. .

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 thebond proposal, or must the Commissioners'Court order the election for the full amount requested, and related question. Inyour letter of May 12, 1958, to.this office, you request an opinion on the followingquestionsbased on the given facts:

"RoadDistrict No. 7, in Jasper **COUnty,** Texas, has petitioned the Commissioners' Court of Jasper County for an election to issuebonds, under Article 7528, Vernon's Annotated Civil Statutes of Texas, which petition is signedby more than fifty (50)resident property tax paying citizens, and all of the requirementsmet under this Article. A hearing on thebond issuewas set, and heard in accordancewith Article 752e. "QuestionNo. 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? "QuestionNo. Two: "Whetheror not a mandamuswould **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 controlledby the Constitution and laws passed by the Legislature. Article V, Section 18, Tex. Con&.; Raldwinv. Travis County, 88 S.W. 480,484 (Tex.Civ.App.);Sewardv. 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 aunder legislativeprovision a e o any defined district now or hereafter to be described and definedwithin the State of Texas, . . .upon a vote of a two thirds majority of the residentproperty taxpayersvoting thereonwho are qualified electors of such district of territory to be affected thereby, in addition to all other debts, may issuebonds 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 followingpurposes to wit:

* * * "(c)The construction,maintenance and operation of macadamised, graveled or paved roads and turnpikes, or in aid thereof." (Emphasisadded)Hon. Ward W. MarklZey,page #3 (WW-462)

The legislative enactments,under the foregoing constitutionalprovision, 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 indicatedbelow:

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 issuebonds, there shallbe presented to the Cormaiasionere~ Court . . . a petition signedby fifty or a majority of the residentproperty taxpayingvoters of said
. . . road district praying such court to order an election to determinewhether or not the bonds of such . . . district shallbe 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 shallbe levied on all taxableproperty 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 interestedmay appear before the court in person or by attorney and contend for or protest the calling of such proposedbond election
. . . If upon the bearing of such petition, itbe found that the same is signedby fifty or a majority of the resident property taxpayingvoters 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 . vroad district, then such court may D ~ eorder

. . . an election
. . . for the purpose of determining the questionsmentioned in such petitions;provided, however, that such court may change the amount of the bonds proposed to be issued, if, upon the hearing such changebe found necessary or desirable. a D .I (Underscoringours) The Legislature,by the enactmentof the proviso underscored, supra, clearly revealed its intent of making the amount of the proposedbond issue a matter squarely within the sound discretionof the court.

Consequently, the answer to your first question is that the Commissioners"Court has the authority to reduce the amount of the proposedbond issue "if,upon the hearing such changebe found necessary or desirable."

Inyour second question,you seek the opinion of this office a,sto "Whetheror not a mandamuswould lie against the CommissionersPCourt to call the election for the full amount of the bond issue requested in the petition-H To answer that questionwould necessitate the assumption of varied fact situations sincebasically the question is hypothetical: consequently,we will confine our answer to a pronouncementof a generalprinciple of law which may serve as a working hypothesis for use in approaching a given or existing state of facts.

ArticleV, Section 8, Constitution of Texas, gives the district court "appellatejurisdiction and general supervisory control over the County CommissionersPCourt, with such exceptions and under such regulations as may be prescribedby law.". -

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

Article 1908,V.C.S., contains substantiallythe same language.

In the instant case, the Legislaturehas prescribed no exceptions; therefore, the followinggeneralprinciple of law will apply:

"Wherea matter has been committed to the discretionof the commissioners' **court** and acted on by it, its judgmentbecomes the judgment of a court of competent jurisdiction, and.a district court is not authorieed to review the discretionof the commissioners'court, nor to set aside such judgment, unless it appears that therehas 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 IndustrialAccident Board v. Glenn, 144 TW. 378, 190 S.W. 2d 805, at page 807, wherein the Supreme Court of Texas announc&r

"It is settledby the decisions of this court that mandamuswill not issue to compel the performance of an act which involves the exercise of discretionor judgment."

SUMMARY A Commissioners'Court with jurisdiction has discretionarypower, under the provisions of Article 752e,V.C.S., to reduce the amount of a proposedbond issue from that stated in a petition submitted to said court pursuant to Art. 752d,V.C.S., provided, 'suchchangebe foundnecessaryHon. Ward W. Markley, page #6 (WW-462)

or desirable at a public hearing conducted in accordancewith Art. 752e,' V.C.S.: and, the exercise of such discretionarypower in the sbsenceof abuse or fraud is not a matter for reviewby the courts.

Very trulyyours, 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