Case Information
*1 195 Februaw 20, 1948 PRICE DANIEL Al-IO- GENERAL
_.. . ..~. : .- .._. _. . lions;-John A; 'Biimber~ opinion No. .+of Coimty.Attorney
Gontile~~ coaiiity Re:. The autho&ty of the Gonzales, Texas coIimLtssloners' ~Collrt to
dlsitolve a road dis- trict which has an authorlzatlofi for the iixmance of bonds and upon which n'o action has been taken.
Dear Mr. Bombergi
Yak I'eijuest for an cipinlbn of this. Department reUt.ting'~o'a bond autlio~lzatlon'tid the dlssolutlon.of Boad.Mstriat No. 11 In your county Is, in part, as fol- lows: "Bgorder Of the CoIsmissionerls Court
Of Gonzal&w Couiit$, Texas, date&Jam&y lst, 1937, Rotid District Hoi'll-was crest&d. This Rdad Dltitriot No; 11 Included the.t'&rI.t6ry imiluded in Road Districts &a. liarid 3 of Gonzales Cotity, both of which had been in exUt&nce for.- years prior to 1937. A road'bond eleotlen was ordered-by.the Commla- sloner's Court on January 27th, 1937 'to de- ter&n& whether or not the bonds of said Road Dl~trl6t~No.~li of Go&ales County; .Texas shall be issued in the aUOImt of F6@ty Thou- eand:Dollare', for the purpose of constiwc- t&m; maintenance and.operation of macadamiz- .ed, graveled, ompaved roads and ttiq&kes,
or in aid thereof, and whether'or not ad valorem taxes shall be-levied annually on all taxable propertjwlthln said'Road Ms- trict Ifow.ll, of Gon%ales County, Texas for .the'purpose of paging the interest on said bonda'and to proqide a sinking fund for the reddption thereof at waturity. This bond election~barried by the~~reqtisiti3 vote. The Road District Ro. 11 bonds have never been *2 Hon. John A. Rquberg, page 2 (V-507)
issued and after the order of the Consuls- issued and after the order of the Consuls- slOner*s Court canvassing the returns and slOner*s Court canvassing the returns and declaring the proposition carried, no fur- declaring the proposition carried, no fur- ther action was taken. ther action was taken.
"At the time this bond election was petitioned for, ordered, and voted on, both Road District No. 1 and Road District Ro. 3 had outstanding bonded lndebtednesses aggre- gating In excess of $100,000.00.
"The Comndssion~r~S Court nowirishes to abolish Road District No. 11, and dis- pose of the bond authorization, in order.
that the territory can be redlatricted more in line vith current road demands and a new bonded indebtedness on the new district can be created. :
"QUl?&TLO& How can t&is authoriza- tion%o issue $40.000.00 bonds-cif Road '.
bistrht Nd. 11 vdted in 1937 be &et aside and the Road District 11 abol%shed?
"Now, l.Q.view of thifact'that the'::. 1 -, purpose for which the bonds were voted no '. .:. .i longer exists, and.that the wording of tS viilldatiog iAatute"(Aptiule 752Y-33 nierely authorizes and empower% the Com-.~-. ndsslonerls Court to proceed with the'is- suanoe of bonds not voted.in S;ccordam% wlththe Compensation Bond Title, ipnirl tbat over 10 years have pass&d since the bonds were authorized, would an ord&% of the:Com- ndss$onkr*s Court, reciting such faots, and ordering and declaring th6 authcirBatb.i- void and dis~olviug.the R&d District, be effetittil and valid to the extent'that At.
Would not be siecessary for a proposed Ma.4 .' ,dIstrlct IneludIng portloii:oS-R&ad Diatiiet~ lVo.i-ll,-tp admpl~~w%th Bond .C~n@ensiPtlon - 3tatut~es.U regard to the authorl~e~.bc@s of such'R6ad Diitrlct 'll, i?hen sub& gro-:' posed Road Mstrlct votes new~bqxds?
- ThkC~esion6~~s Com.%& a c&r& of.lUdted juriad3.cticiti and confined %to th&authorlty conferred up- on the court by the Legislature. '~., *3 : 19’7
Ron. John Ai Bomberg;. page.3 '(V-507) '8rticle 7&&a, Vernon~a'Clvil.Sta&tee,~'provides that in the evi%t any road~bond voted oti leijtiedby a county, po%iti&al aribdi~lsion or deflmSd &citplet remain uneold at the time of I&e passage of this A&; theh'the Commlsslonera~ Court may upon petition order an election to determine whether or not sucfi road bonds shall be Fe- voked-mor eancelled. .Rowever, the effecti*e iitateyof this Act was'.Septe%ber.22, 1932, &ml foti bonds-'were voted in 1937, n&d.ng the provlalona of this.Act lnapplic8ble'ln- asmuOh as it applies only to those Situations In effeot at the time ~of the.passage of this Act. _ -~ in'the'case of Orr v. Marrs, 47 8. W. (26) 440, the court stated:
-%he bonds canaot"be'revokizid'o* cancel- led by 8ny agency mess-the power.350 40. so la conferred~by 1e~Lalatlve 8uthoHty 8nd any doubt &~to the exlstence'of.suc~power is,-und~r~well establ.Ssl&d~prlnclples, re- solved against its existence.'
Y&r~'fim;t;u&l.situstio~ reflects thsf'Rtid'Dl.s- trlct HO; ll;:liiclud& Road'MatrSOts R&S. 1 and.3 in Gon%al;es Ceuuty, both-of'which had an outstimdlng bond- ed indebt&ine*s~ tiexcetiam‘of #&OO,OOC~OO, &id that-'iti th&ereiatioti~of R&d District No. 11 the Conimlsifon6rir' Court failed to.oomply vith the Competiatioti-Bond.Act.
. '.
'Article 767d, V.-C. S.; provides as follows: .~ .. ..
%liere~any road dlstrlct-created under the proviai'6ns of this-Act includes wItbin.
its llndts any previously tieated POWI dis- trlct; okanji polltlcal subtlivisi& or pre: cinct, havbg at such time road bo@debts outstandlug,, such included district or.Sub- dlvQion.shall be fully and fairly competi- sated by the new district in tin amount equal.
to the 8mount of the bonds'outatanding against such included subdivision or district, 8nd which tihallbe done in'the formandmanner prescribed fo5 the lsimance.of'coimty bonds under Sectlon~ 25 to 27, intiluaive, of.this Act, except the petition sh&ll be signed by fifty or a majority of the resident proper- ty taxpa* voters of the new district, and the bonds:&roposed to be Issued shall be for the purehaae or construction of roads in
Han, John A. Romberg, page 4 (V-507)
the included subdlviaons or districts and the further aoristructlou; maluteuauce aud operation of macadamlsed, graveled or paved roads and turnpikes; or in aid there;
Acts 1926 .Jgth Leg., 1st C.S., p. 23, %I 16, Sec. 26.
In San Antonio &A. P. fry 'Co. v. State, (Con. App.) 95 3. W. (26) 6gO;the court said:
"Section 28 (Vernon*s'Auu.Clv. St. in connection tith seCtIons art. 767d 9 25 to 27 Vernon's Am. Civ. St. arts. 767aL767c , of said act provides that 1
where any road district created under the provisions of said act includes one previously created aud having road bonds outstanding, such included district shall' be fully and fairly compensated by-the'new district in this'manuer: Au even exchange made with the holders of the otitstaudlng bonds, 'and if th+ cannot be done, theh an equal .amotmt of the new.bonds marked 'non- negotiable' shall be deposlted'wlth the county treasurer for the credit of the in- terest and sinking fund as a guarantee for _ the'payment~ of such outstaudlug bonds that have not been exchanged, after which no : levy shall be made under the orlglual bond issue, but ln.lieu thereof, fromthe taxes . eolleoted on the new bond iasue.shall be passed to the-credit of such included dls- trlot the nesessaxy sums (interest and sinking fund as so collected) to.be'used to gay In full the outstanding bonds there- of. It will be seen from the foregqing that'the
Commlssioriersl Court of &Males Oouuty;-in ;dreatlng~ ..e Road'Dlstrict Ho. 11 faiied to oemply~tith AMlcle 767d; supi-a, &nd it ls..the~opinion‘oS~this'De~tmeat~thst Road Mstriot Hd:~ il, although &Mated by,the Cotis- sioners' Court, dld not function pursuantto~law; and even though a bond issue wasauthorized in'said ais- trict, the same is of no force aud effect.
Inasmuoh as no bonds wepe issued; it is aaswa- ed that no tax waa~levled in Road Distriot Ro. ll.for the indebtedness in Road Districts~Ros. 1 and 3. There- *5 . . . ._ -. ..-_ k . . _.. - ., II-99 ,,,._: '-Hon. Jo& A. ~Rombetig,~ Gagi 5 ~(V-507) ,..
- _ i . ': ' fore,...it follows that had.Districtk Boos. ~'1 &..3-were-' '
not.af'fected.~.&y the:.imeakion-of Road Mstrict X9,.11 on Jantm-y l,-.:l~~a%nce 't~~pnrpose-.for-~phich haid dis- trict was created.was nev6r put in exlstenee. The.dis- trict never,dSU. fuuctlon as a district. .-' ~. -. . _ - .
It'ls.trti~ 'tlkt the.50th -Lsgialati@e (&it. 752y-3, V; C. S:) validated &issued bolid 1sSuijs of road dlstric$s,. sncfi~&s Road Mstrlbt Ro. Il. ,Valmsting acts, however, are.e'usually e&acted'for the'piose of' . curing matters,of procedure Or mechanics, alid it is oW
opinion that by'necessa~y'impllcatlon the Act would ap- ply only Eo bon&issues; 'the proceeds.of which could be used. to caw:out the mandate of the voters. For in- stance, mppoae'a situation @ere cOunty bonds.&re voted to'constmct a specific road, and after the prdposition is voted upoti bat b&fore the bonds Sir&-issued-aiid deUv- . ePed,Ythe Stat6 Highk&y'Departmeiit deslgWteti'~tti road-
aa'k state.hlghmiy and full3 cotitructs ths same. It- is clearly evldent.ifi~sach a ;situation that the @rpose.for .wbioh said l)onds acre voted would cease to exist. .We do' ' not think that it c0ti.d be~the .leglslative intent in the enactment of such's validating act that said bbnds could ther&ftep.be issued and sold. The Act could apply only to.bmil IstiiPBs, th~proceeds of which could~be used to .oamy out the bond purpose.
Based-upon yam factual situatLon; it is our ~oplni?n that the road diat?ict never cam& into active existence. Before a.n&w road dlstrlct, vhich includes 5 previously created district vit&outstanding bonds, can effectlv6ly come into eti&tence, ooapenqation bonds.~ bust be voted.', CompBnsation-bond& were mever votad In the riltimtion underSoonsideration; moreover, the p&pose fog whldhthe rogd bonifs fiere voted iri.DlatrIct~~No; '11 - no longer existii; We do note think that th& word "abol- ish" could tie applied.to stich a district, for fhe.same would necess&rily contemplate prWloua ed actnsl'exis- tence. We do l&L& t&at the Comisslonetist-Co&t, un- der the circu&stances;would,have the power, implied at lea&t, to rescind its former order; It passed an order purporting~ablish the district for the constitu- tional and statutory purpose, but that purpose was not cem?ied out, and.has now ceased to exist. uithln its valid discretion, therefore, the court may determine to Pescind Its fdrmer order.
H6n. John A, Romberg, page 6 (V-507)
After the Fescission of such order, the Court may, If it so det&mines;' create another road district under the statutdry procedme, which dihtrict would ln- elude part of the terrltorg which was purportedly wlth- in the district, the order for the establishment of which was rescinded.
SUMMARY 1. The Ueation of a road district which Includes a previously created road district with an outstaridlng bonded ln- debteduess, requires compliance with the ijrovislons of the Compensaticin Bond Act 'an&compensation bo+ds must.be voted. _ I
2.. An Act which.validates~pi=evlous- 1s voted but unissued bonds does not ap- ply to bonds if the purpose for which they were voted no longer exists.
3.. 'The Conmdssloners' Cotirt of‘ Gonzales Comity, Texas, under the facts aubmitted,.may by ap@ropriate order.
rescind Its previously' enacted'ordei. .
tatter ~%Xch Road'Dlsti.ict'N~. 11 was purP;ortedly estibllshed, snd'may there- upon establish another road district ;' which would Include apart of.the terrl- . . - :' to%y w&L@.i *as purportedly tilth%n said ,~ Road Mstrlct Ho. 11.
BY Biii%GllmFfaldrep~ Bti:mu
Assistant ' ,. .’ APi'ROVED: ~' .: