.    .




                           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
