                                    li:                                                    ENERA




Honorable           Dave       McNeill,              Jr.
County      Attorney
Shelby      County
Center,          Texas


Dear      Sir:                                                      Opinion          No.     O-5795
                                                                    Re:      Whether           commissioners’                  court     of
                                                                                 Shelby      County         is under      legal     duty
                                                                             to define         the combined              area     of three
                                                                                 school     districts        therein      located         as a
                                                                             subdivision             for     stock     law     elect+
                                                                             under         Article         6954,     V.A.C.S.,          even
                                                                             though         an incorporated              town with
                                                                             stock        law ordinance              is located         therein,
                                                                             and related             questions.


                  As     we understand                 the facts          upon which           your        opinion     request          is predi-
cated,     the freeholders                    of two common                 school         districts        and one      independent
school      district          of Shelby             County        have     joined         in a petition          to the commissioners’
court     under        Article            6954,      V.A ,C.S.,          asking      that a stock            law     election     be held          in
the described             area        as a subdivision                   of the county.              It also       appears       that    the in-
corporated             town    of Center              is located          within      the proposed               boundaries        and that
the commissioners’                        court      has     refuse&to             call     the election           on the ground           that
the town which                has     its    own stock             ordinance          is included            in the .erea.


                  You     wish       to know:              (1)    wheth er the commissioners’                           court     under        the
facts     stated        is under            legal     duty       to order         the election,            and     (2) if the Court            is not
bound      to do so,          may         the election            be ordered          by it though               the proposed           subdivision
contains         an incorpo,rated                   town     having        its    own stock          ordinances.


                  Article        6954,        V.A.     C.S.,       reads         in part     as follows:


                  “Upon       the written              petition       of one        hundred          (100)       freeholders
         of any        of the following                Counties:            . . . Shelby         . . . or upon           the pe-
         tition     of fifty        (50)      freeholders            of any such             subdivision            of a county
         as may          be described                in the petition,              and defined          by the Commis-
         sioners’         Court           of any of the above-named                          counties,           the Commis-
         sioners’         Court           of said      county       shall        order      an election            to be held      in
         such      county        or such            subdivision           of a county           as may           be described
         in the petition              and ~defined               by the Commissioners’                       Court,     on the
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Honorable             Dave      McNeill,          Jr.,    page      2        o-5795




          day named            in the order,             for     the purpose          of enabling             the freeholders                 of
          such        county        or subdivision             of a county         as may           be described            in the peti-
          tion       and defined         by the Commissioners’                        Court         to determine            whether
          horses,          mules,       jacks,      jennets,         and cattle           shall     be permitted             to run at
         large         in such       county       or such         subdivision           of a county           as may         be described
          in the petition             and defined          by the Commissioners’                        Court.”            (Emphasis               ours)


                     In answering            the first         question       it is necessary             that we construe                        the word-
ing of the above                quoted       statute,          particularly        the underlined                portions.            The         statute
says      that       the election         shall     be called            by the commissioners’                     court          in “any          such
subdivision               of a county        as may        be described              in the petition,            AND         DEFINED                BY         THE
COMMISSIONERSt                        COURT.         . . . w It is to be noted                    that this      language            recurs             through-
out the statute.                From       this     provisionishould               we infer           that the Legislature                        delegated
to the petitioning                  freeholders           the sole        authority         to determine             by the petition                    the
boundaries             within        which     the stock          law     election        is to be called,              leaving         the commis-
sioners’          court       no discretion              in the matter          whatever            and imposing                 upon    it the minis-
terial     duty        of adopting         the definition               of the proposed              district      as      set     out in the peti-
tion?          Or,    on the contrary,              was        it the legislative             intent     to confine           the holding                 of
stock      law elections               under      this     statute       to those         subdivisions           of the county                already
existing         and previously               defined          by the commissioners’                     court       for    other        purposes,
together          with       such     subdivisions             as the commissioners’                     court       in the exercise                     of
discretion            is willing        to define         and designate              as    subdivisions           for      stock        law       purposes?


                     We    have      reached       the conclusion              that       the latter      construction               should             be
given      the act          after     a consideration              of its     legislative           history.         The         original          stock
law      provisiondealing                with      horses,         mules,       etc.,      was      contained          in Chapter                 128     of
the Acts          of the 26th          Legislature              (1899)     at page        220.       Relevant         portions           of that
Act      read        as follows:


                     “Upon     the written           petition        of one hundred                freeholders             of any       of the
         following           named       counties          . . ., or upon          the petition           of fifty         freeholders
          of any          subdivision         of any of the above               named             counties,      the commission-
          ers’       court     of said       county       shall      order     an election             to be held           in said       county
          or     subdivision          ,; . . . .”


                     Construing         the language              of an’earlier            act     dealing      with       hogs,        sheep           and
goats,         the pertinent           parts      of which         were       almost        identical         with     the language                 of the
statute        just       quoted,      our Supreme               Court      in Armstrong               v. Traylor,           30 S. W.              440,        had
this     to say        about        the designation             of a subdivision              for    the purp.ose            of calling             a “hog
law”      election.


                     “To     the third       question          we answer         that       the legislature,               being        auth-
          orized          by the Constitution               to submit         the law to the voters                     of any subdivi-
          sion       of a county,         had the power                 to adopt      the method              of ascertaining               the
Honorable          Dave     McNeill,            Jr.,       page      3       o-5795




             subdivision           to be affected                 that       seemed       most     advisable,              and could
            authorize            the voters            to designate              the boundaries              of the subdivision
             in which           they    desired            that the law should                  be applied.             The       policy         of
             such    a course            was     a matter              for    the consideration                  of the legislature,
            and not the courts.”


   Texas       is not unique               in recognizing                 the validity           of a legislative              act which                dele-
   gates      to the people              the right          to define           a subdivision             of the county.                  See     70 A.L.R.
   1064.


                    If the       language            of the original              Act     (Chapter           126,    Acts         of the 26th             Legis-
   lature)      dealing          with      horses,          etc.,        had been        retained,         we think           that under               the au-
   thority      of the Armstrong                       case,        supra,       it would        be the legal           duty        of the commis-
   sioners’         court        to call       an election               in any area          within      the county              which         had been
   described          in the petition                presented             to it and failing              in this,      mandamus                 would             lie
   to require         the court            to act.          Holman            v. Pabst,         27 S. W.         (2d)      340.


                    However,             such        was       not the case,            for     the act      under         consideration                  was
   amended          in 1903         by Chapter               71 of the Acts              of the 28th          Legislature                 at page            97,     the
   amendment              adding        this    new         language:            “and     defined         by the        Commissioners’
   Court.”          This        addition        as     it has       been       underscored             above        in the present                    statute,
   has     been     carried            Lforward        without           change       through       all      subsequent             amendments
   to the Act.            It is helpful          to note            the legislative             circumstances                 that        gave        rise      to
   the addition            in this       respect.            Senate  Bill             No. 8 was        originally            offered            in the 28th
   Legislature             as    an amendment                 to Section              1, Chapter          128,      Acts      of the 26th               Legis-
   lature     with        the sole        purpose            of bringing           McLennan            and Limestone                      counties            under
   its    terms.          See     the first          reading         of the bill         by Senator           Mills,        page          12,    Senate
   Journal,         Regular            and First           Called         Session,        28th    Legislature.                Several            amend-
   ments      were         offered        during           the history           of the bill,        but material                 to our        inquiry
   here      is the amendment                   added          by the House              (p. 298,       H.    J.,    28th         Leg.,     Regular
   and First         Called         Sessions)              whereby           “justice      precinct”           was      to be substituted
   for    “subdivision”                where         it Tppeared              in the bill.        The      Senate          refused          to concur
   in the House            amendment                 (p.    302,       S. J.,    28th     Leg.)      and finally            a Free          Conference
   Committee              proposed            that     in lieu       of the House               amendment            substituting                “justice
   precinct”         for        “subdivision”               in the bill         that     this    language           be used:              “such         subdivi-
   sion     of a county            as may        be described                   in the petition           and defined               by the Commis-
   sioners’         Court        . .     .”     (p. 444,          S. J.,       28th     Leg.)


                    The         language        substituted               by the Free            Conference             Committee                was         adopted
   and has         been     carried           forward           in the law            and appears            in the present                Act.          We        think
   it clear        that    the present               provision           was     the outgrowth               of a compromise                      between                the
   House,      which         sought        to limit            stock      law elections            to justice           precincts,              which          the
   commissioners’                  court        had a right              to define        in the exercise               of its       discretion,                   and
Honorable           Dave       McNeill,          Jr.,     page        4       o-5795




the Senate          which         desired       no such          restriction           upon      the right         of the people              to
determine           the issue          for    themselves               in an art?=        selected           by the freeholders,
The      language          proposed          by the Free               Conference          Committee              and subsequently
enacted         into    law was         therefore              intended       to be less          restrictive             than the House
limitation          of the elections             to the “justice                   precinct”       and more            restrictive
than the previous                 limitation            of the old          statute     to “any         subdivision*            of the
county      to be selected              and described                  by the freeholders                 themselves.


                  We      think     the proper            construction               of the present            provision         of this
statute        places       the commissioners’                        court    under      a legal         duty     to call      the elec-
tion     upon     presentation               of a proper           petition         of freeholders             where         the area
described           in the petition            is confined                to a subdivision             of a county           which      has
been      previously           defined        by the commissioners’                        court        such      as a justice          pre-
cinct,     commissioners’                    precinct          or voting           precinct.


                  However,          where        the      stock       law     election         petition       describes         an area
which      has     not been         previously             defined          by the commissioners’                      court     as     a sub-
division         of the county,              it is our         view       that the commissione,rs’                     court     may         ex-
ercise      its discretion              in the matter                 of ordering         the elec.tion           and may         refuse,
for     good      cause,     to define          the proposed                area      as a subdivision               for     calling     a
stock      law     election.         According                to the general            rule     we think         the commission-
ers’     court’s        action      would       be subject                to review      by the courts              and could          be re-
vised      if a clear        abuse         of discretion              could        be shown.           See    11 Tex.         Jur.     557;
Dubose         v. Woods,           (Civ.      App.)       162 S. W.           3.


                  Our      reasoning          has       led    us to answer             your      first      quest.ion       in the nega-
tive.      Since        the proposed            district         involved           in Shelby        County        is not one previ-
ously      defined         as a subdivision               for     any purpose             by the       commi~ssione,rs’                court
we think         your      commissioners’                     court       is under      no l,egal         duty    to order        the elec-
tion     but the court            may        do so      in the exercise                of the discretionary                  power      with
which      it is vested            by the law.


                  Answering            the second              question        put to us,         it is our        opinion       that    the
commissioners’                 court       may       order       the election            in its      discretion,           and that the
validity       of the election               would       be unaffected               by the fact          that an incorporated
town      is located         within        the proposed                subdivision.            See     Bishop        v. State,         167
S. W.      363;     Lambert          v. Scurlock,               et al.,       285    S. W.      679,      and English           v. State,
292     S. W.      229.


                  As    to whether            the commissioners’                       court     has      abused       its    discretion
in refusing            to order       the election              for which           it was      petitioned         we are        unable        to
say.  This question                  would       involve          a careful          consideration               of all    circumstances
and considerations                  entering            into    the decision            of the court.             We       do not have
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    Honorable               Dave    McNeill,      Jr.,    page    5   o-5795




            these      at hand     and furthermore           if we did the question            would    remain       largely
            one     of fact.


                            We     hope   we have        adequately   covered         the points    inquired        about   and
            please      be assured         that   it will   be a pleasure       for    us to serve       you at any time.


                                                                                        Very    truly    yours


                                                                                ATTORNEY               GENERAL         OF      TEXAS




                                                                                                Eugene      Alvis
                                                                                                     Assistant


            EA :db


            F.    C.   C.



            APPROVED               JAN    28.   1944                                               APPROVED
                                                                                                   Opinion
                                                                                                   Committee


            ATTORNEY               GENERAL         OF     TEXAS                                    By&.&-
                                                                                                        Chairman
