Case Information

*1 Honorable J. A. Mooney

County Attorney, Tyler County

Woodvllle, Texas Opinion No. O-6973

Dear Sir: 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 maintenance of said roads? If not, for what purpose may It be used?

We acknowledge receipt of your opinion re- quest 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 reads as follows: 10, 1945,

"On June 14, 1930 an election was held that resulted In the iesuance of $300,000.00 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 (45 P , forty (40), and

Honorable J. A. Mooney, page 2

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 agreement with the State Hlghvag Department. The deposit

vas secured with other bonds. The result

was Tyler County Road Bond District No.

2 lost practically all of the proceeds of

the $300,000.00 bonds sold due to having as security bonds of other counties or cities that were practically worthless.

“In the meantime the State Highway De- partment built each the above mentioned Highways in Bond Dlstrlct lo. 2 In Tyler

County, except about 12 mile6 of Highway

Ho. which has not been built to date,

although the R 0 W has been purchased for

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 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?" *3 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 ,less than two years ago and some .I '. i thirteen years after the bond issue was vo-' ted, .these hlghways'were re-designated ond

:~ .i, built completelg by the State along new :~ ._:.( On-their aoceptance from the con-. .,'I~ routes. tractors, the old hlghvays were .released.to ~: the countg,~thls also occurlng more than two : ~gears ago and some thirteen years after uls bond Issue was voted.

"In some Instances, the old &itei Or _"" ~:~1the3e!hlghways are completely abandoned~~,ln-

-.~~the.lnstance Highway 45, the ferrycwhi'ch: ':.:.~,

connected with Its continuance in Jasper ~,I~,.~,. ! ,. County. Easterly has been abandoned,:and:.it.-:- .'~,'I. .~:' Is wholly In everg.scnse now 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 'PORTIONS OF HIGHWAYSNO. 45,.. 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 obligation would 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 said Road District No. 2 of Tyler County, Texas.

Based on the facts and circumstances stated 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

It has repeatedly been held by the Appellate Couzts of thin State when a county commlssloners~ court enters a pse-election order designating road and specltlcally declaring the purpose for which the bond money Is to be expended, said commlsslonerst court, or subsequent commissioners 1 courts cannot change the designation of such road or expend the money for any other purpose than that speclflcally deal nated In the pro-election order. Black v. Strength, 2 6 5. W. & 79, Fletcher v. Ely, 5. W. (26) 817, error refused, Moore v. Kaufman, 200 S. W. 374. Any other rule would tend to undermine public confidence In 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 Pac. 992.

As to the USC which can be made of this money, we also agree with you that a retirement of 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 ATTORNEX GENERAL OF TEXAS /a/ Grover Sellers ATTORNEY OENRRAL OF TEXAS

By /s/ Claud 0. Boothman Claud 0. Boothman Assistant CCBrEP:LM APPROVED OPIXION COMKITTEE BY BWB CFJIRMAN