Can Randall County have fewer than four justice of the peace precincts?

Plain-English summary

Texas counties are carved into justice of the peace and constable precincts, and article V, section 18(a) of the state constitution normally ties the number of precincts to the county's population. A constitutional amendment that the voters approved on November 2, 1999, changed two things at once, and the two changes seemed to point in opposite directions for Randall County. Representative John Smithee asked the Attorney General to reconcile them.

The first change, made during floor debate, added "and Randall County" to an existing clause that let Chambers County set its precincts "notwithstanding the population requirements," with not less than two and not more than six. Read alone, that gave Randall County the freedom to drop from four precincts to as few as two. The second change rewrote the section's last sentence to say that any county divided into four or more precincts on November 2, 1999, "shall continue to be divided into not less than four precincts." Randall County had four precincts on that date, so this sentence, read alone, locked it at four. The word had been "may" in the House version, but the Senate changed it to the mandatory "shall," and that is the version the voters adopted.

Faced with the apparent conflict, the opinion applied the rule that a constitutional construction should not render any provision inoperative. It read the specific mention of Randall County as a deliberate exception to the general four-precinct floor, so both provisions keep meaning: Randall County may go below four justice of the peace and constable precincts under its specific authorization. Smithee also asked whether Randall County could still keep four precincts for electing county commissioners. The opinion answered that it not only may but must, because article V, section 18(b) requires every Texas county, with no population brackets and no exceptions, to be divided into four commissioners precincts.

Currency note

This opinion was issued in 2000. 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.

What the opinion meant for those who asked

Representative John Smithee (what the opinion held): The opinion answered his two questions directly: Randall County could divide into fewer than four justice of the peace and constable precincts under the 1999 amendment's specific authorization, and it had to keep four commissioners precincts under article V, section 18(b).

Randall County officials (what the opinion held for them): The opinion held that the county had the option to reduce its justice of the peace and constable precincts below four, treating the constitutional reference to Randall County as a specific exception to the general four-precinct floor, while its four commissioners precincts were mandatory.

Other Texas counties with four or more precincts (what the opinion held for them): The opinion read the amendment's last sentence as a general rule that a county divided into four or more justice of the peace and constable precincts on November 2, 1999, must stay at no fewer than four, absent a specific constitutional exception like the one for Chambers and Randall Counties.

Common questions

Could Randall County reduce its number of justice of the peace precincts?
Yes. The opinion concluded the 1999 amendment named Randall County in a clause letting it set precincts without regard to population, so it could go below four even though it had four when the amendment passed.

Doesn't the constitution say counties with four precincts must keep four?
It does as a general rule, the opinion explained, but it read the specific addition of Randall County as an exception to that general floor so that both provisions remain operative.

Did "may" or "shall" end up in the constitution?
The opinion noted the Senate changed the House's "may" to "shall" before the measure went to the voters, making the four-precinct floor mandatory for counties not carved out by a specific exception.

Does this change the number of county commissioners precincts?
No. The opinion held that article V, section 18(b) requires every county to have four commissioners precincts, with no population brackets and no exceptions, so Randall County must keep four.

Background and statutory framework

Article V, section 18(a) of the Texas Constitution governs how counties are divided into justice of the peace and constable precincts, generally as a function of population. The 76th Legislature's amendment, approved November 2, 1999, both raised the population brackets and added "and Randall County" to the existing "notwithstanding the population requirements" clause that had applied to Chambers County (the clause allows not less than two and not more than six precincts) (H.J. of Tex., 76th Leg., R.S. 1548 (Apr. 29, 1999)). The same amendment added a final sentence: "Notwithstanding the population requirements of this subsection, any county that is divided into four or more precincts on November 2, 1999, shall continue to be divided into not less than four precincts" (Tex. Const. art. V, § 18(a)). The engrossed House version of House Joint Resolution 71 had used "may," but the Senate amended it to "shall" and the House concurred (Tex. H.J. Res. 71, 76th Leg., R.S. (1999); S.J. of Tex., 76th Leg., R.S. 1881 (May 18, 1999)). "Shall" is mandatory unless legislative intent indicates otherwise (Albertson's Inc. v. Sinclair, 984 S.W.2d 958 (Tex. 1999)).

To reconcile the two provisions, the opinion applied the rule against rendering any constitutional provision inoperative (Spradlin v. Jim Walter Homes, Inc., 9 S.W.3d 473 (Tex. App.-Dallas 2000, pet. filed)) and treated the specific reference to Randall County as an exception to the general last-sentence rule (Oakley v. State, 830 S.W.2d 107 (Tex. Crim. App. 1992) (en banc); Clapp v. State, 639 S.W.2d 949 (Tex. Crim. App. 1982) (en banc)). On the second question, article V, section 18(b) requires that "[e]ach county . . . shall be divided into four commissioners precincts," with no population brackets, so every county, and Randall County in particular, must remain divided into four.

Citations

Constitutional provisions:

• Tex. Const. art. V, § 18(a)
• Tex. Const. art. V, § 18(b)

Cases:

• Albertson's Inc. v. Sinclair, 984 S.W.2d 958 (Tex. 1999)
• Spradlin v. Jim Walter Homes, Inc., 9 S.W.3d 473 (Tex. App.-Dallas 2000, pet. filed)
• Oakley v. State, 830 S.W.2d 107 (Tex. Crim. App. 1992) (en banc)
• Clapp v. State, 639 S.W.2d 949 (Tex. Crim. App. 1982) (en banc)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0217
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0217.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

May 4, 2000

The Honorable John T. Smithee
Chair, House Committee on Insurance
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0217

Re: Whether Randall County may be divided into fewer than four justice of the peace and constable precincts (RQ-0156-JC)

Dear Representative Smithee:

You ask this office to interpret article V, section 18(a) of the Texas Constitution as amended by vote of the people on November 2, 1999. In particular, you wish to know whether Randall County, Texas may divide itself into fewer than four justice of the peace and constable precincts under this article. We conclude that, although as of November 2, 1999, Randall County was divided into four such precincts, it may nevertheless do so.

As you point out, article V, section 18(a) of the Texas Constitution governs the division of the counties of Texas into justice of the peace and constable precincts. Generally, such division is a function of population. In the 76th Texas Legislature, article V, section 18(a) was amended so as to increase such population brackets. Before its amendment, the section read in part, "Notwithstanding the population requirements of this subsection, Chambers County, from time to time, for the convenience of the people, shall be divided into not less than two and not more than six precincts." TEX. CONST. art. V, § 18(a) (amended Nov. 2, 1999). During the floor debate on the amendment, the words "and Randall County" were added to this provision. H.J. OF TEX., 76th Leg., R.S. 1548 (Apr. 29, 1999). This addition formed part of the amendment approved by the people on November 2, 1999. Accordingly, had there been no other relevant amendments to section 18(a), then upon the adoption of the amendment by the people, Randall County would unquestionably have had the right to reduce the number of its precincts from four to two if it wished to do so.

However the issue is complicated by the addition of yet another amendment to the section. As approved by the voters, the last sentence of section 18(a) now reads, "Notwithstanding the population requirements of this subsection, any county that is divided into four or more precincts on November 2, 1999, shall continue to be divided into not less than four precincts." TEX. CONST. art. V, § 18(a). Pursuant to this sentence, any and all counties which were divided into four or more precincts as of the date the amendment passed must remain divided into at least four precincts. Randall County, as you inform us, is such a county.

You point out that the engrossed version of House Joint Resolution 71, sent from the House to the Senate, read in pertinent part, "any county . . . may continue to be divided into not less than four precincts." See Tex. H.J. Res. 71, 76th Leg., R.S. (1999) (engrossed version). However, you further note that an amendment changing the term from "may" to "shall" was made and passed on the Floor of the Senate and that the House concurred. See S.J. OF TEX., 76th Leg., R.S. 1881 (May 18, 1999). Thus, it was the "shall" language which was submitted to and approved by the electorate. Accordingly, the "shall" language is the law of Texas.

"Shall" in this sentence is clearly mandatory rather than permissive. See Albertson's Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999) ("shall" generally construed as mandatory unless legislative intent suggests otherwise). Therefore a county may not be divided into fewer than four precincts if it were not so divided before November 2, 1999.

We are therefore presented with the question of how to resolve this seeming contradiction. As a general matter, when interpreting the Texas Constitution, we must attempt to avoid a construction that renders any provision inoperative. See Spradlin v. Jim Walter Homes, Inc., 9 S.W.3d 473, 475 (Tex. App.-Dallas 2000, pet. filed). Here we may avoid treating the addition of Randall County to the Chambers County provision as inoperative by treating it as a specific exception to the general rule of the last sentence, see Oakley v. State, 830 S.W.2d 107, 110 (Tex. Crim. App. 1992) (en banc); Clapp v. State, 639 S.W.2d 949, 952 (Tex. Crim. App. 1982) (en banc). Accordingly, we conclude that Randall County, pursuant to the specific authority provided it by article V, section 18(a) of the Texas Constitution, may divide itself into fewer than four justice of the peace and constable precincts.

You further ask whether, should it so divide itself, Randall County may still retain four precincts for the purpose of electing county commissioners. We conclude that it not only may, but must do so. Article V, section 18(b) of the Constitution provides that, "Each county . . . shall be divided into four commissioners precincts." There are no population brackets in section 18(b). Every county in Texas, from Harris County to Loving County, is so divided. Accordingly, Randall County must remain so divided.

SUMMARY

Randall County, pursuant to the specific authority provided it by article V, section 18(a) of the Texas Constitution, may divide itself into fewer than four justice of the peace and constable precincts. However, pursuant to article V, section 18(b), it must remain divided into four commissioners precincts.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee