Case Information

*1 . . R-892

ol?FIcxz OP THE ATTORNEY GENERAL AUSTIN, TEXAS PRICE DANIEL ATTORNEY GENERAL Rovember 24, 1947 Oplnlon AO. v-440

Hon. C. 9. Rarris

Acting County Attorney Borden county Re: Authority of a com- Gall, Texas miesloners~ court to to

reject a petition create a road dla- trlct and a bond eleo- tion theref or.

Dear Sir: of October 23, 1947, requested

Your letter the- opinion of thle Department on the following ques- tion:

“If 50 or more qualified tax paying voters have algned a petition requesting the Commlaaloaera ( Court to aet tiaFde S Commlaaloner~a Preoinct aa a Special Road District at the same time requesting Court to order an election for the purpose of voting on a bond Issue for the purpose of building a hard surfaoe road, and said petition has been presented to said Court and a hearing has been held la whloh air people protested against the petltlon,can the Court rejeat settl.ng aside the road dlstrlot and also refqe to order the elec- ;;o;olf they feel that Lt Is not the thing Or la It possible for the voters hold &e eleotlon If the Court is not wlll- lng to order it?”

This queatlon raleea three distinct laauea: 1. The power of the oommlsslonera * court to aet aside a, speolal road district.

2. The power of that oourt to call a bond

election.

'3. The power of the citizens to call and oon- duct an election on their own motion end lnltletlve.

Hon. C. 5. Harris (Y-440) III, Sea a 52, Constitution of Texas, pro-

Art. vides that the Legislature may’ authorlae the Issuance of road bonds by eny of the foll~owlng entltiesr

‘County :: Politics1 subdlviaioli of a county 752a, V.C.S. defines a’sub- (Art.

division of a county as any oommis- sloners t precinct) precinot or any justloe 3. Any number of adjoftilng counties 4. Any polltloal aubdlvlalon of the State

5. Any defined district Art; 752a, V C.S. ‘the enabllag act for Sea. 52; III, Constitution of Texas, provldea as follows: "Any county, any polltioel aubdivi- sion of a oounty, or 5~ r?d diatriot thst

has been may hereafter be created any

general or special law, Is hereby authorized

to Issue bonda for the pnrpose of the oon-

struotion, maintenance eiul operation of mao- adamlzed, graveled or paved roads and turn-

plkea, or in aid thereof, la any amoutit not

to exceed one-fourth of the aaaeaaed valua-

tion of the real property of such county or

polltloal subdivision or road dlstrlot, and to levy oolleot ad valomm taxes to psy

the interest on such bonds and provide a

sinking fund for the redemption thereof.

Such bonds ahall be Issued In the manner

hereinafter provided, and as oontemplated

and authorized by Section 52, of Artlole of the Constitution of this State. The term tpolltloal aubdlvlaion, 1 as uaed in this Act,

shall be oonatrued to mean any oommlaslonera ppeclnct or any justice preoinct. of county, now or hereafter be created and estebliah- ed . ”

With referenoe to the formation of road dis- tricts, Art. 752c, V.C.8. provides, In part, that:

“The County Commlssi,onera * Courts of the several counties of this State may hereafter

establish one more road distrlots in their reapeotlve counties, and may or may not Lnclude *3 Hon. C. 3. Harris

within the boundaries and llmlts of suoh dlstrlota, villages, towns and munlolpal oorporetlons, or any portion thereof, and may may not Include previously created aud polltloal road dlstrlots subdlvlslons or precincts that have voted Bnd issued road bonds pursuant 52 of Artl- to Seotioa cle 3 of ‘the Contitltutlon, by entering an order deolarlng such road district estab- llshecj and defining the boundaries thereof. In the ease of 6fng v. Falls County, 42 9. W. (2d) the Waco Court of Civil Appeals, speaking now Chief ~Jnstloe ‘bf the Su- through Justice Aletinder, preme Court of Texaa, referred Art. 7520 ‘as followa:

“The statute, Article 752c, . v . au- thorlaed the Commissioners’ Court to create road district of Its own motion, and does not, require that any previous notice be giv- en to the taxpayers, nor that evidence be heati aa to the advlaabllltg of oreating same. The statute does not oontemplate that the taxpayer shall be heard at the time the la oreated. Bla right to be heard distrlot later when the petition Is presented aocruea to the Court calling for the bond election.” A oommlasloners * court Is vested wlth.,power to road districts In a.oounty under Art. 752c, V.C.S., create without respect whatadeve~p to other existing polltlcal subdlvlal.ons of the oountjr. (Attorney Qeneral Is Opinion Ho. O-3493)

Formation of a road distrlot a oolaailaalonem~ oourt lies within the discretion of the ooart’and the oourt la under no duty to oonduot a hearing on a petition to form auoh dlatr5.ct.

The provision in Article 752d, quoted below, for a petition of 50 taxpayers, Is applloable to the ques- tion o? the laauanoe of the bonda and not to oreatlon While the petition of taxpayers for the of the district. oreatiou of a distrlot would be peraueslve with the oommls- sloners , the flllng of such petition has no blndlng effeot on the action of the oourt.

BOU. C. S. liarrla - page 4

With reference to the lsaeshce of bonds, 7524, V.C.S., reada, In part as follows:

%here any polltloel subdlvlslon, or any road diet&t, d’esires to Issue bonds, there shall bi, presented to the Commissioners8 Court of the oocnty in whloh such subdlvlslon district is situated, a petltlon signed by fifty or a ‘me jorlty of the resldent property taxpaying voters of said subdlvislon or road distrlot ppaying such court to order an eleo- tion to determine whetqer or not the bonds of such subdlvlsion or dlstrlot shall, be lasued to amount ‘stated for the purpose of the oon- struotlon, maintenance and operation of maoada- mlzad, graveled or paved roads and turnpikes, or In aid themof, and whether or not taxes shall be levied on all taxable property within said subdivision or district in payment thereof.

Upon presentation of such petition, ‘It shall be the duty of the court to which Ft is preaeated to fix a time and laoe at whloh such petition shall be heard, wh oh date shall be’not less than P fifteen nor more than thirty days ,from the date

of the order. The olerk of said oourt ahall forth- with Issue notloa of suoh time and plaoe of hearing, whloh notioe ahall Inform all persons oonoerned of the time and plaoe of hearfng and of their right to appear at such hearing and contend for 0~ protest the ordering of auoh bond eleotl.on.

Art. 752e, V.C.S.; provides, In part, that: "At the time and plaoe set for the hearlng such subsequent date as may of the petition, then be fixed, the oourt shall proceed hear such petition and all matters In reapeot of the proposed bond eleqtion, Any person Interested my appear before the court In person or by at- torney and contend for or proteat the ~oalllng of auoh proposed bond election. Such a hearing wy from day to day and from time be adjourned ti.me, aa the oourt may deem neaeaaary. It be fou Il35EF

the hearing of suoh ~etltlon. la algned fifty or a majority of the aame resident property tax paying voters of suoh sub- division road distrlot, that due notice has been given,and that the wopoaed Improvements *5 . . .

Hon. C. 9. Esrris

would be for the b&Qflt of all taxable Prb- n auc sub-dlvls‘ion roa %$I~~~%~ &ch oiurt m& make and caufe to e entered of record upon Its minutes an order directing that an electlon be held wlth- In and for such subdivision or road district at a date to be fixed in’ the order, for the purpose of determining the questions mentioned In such petitions; provided, however, that such court may change the amount of the bonds propos- ed to be Issued, If, upon the hearing such ohange be found necessary desirable. . . .’ In King v. Fslls County, supra, 752e Is re- ferred to as follows: “This statute 752e) requires oom- (Art. missioners 1 Court, before ordering such eleo- tlon, to plake a flt+ng that It wovld be for the benefit of all taxable property In the district. . . . We therefore have before us a oase where the law requLres the Commlssloners~ Court, before ordering a bond eleotion, to judlolally determine that thb lssnance of the bonds would be for the benefit of all taxable property In the district, ancl yet, under the ellegatlons In $hla case, court has not judlolally determined such Issue, but haa arbitrarily and wrongfully entered such an order oantrary to the faots. . . . “Our Constitution, 5, Seotion Article

gives the dlstrzot court supervisory control over the oommlaalose~l oourt. . . . Where mat- ter haa been committed to the diaoretlon of the oommlaalonera’ court and acted on by It, its j&pent beoomea the judgment of a court of oompe- and a ‘district tent jurlsdlotlon, court la not review the discretion of the oommls- authorized sionera ’ oourt, to set aside such judgment, nor unless It appears that there has been a clear abuse of the disoretlou of the Court, or, unless there appears to be ooll~lon, fraud,or bad faith. Hence Ff the Commissioners 8 Court finds that the improvements would not be for the benefit of all taxable property, its judgment ~111 not be disturbed on appeal un- leas la made to appear that there was an abuse of dls- It oretion, fraud, oolluaion, or bad faith. If in their honest judgment discretion the oommlssioners 1 court thinks the

. . . - Page 6 (v-440)

eon. C. S. Harpis subdlvlslon proposing the bond elsatioa would not bdno- fit by it, then they may refube to order on election 8 rnd 4ny eleotloh oondu&sd on the lnltlatlvo of the voters thamselves would be of no fame and 44 ,thO Legis- effeot loturo has oreoted the prooedure for road bond eleotlons 4nd it must ba followed In a11 respeots. Where there baa been an authority granted to a polltloal aubdividlon to create indebtedness the statutes are to be followed strlot- 1Y.

Therefore, w4 ore OS the opinion thnt the Com- mIssloners I Court of Borden County is under no duty to set aside or oreate a commIssionera V preolnct as a special road district upon presentation of a petltlon algned by fifty or more quallfled taxpaying voters. The Commlsslon- oru’ Court must mka afflzwmtlvo finding that the pro- posed improvements vlthln a rend distrlot or political subdIvIsion would be for the benefit of all taxable prop- erty situated therein prior to ordering a road bond eleo- tlon as required by Artlolo 7520, V4rnon~s Civil Statutes. the oommissionors’ oourt fails or rofusoo to order a

Uhsr4 road bond eleotion any eleotion oonduoted the voters themsolves on a bond Issue would be invalid aa l atriot oomplI4n44 with statutory proasdure for oreating bondsd in- debtedrrers la rsqulrod.

Creation of 8 rend dlstrloij for road bond purposes by a oommls4lon4rs v oourt IZer with- in the dlsorotlon of the oourt. A finding by a 0omml4slon4rs' oourt that the proposed lm- provoments would be for the bsn4flt of all taxable property sItu4ted within tha road dls- trlot or polttiorl subdlvlalon potltlonlng ?or road bond eleotion is neoeasnry prloP ordering the oleotlon. Whers I ocmmlsslonors~ oowt falls refuses order e road bond elsotlon within a dlstriot subdiVIsion, an oleotlon oondwted by ths voters would be in- valid.

YOLWII very truly ATTOFUUX QEN’itRAL ST*

BY

(Aotlng) ATTOHlVEY aBNERAL

JTB/lh