*-Rhn oEsx-L August 11, 1964

HonorableJames E. Barlow CriminalDistrictAttorney Bexar County Courthouse San Antonio, Texas

Dear Mr. Barlow:
an official opinion from this office

You have requested inregard to the question of:, OpinionNo. 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 CommlssionersCourt.

When a county judge or other member of the commissioners Court of's county is unable:to. attend the regular sessionsof commls,sioners~ court due to illness for the purpose of setting the county tax rate, may the courtmeet in his hospital room or Is there some processby which,a.tem-. porary judge or commissioner may be appointed in his stead?" In connectionwith your question of whether the CommissionersCourt couldmeet in the hospital room of an Ill Commlssioner or County Judge, the provisionsof,Artlcle2348, Vernon's Civil Statutes,provides in part that:.

"The regular terms of the Commissioners Court shall be commenced.@ be held at the courthouse.

. . . I( (Emphasisadded). In addition,Article I, Section 13, of the Constitution of.Texasprovides in part that;

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

Attorney General's OpinionNo. O-1477 (19391, states
@'Article

I, 'Section

13 of the Constitutionof 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 -1392-honorableJames E. Barlow, page 2 (c-291)

courts remain 'open at all times in order that.the publicmight be heard on all questionsaffecting their property. It thereforebecame the duty of the Legislature

to pass Article 2348, Vernon's AnnotatedCivil Statutes, in order that the public would know when and where the Commissioners Court would meet. Article 2348, Vernon'sAnnotated Civil Statutes,provideswhen the regular term of the Commissioners

Court shallmeet, 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 businessJn onen session Such requirement Is not formal." It is sub&.ntlal. both that the membersmay 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 provisionsof 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 Commlssioneror County Judge would not meet the requirementsof Article I, Section 13, of the Constitutionof Texas that all COUrtS shall.beopen.

Before passing upon the questionof whether a temporary County Judge may be appointedto act for the ill County Judge at the upcoming regular term of the Commissioners Court at which the county tax will be levied, the provisionsof certain

shouldbe noted. Article 2354, Vernon's Civil Statutes, statutes providesthat:

IWO county tax shall be levied except at a

_ . - . -- . regular term of tne court,m wnen a 1 members u said court are nresent." (Emphasisa(:ded). I

-1393..HonorableJames 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 containingthe identical language ticle 2354, stated: found in the presentArII

. . ., Unquestionably, the legislature

had the power to make this rule. The limitationadmits of no construction. The meanin,g is clear; courts cannot alter it or dispensewith 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( (Emphasisadded). 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)fand A&key General's Qpihion No. O-2726 (1940).

As toe your question of.whetherthere is some process' by which a'temporaryCounty,Judge maybe~ appointedto act in behalf of an ill Commissioneror County Judge. Attorney General% Opinion No. O-5374 (1943);

dealt with this que,stion in connectionwith a~ County Judge who had been.temporarily incapacitated

by'illness.. This opinion discussed the various. aonstltutional

an& statutory provisions.

dealingwith the selection.elections or appointmentof SpecialCounty Judges, but concludedChatr

“As heretofore stated the selectionor appointment of a special county, judge Is.

proper only upon the conditionsspecifYedin the Constitutionand

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 des 1 then statutoryauthority~for the Judge of.

the County Civil Court at Law of Bexar County to:attendthe 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 ~(pursuant

o the provisionsof Section 15 of Article 197%3Olf).. Section 15 of Article 1970-301fprovides that:

-1394-HonorableJames 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 inabilitvto a&, or upon the failure or refusal of such County Judge to act for any reason or cause, shall alsoAbe authorizedand empoweredto act for and in the~place and stead of said County Judge in any probate proceeding or matter,,rd mav also Derform for the County, JLlds e of Bexar Coun v. Texas. anv and all other min&g- .terialacts reauiredbv 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 preferenceand priorityto 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 performedby the County Judge of Bexar County, Texas. , . .I’ (Emphasis added). Insofar as Section-15of Article 1970-30lfappears to authorizethe Judge of the County Civil Court at Law of Bexar County to perform any and allministerialpacts of the County Judge of Bexar County Attorney General’sOpinionNo. C-2726 (1940) dealt with a si?uation where the County Judge refused to attend a meeting~ofthe Commissioners Court to consider levying taxes. In such opinion it was held that the County Judge could be prosecu ed pursuantto the provisionsof Article 397, Vernon8s Penal Code, 5 or could be compelledby mandamus to attend a regularmeeting 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 countywillfully fail or refuse to attend any regularmeeting or term of said court at which the businessor 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-HonorableJames E. Barlow, page 5 (Cc2911

County Judge, was that a writ of mandamuswould lie against a public officer to compel the performanceof a ministerialduty imposedby law and not involvingan exercise of judgment or dlscretionwhich such public officerhas failed or refused to perform. While the foregoinglends Itself to the conclusion that the attendanceof the County Judgeat a meeting of the Comissioners Court at which a county tax Is to be levied is merely ministerial, and **whibthe** provisionsof Section 15 of Article 1970- 301f authorizethe 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 specifiedconditions, it does not necessarilyfollow that the requirements of Article 239, that all members of the Commissioners Court must be presentwhen 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 ,lslevied, for the County Judge of Bexar County.

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

part thatr “9
. . Then

County’ Commissionersso chosen,

The foregoingconstitutionaL revision clearly designates who shall constitutethe ~member& fp of the Commissioners Court. Isc

prcvis$cncontainedtherein allaws or prov%des for the CountyJudge ‘8 memberstipon such coyTt to be delegated to another ‘party. The ‘Constitution bating ,prescrLbed the membership of the colilmisrivn~re

courk, 

### 1t dollows theretoce,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 thereforeour opltion that the requirementscf Article354 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.HonorableJames 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 ambulanceto the basement area of the.CountyCourthouse,at which place the remaining,members of the Commissioners Court, along with the County Judge, would meet to levy the county tax, would complywith the requirements of Article 2348, Article 2354, and Article I, Section 13; of.the Constitution of Texas. We find.'no

statutoryorconstitutional provisionmaking 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 individualmembers of the CommissionersCourt attend'theentiremeeting, but all of such members must be presentwhen the vote is taken levying~ the,countytax in order to complywith-the:provislons.of. Article 23,s. As to the questionof whether such an arrkgement corn6 plies with Section 13 of.:Article I,,of the Constitutionof 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~.iiithehospital room of an ill County Judge or Commissioner.

.,. i The.Judge,'k&he Co&y-Cjvil~Court at Law of 'Bexar County, actingpursuant.toSection 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,Countyat the meeting wha.re~.the

cotity tax is levied. An arrangement

whereby the meeting of.the CommissionersCourt, at which the county tsxis levied, is .heldin.the..basement area of the County Courthouse, with all members of the.Conrmis~~oners,~Court pesent, complieswith the provisionsof hrticle 2348 and Article 2354. Such arrangement would alsa comply with the provisions'of~Sectlon 13 of Article I of the Constltution of Texas;~ifkuch meeting area is open to the ,'

-1397-. . .

_ ~-

HonorableJames 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 AttorneyGeneral

PB:wb APPROVED: OPINIONCOMMITTEE W. 0. Shultg, ChaUman Gebrge Gray HawthornePhillips John Reeves Paul Phy APPROVED FOR THE ATTOW GEf@RA& BY: Stantog Stone

-1398-