Untitled Texas Attorney General Opinion ( 1946 )

Honorable J. A. Mooney
County Attorney, Tyler County
Woodvllle, Texas
Dear Sir: Opinion No. O-6973
Re: Where bonds were issued
for the purpose of con-
atruction,maintenance,
etc. of certain deeig-
nated state highways,
which have since been
abandoned by the State
and have become county
roads, may the money
now be used for the
maintenance of said
roads? If not, for
what purpose may It
be used?
We acknowledgereceipt of your opinion re-
quest of Rovember 29, 1945, and quote from your letter
as follows:
"I enclose herewith a statement of facts
and question addressed to you and handed me
by Geo. R. Bcyd, County Judge of Tyler County,
together with my opinion in answer thereto.
"I would like to have your opinion one
this matter."
County Judge Geo. R. Boyd's letter of October
10, 1945, reads as follows:
"On June 14, 1930 an election was held
that resulted In the iesuance of $300,000.00
In bonds for the purpose of the construction,
maintenance and operation of macadamized,
graveled or paved roads and turnpikes, or
in afd thereof, on the ortions of Highways
numbered forty-five (45P , forty (40), and
Honorable J. A. Mooney, page 2 (o-6973)
one hundred and six (106) which lie In said
road district No. 2 of Tyler County, Texas.
“The bonds were sold and the proceeds
placed on deposit with the Security Trust
Company Austin, Texas, by sn agreementwith
the State Hlghvag Department. The deposit
vas secured with other bonds. The result
was that Tyler County Road Bond DistrictNo.
2 lost practically all of the proceeds of
the $300,000.00 bonds sold due to having as
securitybonds of other counties or cities
that were practically worthless.
“In the meantime the State Highway De-
partment built each of the above mentioned
Highways in Bond Dlstrlct lo. 2 In Tyler
County, except about 12 mile6 of Highway
Ho. 45 which has not been built to date,
although the R 0 W has been purchasedfor
this unbllt portion.
“Out of the salvage of the securltles,
several thousand dollars was recovered which
Is on deposit with the County Depository.
Tne County Treasurer carries It as a Road
& Material Fund.
“At the time of the Bond Election the
above mentioned HLghways had been designated
and were being maintained by the State Elgh-
way Department. When the State Hlghway De-
partment constructed them they vere reloca-
ted and In some Instances several miles from
the original locations. Since the nev ones
were built the State Highway Department has
ceased to maintain the original roads, there-
by releasing them to the county.
"Will you please advise whether or not
this funds now on deposit with the County
Depository can be used for maintaining the
original highways that were beiF& used at
tie time of the bond tiecZar. IC not, for
vhat purpose can the funds be legellg used?"
Honorable J. A. Mooney, page 3 (O-6973) ,,. .i
** + * In .1930,the roads designated In
paragraph 1 of your letter were .state hlg& .: .:f
ways7a@ the purpose ,of the bond lssue.was.
the building and Improving of them as such.,
"Not ,lessthan two years ago and some .I '.i
thirteen years after the bond issue was vo-'
ted, .thesehlghways'werere-designatedond :~ .i,
built completelgby the State along new :~._:.(
routes. On-their aoceptance from the con-. .,'I~
tractors, the old hlghvays were .released.to~:
the countg,~thlsalso occurlng more than two :
~gearsago and some thirteen years after uls
bond Issue was voted.
"In some Instances,the old &itei Or _"
~:~1the3e!hlghways are completelyabandoned``,ln-
-.``the.lnstance of Highway 45, the ferrycwhi'ch:':.:.~,
connected with Its continuancein Jasper ~,I~,.~,. ! ,.
County.Easterly has been abandoned,:and:.it.-:-
.'~,'I.
.~:'
Is wholly In everg.scnsenow a c.ounty ,road., ‘,.
“Any of this money that might be spent ~'
upon the roads covered In your question would
at this time be spent on more county roads
and not upon 'PORTIONSOF HIGHWAYSNO. 45,..
40 and 106’ as set out of paragraph one,.of
your letter. :.
"Under these facts and circumstances,
I am of the opinion that the first part of ~.~
_
your question should be ansvered 'NO.1
"As to the use which can be made of
this money, I am of the opinion that a re-
tirement of the obligationwould be the only
use to which It can be put."
We gather from the facts stated In the above
quoted letters that the proceeds of the bonds voted
on June 14, 1930, were ear-marked to be used on the
. portions of Highways Nos. 45, 40 and 106, which lie
In said Road District No. 2 of Tyler County, Texas.
Based on the facts and circumstancesstated
In your letter, we agree with you that the first part
of your question should be answered In the negative.
.
Honorable J. A. Mooney, page 4 (o-6973)
It has repeatedly been held by the Appellate
Couzts of thin State that when a county commlssloners~
court enters a pse-electionorder designatingthe road
and specltlcallydeclaring the purpose for which the
bond money Is to be expended, said commlsslonerstcourt,
or subsequent commissioners1 courts cannot change the
designation of such road or expend the money for any
other purpose than that speclflcallydeal nated In the
pro-election order. Black v. Strength,2&6 5. W. 79,
Fletcher v. Ely, 53 5. W. (26) 817, error refused,
Moore v. Kaufman, 200 S.W. 374. Any other rule would
tend to undermine public confidenceIn the acts of
public officers. See also Golden Gate Bridge and Hlgh-
way District v. Filmer, 21 Pac. (2d) 112, Perry v.
Los Angeles, 203 P. 992.
As to the USC which can be made of this money,
we also agree with you that a retirementof the obllga-
tlons would be the only use to which It can be put.
We believe that sold money should be placed In the
sinking fund for the retirement of the outstanding
bonds.
APPROVEI,DEC 12, 1945 Yours very truly
/a/ Grover Sellers ATTORNEX GENERAL OF TEXAS
ATTORNEY OENRRAL OF TEXAS
By /s/ Claud 0. Boothman
Claud 0. Boothman
CCBrEP:LM Assistant
APPROVED
OPIXION
COMKITTEE
BY BWB
CFJIRMAN