Gerald C. Mann




    Hon. R. E. McLaughlin         : Opinion No: O-2019
    County Attorney                  Be: Constru’ction of Article    752b
    Moore County                  ~, in regard to, petitions  presented
    Dumas, Texas                     tomcommissioners’ courts for bond
                                     ele’ct.lons for road improv’ements.
    Dear Sir:
                We are in receipt  of, your ,~o,pini& request, of recent
    date o   We quote from your letter   as follows:        ‘..
               “Two petitions   for ‘bond elections    for ‘road im-
         provements hav.e .been presented to the Commisslon-
         ersl Court of M&r35County, Texas ohe for done Hun-
         dred Sixty Thousand Dollars (@.66,000)        for the con-
         struction  of approximately 18 miles of paved’high-
         way and one for Ninety Six Thousand Dollars ($96,-
         ~OOOf, for the construction    of, 11 miles .of paved
         hif$waye   The -larger petition    Incorporates   all the
         11 miles of the .smal.ler petition.
               “The group presenting : the smaller ‘petition’ is
         not in favor of constructing,the      seven additional
         miles called for. In the larger petitibn,,and      a con-
         siderable  amount. of controversy    has arisen over-the
         two proposals.                    .,
                 “Under Article   752b, Revised    Statutes     -
                 L;ic,;e;$’   mandatory ,that the court       order   two
                 (2)    If so, how soon must the elections      be held?
                 (3) Can the court ~postpone its ‘order on one
                 petition   until after the ,other has been voted
                 u on?
                 cc,    can ,boih ii&i    ons be held .at ‘the same
                 place, on the same day, by the same election
                 Judges4 ori must
                                ~..   there .be a separate place, and
                 separa e e eotion. supplies and judges?
                 (5)    part of ,the highw.ay called. for .in both peti-
                 tions lies within the city limits of Duinas,
                 Texas, the county seat, an incorporated        city.  Is
                 it legal to vote county wide bonds for this pur-
                 pose?
                                                                            _ - .



Hon. B.   E. McLaughlin,    page 2


           “I am quite sure that from the foregoing you
     have in mind a picture of the situation    as it is,
     and I would appreciate  very much having your opin-
     ion as to the procedure the Commissioners1    Court
     should take in handling this matter in accordance
     with the law.”
            Article  7521, provides,   in part     that “upon the peti-
tion of fifty    or more.resident     quallfiei     property taxpaying
voters of any county, the Commlssioners’ Eourt of such county
at any regular or special      session thereof shall order an elec-
tion ***‘I.   We feel that this statute Is mandatory and as a
general proposition    the Commissioners’ Court has no discretion
to refuse to grant a petition       and to order an election     for the
purpose of determining whether or not bonds shall be issued for
road purposes whenever such a petition          is prepared and present-
ed in compliance with the provisions         of Chapter 3, Title 22 of
the Revised Civil Statutes of Texas.          See Hu gins vs. Vaden,
253 S.W. 877; Moore vs. Coffman, 200 S.W. 37t . There Is no
statutory authority    stating when the petition        must be acted up-
on by the courti      However, this department has held that it
should be acted upon within a reasonable time.
             As we understand your problem from your opinion re-
 uest and other correspondence      on the matter, one petition      for
4160 000 was filed for the purpose of constructing          and improve-
lng highways.     Later a second pet~ition was presented for $96,-
000 for the purpose of constructing       exactly the same mileage
with the exception of seven miles called for in the first           peti-
tion.     We have no .doubt that under these facts the Commission-
ers’ Court would not abuse its discretion        in taking up and grant-
ing within a reasonable time the first       petition   filed,  even
though in the meantime the seoond petition        had been filed.      In-
deed, we are unable to perceive how it can be said that the court
had any discretion     to refuse the first   petition   when presented.
When the second petition      was presented,   covering the same mile-
age with the exception of seven miles called for in the first
petition,    we think the court would have a right to postpone its
order on said petition      because If the election    on the first    peti-
tion carried,    the election   on the second petitionwould       be a
useless act, and we know ‘of no rule that would warrant the issu-
ance of a mandamus to enforce the Commissioners’ Court to perform
such an act.     See Huggins VS.* Vaden, 253 S.W. 877.
            The Purpose of a~bond election    is    to vote for or against
the issuance of bonds for a specific      purpose    and not to vote for
one petition   or another petition.     The bond    election  must carry
by a two-thirds   majority vote,    the money to    be used for the purpose
Hon. R. E. McLaughlin,    page 3


voted on. We know of no way that both eleetlons   could be held
at the same time end accomplish the purpose for.whi.ch a bond
election is held.
            Therefore,    it is our opinion that the proper procedure
would be for the Commlssionersc Court to call an election           on
the first   petition.     If this eleation   carries,  then the second
petition   becomes a moot question because the entire mileage pro-
vided for in the seaond petition       will be improved with the bond
money obtainable      as a result of this election.      If this elec-
tion fails   to carry by the required two-thirds       majority then the
court can call an election       on the seoond petition.
               In reply to your last question,    the County Commission-
ers have power to improve roads.wlthln         a town or city with the
consent of the civic authority.       Hughes vs. Harris County, 35
S.W. (2d ) 818. Having this power, an agreement with the civic
authority to expend county road bond funds is binding on the
county -- at least where the expenditure is on a street which
forms a link In a county highway.       21 Texas Jurisprudence,    668;
~~~~eo,fv~e~~~r’sd~~~t”;tSt38P~~~      ~~~tg18~      S-W* (2d) 43;

           Trusting   that this   answers your questions,   we remain
                                           Very truly   yours
                                           ATTORNEY
                                                  GFNERALOF TEXAS
                                           By /s/ Claud 0. Boothman
                                           Claud 0. Boothman, Assist-
                                           ant.
APPROVED  MAR18, I.940
/s/ Gerald C. Mann
ATTORNEY  GBNERALOF TEXAS

APPROVED:OPINIONCOMMITTEE
BY:     BWB, CHAIRMJU
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