Although some case law has been interpreted to deem commissioners courts subject to the "open courts" provision, the most often cited cases do not expressly state that proposition. See Rowan v. Pickett, 237 S.W.2d 734 (Tex.Civ.App.-San Antonio 1951, no writ); Swaim v. Montgomery, 154 S.W.2d 695 (Tex.Civ.App.-Amarillo 1941, writ ref'd w.o.m.); Tarrant County v. Smith, 81 S.W.2d 537 (Tex.Civ.App.-Fort Worth 1935, writ ref'd). Each of these cases held that commissioners cannot bind the county by their separate, individual action.
With respect to proving that such acts were illegal under all the circumstance the burden of proof was upon the appellees-movants. In this connection see Rowan v. Pickett, Tex.Civ.App., 237 S.W.2d 734, wherein it was stated in part as follows: 'Another matter urged in various points by appellants is that of road maintenance and repair.
The district court correctly determined that the separate actions of individual members of the Board are not sufficient to bind the Board as an entity. Bee County v. Roberts, 437 S.W.2d 62, 64 (Tex.Civ.App. — Corpus Christi 1968, no writ); Rowan v. Pickett, 237 S.W.2d 734, 738 (Tex.Civ.App.-San Antonio 1951, no writ). Pursuant to the Bail Bond Act, the Board can take action only when a quorum of four members is present. Bail Bond Act § 5(d).
SPI and Pinnell contend that such a prospective injunction is appropriate and permissible where a governmental defendant has demonstrated its intent to repeat or continue the injurious action, and where it has been shown that irreparable harm will result from enactment of the ordinance. SPI relies upon Rowan v. Pickett, 237 S.W.2d 734, 739 (Tex.civ.App.-San Antonio 1951, no writ), which deals with misuse of county-owned road machinery by individual county commissioners to maintain private roads and for soil conservation efforts other than as permitted by statute. The enactment of an ordinance by the legislative body of a city is a sovereign act of government.
These limitations apply to the use of county labor, materials, and equipment. SeeGodley v. Duval County, 361 S.W.2d 629, 630 (Tex.Civ.App.-San Antonio 1962, no writ) (a commissioners court is "not authorized to permit the use of county labor, materials or equipment for other than public use") (citing Ex parte Conger, 357 S.W.2d 741 (Tex. 1962); Rowan v. Pickett, 237 S.W.2d 734 (Tex.Civ.App.-San Antonio 1951, no writ)). For example, in 1975 this office considered the constitutionality of proposed legislation that would have authorized counties to use county employees and equipment to construct and maintain private roads and "for private earthmoving work" for a fee, and concluded that the bill was unconstitutional because those activities are not "county business" within the meaning of article V, section 18.
In fact, proof that a road is only slightly traveled by the public does not prove the road is not a public road. Rowan v. Pickett, 237 S.W.2d 734, 739 (Tex.Civ.App. — San Antonio 1951, no writ). If it is free and open to all who have occasion to use it, it is a public road. McCloskey, 266 S.W. at 195; Barrett, 242 S.W. at 535.
However, the commissioners court may act without express authority, so long as its actions are reasonably necessary to pursue some authority granted by either statute or the state constitution. See generally Pritchard Abbott v. McKenna, 162 Tex. 617, 350 S.W.2d 333 (1961) (implied authority to contract with private appraisal firm upheld); Schope v. State, 647 S.W.2d 675 (Tex.App.-Houston [14th Dist.] 1982, writ ref'd) (commissioners court granted implied authority to exercise broad discretion in regulation of massage parlors); Rowan v. Pickett, 237 S.W.2d 734 (Tex.Civ.App.-San Antonio 1951, no writ) (commissioners court granted broad discretion to exercise authority reasonably necessary to accomplish soil preservation program); Attorney General Opinion JM-1098 (1989) (commissioners court possessed authority to promulgate regulations regarding smoking in county jail). In our opinion, however, the county commissioners court's broad authority over all county business, as well as its more specific authority to provide for the health and welfare of persons within the county, implicitly empowers the court to regulate smoking in county buildings.
Agric. Code § 201.151. Cf. Rowan v. Pickett, 237 S.W.2d 734 (Tex.Civ.App.-San Antonio 1951, no writ). At the time the Gregg County special law was enacted in 1955, the Optional County Road Law of 1947 was applicable to Gregg County and to every other county in the state.
For varying reasons, we find those cases distinguishable. Either the issue involved here was not presented to the appellate court, see City of Irving v. Dallas County Flood Control District, 383 S.W.2d 571 (Tex. 1964); or the illegal acts sought to be prohibited did not contemplate the exercise of a legislative function, see Zoning Board of Adjustment v. Graham, 664 S.W.2d 430 (Tex.App. — Amarillo 1983, no writ); Rowan v. Pickett, 237 S.W.2d 734 (Tex.Civ.App.-San Antonio 1951, no writ); or the injunction was sought to prohibit the enforcement of an ordinance, see City of Houston v. Reyes, 527 S.W.2d 489 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref'd n.r.e.); or the courts, in denying injunctive relief, merely stated the general proposition that municipal officials may be judicially restrained from illegal, arbitrary, or capricious actions. See, e.g., Kimbrough v. Walling, 371 S.W.2d 691 (Tex. 1963); Texas State Board of Examiners in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242 (1961).
If, for example, the governmental representatives express an intent to continue illegal acts, and other requirements for relief are satisfied, then the injunction is proper. Rowan v. Pickett, 237 S.W.2d 734, 738-39 (Tex.Civ.App.-San Antonio 1951, no writ). If, however, there is no or insufficient evidence of intent to act in a manner injurious to the party seeking the relief, then the injunction should not be granted. See, Southwestern Bell Tel. Co. v. Gohmert, 222 S.W.2d 644, 646 (Tex.Civ.App. — San Antonio 1949, no writ.) In the latter case, the applicant has simply failed to prove injury.