Untitled Texas Attorney General Opinion ( 1975 )

August 4, 1975
The Honorable Ronald L. Wilson Opinion No. H-658
Criminal District Attorney
405 County Courthouse Re: Whether Galveston County may
Galveston, Texas 77550 use the proceeds from certain pre-
viously authorized bonds for other
road projects within the county.
Dear Mr. Wilson:
You have requested our opinion regarding whether Galveston County
may use the proceeds from certain previously authorized bonds for other road
projects within the County. You state that on October 20, 1969, the Commission-
ers Court of Galveston County adopted an order committing the Court to allocate
$5 million from a proposed bond election to partial construction of the Bolivar
Crossing on State Highway 87. Thereafter, on October 27, 1969, the Court called
the bond election, setting it for December 9, 1969. The bonds were approved by
the voters by the requisite margin but have not been sold. Since present costs of
construction of the Bolivar Crossing greatly exceed previous estimates, the
Commissioners Court now wishes to divert the $5 million committed to that pro-
ject to other road projects within the County.
It is well established that a commissioners court may, by pre-election
orders, fix the exact purpose for which bond proceeds are to be used. Fletcher
v. Ely, 53 S.W.2d 817, 818 (Tex.Civ.App. -- Amarillo 1932-writ ref’QmG<
a pre-election order so states a specific purpose, the courts will enjoin diversion
of the bond proceeds to any other purpose. Id. at 818. Since the order is made :
with a view to its being relied on by the voters
. . . it [may] not be arbitrarily ignored or re-
pudiated without involving the perpetration of
fraud or its equivalent on the voters . . .
[T] he will of those having to bear the bond
burden should not be defeated by a mere
change of mind on the part of the members of
the commissioners court with respect to the
particular roads needing improvement, [ since]
any other rule would tend to undermine public
confidence in the acts of public officers. Black
v. Strenght, 246 S.W. 79, 80 (Tex. Sup. 1922).
p. 2887
The Honorable Ronald L. Wilson - Page 2 (H-658)
See also Wright v. Allen, 257 S.W. 980 (Tex. Civ. App. --Dallas, 1923, writ
‘i77q-F
The only recognized exception to the general rule that commissioners
court must not divert bond proceeds from the purposes stated in its pre-election
orders occurs where evidence indicates that conditions have so materially changed
since the bonds were voted that use of the bond proceeds for the particular named
purpose would be “an unwise and unnecessary expenditure” of public funds.
Hudson v. San Antonio Independent School District, 95 S.W.2d 673, 674-75 (Tex.
Sup. 1936). In our view, however, the Hudson rationale is limited to the situation
in which the project is determined to be unwise and unnecessary subsequent to the
sale of the bonds.
Since the bonds approved for the Bolivar Crossing project have not been
sold, we do not believe the Hudson principle to be applicable. Accordingly, it is
our opinion that the Commissioners Court of Galveston County may not divert to
other road projects within the County $5 million in bond proceeds committed to the
Bolivar Crossing project in a pre-election order. We do not mean to imply, how-
ever, that the bond proceeds must necessarily be expended upon the Bolivar Cross-
ing project. Article 717g, V. T. C. S., confers discretion upon the commissioners
court as to whether to order a revocation election.
-See Attorney General Opinion
H-592 (1975).
SUMMARY
The Commissioners Court of Galveston County
may not divert to other road projects within the
county $5 million in bond proceeds committed
to the Bol.ivar Crossing project in a pre-election
order.
Very truly yours,
Opinion Committee
jad:
p. 2888