*-Rhn oEsx-L 

August 11, 1964 

Honorable James E. Barlow 

Criminal District Attorney 

Bexar County Courthouse 

San Antonio, Texas 

Dear Mr. Barlow: 

You have requested an official opinion from this office 

inregard to the question of:, 

Opinion No. c-291 

Re: What procedure is to be followed in setting the county 

tax rate in Bexar County when 

the County Judge is incapacitated and unable to attend the 

regular session of the Commlssioners Court. 

When a county judge or other member of the 

commissioners Court of's county is unable:to. 

attend the regular sessions of commls,sioners~ court 

due to illness for the purpose of setting the 

county tax rate, may the court meet in his hospital room or Is there some process by which,a.tem-. 

porary judge or commissioner may be appointed in 

his stead?" 

In connection with your question of whether the Commissioners Court could meet in the hospital room of an Ill Commlssioner or County Judge, the provisions of,Artlcle 2348, Vernon's 

Civil Statutes, provides in part that:. 

"The regular terms of the Commissioners Court 

shall be commenced.@ be held at the courthouse. 

. . . I( (Emphasis added). 

In addition, Article I, Section 13, of the Constitution 

of.Texas provides in part that; 

that: 

'1. . . All courts shall be open, . . .I1 

Attorney General's Opinion No. O-1477 (19391, states 

@'Article I, 'Section 13 of the Constitution of 

Texasprovides that all courts shall be open. It 

Is our opinion that when the people of Texas adopted 

the Constitution, they were demanding that the 

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honorable James E. Barlow, page 2 (c-291) 

courts remain 'open at all times in order that.the 

public might be heard on all questions affecting 

their property. It therefore became the duty of 

the Legislature to pass Article 2348, Vernon's 

Annotated Civil Statutes, in order that the public 

would know when and where the Commissioners Court 

would meet. Article 2348, Vernon's Annotated 

Civil Statutes, provides when the regular term of 

the Commissioners Court shall meet, and that the 

meeting shall be at the courthouse." 

In Tarrant Countv v. Smith (Tex.Civ.App. 1935, 'error 

ref.), 81 S.W.2d 537, the Court stated that the Commissioners 

court : 

'1. . . meet as a court and transact the 

'county business Jn onen session Such requirement Is not formal." It is sub&.ntlal. both that 

the members may have the benefit of the knowledge 

See also,~ Swain v. Montaomeq, (Tex,Civ.App. 1941, error ref, 

w.o.m.1, 1% S.W.2d 695. 

In view of the foregoing, we are of the opinion that 

forthe Commissioners Court during its regular term, to hold 

its meetings, or a portion thereof, in the hospital room of an 

Ill Commissioner or County Judge would~ not comply with the provisions of Article 2348, and would, in fact, be in violation 

thereof. In addition, we are of the opinion that a meeting of 

the Commissioners Court in the hospital room of an ill Commlssioner or County Judge would not meet the requirements of Article I, Section 13, of the Constitution of Texas that all COUrtS 

shall.be open. 

Before passing upon the question of whether a temporary County Judge may be appointed to act for the ill County 

Judge at the upcoming regular term of the Commissioners Court 

at which the county tax will be levied, the provisions of certain 

statutes should be noted. Article 2354, Vernon's Civil Statutes, 

provides that: 

IWO county tax shall be levied except at a _ . - . -- . regular term of tne court, m wnen a 1 members u 

said court are nresent." (Emphasis a(:ded). 

I 

-1393.. 
Honorable James B. Barlow, page 3 (C-291) 

In the case of Free v. Scarborough, 70 Tex. 672, 8 

S.W. 490 (1888) the Court in construing Article 1517, such statute containing the identical language 

ticle 2354, stated: 

found in the present ArII 

. . ., Unquestionably, the legislature had 

the power to make this rule. The limitation admits 

of no construction. The meanin,g is clear; courts 

cannot alter it or dispense with it. A tax levied 

at a called session of the court, pr without the 

presence of the fuli membershin is not levied according to law. . . . .I( (Emphasis added). 

See also, Broocks v. State (Tex..ciV.ADD~ 19311, 41 S.W.2d 714: 

Attorney-G2 3neral% ooznion No, 0-.5X74-71943): Attornev Generai% 

Opinion, NO. O-1477 (194O)f and A&key General's Qpihion No. 

O-2726 (1940). 

As toe your question of.whether there is some process' by 

which a'temporary County,Judge maybe~ appointed to act in behalf 

of an ill Commissioner or County Judge. Attorney General% Opinion 

No. O-5374 (1943); dealt with this que,stion in connection with a~ 

County Judge who had been.temporarily incapacitated by'illness.. 

This opinion discussed the various. aonstltutional an& statutory 

provisions. dealing with the selection. elections or appointment of 

Special County Judges, but concluded Chatr 

“As heretofore stated the selection or appointment of a special county, judge Is. proper only upon 

the conditions specifYed in the Constitution and 

It has been suggested, in connection with the holding 

in Attorney.General's Opinion No.. O,-5374 (1943)~ that the enactment of Article 1970-301f. Vernon's Civil Statuies,,,in 1963 

created *he County Civil 8ourt at Law of Bexar County, 

.which 

prov 1 des then 

statutory authority~for the Judge of. the County Civil Court at Law 

of Bexar County to:attend the meetings of the Commissioners Court 

of Bexar County in place of the County Judge, upon the certification by the County Judge that he is unable to attend such meeting 

~(pursuanto the provisions of Section 15 of Article 197%3Olf).. 

Section 15 of Article 1970-301f provides that: 

-1394- 
Honorable James B. Sarlow, page 4 (C-291) 

“The Judge of the County Civil Court at Law 

of Bexar County, Texas, .upon proper certification, 

of the County Judge of Bexar Country,, Texas, because 

of conflicting duties, gr absence or inabilitv to 

a&, or upon the failure or refusal of such County 

Judge to act for any reason or cause, shall also Abe 

authorized and empowered to act for and in the~place 

and stead of said County Judge in any probate proceeding or matter,,rd mav also D erform for the County, 

JLlds e of Bexar Coun v. Texas. anv and all other min&g- 

.terial acts reauired bv the laws of this State of said 

Countv Judne of Bexar Countv. Texas and upon any sudh 

certification, the Judge of said Co&y Civil Court at 

Law of Bexar County,. Texas, shall give preference and 

priority to all, such actions, matters and proceedings 

so certified, and any and all such acts thus performed 

by the Judge of said County Civil Court at Law of 

Bexar County, Texas, shall be valid and binding upon 

all parties to such actions, matters and proceedings 

the same as if performed by the County Judge of Bexar 

County, Texas. , . .I’ (Emphasis added). 

Insofar as Section-15 of Article 1970-30lf appears to 

authorize the Judge of the County Civil Court at Law of Bexar 

County to perform any and allministerial pacts of the County Judge 

of Bexar County Attorney General’s Opinion No. C-2726 (1940) 

dealt with a si?uation where the County Judge refused to attend a 

meeting ~of the Commissioners Court to consider levying taxes. In 

such opinion it was held that the County Judge could be prosecu ed 

pursuant to the provisions of Article 397, Vernon8s Penal Code, 5 

or could be compelled by mandamus to attend a regular meeting of 

the.Commissioners Court at which the business or question of levying a county tax was to be acted upon: The basis’for the holding 

in the opinion, that a writ of mandamus could issue against the 

A/ Article 397, Vernon’s Penal Code, provides that: 

88Should any member of the commissioners court of 

any county willfully fail or refuse to attend any 

regular meeting or term of said court at which the 

business or question of levying a county tax for any 

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

than two hundred nor more than five hundred dollars.” 

-1395- 
Honorable James E. Barlow, page 5 (Cc2911 

County Judge, was that a writ of mandamus would lie against a 

public officer to compel the performance of a ministerial duty 

imposed by law and not involving an exercise of judgment or dlscretion which such public officer has failed or refused to perform. 

While the foregoing lends Itself to the conclusion that 

the attendance of the County Judgeat a meeting of the Comissioners Court at which a county tax Is to be levied is merely ministerial, and whibthe provisions of Section 15 of Article 1970- 

301f authorize the Judge of the County Cjvil Court at Law of Bexar 

County to perform any and all mlnlsterlal acts of the County Judge 

of Bexar County upon certain specified conditions, it does not 

necessarily follow that the requirements of Article 239, that all 

members of the Commissioners Court must be present when the county 

tax is levied, have been met if the Judge of the County Civil 

Court at kW of Bexar County merely attends the meeting of the Commitisioners Court,~ at whloh the county tax ,ls levied, for the County 

Judge of Bexar County. 

Artlcla V, Section ~8, of the Constitution of Texas provides 3.n~ part thatr 

“9 . . Then County’ Commissioners so chosen, 

The foregoing constitutionaL revision clearly designates who shall constitute the ~member& f p of the Commissioners 

Court. Isc prcvis$cn contained therein allaws or prov%des for the 

County Judge ‘8 memberstip on such coyTt to be delegated to another 

‘party. The ‘Constitution bating ,prescrLbed the membership of the 

colilmisrivn~re courk, 1t dollows 

thereto ce,n stand. ?,2 Te~Gkr.2 

SUC?I being the case, the provisi 

“NC CQWt~ tax sh 

3 

have not bean :cmqi;led with unless the County Jtidge~Zls present at 

the meei3n.a of the Ccmmisskmers C&X%, when the .iWlnty tax is 

lev-~16 a.“. It $3 therefore our opltion that the requirements cf 

Article 354 could n& be met by the .Jud.ge nf the County Ci~3-l 

Court at Law of Bexair County, pursuant to ~Seetion 12 of Article 

1970-301f, attending ~the mee’tmg of the ComPssicners CVUrt, at 

which the county tax lo lev%ed, in place uf the County Judge ,of 

Bexar County. 
Honorable James E. Barlow, page~6 (C-291j 

The question~has also been posed as to whether an 

,arrangementwhereby an ill' County Judge could be transported by 

ambulance to the basement area of the.County Courthouse, at which 

place the remaining,members of the Commissioners Court, along 

with the County Judge, would meet to levy the county tax, would 

comply with the requirements of Article 2348, Article 2354, and 

Article I, Section 13; of.the Constitution of Texas. 

We find.'no statutory orconstitutional provision making 

it mandatory that the meeting of the.Commissionerc Court, at which 

the county tax is levied, be held entirely at the same location 

within the Courthouse, orthat the individual members of the Commissioners Court attend'the entire meeting, but all of such members must be present when the vote is taken levying~ the,county tax 

in order to comply with-the:provislons.of. Article 23,s. 

As to the question of whether such an arrkgement corn6 

plies with Section 13 of.:Article I,,of the Constitution of Texas, 

we are of the opinion that if the basement area where the meeting 

is to be held,is open to the public at the time of such meeting, 

and the. public.isaware of.where such'meeting. is being conducted, 

the constitutional requirements have been met., 

,~ SUMMARY 

.: ,' 

The mee.i%g o.f:the Commissione.rs.'Co*.~~at'~h~ch 

the county tax is levied can not be held~.iiithe hospital room of an ill County Judge or Commissioner. 

.,. i 

The.Judge,'k&he Co&y-Cjvil~Court at Law of 

'Bexar County, acting pursuant.to Section 15 of Article 

'1970-301fj' can nat:meet. theerequirements set,. forth in 

Article 23.54 by..meeting with the. Commis.si,oners Court. 

in place of the County Judge of Bexar,County at the 

meeting wha.re~.the cotity tax is levied. 

An arrangement whereby the meeting of.the Commissioners Court, at which the county tsxis levied, is 

.held in.the..basement area of the County Courthouse, 

with all members of the.Conrmis~~oners,~Court pesent, 

complies with the provisions of hrticle 2348 and Article 2354. Such arrangement would alsa comply with the 

provisions 'of~Sectlon 13 of Article I of the Constltution of Texas;~if kuch meeting area is open to the 

,' 

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. . . 

_ ~- 

Honorable James E. Barlow, page 7 (C-2gii 

public and the public is aware Qf where such meeting 

IS being conducted. 

Yours very truly, 

WAGGON&R CARR 

Attorney General 

PB:wb 

APPROVED: 

OPINION COMMITTEE 

W. 0. Shultg, ChaUman 

Gebrge Gray 

Hawthorne Phillips 

John Reeves 

Paul Phy 

APPROVED FOR THE ATTOW GEf@RA& 

BY: Stantog Stone 

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