                                                                         740




             OFFICE   OF THE   ATTORNEY     GENERAL    OF TEXAS

                                   AUSTIN

OCMWCwUm
A---



    Honorable Fred Nor316
    OountJ Auditor
    Polk County
    Livingston, Texar
    Dear Sir:




                                                     your letter OS
                                                      of
                                                       thie department
                                                 questions are ar fol-



                                             keep order an8 quiet
                                             of the oourt can be
                                             ve the authority to
                                            g the quiet of the

                               unty Judge have ruthorlty to re-
                               ay beoauae membere of the aaid
                               ot present at the time oourt war
                                eal& County Judge asouming that
                                was ordered to oonvene was a

                *Does the County Judge have mthorlty to dom-
           pel the attendmoe of the county aommleelonera at
           Commleelonerr Court meetinga? If so, by what pro-
           oesa?n
              Art1ole.a2342, 2343, 2384 and 2361, Vernon*8 Annotated
    Civil Statuteo, read 88 followe!
Honorable Fred NorrIo,   pago 2



          ‘Art. 2342.  The several oommi8eloner8, to-
     father with the oounty Judge, shall oompose the
      Commle8loner8 Court,N and the oounty Judge, when
     wesent, ah811 be the prerldlng offioer of Paid
     oourt.*
           “Art. 2343.   Any three members of the 8ald court,
     inoludlng the oounty JUag8, 8hall oon8tltut8 a quorum
     for the tranraotlon   of any bu8ine88, exoept that OS
     levying a county tax.*
          “Art. 2354.  Ro aounty tax 8hall be lerled ei-
     oept at a regular term of the oourt, and when all
     member8 of 8alQ oourt are prerent.'
           "Art. 2361.   Eaoh oomml8slonerr oourt rhallr
            II) l   *



           '13. Punl8h oontempt8 by fine not to exoeed
     twenty-five dollars or br lmprlsotuoentnot Taoex-
     Oe8d twenty-four hour8, and In o88e of fine, the
     party may be held In ourtody until the fine 18
     pal&.
            II** ***

          While the oomml88loner8~ Oourt i8 a oon8tltutloMl
oourt of general Jurlrdiotton when rating within the sphere
of the power8 and dutler oonferred upon It by law, and 18 8m-
powered to punl8h for oontempt (Art. 2351, R.C.S., 19251 Gainer
v. Newbrough, 12 T.C.A. 466, 34 S.W. 1048; 9 Tex. Jur. 608)
the power rerldes In the oourt and not in the mm.
          Thl8 d8oartment ha8 repertedly held that under Seo-
tlon 18 of Artloli 6 ef the Texai Conrtltution and Articl88
2342 an& 2343 of the Rerired Clrll Statutes, 1926, the oounty
Judge Is merely a oompanent part of the oommlseionerr' court,
enjoya equal rotlng prlrlleger and together with any two oom-
missioner8 oonetltute8 a quorum. He 18 dlrtlngulrhed from
other m8mber8 of the oourt while in 8e88lon only in that h8
18 lte pre8ldlng offloer. Oplnlon SOS. O-1716; O-2145;
0-2415A;   O-2726.
                                                                   742



Honor&b18 Fred   lf0rri8,   page 3


          You are aooordlngly advIsed In anlwer to your flr8t
quertlon that the oounty oommIr8Ionerr and the oounty JuQge
oonetitute the oounty oommlsslonerr' oourt and the power to
punish for contempt reeldee in ruoh ppIlE4and not In It8 pre-
eldlng officer. The oounty Judge, aoting alone ha8 no outhor-
lty to flne a member for dlrturblng the quiet of the oourt.
          We pale to your seoond question oonoernlng the au-
thority of the county Judge to rece8e from day to day when
member8 of the oourt are not present at the time and plaoe
releoted for meeting.
          In LabodIe Y. Dean, 47 Tex. 90, and LIparl v. State,
19 Tex. Ct. App. 431, the oourt haQ oooarlon to dI8tIngulrh
b8tWeOnterma and 8088lOn8 of the OOlnmie8lOnOr8'OOUrt. Th8
E     ozrthe ~ommleslonerr' OoUrt are fIXed by law; It8 1pIl-
          +it      are matterm for the dl8oretIon and arten-
lnatlon of the Court. There may be a w     without there being
a m        Llparl *. State, 8upra.
          Th88e rule8 are oalled to your rttrntlon to em-
phaeits that the seas1 no of the oommlaeloner8~ oourt &re
matter8 left by law to'the dieoretlon of the C@irt 8.M not
It8 pr88lding officer, the oounty JUd88. fn thI8 rerpeot
hls authority 18 only aomaensurate with other oounty oom-
mf88lOn8r8.
          Of oourri the oourt murt be orgnnlzed lo o o r dlng
to law (Warehan v. ~lohnrdr, 46 Tex. 441) and a quorum muet
be pre8ent to tranraot bulrlnere.
          A8 rtated in Dalton v. Allen, 110 Tax. 68, 210
8. w. 439r
          "The statutrr merely requlre that th8 oounty
     Judge prerlde when preeent, and authorixe the tranr-
     rotlon 0r thr oounty'8 bu8lnera, 8ave when otherwI8e
     exprermly provided, by three members of the oourt.*
          Therefore, In answer to your reoond querSlon, you are
8dvl8ed that If a quorum (two oounty oomalesloner8 and the OOUn-
ty Judge or three oommlroloner8 In hlr lb88nO8) Is prelent,
the county Judgr may not reoe8e meeting8 of the OoUrt from
dry to day because of the ab8enoe of other oounty oommis6Ionerr.
If 8 quorum is not present, no notion at all oan be taken --
thr oommIe8lonerr' oourt is not in re88lon.
                                                                  743


Honorable Fred Norris,   page 4


          Your final question conoerne the authority of the
oounty Judge to compel attenflanoeof conmleslonere at meeting8
of the cburt.

          The rule Is reourrent that the oounty Judge, whlle
the preelding officer, is only a member of the commlr8loner8
court. He has been glven no authority on his own motlon to
compel sttendanoe. Whether or not he may, ae any c,theroltizen,
obtain a writ of mandamu8 to oompel attendanoe, will depend up-
on faots of eaoh partloular oaee. As to the80 we cannot Ipeo-
ulate. See Oplnlon No. O-2726.
           Your Attention 18 dirOCt8&, howrver, to Artlole 397
of the Penal code maklng It 8 ml8deme&nor for any member of
the oommleslonerrl o,?urtto fall or refuse to attend any
meeting of the oourt et which the burine88 or quertlon of levy-
Ing a OoUnty tax fbr any purpocle18 to be aoted on, an& 818~
to Artlole 425 of the Penal Code mlklng It a ml8demeanor In
oertain lnrtancee for any member of the oomml8rlonerr~ court
to~fall or refn8e to rote upon the releatlon of a oounty de-
poritory. These artloer read ae follow8:
          *Art.  397. should ang member of the oomml8eloner8
     oourt of any aounty wllfully fall or refure to at-
     tend any regular meeting or term of raid aourt
     at whloh the bueinesa or question of levying a
     county tax for any purpose le to be acted on, he
     8hall be fined not leea than two hundred nor more
     than fir8 hundred &olla,r8.*
          ‘Art.  425.  Any msmber of the oommleolonerr
     oourt who shall fall or rrfusr to rote at any
     February term thereof next following eaoh general
     eleotlon for L complianoe with the requlremente of
     the law proVl&lng for the seleutlon of a bank or
     banker a8 the depo8ltory of the fund8 of ruoh
     oounty ehall be fined not less than one hundred
     nor more than fire hundred dollarr or be lmprieon-
     ed ln Jail not less than one nor more than alx
     monthr, or both. Such failure or refural 11 ground
     for removal from offlo8."
                                        Very truly your8
      APFROVEYFEB Z'i,2.94)~
                                  ATTORNEY OESERAL OF TEXAS


      ATTCRNEY GENERAL 0.FTEXAS   JJY
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