
precinct chairman by altering the numbers or the boundaries of his
precinct, thus “moving his precinct out from under him” so to speak.
In Bell, et al. v. Hill, County Clerk, et al., 74 S. W. (2d)
113, the Supreme Court of Texas, speaking .through the late Chief
justice Cureton, in a scholarly opinion in which he quotes extensively
from De Tocqueville’s “Democracy in Americaa and from Story on
the Constitution, Vol. 2, Sections 1893 and 1894, lays down the follow-
ing rule:
1. “Right to organize and maintain a political party
is guaranteed by Bill of Rights and legislative power re-
specting political parties is limited to legislation secur-
ing public peace and good order and to making effective
the right of assembly, petition, etc., as guaranteed by
Bill of Rights. (Const. Art. I, Sections 2, 27, 29).”
2. “Every privilege essential or reasonably appro-
priate to exercise of right to organize and maintain a
political party is guaranteed. under Bill of Rights includ-
ing privilege of determining policies of party and its mem-
bership (Const. Art. I, Sections 2, 27, 29).”
We quote a few sentences from this opinion in the language of
Justice Cureton:
“Since the right to organize and maintain a political
party is one guaranteed by the Bill of Rights of this State,
it necessarily follows that every privilege essential or
reasonably appropriate to the exercise of that right is
likewise guaranteed, including, of course, the privilege of
Honorable Ernest Guinn, Page 7 O-4425
determining the policies of the party and its membership.
.Without the privilege of determining the power of a politi-
cal association and its membership, the right to organize
such an association would be a mere mockery. We think
these rights; that is, the right to determine the membership
of a political party and to determine its poli&ies, of necess-
ity are to be exercised by the state convention of such party,
and cannot, under any circumstances, be conferred upon a
state or governmental agency,”
In Grovey v. Townsend, 295 U. S. Rep;.,. the Supreme Court
of the United States in an opinion written by Justice Roberts quotes fav-
orably from the Bell v.Hill case, supra, and gives the endorsement ‘of
the highest court in our Nation to the principles there enunciated in the
following paragraph quoted from the opinion:
Y. a . The Supreme Court of the state has decided,
in a case definitely involving the point, that the legisla-
ture of Texas has not essayed to inte,rfere, and indeed
may not interfere, with the constituti&al liberty of citi-
zens to organize,= party and to determine the qualifica-
tions of its members. If in the past the legislature has
attempted to infringe that right and such infringement has
not been gainsaid by the courts, the fact constitutes no
reason for our disregarding the considered decision of
the state’s highest court. The legislative assembly of
the state, so far as we are advised, has never attempted
to prescribe or to limit the membership of a political
party, and it is now settled that it has no power so to do.
The state, as its highest tribunal holds, though it ~has
guaranteed the liberty to organize political parties, may
legislate for their governance when formed and for the
method whereby they may nominate candidates, but must
do so with full recognition of the right of the party to ex-
ist, to define its membership, and to adopt such policies
as to ii shall seem wise. In the light of the principles SO
announced, we are unable to characterize the managers of
the primary election as state officers in such sense, that
any action taken by them in obedience to the mandate of
the state convention respecting eligibility to participate
in the organization’s deliberations, is state action.”
Honorable Ernest Guinn, Page 8 O-4425
Corpus Juris Secundum in Vol. 29, page 117, Section 86,
citing opinions from states other than Texas, some of which will be
more fully examined hereinafter, goes even more directly to the
point here under consideration as follows:
“Mere boundary changes, subsequent to election,
which place the residence of committeemen in a town-
ship or ward different from that which they were elected
.Q not effect the term of the incumbent. the absence
of statutory provisions specifying the leng? h of a term of
a partyco,mmit.t.ee. or governing committee rules to the
contrary, the presumption is that the members of such
committee are to continue to serve from their election
until the next primary election, unless they resign, die
or are removed for cause.”
We believe that no further authority is necessary in order
to answer your questions but there ar.e decisions of other jurisdiction
which go more nearly to the heart of your problem and because of
their persuasive force, and perhaps clarifying effect, we advert briefly
to two of them.
In In Re Prospect Park Borough Election Dists., 146 A.
28, the Supreme Court of Pennsylvania held that decree of Court of
Quarter Sessions, in the exercise of its power under Const. Art. 8,
Section 11, to divide Boroughs into election districts, that the two exist-
ing districts of a borough be divided into five in a specified manner, did
not operate to abolish the old district with the effect of terminating the
tenure of one previously elected to the constitutional office of minority
inspector of one of the two original districts.
In Williamson, et al v. Killough. Judge, 46 S. W. (2d) 24,
the Supreme Court of Arkansas speaks as follows:
“While the members of the committee are elected in
the township or city ward in which they reside, they be,come.
upon their election members of the county committee, and
the authorities appear to be unanimous, that after such elec-
tion, the right to discharge the functions of a committeeman is
not affected by a subsequent change of boundary lines which
would place the residence of the committeemen in another
township or ward, and this change of lines doe,s not automatical-
ly or otherwise affect the incumbent, but the committeeman, if
Honorable Ernest Guinn, Page 9 O-4425
he remains otherwise eligible, continues as such until his suc-
cessor is elected pursuant to the provisions of the law regulat-
ing the election,”
In this same case the Arkansas Supreme Court quotes from
an opinion of the Supreme Court of Minnesota speaking through Mr. Jus-
tice Mitchell as follows:
“In our opinion an order redistricting a county is merely
prospective in its operation as to the election and qualifications
of members of the board of commissioners, and inno way af-
fects the right to the office of those previously elected. There
is nothing in the language of the statutes to indicate that a redis-
tricting is intended to have any retrospective operation.” Norwood
v. Holden, 45 Minn. 313, 47 N.W. 971, 912.
The Arkansas Court then refers to the case of Olsen v. Merrill,
5 P. (2d) 226, where after an extensive review of the authorities it was held
by the Supreme Court of Utah that members of the Board of Education of
cities of the second class are entitled to serve as members of the board for
the remainder of their terms notwithstanding an ordinance redistricting the
city placed them outside the boundaries of the municipal ward for which they
were elected. The Arkansas Court then cites a long line of authorities and
appends this comment:
“It is true these are cases where officers were removed
by changes in lines from the wards or district or township in
which they were elected, whereas in the instant case the com-
mitteemen are not officers, but that fact does not affect the
legal principles which control. The controlling legal principle
is that the committeemen were elected at an election made
legal by the primary election law, and for a definite time, not
yet expired, and it is true also that upon their election they
became county committeemen, although elected by townships
or wards. Their functions are not confined to the township or
ward in which they reside, but they, in conjunction with other
committeemen similarly elected, are~committeemen for the
county, and changes in the lines of their townships or wards
do not affect their eligibility, for the reason that such changes
are prospective in their nature so far as the incumbents af-
fected are concerned. We find~no divisions in the authorities
on this subject.”
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Honorable Ernest Guinn, Page 10 O-4425
Therefore you are respectfully advised that it is the consid-
ered opinion of this department that the commissioners’ court by redistrict-
ing the election precincts of your county did not cause or create vacancies
in the offices of po.litical party precinct comm,itteemen even though such
redistricting changed the numbers and the boundaries of some of the old
precincts so that the residences of some of the committeemen are now in
.differently numbered or differently bounded precincts. Our opinion is
still the same even though two precinct chairmen of old precincts now
find their residences within the boundaries or numbers of the same pre-
cinct. We think these committeemen unless otherwise disqualified would
be entitled to retain their county executive committee membership until
the next general primary election, at which time precinct committeemen
should be elected in the manner and from the precincts provided by the
statutes (Art. 3118. R.C.S.).
Very truly yours
ATTORNEY GENERAL OF TEXAS
By (S) ROBT. F. CHERRY’
Robert F. Cherry
Assistant
APPROVED APR 8.1942
GRQVER SELLERS
.. -
FIRST ASSISTANT
ATTORNEY GENERAL APPROVED
Op.inion Committee
RFC:LM By B. W. B.
Chairman