Untitled Texas Attorney General Opinion ( 1964 )

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August 11, 1964
Honorable James E. Barlow Opinion No. c-291
Criminal District Attorney
Bexar County Courthouse Re: What procedure is to be fol-
San Antonio, Texas lowed in setting the county
tax rate in Bexar County when
the County Judge is incapaci-
tated and unable to attend the
regular session of the Commls-
Dear Mr. Barlow: sioners Court.
You have requested an official opinion from this office
inregard to the question of:,
When a county judge or other member of the
commissioners Court of's county is unable:to.
attend the regular sessions of commls,sioners~
court
due to illness for the purpose of setting the
county tax rate, may the court meet in his hospi-
tal room or Is there some process by which,a.tem-.
porary judge or commissionermay be appointed in
his stead?"
In connection with your question of whether the Commis-
sioners Court could meet in the hospital room of an Ill Commls-
sioner or County Judge, the provisionsof,Artlcle 2348, Vernon's
Civil Statutes, provides in part that:.
"The regular terms of the CommissionersCourt
shall be commenced.@ be held at the courthouse.
. . .I( (Emphasisadded).
In addition, Article I, Section 13, of the Constitution
of.Texas provides in part that;
'1.. . All courts shall be open, . . .I1
Attorney General's Opinion No. O-1477 (19391, states
that:
@'ArticleI, 'Section13 of the Constitution of
Texasprovides that all courts shall be open. It
Is our opinion that when the people of Texas adopted
the Constitution,they were demanding that the
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honorableJames E. Barlow, page 2 (c-291)
courts remain 'openat all times in order that.the
public might be heard on all questions affecting
their property. It thereforebecame the duty of
the Legislatureto pass Article 2348, Vernon's
Annotated Civil Statutes, in order that the public
would know when and where the CommissionersCourt
would meet. Article 2348, Vernon's Annotated
Civil Statutes, provides when the regular term of
the CommissionersCourt shall meet, and that the
meeting shall be at the courthouse."
In Tarrant Countv v. Smith (Tex.Civ.App.1935, 'error
ref.), 81 S.W.2d 537, the Court stated that the Commissioners
court:
'1.. . meet as a court and transact the
'countybusinessJn onen session Such require-
ment Is not formal." It is sub&.ntlal. both that
the members may have the benefit of the knowledge
See also,~Swain v. Montaomeq, (Tex,Civ.App.1941, error ref,
w.o.m.1, 1% S.W.2d 695.
In view of the foregoing,we are of the opinion that
forthe CommissionersCourt during its regular term, to hold
its meetings, or a portion thereof, in the hospital room of an
Ill Commissioneror County Judge would~not comply with the pro-
visions of Article 2348, and would, in fact, be in violation
thereof. In addition,we are of the opinion that a meeting of
the CommissionersCourt in the hospital room of an ill Commls-
sioner or County Judge would not meet the requirementsof Arti-
cle I, Section 13, of the Constitutionof Texas that all COUrtS
shall.beopen.
Before passing upon the question of whether a tempor-
ary County Judge may be appointed to act for the ill County
Judge at the upcoming regular term of the CommissionersCourt
at which the county tax will be levied, the provisions of certain
statutesshould be noted. Article 2354, Vernon's Civil Statutes,
providesthat:
IWO county
_ tax
. shall be levied
- . except
-- at a I
.
regular term of tne court, m wnen a 1 members u
said court are nresent." (Emphasisa(:ded).
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Honorable James B. Barlow, page 3 (C-291)
In the case of Free v. Scarborough,70 Tex. 672, 8
S.W. 490 (1888) the Court in construingArticle 1517, such stat-
ute containing the identical language found in the present Ar-
ticle 2354, stated:
II
. . ., Unquestionably,the legislaturehad
the power to make this rule. The limitation admits
of no construction. The meanin,gis clear; courts
cannot alter it or dispense with it. A tax levied
at a called session of the court, pr without the
presence of the fuli membershin is not levied ac-
cording to law. .. . .I( (Emphasisadded).
See also, Broocks v. State (Tex..ciV.ADD~ 19311, 41 S.W.2d 714:
Attorney-G23neral% ooznion No, 0-.5X74-71943): Attornev Generai%
Opinion,NO. O-1477 (194O)f and A&key General's Qpihion No.
O-2726 (1940).
As toeyour question of.whether there is some process'by
which a'temporaryCounty,Judgemaybe~ appointed to act in behalf
of an ill Commissioneror County Judge. Attorney General% Opinion
No. O-5374 (1943);dealt with this que,stionin connectionwith a~
County Judge who had been.temporarilyincapacitatedby'illness..
This opinion discussed the various.aonstltutionalan& statutory
provisions.dealing with the selection.electionsor appointmentof
Special County Judges, but concluded Chatr
“As heretofore stated the selection or appoint-
ment of a special county,judge Is.proper only upon
the conditions specifYed in the Constitutionand
It has been suggested,in connection with the holding
in Attorney.General'sOpinion No..O,-5374(1943)~ that the enact-
ment of Article 1970-301f.Vernon's Civil Statuies,,,in 1963 .which
created *he County Civil 8ourt at Law of Bexar County, prov1des then
statutoryauthority~forthe Judge of.the County Civil Court at Law
of Bexar County to:attend the meetings of the CommissionersCourt
of Bexar County in place of the County Judge, upon the certifica-
tion by the County Judge that he is unable to attend such meeting
~(pursuantto the provisions of Section 15 of Article 197%3Olf)..
Section 15 of Article 1970-301f provides that:
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Honorable James B. Sarlow, page 4 (C-291)
“The Judge of the County Civil Court at Law
of Bexar County, Texas, .uponproper certification,
of the County Judge of Bexar Country,,
Texas, because
of conflictingduties,gr absence or inabilitv to
a&, or upon the failure or refusal of such County
Judge to act for any reason or cause, shall also Abe
authorized and empowered to act for and in the~place
and stead of said County Judge in any probate pro-
ceeding or matter,,rd mav also Derform for the County,
JLldse of Bexar Coun v. Texas. anv and all other min&g-
.terialacts reauired bv the laws of this State of said
Countv Judne of Bexar Countv. Texas and upon any sudh
certification,the Judge of said Co&y Civil Court at
Law of Bexar County,.Texas, shall give preference and
priority to all,such actions, matters and proceedings
so certified,and any and all such acts thus performed
by the Judge of said County Civil Court at Law of
Bexar County, Texas, shall be valid and binding upon
all parties to such actions,matters and proceedings
the same as if performedby the County Judge of Bexar
County, Texas. , . .I’ (Emphasisadded).
Insofar as Section-15of Article 1970-30lf appears to
authorize the Judge of the County Civil Court at Law of Bexar
County to perform any and allministerial pactsof the County Judge
of Bexar County Attorney General’s Opinion No. C-2726 (1940)
dealt with a si?uationwhere the County Judge refused to attend a
meeting ~ofthe CommissionersCourt to consider levying taxes. In
such opinion it was held that the County Judge could be prosecu ed
pursuant to the provisionsof Article 397, Vernon8s Penal Code,5
or could be compelled by mandamus to attend a regular meeting of
the.CommissionersCourt at which the business or question of levy-
ing a county tax was to be acted upon: The basis’for the holding
in the opinion, that a writ of mandamus could issue against the
A/ Article 397, Vernon’s Penal Code, provides that:
88Shouldany member of the commissioners court of
any county willfully fail or refuse to attend any
regular meeting or term of said court at which the
business or question of levying a county tax for any
purpose is to be acted on,,he shall be fined not less
than two hundred nor more than five hundred dollars.”
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Honorable James E. Barlow, page 5 (Cc2911
County Judge, was that a writ of mandamus would lie against a
public officer to compel the performanceof a ministerial duty
imposed by law and not involving an exercise of judgment or dls-
cretion which such public officer has failed or refused to per-
form.
While the foregoing lends Itself to the conclusion that
the attendanceof the County Judgeat a meeting of the Comission-
ers Court at which a county tax Is to be levied is merely minis-
terial, and whibthe provisionsof Section 15 of Article 1970-
301f authorize the Judge of the County Cjvil Court at Law of Bexar
County to perform any and all mlnlsterlal acts of the County Judge
of Bexar County upon certain specifiedconditions, it does not
necessarily follow that the requirementsof Article 239, that all
members of the CommissionersCourt must be present when the county
tax is levied, have been met if the Judge of the County Civil
Court at kW of Bexar County merely attends the meeting of the Com-
mitisionersCourt,~at whloh the county tax ,lslevied, for the County
Judge of Bexar County.
Artlcla V, Section ~8, of the Constitution of Texas pro-
vides 3.n~
part thatr
“9 . . ThenCounty’Commissionersso chosen,
The foregoing constitutionaL revision clearly desig-
nates who shall constitutethe ~member&fp of the Commissioners
Court. Iscprcvis$cn contained therein allaws or prov%des for the
County Judge‘8 memberstip on such coyTt to be delegated to another
‘party. The ‘Constitutionbating ,prescrLbedthe membership of the
courk, 1t dollows
colilmisrivn~re
thereto ce,nstand. ?,2Te~Gkr.2
SUC?Ibeing the case, the provisi
“NC CQWt~ tax sh
3
have not bean :cmqi;ledwith unless the County Jtidge~Zlspresent at
the meei3n.aof the Ccmmisskmers C&X%, when the .iWlntytax is
lev-~16a.“. It $3 therefore our opltion that the requirementscf
Article 354 could n& be met by the .Jud.ge nf the County Ci~3-l
Court at Law of BexairCounty, pursuant to ~Seetion12 of Article
1970-301f,attending ~themee’tmg of the ComPssicners CVUrt, at
which the county tax lo lev%ed, in place uf the County Judge ,of
Bexar County.
Honorable James E. Barlow, page~6 (C-291j
The question~hasalso been posed as to whether an
,arrangementwherebyan ill'County Judge could be transportedby
ambulance to the basement area of the.CountyCourthouse, at which
place the remaining,membersof the CommissionersCourt, along
with the County Judge, would meet to levy the county tax, would
comply with the requirementsof Article 2348, Article 2354, and
Article I, Section 13; of.the Constitutionof Texas.
We find.'nostatutory orconstitutional provision making
it mandatory that the meeting of the.CommissionercCourt, at which
the county tax is levied, be held entirely at the same location
within the Courthouse,orthat the individualmembers of the Com-
missionersCourt attend'theentire meeting, but all of such mem-
bers must be present when the vote is taken levying~the,county tax
in order to comply with-the:provislons.of.
Article 23,s.
As to the question of whether such an arrkgement corn6
plies with Section 13 of.:ArticleI,,ofthe Constitution of Texas,
we are of the opinion that if the basement area where the meeting
is to be held,is open to the public at the time of such meeting,
and the.public.isaware of.where such'meeting. is being conducted,
the constitutionalrequirementshave been met.,
,~ SUMMARY
.: ,'
The mee.i%g o.f:theCommissione.rs.'Co*.``at'~h~ch
the county tax is levied can not be held~.iiithehos-
pital room of an ill County Judge or Commissioner.
.,. i
The.Judge,'k&he Co&y-Cjvil~Court at Law of
'BexarCounty, acting pursuant.toSection 15 of Article
'1970-301fj' can nat:meet.theerequirementsset,.
forth in
Article 23.54by..meeting with the.Commis.si,oners
Court.
in place of the County Judge of Bexar,County at the
meeting wha.re~.thecotity tax is levied.
An arrangementwhereby the meeting of.the Commis-
sioners Court, at which the county tsxis levied, is
.held in.the..basementarea of the County Courthouse,
with all members of the.Conrmis``oners,~Courtpresent,
complies with the provisionsof hrticle 2348 and Arti-
cle 2354. Such arrangementwould alsa comply with the
provisions'of~Sectlon13 of Article I of the Constltu-
tion of Texas;~if kuch meeting area is open to the
,'
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. . .
_ ~-
Honorable James E. Barlow, page 7 (C-2gii
public and the public is aware Qf where such meeting
IS being conducted.
Yours very truly,
WAGGON&R CARR
Attorney General
PB:wb
APPROVED:
OPINION COMMITTEE
W. 0. Shultg, ChaUman
Gebrge Gray
Hawthorne Phillips
John Reeves
Paul Phy
APPROVED FOR THE ATTOW GEf@RA&
BY: Stantog Stone
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