# Untitled Texas Attorney General Opinion > Texas Attorney General Reports ยท July 2, 1958 URL: https://www.frixlaw.com/law-library/cases/4136518 ## Case - **Court:** Texas Attorney General Reports - **Decided:** July 2, 1958 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Will Wilson - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4136518 ## Opinion text . . 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4136518. Public record. Not legal advice.