THE ATI-ORNEY GENERAL 

OF TEXAS 

GERALD C. MANN 

-ON 

Honorable E. G. Pharr 

County Attorney 

Delta County 

Cooper, Texas 

Dear Sir: Opinion No. O-2726 

Re: Levy of taxes by the commissioners ' court. 

Your recent telegram requesting an opinion of this 

Department on the questions as are herein stated has been 

received. 

We quote from your telegram as follows: 

'Delta County has not as yet made a tax levy 

and county judge refuses to attend regular meeting 

of commissioners' court to consider matter of levying taxes. If the county judge does not attend may 

four commissioners levy the tax in his absence? If 

not, what steps are necessary to make the levy legal?" 

In Texas Jurisprudence, Volume 11, page 559, it is 

stated that: 

"In order that valid action may be taken by 

county commlssioners, they must first be Organized 

as a court. Any three members of the commissioners' 

court, including the county judge, constitute a 

quorum for the transaction of any business except 

that of levying a county tax. a . e . =' 

Article 2342, Vernon's Annotated Civil Statutes, provides: 

"The several commissioners, together with the 

county judge, shall compose a commissioners' court, 

and the county judge, when preseftt, shall be the 

presiding officer of said court. 

Articles 2343 and 2354, Vernon's Annotated Civil Statutes, read as follows: 
Honorable E. G. Pharr, page 2 O-2726 

Article 2343. "Any three members of said court, 

including the county judge, shall constitute a quorum 

for the transaction of any business except that of 

levying a county tax." 

Article 2354. "No county tax shall be levied except at a regular term of the court, and when all members of said court are present." 

In the case of Brooks v. State, 41 S.W, (2d) 714, 719, 

it is said that *the commissioners' court may levy taxes only 

at a regular term with all members present." 

The Supreme Court of Texas in construing Article 1517 

(which is now Article 2354, supra) said: 

"Article 1515 gave the power to levy taxes for 

county purposes, and Article 1517 imposed limitations 

as to the mode of imposing taxes as follows: 'No 

county tax shall be levied except at a regular term 

of the court, and when all the members of said court 

are present.' Unquestionably, the &glslature had 

the power to make this rule. The limitation admits 

of no construction. The meaning i~(;;t;r;~c~.r~; can 

not alter it or dispense with It. 

Scarborough, 8 3.W. 490)." 

In answer to your first question you are respectfully' 

advised that it is the opinion of this Department that where 

the county judge fails or refuses t0 attend a regular meeting 

of the commissioners' court, the four commissioners are not authorized to levy a county tax in his absence. 

With reference to your second question, we do not know 

of any procedure which would make the levy legal except a full 

compliance with Article 2354, supra, 

Article 397 of Vernon's Penal Code read,8 as follows: 

"Should any member of the commissioners' court 

of any county wilfullg fail or refuse to attend any 

regular meeting or term of said court at which the 

business or questlon of levying a county tax for any 

purpose'is to be acted on, he shall be fined not less 

than $200.00 nor more than $500.00." 

In view of Article 397, supra, we are of the opinion 

that where the county judge or any other member of the commissioners' court wilfully fails or refuses to attend any regular meeting or term of said court at which the business or 
Honorable E. G. Pharr, page 3 o-2726 

question of levying a county tax for any purpose is to be acted 

on, he should be prosecuted under said Article. 

We quote from Texas Jurisprudence, Volume 28, page 

564, as follows: 

"A writ of mandamus lies against a public officer to compel the performance of a ministerial duty 

imposed by law not involving an exercise of judgment 

of discretion which he has failed or refused to perform. 

"Thus, a writ will issue in a proper case, to 

compel the nerformance of ministerial dUtie8 by executive officers of the state, other then the Governor; and by officers of counties, cities, and school 

districts; as well as by a court, judges and judicial 

officers. . e The trend of modern decisions is toward 

a~liberal construction of the rules by which mandamus 

may iSSUe to compel performance by public officials 

of duties prescribed by statute. Thus, when a judge 

or other officer by his construction of the law, deprives a citizen of an unquestioned legal.rlght and 

there 18 no right to appeal nor' other adequate remedy, 

a court having power to issue mandamus may review the 

matter. . . . . . en 

It is our further opinion that the county judge may 

be compelled by mandamus to attend a regular meeting of the .~ 

commissioners' court at which the business or question of levying a county tax for any purpose is to be acted on. 

Trusting that the foregoing fully answers your inquiry, 

we are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

AW:BBB:wc 

APPROVED SEP 12, 1940 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

By s/Ardell Williams 

Ardell Williams 

Assistant 

Approved Opinion Committee By s/BWB Chalrman