Bill CHENAULT, et al., Petitioners, v. BEXAR COUNTY, Bexar County Commissioners Court, et al., Respondents, 782 S.W.2d 206

OPINION ON MOTION FOR REHEARING RAY, Justice. Respondents’ motion for rehearing is granted in part and overruled in part. The opinion and judgment of April 19, 1989 are withdrawn and the following is substituted. At issue is the constitutionality, of a county commissioners court’s order that abolished three justice of the peace places in Bexar County. Bill Chenault and Betty Ann Esquivel filed separate suits challenging the order (Justice Abolition Order), alleging that it was void because it violated

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section 65 of the Texas Constitution. The two cases were consolidated and tried to the court. The trial court denied Chenault and Esquivel all relief and held that the order did not violate the Texas Constitution. The court of appeals affirmed. 747 S.W.2d 400. We reverse the judgment of the court of appeals and render judgment in favor of Chenault and Esquivel. In October 1985 the Bexar County Commissioners Court redistricted all of the county’s justice of the peace precincts and created new justice precinct places.

In December of 1985 the commissioners court abolished one of the justice of the peace places in each precinct that had two justices. Precincts 1, 2, and 3 each had two justices of the peace. The decision to abolish one of the justice of the peace places in precincts 1, 2 and 3 was motivated by at least two factors. First, the commissioners court had to meet projected budget shortfalls for the upcoming years. Also, after considering accounting studies and analyzing case loads in each precinct, the commissioners court determined that one justice place in each precinct met the needs of the local population.

On December 19, 1985, the commissioners court passed the Justice Abolition Order which abolished the place 2 positions in precincts 1, 2, and 3. The order was to become effective December 31, 1986. Before the Justice Abolition Order became effective, Betty Ann Esquivel and Bill Chenault filed as candidates for justice of the peace, place 2, in precincts 1 and 3, respectively. Their names appeared on the ballots of the primary election and of the 1986 general election. Esquivel and Che-nault ran without opposition and were elected as justices of the peace for place 2 in precincts 1 and 3.

On November 3, 1986, Esquivel filed an original petition for declaratory judgment, seeking to have the Justice Abolition Order declared void. On December 31, 1986, Che-nault also filed a similar suit seeking to have the Justice Abolition Order declared unconstitutional. The two cases were consolidated and tried to the court. Chenault and Esquivel complain that the Justice Abolition Order violates the first three paragraphs of

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section 65 and, therefore, that it is unconstitutional and should be declared void. When a precinct has two or more justices of the peace, paragraph four of

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section 65 provides for their respective election schedules: In any district, county or precinct where any of the aforementioned offices is of such nature that two or more persons hold such office, with the result that candidates file for “Place No. 1,” “Place No. 2,” etc., the officers elected at the general election in November, 1954, shall serve for a term of two years if the designation of their office is an uneven number, and for a term of four years if the designation of their office is an even number. Thereafter, all such officers shall be elected for the term provided in this Constitution. When a precinct has a single justice of the peace, the first three paragraphs of

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section 65 are applicable. In its introductory paragraph,

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section 65 states that “[t]he following officers elected at the general election in November, 1954, and thereafter, shall serve for the full terms provided in this Constitution ...” Justices of the peace are included in the list of officers. This provision requires that the election

schedule of the listed officers be calculated by using 1954 as the base year. The next paragraph provides for the election

schedule of certain other county and district officers. These other officers, “elected at the general election in November, 1954, shall serve only for terms of two years.... At subsequent elections, such officers shall be elected for the full terms provided in this Constitution.”

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section 65 does not apply to the 1954 election only, but specifically applies to all officers elected in 1954 “and thereafter.” The clear intent of this language is to stagger elections so that all county and district offices do not expire simultaneously. See Fashing v. El Paso County Democratic Executive Comm., 534 S.W.2d 886 (Tex.1976). Thus, those offices listed in the second paragraph of

section 65, whose four-year terms start at the base year of 1954, are to be filled in the general elections of 1954, 1958, etc. Those offices listed in the third paragraph of

section 65 are to be filled in the general elections of 1956, 1960, etc. The following diagram illustrates the election years of justices of the peace in accordance with these provisions. Chenault and Esquivel maintain that if the Bexar County Commissioners Court wanted to abolish a justice of the peace position, it was required to abolish place 1, which was not on the four-year cycle from 1954, rather than place 2, which was on the four-year cycle from 1954. We agree that the Justice Abolition Order is unconstitutional and should be declared void.

The effect of abolishing the place 2 justice of the peace positions in precincts 1, 2 and 3 was to leave the timing of the remaining place 1 justice of the peace position on an unstaggered election cycle, contrary to the scheme mandated in the first part of

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section 65. See Fashing v. El Paso County Democratic Executive Comm., 534 S.W.2d 886 (Tex.1976). The commissioners court argues that the proper remedy for this violation is not to hold the order void, but to simply require that the commissioners court enter another order resetting the election cycles of the remaining places to be staggered with the respective constable offices. In support of the county’s power to rearrange the election dates of judges to conform to the constitution, the county urges comparison of this case to Dollinger v.

Jefferson County Commissioners Court, 335 F.Supp. 340 (E.D.Tex.1971), in which a federal district court ordered the election of county commissioners to serve an initial term of only two years instead of the constitutionally mandated four-year term. Although its order conflicted with the four-year term of office required in the constitution, the federal court nonetheless required a two-year term of office in order to bring the election of county commissioner positions into compliance with the staggered election provision. The county’s reliance on Dollinger is misplaced.

Dollinger involved a situation in which four county precincts had been realigned. As a result, the voters in a particular precinct did not have the opportunity to vote for the. commissioner serving in their precinct’s office. The federal court found that since less than fifty percent of the residents had an opportunity to express a choice in regard to their elected precinct official, there was a denial of due process and equal protection under the federal Constitution.

Dollinger thus differs significantly from the case at hand since in Dol-linger the fourteenth amendment constitutional rights of the voters compelled an intermediate, two-year election. In the present case, there has been no such conflict with federal law; there has simply been the removal of one of two justice of the peace places in a precinct. In McGuire v. Hughes, 452 S.W.2d 29 (Tex.Civ.App.—Dallas 1970, no writ), the Dallas Court of Appeals faced a problem similar to this one and arrived at a different solution.

In 1967, the Commissioners Court of Grayson County abolished a place 2 office of justice of the peace. The remaining office, place 1, was left in a term that was unstaggered according to the provisions of

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section 65. The Secretary of State declared that in view of the abolition of the place 2 position, the precinct was a single-justice precinct and the place 1 officeholder’s position would expire in 1970. The court of appeals disagreed, stating that the commissioners court could not constitutionally reduce the term of justice of the peace to two years. However, the court of appeals was satisfied with leaving the remaining place 1 justice in office, although he was in an unstag-gered election cycle. The court of appeals stated that

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section 65 “is clear and unambiguous that ... all justices of the peace would be elected for the term provided for in the Constitution, namely, four years.” 452 S.W.2d at 31. We agree that a commissioners court may not provide for the expiration of a term of office contrary to

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section 65. The constitution there states that elected officials shall “serve for the full term provided in this Constitution.” It provides that precinct officers, such as justices of the peace, shall serve a four-year term. As the court of appeals in McGuire correctly stated: During that period he has the vested right and privilege to exercise the official duties of the office and to receive the compensation provided by law. Such may not be denied him by administrative edict or as a result of the Commissioners Court’s action in abolishing another office in the same precinct. 452 S.W.2d at 32.

While the court of appeals in McGuire was correct in stating that the commissioners court could not cut short the remaining justice’s term, the remedy fashioned by the court would not comport with this court’s decision today. To leave the remaining office in place would allow for an unstag-gered election cycle, which would violate the clear mandate of

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section 65. Because we hold that, under

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section 65, the Justice Abolition Order is unconstitutional and therefore void, we need not consider other points presented by Chenault and Esquivel. We reverse the judgment of the court of appeals and render judgment in favor of Chenault and Esquivel. The place 2, justice of the peace positions in precincts 1, 2, and 3 of Bexar County are reinstated. GONZALEZ, J., dissents with opinion joined by SPEARS and DOGGETT, JJ. . This redistricting was found to be within the discretion of the commissioners court in McCraw v. Vickers, 717 S.W.2d 738 (Tex.App.—San Antonio 1986, writ ref'd n.r.e.), but the issue of whether abolishing these particular places violated

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section 65 was not presented in McCraw. McCraw addressed the issue of whether the Justice Abolition Order violated

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section 18 of the Texas Constitution, which requires two justices of the peace in precincts in which there may be a city of 18,000 or more inhabitants. . We note that the Attorney General has construed

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section 65 in a similar manner. See Op.Tex, Att’y Gen. Nos. H-726 (1975), M-566 (1970), C-235 (1964), C-147 (1963).