                 THE   ATI-ORNEY          GENERAL
                            OF    TEXAS

GERALD C. MANN
-ON




    Honorable E. G. Pharr
    County Attorney
    Delta County
    Cooper, Texas
    Dear Sir:                    Opinion No. O-2726
                                 Re: Levy of taxes by the commission-
                                      ers ' court.
            Your recent telegram requesting an opinion of this
    Department on the questions as are herein stated has been
    received.
              We quote from your telegram as follows:
            'Delta County has not as yet made a tax levy
        and county judge refuses to attend regular meeting
        of commissioners' court to consider matter of levy-
        ing taxes. If the county judge does not attend may
        four commissioners levy the tax in his absence? If
        not, what steps are necessary to make the levy legal?"
             In Texas Jurisprudence, Volume 11, page 559, it is
     stated that:
            "In order that valid action may be taken by
        county commlssioners, they must first be Organized
        as a court. Any three members of the commissioners'
        court, including the county judge, constitute a
        quorum for the transaction of any business except
        that of levying a county tax. a . e . ='
              Article 2342, Vernon's Annotated Civil Statutes, pro-
     vides:
             "The several commissioners, together with the
         county judge, shall compose a commissioners' court,
         and the county judge, when preseftt,shall be the
         presiding officer of said court.
             Articles 2343 and 2354, Vernon's Annotated Civil Statu-
     tes, read as follows:
Honorable E. G. Pharr, page 2         O-2726


        Article 2343. "Any three members of said court,
    including the county judge, shall constitute a quorum
    for the transaction of any business except that of
    levying a county tax."
        Article 2354. "No county tax shall be levied ex-
    cept at a regular term of the court, and when all mem-
    bers of said court are present."
        In the case of Brooks v. State, 41 S.W, (2d) 714, 719,
it is said that *the commissioners' court may levy taxes only
at a regular term with all members present."
        The Supreme Court of Texas in construing Article 1517
(which is now Article 2354, supra) said:
        "Article 1515 gave the power to levy taxes for
    county purposes, and Article 1517 imposed limitations
    as to the mode of imposing taxes as follows: 'No
    county tax shall be levied except at a regular term
    of the court, and when all the members of said court
    are present.' Unquestionably, the &glslature had
    the power to make this rule. The limitation admits
    of no construction. The meaning i~(;;t;r;~c~.r~; can
    not alter it or dispense with It.
    Scarborough, 8 3.W. 490)."
        In answer to your first question you are respectfully'
advised that it is the opinion of this Department that where
the county judge fails or refuses t0 attend a regular meeting
of the commissioners' court, the four commissioners are not au-
thorized to levy a county tax in his absence.
        With reference to your second question, we do not know
of any procedure which would make the levy legal except a full
compliance with Article 2354, supra,
       Article 397 of Vernon's Penal Code read,8as follows:
       "Should any member of the commissioners' court
   of any county wilfullg fail or refuse to attend any
   regular meeting or term of said court at which the
   business or questlon of levying a county tax for any
   purpose'is to be acted on, he shall be fined not less
   than $200.00 nor more than $500.00."
        In view of Article 397, supra, we are of the opinion
that where the county judge or any other member of the commis-
sioners' court wilfully fails or refuses to attend any regu-
lar meeting or term of said court at which the business or
Honorable E. G. Pharr, page 3         o-2726


question of levying a county tax for any purpose is to be acted
on, he should be prosecuted under said Article.
        We quote from Texas Jurisprudence, Volume 28, page
564, as follows:
        "A writ of mandamus lies against a public offi-
    cer to compel the performance of a ministerial duty
    imposed by law not involving an exercise of judgment
    of discretion which he has failed or refused to per-
    form.
       "Thus, a writ will issue in a proper case, to
   compel the nerformance of ministerial dUtie8 by ex-
   ecutive officers of the state, other then the Gover-
   nor; and by officers of counties, cities, and school
   districts; as well as by a court, judges and judicial
   officers. . e The trend of modern decisions is toward
   a~liberal construction of the rules by which mandamus
   may iSSUe to compel performance by public officials
   of duties prescribed by statute. Thus, when a judge
   or other officer by his construction of the law, de-
   prives a citizen of an unquestioned legal.rlght and
   there 18 no right to appeal nor'other adequate remedy,
   a court having power to issue mandamus may review the
   matter. . . . . . en
        It is our further opinion that the county judge may
be compelled by mandamus to attend a regular meeting of the .~
commissioners' court at which the business or question of levy-
ing a county tax for any purpose is to be acted on.
         Trusting that the foregoing fully answers your inquiry,
we are
                                  Yours very truly
                                ATTORNEY GENERAL OF TEXAS

AW:BBB:wc                         By s/Ardell Williams
                                       Ardell Williams
APPROVED SEP 12, 1940                        Assistant
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chalrman
