THE ATI-ORNEY GENERAL OF TEXAS
GERALD C. MANN -ON

Honorable E. G. Pharr CountyAttorney Delta County Cooper, Texas Dear Sir: OpinionNo. O-2726 Re: Levy of taxes by the commissioners'court. Your recent telegramrequesting an opinion of this Department on the questions as are herein stated has been received.

We quote fromyour telegram as follows: 'DeltaCounty has not as yet made a tax levy and county judgerefuses to attend regularmeeting of commissioners'court to considermatter of levying taxes. If the county judgedoes not attendmay 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, constitutea 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,togetherwith 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. "Anythree 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 *thecommissioners'court may levy taxes only at a regular termwith all members present."

The Supreme Court of Texas in construingArticle 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 themode of imposingtaxes as follows: 'No county tax shallbe 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 dispensewith It. Scarborough, 8 3.W. 490)." In answer to your first question you are respectfully' advised that it is the opinion of thisDepartment that where the county judge fails or refuses t0 attend a regular meeting of the commissioners'court, the four commissionersare not authorized to levy a county tax in his absence.

With reference to your secondquestion,we do not know of any procedurewhich would make the levy legal except a full compliancewith Article 2354, supra,

Article 397 ofVernon's Penal Code read,8as follows: "Shouldany member of the commissioners'court of any countywilfullg 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 $200.00nor more than $500.00."
In view of Article 397, supra,we are of the opinion thatwhere the county judge or any othermember of the commissioners' courtwilfully fails or refuses to attend any regular meeting or term of said court at which the business orHonorable E. G. Pharr, page 3 o-2726

question of levying a county tax for any purpose is to be acted on, he shouldbe prosecutedunder saidArticle.

We quote from Texas Jurisprudence,Volume 28, page 564, as follows:

"Awrit of mandamus lies against a public officer to compel the performance of a ministerialduty imposedby law not involvingan exercise of judgment of discretionwhich 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, judgesand judicial officers.

. eThe trend of modern decisions is toward a~liberal construction of the rules by which mandamus may iSSUe to compel performanceby public officials of duties prescribedby statute. Thus, when a judge or other officerby his construction of the law, deprives a citizen of an unquestioned legal.rlghtand there 18 no right to appeal nor'other adequate remedy, a court having power to issuemandamus may review the matter.
. . . . . en It is our further opinion that the county judgemay be compelledby 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/GeraldC. Mann ATTORNEY GENERAL OF TEXAS By s/ArdellWilliams ArdellWilliams Assistant

Approved Opinion CommitteeBy s/BWB Chalrman