. . 

June 19, 1958 

Hon. Ward W. Markley 

County Attorney 

Jasper County 

Jasper, Texas 

Dear Sir: 

Opinion No. WW-462 

Re: Does the Commissioners' 

Court have the authority 

to reduce the amount of 

the bond proposal, or must 

the Commissioners' Court 

order the election for the 

full amount requested, and 

related question. 

In your letter of May 12, 1958, to.this office, 

you request an opinion on the following questions based 

on the given facts: 

"Road District No. 7, in Jasper COUnty, 

Texas, has petitioned the Commissioners' 

Court of Jasper County for an election 

to issue bonds, under Article 7528, 

Vernon's Annotated Civil Statutes of Texas, 

which petition is signed by more than fifty 

(50) resident property tax paying citizens, 

and all of the requirements met under this 

Article. A hearing on the bond issue was 

set, and heard in accordance with Article 

752e. 

"Question No. One: 

"Does the Commissioners' Court have the 

authority to reduce the amount of the bond 

proposal, or must the Commissioners' Court 

order the election for the full amount requested? 

"Question No. Two: 

"Whether or not a mandamus would lie against 
. . 

Hon. Ward W. Markley, page #2 (WW-462) 

the Commissioners' Court to call the election for the full amount of the bond issue 

requested in the petition." 

The Commissioners' Court is a creature of the State 

Constitution and its powers are limited and controlled by 

the Constitution and laws passed by the Legislature. Article 

V, Section 18, Tex. Con&.; Raldwin v. Travis County, 88 S.W. 

480,484 (Tex.Civ.App.); Seward v. Falls County, 246 S.W. 728 

(Tex.Civ.App.): Bland v. Orr, 90 Tex. 492, 39 S.W. 558; Mills 

County v. Lampasas County, 90 Tex. 606, 40 S.W. 403, Commissioners" Court v. Wallace, 118 Tex. 279, 15 S.W. 2d 535. 

Article III, Section 52, Constitution of the State of 

Texas, insofar as relevant to your inqui,y, provides: 

" . e a under legislative provision a e o 

any defined district now or hereafter to 

be described and defined within the State 

of Texas, . . . upon a vote of a two 

thirds majority of the resident property 

taxpayers voting thereon who are qualified electors of such district of territory to be affected thereby, in addition 

to all other debts, may issue bonds or 

otherwise lend its credit in any amount 

not to exceed one-fourth of the assessed 

valuation of the real property of such 

district or territory . 0 0 and levy and 

collect such taxes to pay the interest 

thereon and provide a sinking fund for 

the redemption thereof, as the Legislature may authorize, and in such manner 

as it may authorize the same for the 

following purposes to wit: 

* * * 

"(c) The construction, maintenance and 

operation of macadamised, graveled or 

paved roads and turnpikes, or in aid 

thereof." (Emphasis added) 
Hon. Ward W. MarklZey, page #3 (WW-462) 

The legislative enactments, under the foregoing 

constitutional provision, are compiled in Chapter 3, Title 

22, Revised Civil Statutes of Texas, and carried forward 

in Vernon's Civil Statutes in the manner and context indicated below: 

Art. 752~ - "The County Commissioners' Courts 

. . . may hereafter establish . . . road dietricts . . . by entering an order declaring 

such road district established and defining 

the boundaries thereof: 

Art. 752d - Where any . . . road district 

desires to issue bonds, there shall be presented to the Cormaiasionere~ Court . . . 

a petition signed by fifty or a majority of 

the resident property taxpaying voters of 

said . . . road district praying such court 

to order an election to determine whether or 

not the bonds of such . . . district shall be 

issued to an amount stated for the purpose 

of the construction, maintenance and operation of macadamised, graveled or paved roads 

and turnpikes . . . and whether or not taxes 

shall be levied on all taxable property within 

said . . . district in payment thereof. Upon 

presentation of such petition, it shall be 

the duty of the court . . . to fix a time 

end place at which such petition shall be 

heard . . .I 

Art. 752e - *At the time and place set for the 

hearing of the petition . . . the court (Commissioners') shall proceed to hear such petition and all matters in respect of the proposed 

bond election. Any person interested may appear before the court in person or by attorney 

and contend for or protest the calling of such 

proposed bond election . . . If upon the bearing of such petition, it be found that the same 

is signed by fifty or a majority of the resident property taxpaying voters of such D . . 
- . 

Hon. Ward W. Markley, page #4 (WW-462) 

road district, and that due notice has been 

given, and that the proposed improvements 

would be for the benefit of all taxable 

property situated in such m . v road district, then such court may D ~ e order 

. . . an election . . . for the purpose 

of determining the questions mentioned in 

such petitions; provided, however, that 

such court may change the amount of the 

bonds proposed to be issued, if, upon the 

hearing such change be found necessary or 

desirable. a D .I (Underscoring ours) 

The Legislature, by the enactment of the proviso 

underscored, supra, clearly revealed its intent of making 

the amount of the proposed bond issue a matter squarely 

within the sound discretion of the court. 

Consequently, the answer to your first question 

is that the Commissioners" Court has the authority to reduce the amount of the proposed bond issue "if, upon the 

hearing such change be found necessary or desirable." 

In your second question, you seek the opinion of 

this office a,s to "Whether or not a mandamus would lie 

against the CommissionersP Court to call the election for 

the full amount of the bond issue requested in the petition-H 

To answer that question would necessitate the assumption of varied fact situations since basically the 

question is hypothetical: consequently, we will confine our 

answer to a pronouncement of a general principle of law 

which may serve as a working hypothesis for use in approaching a given or existing state of facts. 

Article V, Section 8, Constitution of Texas, gives 

the district court "appellate jurisdiction and general 

supervisory control over the County CommissionersP Court, 

with such exceptions and under such regulations as may be 

prescribed by law." 
. - 

hon. ward W. Markley, page 5 (WW-462) 

Article 1908, V.C.S., contains substantially the 

same language. 

In the instant case, the Legislature has prescribed 

no exceptions; therefore, the following general principle 

of law will apply: 

"Where a matter has been committed to the 

discretion of the commissioners' court 

and acted on by it, its judgment becomes 

the judgment of a court of competent jurisdiction, and.a district court is not authorieed to review the discretion of the 

commissioners' court, nor to set aside such 

judgment, unless it appears that there has 

been a clear abuse of the discretion of the 

court, or, unless there appears to be collusion, fraud, or bad faith.* Loving v. 

Laird, 42 S.W. 2d 481, 483 (Tex.Civ.App.) 

and the authorities there cited. 

See also Industrial Accident Board v. Glenn, 144 

TW. 378, 190 S.W. 2d 805, at page 807, wherein the Supreme 

Court of Texas announc&r 

"It is settled by the decisions of this 

court that mandamus will not issue to 

compel the performance of an act which 

involves the exercise of discretion or 

judgment." 

SUMMARY 

A Commissioners' Court with jurisdiction 

has discretionary power, under the provisions of Article 752e, V.C.S., to reduce 

the amount of a proposed bond issue from 

that stated in a petition submitted to 

said court pursuant to Art. 752d, V.C.S., 

provided, 'such change be found necessary 
Hon. Ward W. Markley, page #6 (WW-462) 

or desirable at a public hearing conducted in accordance with Art. 752e,' 

V.C.S.: and, the exercise of such discretionary power in the sbsence of 

abuse or fraud is not a matter for 

review by the courts. 

Very truly yours, 

WILL WILSON 

GW-s 

APPROVED: 

OPINION COMMITTEE 

Geo . P. Blackburn, Chairman 

Waylaud C. Rivers, Jr. 

Marvin H. Brown, Jr. 

Richard B, Stone 

Jack Goodman 

REVIEWED FOR THE ATTORNEY GENERAL 

By: W. V. Geppert