Does redistricting cut short a Texas justice of the peace's four-year term?

Plain-English summary

When a Texas county commissioners court redraws justice of the peace precinct lines, some sitting justices can end up living outside the precinct they were elected to, or in a precinct that no longer exists at all. A state representative asked the Attorney General, against the backdrop of a Dallas County redistricting, whether that can shorten a justice's term: can a justice of the peace elected to four years be forced to run again the next year because of redistricting?

The Attorney General said no. The answer turned on article V, section 18(c) of the Texas Constitution, a provision the voters added in 1983. Before that amendment, the Texas Supreme Court had held that justices and constables who lost their seats to boundary changes had no claim even to the salary for the rest of their terms. The 1983 amendment changed that result. It says each justice and constable in office or elected to a term "shall serve in the precinct in which the person resides for the term to which each was elected," even if the boundary change moves the officer's residence out of the old precinct, abolishes that precinct, or temporarily leaves extra justices serving in one precinct. So a justice elected to four years keeps the four years; he or she simply serves them out in whatever new precinct now contains the residence. The justice does not have to resign and stand for reelection early. The opinion added the mechanics: if redistricting creates a new precinct where no justice lives, that is a vacancy the commissioners court fills by appointment until the next general election, and the justice's salary, office space, and equipment continue under the usual Local Government Code provisions.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The opinion rests on the text of article V, section 18 of the Texas Constitution as it stood in 2002; confirm the current constitutional and statutory text before relying on any rule here.

What the opinion meant for those who asked

Sitting justices of the peace (what the opinion held for them): The opinion held that a justice elected to a four-year term keeps the full term and serves it out in the precinct where he or she resides when the boundary change takes effect, even if the old precinct is abolished. The justice is not required to resign and run again early.

Commissioners courts that redraw precincts (what the opinion held for them): The opinion held that incumbents carry over into the new precinct of their residence, and that a newly drawn precinct with no resident justice is a vacancy the commissioners court fills by appointment until the next general election.

Voters in a redistricted county (what the opinion held for them): The opinion described a system in which redistricting does not by itself trigger an early justice of the peace election; the sitting justice continues, and elections follow the normal schedule.

Common questions

My county just redrew the JP precincts and my justice no longer lives in the precinct I voted in. Does that justice lose the office?
Under this opinion, no. Article V, section 18(c) lets the justice finish the elected term, serving in the precinct where he or she now resides.

Can redistricting force a justice of the peace elected to four years to run again after only two?
The opinion concluded it cannot. The four-year term is preserved by the constitution; the justice serves it out rather than resigning to run early.

What happens if redistricting creates a precinct where no justice of the peace lives?
The opinion said that is a vacancy, and the commissioners court fills it by appointment until the next general election.

Does the justice keep the same pay and office after the lines move?
The opinion noted the justice's salary and expenses continue to be set by the commissioners court under the Local Government Code, and that a busy justice can request office space and equipment under section 291.004.

Background and statutory framework

Article V, section 18(a) of the Texas Constitution authorizes each county's commissioners court to divide the county into precincts, with the number tied to the county's population. Tex. Const. art. V, § 18(a). 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 ref'd per curiam, 91 Tex. 351, 43 S.W. 1101 (1897). Redrawing lines can leave commissioners, justices of the peace, and constables no longer residing in the precincts to which they were elected. See Harris County Comm'rs Court v. Moore, 420 U.S. 77 (1975).

Before 1983, the Texas Supreme Court held in Tarrant County v. Ashmore, 635 S.W.2d 417, 422 (Tex. 1982), cert. denied, 459 U.S. 1038 (1982), that justices and constables removed from office by redrawn boundary lines had no claim for salaries for the unserved portion of their terms. The voters then amended article V, section 18 to provide that when precinct boundaries change, each justice and constable in office or elected to a term "shall serve in the precinct in which the person resides for the term to which each was elected or appointed," even though the change places the residence outside the old precinct, abolishes the old precinct, or temporarily results in extra justices serving in a precinct; and that when a change of precinct boundaries causes a vacancy, the commissioners court fills it by appointment until the next general election. Tex. Const. art. V, § 18(c); Act of May 19, 1983, 68th Leg., R.S., 1983 Tex. Gen. Laws 6721, 6722, adopted Nov. 8, 1983. So a justice of a precinct abolished by redistricting is entitled to serve out the term in the precinct where he or she resides on the effective date of the change. See Tex. Att'y Gen. LO-93-045; Tex. Loc. Gov't Code Ann. § 81.021(b) (Vernon 1999).

The justice's salary and expenses continue to be set by the commissioners court under chapter 152, subchapter B of the Local Government Code. Tex. Loc. Gov't Code Ann. §§ 152.011-.013 (Vernon 1999). Section 291.004 provides that, if requested by a justice of the peace who handles an average of more than 50 cases a month over the preceding 12 months, the commissioners court "shall furnish the justice of the peace with suitable office space and necessary telephones, equipment, and supplies." Id. § 291.004(a). If the commissioners court establishes a new precinct in which no justice of the peace resides, it fills the vacancy by appointment until the next general election. Tex. Const. art. V, §§ 18, 28; Williams v. Castleman, 247 S.W. 263 (Tex. 1922); Tex. Att'y Gen. Op. No. H-564 (1975). No vacancy exists in any precinct in which a justice resides and continues in office under section 18(c).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, § 18(a)
• Tex. Const. art. V, § 18(c)
• Tex. Const. art. V, §§ 18, 28
• Tex. Loc. Gov't Code Ann. § 81.021(b) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. §§ 152.011-.013 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 291.004(a) (Vernon 1999)
• Act of May 19, 1983, 68th Leg., R.S., 1983 Tex. Gen. Laws 6721

Cases:

• State ex rel. Dowlen v. Rigsby, 17 Tex. Civ. App. 171, 43 S.W. 271 (Tex. Civ. App. 1897), writ ref'd per curiam, 91 Tex. 351, 43 S.W. 1101 (1897)
• Harris County Comm'rs Court v. Moore, 420 U.S. 77 (1975)
• Tarrant County v. Ashmore, 635 S.W.2d 417 (Tex. 1982), cert. denied, 459 U.S. 1038 (1982)
• Williams v. Castleman, 247 S.W. 263 (Tex. 1922)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0483
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0483.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

March 25, 2002

The Honorable Juan J. Hinojosa
Chair, Committee on Criminal Jurisprudence
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0483

Re: Whether the term of a justice of the peace may be reduced from four to two years as a result of redistricting (RQ-0447-JC)

Dear Representative Hinojosa:

You request an Attorney General Opinion about article V, section 18(c) and (d) of the Texas Constitution, concerning changes in precinct boundaries for certain elected officials. You ask whether a justice of the peace elected to a four-year term can be forced to run for reelection the following year because of redistricting.[1] Article V, section 18(c) of the Texas Constitution provides that a justice of the peace whose precinct is abolished by the redrafting of precinct lines will serve out the term for which he or she was elected in the precinct in which he or she resides when the redistricting becomes effective. See TEX. CONST. art. V, § 18(c). Thus, a justice of the peace elected to a four-year term is entitled to finish out that term, even though the precinct in which he or she is elected is abolished by redistricting.

Your question arises from the redistricting of justice of the peace precincts in Dallas County and concerns its effect on the justice of a precinct abolished in the redistricting process.[2] Article V, section 18(a) authorizes the commissioners court of each county to divide the county into precincts, the number depending upon the population classification applicable to the county. Each county with a population of 50,000 "shall be divided into not less than four and not more than eight precincts." See TEX. CONST. art. V, § 18(a) (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. See State ex rel. Dowlen v. Rigsby, 17 Tex. Civ. App. 171, 43 S.W. 271 (Tex. Civ. App. 1897), writ ref'd per curiam, 91 Tex. 351, 43 S.W. 1101 (1897).

When a 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, 422 (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 was subsequently amended to provide 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, § 18(c); Act of May 19, 1983, 68th Leg., R.S., 1983 Tex. Gen. Laws 6721, 6722, adopted Nov. 8, 1983; see 1985 Tex. Gen. Laws app. at C-19 (Amendments to the Constitution, Votes on Proposed Amendments to the Texas Constitution, 1875-1985).

Subsection 18(c) thus preserves the term of office of justices of the peace and constables when a precinct boundary change places the officer's residence outside the precinct for which he or she was elected. See TEX. LEG. COUNCIL, ANALYSIS OF PROPOSED CONSTITUTIONAL AMENDMENTS APPEARING ON NOV. 8, 1983 BALLOT, INFO. REPORT NO. 83-4, at 8 (Aug. 1983); see also TEX. LOC. GOV'T CODE ANN. § 81.021(b) (Vernon 1999). 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. See Tex. Att'y Gen. LO-93-045. Thus, the justice of the peace of a precinct abolished by redistricting is entitled by article V, section 18(c) of the Texas Constitution to serve out his or her term in the precinct in which he or she resides.

The justice's salary and expenses continue to be set by the commissioners court pursuant to chapter 152, subchapter B of the Local Government Code. See TEX. LOC. GOV'T CODE ANN. §§ 152.011-.013 (Vernon 1999); Tex. Att'y Gen. LO-98-067, at 6; LO-94-034. In addition, section 291.004 of the Local Government Code provides that, "[i]f requested by a justice of the peace of a county who handles an average of more than 50 cases a month during the 12 months preceding the date of the request, the commissioners court of the county shall furnish the justice of the peace with suitable office space and necessary telephones, equipment, and supplies." TEX. LOC. GOV'T CODE ANN. § 291.004(a) (Vernon 1999).

If the commissioners court establishes a new precinct in which no justice of the peace resides, it "shall fill the vacancy by appointment until the next general election." See TEX. CONST. art. V, §§ 18, 28; Williams v. Castleman, 247 S.W. 263 (Tex. 1922); Tex. Att'y Gen. Op. No. H-564 (1975). No vacancy exists in any precinct in which a justice of the peace resides and continues in office pursuant to article V, section 18(c) of the Texas Constitution. A justice of the peace elected to a four-year term is entitled to finish out his term, even though the precinct to which he or she is elected is abolished by redistricting. He or she is not required to resign from the office and to run for reelection instead of serving out his or her full four-year term.

SUMMARY

Pursuant to article V, section 18(c) of the Texas Constitution, a justice of the peace elected to a four-year term is entitled to serve out his or her term of office in the precinct in which he or she resides when the precinct to which he or she was elected is abolished by redistricting. The justice of the peace is not required to resign from the office and to run for reelection instead of serving out the full four-year term.

                              Yours very truly,

                              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

[1] Letter from Honorable Juan J. Hinojosa, Chair, House Committee on Criminal Jurisprudence, to Honorable John Cornyn, Texas Attorney General (Oct. 7, 2001) (on file with Opinion Committee).

[2] Letter from Judge Luis Sepulveda, Justice of the Peace, Dallas County, Precinct 6, Place 1, to Mr. John Dahill, Office of Dallas County District Attorney (July 19, 2001) (on file with Opinion Committee) (attached to Request Letter).