The opinion
. .
June 19, 1958
Hon. Ward W. Markley Opinion No. WW-462
County Attorney
Jasper County Re: Does the Commissioners'
Jasper, Texas Court have the authority
to reduce the amount of
the bond proposal, or must
the Commissioners' Court
order the election for the
full amount requested, and
Dear Sir: related question.
In your letter of May 12, 1958, to.this office,
you request an opinion on the following questions based
on the given facts:
"Road District No. 7, in Jasper COUnty,
Texas, has petitioned the Commissioners'
Court of Jasper County for an election
to issue bonds, under Article 7528,
Vernon's Annotated Civil Statutes of Texas,
which petition is signed by more than fifty
(50) resident property tax paying citizens,
and all of the requirements met under this
Article. A hearing on the bond issue was
set, and heard in accordance with Article
752e.
"Question No. One:
"Does the Commissioners' Court have the
authority to reduce the amount of the bond
proposal, or must the Commissioners' Court
order the election for the full amount re-
quested?
"Question No. Two:
"Whether or not a mandamus would lie against
. .
Hon. Ward W. Markley, page #2 (WW-462)
the Commissioners' Court to call the elec-
tion for the full amount of the bond issue
requested in the petition."
The Commissioners' Court is a creature of the State
Constitution and its powers are limited and controlled by
the Constitution and laws passed by the Legislature. Article
V, Section 18, Tex. Con&.; Raldwin v. Travis County, 88 S.W.
480,484 (Tex.Civ.App.); Seward v. Falls County, 246 S.W. 728
(Tex.Civ.App.): Bland v. Orr, 90 Tex. 492, 39 S.W. 558; Mills
County v. Lampasas County, 90 Tex. 606, 40 S.W. 403, Commis-
sioners" Court v. Wallace, 118 Tex. 279, 15 S.W. 2d 535.
Article III, Section 52, Constitution of the State of
Texas, insofar as relevant to your inqui,y, provides:
" . e a under legislative provision a e o
any defined district now or hereafter to
be described and defined within the State
of Texas, . . . upon a vote of a two
thirds majority of the resident property
taxpayers voting thereon who are quali-
fied electors of such district of terri-
tory to be affected thereby, in addition
to all other debts, may issue bonds or
otherwise lend its credit in any amount
not to exceed one-fourth of the assessed
valuation of the real property of such
district or territory . 0 0 and levy and
collect such taxes to pay the interest
thereon and provide a sinking fund for
the redemption thereof, as the Legisla-
ture may authorize, and in such manner
as it may authorize the same for the
following purposes to wit:
* * *
"(c) The construction, maintenance and
operation of macadamised, graveled or
paved roads and turnpikes, or in aid
thereof." (Emphasis added)
Hon. Ward W. MarklZey, page #3 (WW-462)
The legislative enactments, under the foregoing
constitutional provision, are compiled in Chapter 3, Title
22, Revised Civil Statutes of Texas, and carried forward
in Vernon's Civil Statutes in the manner and context indi-
cated below:
Art. 752~ - "The County Commissioners' Courts
. . . may hereafter establish . . . road die-
tricts . . . by entering an order declaring
such road district established and defining
the boundaries thereof:
Art. 752d - Where any . . . road district
desires to issue bonds, there shall be pre-
sented to the Cormaiasionere~Court . . .
a petition signed by fifty or a majority of
the resident property taxpaying voters of
said . . . road district praying such court
to order an election to determine whether or
not the bonds of such . . . district shall be
issued to an amount stated for the purpose
of the construction, maintenance and opera-
tion of macadamised, graveled or paved roads
and turnpikes . . . and whether or not taxes
shall be levied on all taxable property within
said . . . district in payment thereof. Upon
presentation of such petition, it shall be
the duty of the court . . . to fix a time
end place at which such petition shall be
heard . . .I
Art. 752e - *At the time and place set for the
hearing of the petition . . . the court (Com-
missioners') shall proceed to hear such peti-
tion and all matters in respect of the proposed
bond election. Any person interested may ap-
pear before the court in person or by attorney
and contend for or protest the calling of such
proposed bond election . . . If upon the bear-
ing of such petition, it be found that the same
is signed by fifty or a majority of the resi-
dent property taxpaying voters of such D . .
- .
Hon. Ward W. Markley, page #4 (WW-462)
road district, and that due notice has been
given, and that the proposed improvements
would be for the benefit of all taxable
property situated in such m . v road dis-
trict, then such court may D ~ e order
. . . an election . . . for the purpose
of determining the questions mentioned in
such petitions; provided, however, that
such court may change the amount of the
bonds proposed to be issued, if, upon the
hearing such change be found necessary or
desirable. a D .I (Underscoring ours)
The Legislature, by the enactment of the proviso
underscored, supra, clearly revealed its intent of making
the amount of the proposed bond issue a matter squarely
within the sound discretion of the court.
Consequently, the answer to your first question
is that the Commissioners" Court has the authority to re-
duce the amount of the proposed bond issue "if, upon the
hearing such change be found necessary or desirable."
In your second question, you seek the opinion of
this office a,sto "Whether or not a mandamus would lie
against the CommissionersP Court to call the election for
the full amount of the bond issue requested in the peti-
tion-H
To answer that question would necessitate the as-
sumption of varied fact situations since basically the
question is hypothetical: consequently, we will confine our
answer to a pronouncement of a general principle of law
which may serve as a working hypothesis for use in approach-
ing a given or existing state of facts.
Article V, Section 8, Constitution of Texas, gives
the district court "appellate jurisdiction and general
supervisory control over the County CommissionersP Court,
with such exceptions and under such regulations as may be
prescribed by law."
. -
hon. ward W. Markley, page 5 (WW-462)
Article 1908, V.C.S., contains substantially the
same language.
In the instant case, the Legislature has prescribed
no exceptions; therefore, the following general principle
of law will apply:
"Where a matter has been committed to the
discretion of the commissioners' court
and acted on by it, its judgment becomes
the judgment of a court of competent juris-
diction, and.a district court is not au-
thorieed to review the discretion of the
commissioners' court, nor to set aside such
judgment, unless it appears that there has
been a clear abuse of the discretion of the
court, or, unless there appears to be col-
lusion, fraud, or bad faith.* Loving v.
Laird, 42 S.W. 2d 481, 483 (Tex.Civ.App.)
and the authorities there cited.
See also Industrial Accident Board v. Glenn, 144
TW. 378, 190 S.W. 2d 805, at page 807, wherein the Supreme
Court of Texas announc&r
"It is settled by the decisions of this
court that mandamus will not issue to
compel the performance of an act which
involves the exercise of discretion or
judgment."
SUMMARY
A Commissioners' Court with jurisdiction
has discretionary power, under the provi-
sions of Article 752e, V.C.S., to reduce
the amount of a proposed bond issue from
that stated in a petition submitted to
said court pursuant to Art. 752d, V.C.S.,
provided, 'such change be found necessary
Hon. Ward W. Markley, page #6 (WW-462)
or desirable at a public hearing con-
ducted in accordance with Art. 752e,'
V.C.S.: and, the exercise of such dis-
cretionary power in the sbsence of
abuse or fraud is not a matter for
review by the courts.
Very truly yours,
WILL WILSON
GW-s
APPROVED:
OPINION COMMITTEE
Geo . P. Blackburn, Chairman
Waylaud C. Rivers, Jr.
Marvin H. Brown, Jr.
Richard B, Stone
Jack Goodman
REVIEWED FOR THE ATTORNEY GENERAL
By: W. V. Geppert