Gerald C. Mann
Hon. R. E. McLaughlin : Opinion No: O-2019
County Attorney Be: Constru’ction of Article 752b
Moore County ~, in regard to, petitions presented
Dumas, Texas tomcommissioners’ courts for bond
ele’ct.lons for road improv’ements.
Dear Sir:
We are in receipt of, your ,~o,pini& request, of recent
date o We quote from your letter as follows: ‘..
“Two petitions for ‘bond elections for ‘road im-
provements hav.e .been presented to the Commisslon-
ersl Court of M&r35County, Texas ohe for done Hun-
dred Sixty Thousand Dollars (@.66,000) for the con-
struction of approximately 18 miles of paved’high-
way and one for Ninety Six Thousand Dollars ($96,-
~OOOf, for the construction of, 11 miles .of paved
hif$waye The -larger petition Incorporates all the
11 miles of the .smal.ler petition.
“The group presenting : the smaller ‘petition’ is
not in favor of constructing,the seven additional
miles called for. In the larger petitibn,,and a con-
siderable amount. of controversy has arisen over-the
two proposals. .,
“Under Article 752b, Revised Statutes -
L;ic,;e;$’ mandatory ,that the court order two
(2) If so, how soon must the elections be held?
(3) Can the court ~postpone its ‘order on one
petition until after the ,other has been voted
u on?
cc, can ,boih ii&i ons be held .at ‘the same
place, on the same day, by the same election
Judges4 ori must
~.. there .be a separate place, and
separa e e eotion. supplies and judges?
(5) part of ,the highw.ay called. for .in both peti-
tions lies within the city limits of Duinas,
Texas, the county seat, an incorporated city. Is
it legal to vote county wide bonds for this pur-
pose?
_ - .
Hon. B. E. McLaughlin, page 2
“I am quite sure that from the foregoing you
have in mind a picture of the situation as it is,
and I would appreciate very much having your opin-
ion as to the procedure the Commissioners1 Court
should take in handling this matter in accordance
with the law.”
Article 7521, provides, in part that “upon the peti-
tion of fifty or more.resident quallfiei property taxpaying
voters of any county, the Commlssioners’ Eourt of such county
at any regular or special session thereof shall order an elec-
tion ***‘I. We feel that this statute Is mandatory and as a
general proposition the Commissioners’ Court has no discretion
to refuse to grant a petition and to order an election for the
purpose of determining whether or not bonds shall be issued for
road purposes whenever such a petition is prepared and present-
ed in compliance with the provisions of Chapter 3, Title 22 of
the Revised Civil Statutes of Texas. See Hu gins vs. Vaden,
253 S.W. 877; Moore vs. Coffman, 200 S.W. 37t . There Is no
statutory authority stating when the petition must be acted up-
on by the courti However, this department has held that it
should be acted upon within a reasonable time.
As we understand your problem from your opinion re-
uest and other correspondence on the matter, one petition for
4160 000 was filed for the purpose of constructing and improve-
lng highways. Later a second pet~ition was presented for $96,-
000 for the purpose of constructing exactly the same mileage
with the exception of seven miles called for in the first peti-
tion. We have no .doubt that under these facts the Commission-
ers’ Court would not abuse its discretion in taking up and grant-
ing within a reasonable time the first petition filed, even
though in the meantime the seoond petition had been filed. In-
deed, we are unable to perceive how it can be said that the court
had any discretion to refuse the first petition when presented.
When the second petition was presented, covering the same mile-
age with the exception of seven miles called for in the first
petition, we think the court would have a right to postpone its
order on said petition because If the election on the first peti-
tion carried, the election on the second petitionwould be a
useless act, and we know ‘of no rule that would warrant the issu-
ance of a mandamus to enforce the Commissioners’ Court to perform
such an act. See Huggins VS.* Vaden, 253 S.W. 877.
The Purpose of a~bond election is to vote for or against
the issuance of bonds for a specific purpose and not to vote for
one petition or another petition. The bond election must carry
by a two-thirds majority vote, the money to be used for the purpose
Hon. R. E. McLaughlin, page 3
voted on. We know of no way that both eleetlons could be held
at the same time end accomplish the purpose for.whi.ch a bond
election is held.
Therefore, it is our opinion that the proper procedure
would be for the Commlssionersc Court to call an election on
the first petition. If this eleation carries, then the second
petition becomes a moot question because the entire mileage pro-
vided for in the seaond petition will be improved with the bond
money obtainable as a result of this election. If this elec-
tion fails to carry by the required two-thirds majority then the
court can call an election on the seoond petition.
In reply to your last question, the County Commission-
ers have power to improve roads.wlthln a town or city with the
consent of the civic authority. Hughes vs. Harris County, 35
S.W. (2d ) 818. Having this power, an agreement with the civic
authority to expend county road bond funds is binding on the
county -- at least where the expenditure is on a street which
forms a link In a county highway. 21 Texas Jurisprudence, 668;
~~~~eo,fv~e~~~r’sd~~~t”;tSt38P~~~ ~~~tg18~ S-W* (2d) 43;
Trusting that this answers your questions, we remain
Very truly yours
ATTORNEY
GFNERALOF TEXAS
By /s/ Claud 0. Boothman
Claud 0. Boothman, Assist-
ant.
APPROVED MAR18, I.940
/s/ Gerald C. Mann
ATTORNEY GBNERALOF TEXAS
APPROVED:OPINIONCOMMITTEE
BY: BWB, CHAIRMJU
COB-s:wb