.   .
                                                                               R-892


                                        ol?FIcxz        OP
                         THE ATTORNEY                     GENERAL
                                      AUSTIN,         TEXAS
    PRICE  DANIEL
    ATTORNEYGENERAL
                                       Rovember 24, 1947


              Hon. C. 9. Rarris             OplnlonAO. v-440
              Acting County Attorney
              Borden county                 Re:   Authority of a com-
              Gall, Texas                         miesloners~ court to
                                                  reject  a petition to
                                                  create a road dla-
                                                  trlct and a bond eleo-
                                                  tion theref or.
              Dear Sir:
                          Your letter of October 23, 1947, requested
              the- opinion of thle Department on the following   ques-
              tion:
                              “If 50 or more qualified    tax paying
                      voters have algned a petition       requesting
                      the Commlaaloaera ( Court to aet tiaFde S
                      Commlaaloner~a Preoinct aa a Special Road
                      District    at the same   time requesting the
                      Court to order an election       for the purpose
                      of voting on a bond Issue for the purpose
                      of building a hard surfaoe road, and said
                      petition    has been presented to said Court
                      and a hearing has been held la whloh air
                      people protested     against the petltlon,can
                      the Court rejeat settl.ng aside the road
                      dlstrlot    and also refqe    to order the elec-
                      ;;o;olf    they feel that Lt Is not the thing
                                 Or la It possible   for the voters to
                      hold &e eleotlon      If the Court is not wlll-
                      lng to order it?”
                            This queatlon    raleea   three   distinct   laauea:
                           1. The power of the oommlsslonera * court               to
                      aet aside a, speolal road district.
                            2. The power of that oourt to call           a bond
                      election.
                        '3. The power of the citizens to call and oon-
              duct an election on their own motion end lnltletlve.
Hon. C. 5. Harris              - Page 2   (Y-440)


          Art. III, Sea a 52, Constitution  of Texas, pro-
vides  that the Legislature  may’authorlae the Issuance
of road bonds by eny of the foll~owlng entltiesr
                      ‘County
                   ::  Politics1   subdlviaioli  of a county
                       (Art.   752a, V.C.S. defines a’sub-
                       division   of a county as any oommis-
                       sloners t precinot    or any justloe
                       precinct)
                   3. Any number of adjoftilng counties
                   4. Any polltloal    aubdlvlalon   of the
                       State
                   5. Any defined district
                   Art; 752a, V C.S. ‘the enabllag act for Sea. 52;
Art.      III,     Constitution of Texas, provldea as follows:
                  "Any county,     or any polltioel    aubdivi-
          sion    of a oounty, or 5~ r?d diatriot          thst
          has been or may hereafter         be created   by any
          general or special law, Is hereby authorized
          to Issue bonda for the pnrpose of the oon-
          struotion,     maintenance eiul operation of mao-
          adamlzed, graveled or paved roads and turn-
          plkea, or in aid thereof,         la any amoutit not
          to exceed one-fourth        of the aaaeaaed valua-
          tion of the real property of such county or
          polltloal    subdivision     or road dlstrlot,    and
          to levy and oolleot        ad valomm taxes to psy
          the interest       on such bonds and provide a
          sinking fund for the redemption thereof.
          Such bonds ahall be Issued In the manner
          hereinafter      provided, and as oontemplated
          and authorized by Section 52, of Artlole            3,
          of the Constitution        of this State.     The term
           tpolltloal    aubdlvlaion, 1 as uaed in this Act,
          shall be oonatrued to mean any oommlaslonera
          ppeclnct or any justice        preoinct. of a county,
          now or hereafter       to be created and estebliah-
          ed . ”
                   With     referenoe  to the formation of road dis-
tricts,          Art.     752c, V.C.8. provides,  In part, that:
                 “The County Commlssi,onera * Courts of the
          several counties of this State may hereafter
          establish   one or more road distrlots    in their
          reapeotlve   counties, and may or may not Lnclude
Hon. C. 3. Harris    - Page 3    (V-440)


     within the boundaries and llmlts of suoh
     dlstrlota,    villages,   towns and munlolpal
     oorporetlons,      or any portion thereof,     and
     may or may not Include previously         created
     road dlstrlots      aud polltloal   subdlvlslons
     or precincts     that have voted Bnd issued
     road bonds pursuant to Seotioa        52 of Artl-
     cle 3 of ‘the Contitltutlon,      by entering an
     order deolarlng      such road district    estab-
     llshecj and defining     the boundaries thereof.
     . . .
          In the ease of 6fng v. Falls County, 42 9. W.
(2d) 481, the Waco Court of Civil Appeals, speaking
through Justice Aletinder,   now Chief ~Jnstloe ‘bf the Su-
preme Court of Texaa, referred   to Art. 7520 ‘as followa:
            “The statute,    Article  752c, . v . au-
     thorlaed the Commissioners’ Court to create
     a road district     of Its own motion, and does
     not, require that any previous notice be giv-
     en to the taxpayers,      nor that evidence     be
     heati aa to the advlaabllltg        of oreating the
     same.    The statute does not oontemplate that
     the taxpayer    shall be heard at the time the
     distrlot    la oreated.     Bla right to be heard
     aocruea   later when the petition      Is presented
     to the Court calling      for the bond election.”
            A oommlasloners * court Is vested wlth.,power to
create road districts    In a.oounty under Art. 752c, V.C.S.,
without respect whatadeve~p to other existing    polltlcal
subdlvlal.ons of the oountjr.    (Attorney Qeneral Is Opinion
Ho. O-3493)
           Formation of a road distrlot  by a oolaailaalonem~
oourt lies within the discretion   of the ooart’and    the
oourt la under no duty to oonduot a hearing on a petition
to form auoh dlatr5.ct.
           The provision    in Article   752d, quoted below,
for a petition    of 50 taxpayers,    Is applloable  to the ques-
tion o? the laauanoe of the bonda and not to the oreatlon
of the district.     While the petition    of taxpayers for the
oreatiou of a distrlot    would be peraueslve with the oommls-
sloners , the flllng   of such petition    has no blndlng effeot
on the action of the oourt.
BOU. C. S. liarrla      - page 4     (V-440)


           With reference to the lsaeshce          of bonds,   Art.
7524, V.C.S.,  reada, In part as follows:

             %here any polltloel        subdlvlslon,     or
     any road diet&t,         d’esires to Issue bonds,
     there shall bi, presented to the Commissioners8
     Court of the oocnty in whloh such subdlvlslon
     or district     is situated,     a petltlon     signed by
     fifty    or a ‘mejorlty   of the resldent property
     taxpaying voters of said subdlvislon              or road
     distrlot    ppaying such court to order an eleo-
     tion to determine whetqer or not the bonds of
     such subdlvlsion       or dlstrlot    shall, be lasued
     to an amount ‘stated for the purpose of the oon-
     struotlon,     maintenance and operation of maoada-
     mlzad, graveled or paved roads and turnpikes,
     or In aid themof,        and whether or not taxes
     shall be levied on all taxable property within
     said subdivision      or district     in payment thereof.
     Upon presentation       of such petition,      ‘It shall be
     the duty of the court to which Ft is preaeated
     to fix a time and laoe at whloh such petition
     shall be heard, whPoh date shall be’not less than
     fifteen    nor more than thirty days ,from the date
     of the order.      The olerk of said oourt ahall forth-
     with Issue a notloa of suoh time and plaoe of
     hearing, whloh notioe ahall Inform all persons
     oonoerned of the time and plaoe of hearfng and of
     their right to appear at such hearing and contend
     for 0~ protest the ordering of auoh bond eleotl.on.
      . . .
           Art.      752e, V.C.S.;   provides,   In part, that:
            "At the time and plaoe set for the hearlng
     of the petition,    or such subsequent date as may
     then be fixed,    the oourt shall proceed to hear
     such petition    and all matters In reapeot    of the
     proposed bond eleqtion,      Any person Interested
     my appear before the court In person or by at-
     torney and contend for or proteat the ~oalllng of
     auoh proposed bond election.      Such a hearing wy
     be adjourned   from day to day and from time to
     ti.me, aa the oourt may deem neaeaaary.
     the hearing of suoh ~etltlon.     It be fou Il35EF
     the aame   la algned by fifty   or a majority of the
     resident property tax paying voters of suoh sub-
     division   or road distrlot,   and that due notice
     has been given,and that the wopoaed       Improvements
.   .     .




        Hon.     C. 9. Esrris   - Page 5    (V-440)


                 would be for the b&Qflt       of all taxable Prb-
                                    n auc sub-dlvls‘ion    or roa
                 %$I~~~%~         &ch oiurt m& make and caufe
                 to e entered of record upon Its minutes an
                 order directing    that an electlon   be held wlth-
                 In and for such subdivision      or road district
                 at a date to be fixed in’ the order, for the
                 purpose of determining the questions mentioned
                 In such petitions;     provided, however, that such
                 court may change the amount of the bonds propos-
                 ed to be Issued, If, upon the hearing such
                 ohange be found necessary or desirable.        . . .’
                       In King v. Fslls     County,   supra,   Art.   752e   Is   re-
        ferred     to as follows:
                        “This statute   (Art.  752e) requires the oom-
                 missioners 1 Court, before ordering such an eleo-
                 tlon, to plake a flt+ng      that It wovld be for the
                 benefit   of all taxable property In the district.
                  . . . We therefore     have before us a oase where
                 the law requLres the Commlssloners~ Court, before
                 ordering a bond eleotion,      to judlolally    determine
                 that thb lssnance of the bonds would be for the
                 benefit   of all taxable property In the district,
                 ancl yet, under the ellegatlons      In $hla case, the
                 court has not judlolally      determined such Issue,
                 but haa arbitrarily     and wrongfully    entered such
                 an order oantrary    to the faots.     . . .
                        “Our Constitution,   Article     5, Seotion 8,
                 gives the dlstrzot     court supervisory     control
                 over the oommlaalose~l      oourt.     . . . Where a mat-
                 ter haa been committed to the diaoretlon          of the
                 oommlaalonera’ court and acted on by It, its
                 j&pent     beoomea the judgment of a court of oompe-
                 tent jurlsdlotlon,     and a ‘district    court la not
                 authorized   to review the discretion       of the oommls-
                 sionera ’ oourt, nor to set aside such judgment,
                 unless It appears that there has been a clear abuse
                 of the disoretlou     of the Court, or, unless there
                 appears to be ooll~lon,       fraud,or    bad faith.   . . .
                   Hence Ff the Commissioners 8 Court finds that the
        improvements would not be for the benefit      of all taxable
        property,   its judgment ~111 not be disturbed on appeal un-
        leas It la made to appear that there was an abuse of dls-
        oretion,  fraud, oolluaion, or bad faith.   If in their honest
        judgment and discretion     the oommlssioners 1 court thinks the
                                                                        . ..

eon.   C. S. Harpis       - Page 6 (v-440)


subdlvlslon  proposing the bond elsatioa    would not bdno-
fit by it, then they may refube   to order on election 8 rnd
4ny eleotloh  oondu&sd on the lnltlatlvo     of the voters
thamselves would be of no fame and effeot      44 ,thO Legis-
loturo has oreoted the prooedure for road bond eleotlons
4nd it must ba followed    In a11 respeots.   Where there baa
been an authority   granted to a polltloal   aubdividlon to
create indebtedness the statutes are to be followed      strlot-
1Y.

            Therefore,   w4 ore OS the opinion thnt the Com-
mIssloners I Court of Borden County is under no duty to set
aside or oreate a commIssionera V preolnct as a special
road district     upon presentation    of a petltlon   algned by
fifty   or more quallfled    taxpaying voters.      The Commlsslon-
oru’ Court must mka an afflzwmtlvo         finding that the pro-
posed improvements vlthln a rend distrlot          or political
subdIvIsion would be for the benefit         of all taxable prop-
erty situated therein prior to ordering a road bond eleo-
tlon as required by Artlolo       7520, V4rnon~s Civil Statutes.
Uhsr4 the oommissionors’      oourt fails    or rofusoo to order a
road bond eleotion     any eleotion   oonduoted by the voters
themsolves on a bond Issue would be invalid aa l atriot
oomplI4n44    with statutory proasdure for oreating bondsd in-
debtedrrers la rsqulrod.


            Creation of 8 rend dlstrloij   for road bond
       purposes by a oommls4lon4rs  v oourt IZer with-
       in the dlsorotlon of the oourt.     A finding by
       a 0omml4slon4rs'       oourt   that    the   proposed    lm-
       provoments would be for the bsn4flt        of all
       taxable property sItu4ted within tha road dls-
       trlot or polttiorl    subdlvlalon   potltlonlng   ?or
       a road bond eleotion    is neoeasnry prloP to
       ordering the oleotlon.     Whers I ocmmlsslonors~
       oowt falls    or refuses to order e road bond
       elsotlon  within a dlstriot     or subdiVIsion,   an
       oleotlon  oondwted by ths voters would be in-
       valid.
                                                  YOLWII very   truly

                                             ATTOFUUX
                                                    QEN’itRAL


ST*
(Aotlng)   ATTOHlVEY
                   aBNERAL
                                             BY

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