. .
R-892
ol?FIcxz OP
THE ATTORNEY GENERAL
AUSTIN, TEXAS
PRICE DANIEL
ATTORNEYGENERAL
Rovember 24, 1947
Hon. C. 9. Rarris OplnlonAO. v-440
Acting County Attorney
Borden county Re: Authority of a com-
Gall, Texas miesloners~ court to
reject a petition to
create a road dla-
trlct and a bond eleo-
tion theref or.
Dear Sir:
Your letter of October 23, 1947, requested
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 the
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 to
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 - Page 2 (Y-440)
Art. III, Sea a 52, Constitution of Texas, pro-
vides that the Legislature may’authorlae the Issuance
of road bonds by eny of the foll~owlng entltiesr
‘County
:: Politics1 subdlviaioli of a county
(Art. 752a, V.C.S. defines a’sub-
division of a county as any oommis-
sloners t precinot or any justloe
precinct)
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;
Art. III, Constitution of Texas, provldea as follows:
"Any county, or any polltioel aubdivi-
sion of a oounty, or 5~ r?d diatriot thst
has been or may hereafter be created by 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 and 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 3,
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 a county,
now or hereafter to 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 or more road distrlots in their
reapeotlve counties, and may or may not Lnclude
Hon. C. 3. Harris - Page 3 (V-440)
within the boundaries and llmlts of suoh
dlstrlota, villages, towns and munlolpal
oorporetlons, or any portion thereof, and
may or may not Include previously created
road dlstrlots aud polltloal subdlvlslons
or precincts that have voted Bnd issued
road bonds pursuant to Seotioa 52 of Artl-
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) 481, the Waco Court of Civil Appeals, speaking
through Justice Aletinder, now Chief ~Jnstloe ‘bf the Su-
preme Court of Texaa, referred to Art. 7520 ‘as followa:
“The statute, Article 752c, . v . au-
thorlaed the Commissioners’ Court to create
a 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 the
same. The statute does not oontemplate that
the taxpayer shall be heard at the time the
distrlot la oreated. Bla right to be heard
aocruea later when the petition Is presented
to the Court calling for the bond election.”
A oommlasloners * court Is vested wlth.,power to
create road districts In a.oounty under Art. 752c, V.C.S.,
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 by 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 the oreatlon
of the district. While the petition of taxpayers for the
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 (V-440)
With reference to the lsaeshce of bonds, Art.
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
or district is situated, a petltlon signed by
fifty or a ‘mejorlty 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 an 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, whPoh date shall be’not less than
fifteen nor more than thirty days ,from the date
of the order. The olerk of said oourt ahall forth-
with Issue a 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
of the petition, or such subsequent date as may
then be fixed, the oourt shall proceed to 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
be adjourned from day to day and from time to
ti.me, aa the oourt may deem neaeaaary.
the hearing of suoh ~etltlon. It be fou Il35EF
the aame la algned by fifty or a majority of the
resident property tax paying voters of suoh sub-
division or road distrlot, and that due notice
has been given,and that the wopoaed Improvements
. . .
Hon. C. 9. Esrris - Page 5 (V-440)
would be for the b&Qflt of all taxable Prb-
n auc sub-dlvls‘ion or 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 or desirable. . . .’
In King v. Fslls County, supra, Art. 752e Is re-
ferred to as follows:
“This statute (Art. 752e) requires the oom-
missioners 1 Court, before ordering such an 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, the
court has not judlolally determined such Issue,
but haa arbitrarily and wrongfully entered such
an order oantrary to the faots. . . .
“Our Constitution, Article 5, Seotion 8,
gives the dlstrzot court supervisory control
over the oommlaalose~l oourt. . . . Where a 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-
tent jurlsdlotlon, and a ‘district court la not
authorized to review the discretion of the oommls-
sionera ’ oourt, nor to set aside such judgment,
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 It la made to appear that there was an abuse of dls-
oretion, fraud, oolluaion, or bad faith. If in their honest
judgment and discretion the oommlssioners 1 court thinks the
. ..
eon. C. S. Harpis - Page 6 (v-440)
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 effeot 44 ,thO Legis-
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 an 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.
Uhsr4 the oommissionors’ oourt fails or rofusoo to order a
road bond eleotion any eleotion oonduoted by 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
a road bond eleotion is neoeasnry prloP to
ordering the oleotlon. Whers I ocmmlsslonors~
oowt falls or refuses to order e road bond
elsotlon within a dlstriot or subdiVIsion, an
oleotlon oondwted by ths voters would be in-
valid.
YOLWII very truly
ATTOFUUX
QEN’itRAL
ST*
(Aotlng) ATTOHlVEY
aBNERAL
BY
JTB/lh