Untitled Texas Attorney General Opinion

740 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN OCMWCwUm A--- Honorable Fred Nor316 OountJ Auditor Polk County Livingston, Texar Dear Sir: your letter OS of thie department questions are ar fol- keep order an8 quiet of the oourt can be ve the authority to g the quiet of the unty Judge have ruthorlty to re- ay beoauae membere of the aaid ot present at the time oourt war eal& County Judge asouming that was ordered to oonvene was a *Does the County Judge have mthorlty to dom- pel the attendmoe of the county aommleelonera at Commleelonerr Court meetinga? If so, by what pro- oesa?n Art1ole.a2342, 2343, 2384 and 2361, Vernon*8 Annotated Civil Statuteo, read 88 followe! Honorable Fred NorrIo, pago 2 ‘Art. 2342. The several oommi8eloner8, to- father with the oounty Judge, shall oompose the Commle8loner8 Court,N and the oounty Judge, when wesent, ah811 be the prerldlng offioer of Paid oourt.* “Art. 2343. Any three members of the 8ald court, inoludlng the oounty JUag8, 8hall oon8tltut8 a quorum for the tranraotlon of any bu8ine88, exoept that OS levying a county tax.* “Art. 2354. Ro aounty tax 8hall be lerled ei- oept at a regular term of the oourt, and when all member8 of 8alQ oourt are prerent.' "Art. 2361. Eaoh oomml8slonerr oourt rhallr II) l * '13. Punl8h oontempt8 by fine not to exoeed twenty-five dollars or br lmprlsotuoentnot Taoex- Oe8d twenty-four hour8, and In o88e of fine, the party may be held In ourtody until the fine 18 pal&. II** *** While the oomml88loner8~ Oourt i8 a oon8tltutloMl oourt of general Jurlrdiotton when rating within the sphere of the power8 and dutler oonferred upon It by law, and 18 8m- powered to punl8h for oontempt (Art. 2351, R.C.S., 19251 Gainer v. Newbrough, 12 T.C.A. 466, 34 S.W. 1048; 9 Tex. Jur. 608) the power rerldes In the oourt and not in the mm. Thl8 d8oartment ha8 repertedly held that under Seo- tlon 18 of Artloli 6 ef the Texai Conrtltution and Articl88 2342 an& 2343 of the Rerired Clrll Statutes, 1926, the oounty Judge Is merely a oompanent part of the oommlseionerr' court, enjoya equal rotlng prlrlleger and together with any two oom- missioner8 oonetltute8 a quorum. He 18 dlrtlngulrhed from other m8mber8 of the oourt while in 8e88lon only in that h8 18 lte pre8ldlng offloer. Oplnlon SOS. O-1716; O-2145; 0-2415A; O-2726. 742 Honor&b18 Fred lf0rri8, page 3 You are aooordlngly advIsed In anlwer to your flr8t quertlon that the oounty oommIr8Ionerr and the oounty JuQge oonetitute the oounty oommlsslonerr' oourt and the power to punish for contempt reeldee in ruoh ppIlE4and not In It8 pre- eldlng officer. The oounty Judge, aoting alone ha8 no outhor- lty to flne a member for dlrturblng the quiet of the oourt. We pale to your seoond question oonoernlng the au- thority of the county Judge to rece8e from day to day when member8 of the oourt are not present at the time and plaoe releoted for meeting. In LabodIe Y. Dean, 47 Tex. 90, and LIparl v. State, 19 Tex. Ct. App. 431, the oourt haQ oooarlon to dI8tIngulrh b8tWeOnterma and 8088lOn8 of the OOlnmie8lOnOr8'OOUrt. Th8 E ozrthe ~ommleslonerr' OoUrt are fIXed by law; It8 1pIl- +it are matterm for the dl8oretIon and arten- lnatlon of the Court. There may be a w without there being a m Llparl *. State, 8upra. Th88e rule8 are oalled to your rttrntlon to em- phaeits that the seas1 no of the oommlaeloner8~ oourt &re matter8 left by law to'the dieoretlon of the C@irt 8.M not It8 pr88lding officer, the oounty JUd88. fn thI8 rerpeot hls authority 18 only aomaensurate with other oounty oom- mf88lOn8r8. Of oourri the oourt murt be orgnnlzed lo o o r dlng to law (Warehan v. ~lohnrdr, 46 Tex. 441) and a quorum muet be pre8ent to tranraot bulrlnere. A8 rtated in Dalton v. Allen, 110 Tax. 68, 210 8. w. 439r "The statutrr merely requlre that th8 oounty Judge prerlde when preeent, and authorixe the tranr- rotlon 0r thr oounty'8 bu8lnera, 8ave when otherwI8e exprermly provided, by three members of the oourt.* Therefore, In answer to your reoond querSlon, you are 8dvl8ed that If a quorum (two oounty oomalesloner8 and the OOUn- ty Judge or three oommlroloner8 In hlr lb88nO8) Is prelent, the county Judgr may not reoe8e meeting8 of the OoUrt from dry to day because of the ab8enoe of other oounty oommis6Ionerr. If 8 quorum is not present, no notion at all oan be taken -- thr oommIe8lonerr' oourt is not in re88lon. 743 Honorable Fred Norris, page 4 Your final question conoerne the authority of the oounty Judge to compel attenflanoeof conmleslonere at meeting8 of the cburt. The rule Is reourrent that the oounty Judge, whlle the preelding officer, is only a member of the commlr8loner8 court. He has been glven no authority on his own motlon to compel sttendanoe. Whether or not he may, ae any c,theroltizen, obtain a writ of mandamu8 to oompel attendanoe, will depend up- on faots of eaoh partloular oaee. As to the80 we cannot Ipeo- ulate. See Oplnlon No. O-2726. Your Attention 18 dirOCt8&, howrver, to Artlole 397 of the Penal code maklng It 8 ml8deme&nor for any member of the oommleslonerrl o,?urtto fall or refuse to attend any meeting of the oourt et which the burine88 or quertlon of levy- Ing a OoUnty tax fbr any purpocle18 to be aoted on, an& 818~ to Artlole 425 of the Penal Code mlklng It a ml8demeanor In oertain lnrtancee for any member of the oomml8rlonerr~ court to~fall or refn8e to rote upon the releatlon of a oounty de- poritory. These artloer read ae follow8: *Art. 397. should ang member of the oomml8eloner8 oourt of any aounty wllfully fall or refure to at- tend any regular meeting or term of raid aourt at whloh the bueinesa or question of levying a county tax for any purpose le to be acted on, he 8hall be fined not leea than two hundred nor more than fir8 hundred &olla,r8.* ‘Art. 425. Any msmber of the oommleolonerr oourt who shall fall or rrfusr to rote at any February term thereof next following eaoh general eleotlon for L complianoe with the requlremente of the law proVl&lng for the seleutlon of a bank or banker a8 the depo8ltory of the fund8 of ruoh oounty ehall be fined not less than one hundred nor more than fire hundred dollarr or be lmprieon- ed ln Jail not less than one nor more than alx monthr, or both. Such failure or refural 11 ground for removal from offlo8." Very truly your8 APFROVEYFEB Z'i,2.94)~ ATTORNEY OESERAL OF TEXAS ATTCRNEY GENERAL 0.FTEXAS JJY JDS:Jr