Case Information
*1 Honorable B. F. Reynolds
County Attorney -.
Throckmorton, Texas Dear Sir: Opinion No.‘O-1159
Re: Can a commissioners"couH~ use money that has been voted for the purpose of building county highways for purchasing a~site for a state hlghwag warehouse?
Your request for an opinion on the above-stated ques- tion has been received by this office.
Articles 701, 702 and Revised Civil Statutes, read as follows: .~
"Article 701. The bonds of a county or an in- corporated city or town shall never be issued for any purpose unless a proposition for the issuance of such bonds shall have been first submitted to the qualified voters who are Fropertg tax payers of such county, city or town.
"APtlCl8 702. In all cases when the governing body of a county, city or town shall order an elec- tion for the issuance of the bonds of the County, city or town or of any political subdivision or defined district of a county, such body shall at the same time submit the questlon of whether or not a tax shall be levied upon the property of such county, city or town, political subdivision or defined dis- trict for the purpose of paying the Interest on the bonds and to create a slnklng fund for the redemp- tlon of the bonds."
~' "Art. 703. The proposition to be submItted
shall distinctly specify:
"1 . The purpose for which the bonds are to be issued;
"2 . The amount thereof;
Honorable B. F. Reynolds - page 2
“3 . The rate of Interest; The levy of taxes sufficient to pay the “4. annual lnteres-t and prOVfd8 a sinking fund to pay the bonds at maturity;
“5 . The maturity date, or that the bonds may be issued to mature serially within any given num- ber of years not to exceed forty."
Articles 6663, 6673 and 6674b transfer to the Stat8 Highway Commission jurisdiction over highways of the.State' whkh commissioners' court previously had. Article 6674q-4 reads as follows:
"All further .lmprovement of said State Highway System shall be made under the exclusive and direct control of the State Highway Department and with ap- propriations made by the Legislature out of the Stat8 Highway Fund; Surveys,plans and speclflcations and estimates for all further construction and lm- provement of said System~~shall be made, prepared and pald.for by th8 State Highway Department. No fufth8r improvement of said System shall be made with the aid of or with any moneys furnished by the counties except the acqulsltfori of rights of way which may b8 furnished by the counties, their sub- dlvislons or defined road districts. But this shall In no wise affect the carrying out of any binding contracts now existing betweecthe State Highway De- partment and the Commissioners Court of any county, for such county, or for any defined road district.
In the development of the System of Stat8 Highways &x3 the maintenance thereof, the Stat8 Highway Com- mission shall, from funds availabl8 to the State Highway Department, provide:
"(a) For the efficient maintenance of all high- ways comprising the State System.
"(b) For the construction, in cooperation with the Federal Covernment~'to the extent of Federal Aid to the State, of highways of durable type of the greatest public necessity.
"(c) For th8 construction of Highways, perfect: lngand extending a correlated system of State Rlgh- ways, independently from State Funds."
The case of Iverson et UX v. Dallas County, 110 S. W.
Honorable B. F. Reynolds - page
(2) 255 held among Other things that Articles 6663, 6673a, and 6674b, and the amendments thereto, attempting to set up a complete uniform system of state hlghways, and authorizing Highway Commissioners to take over Stat8 hlghways, stripped COUntieS Of any authority to l8t Contracts for th8 construction or maintenance of any public road comprising a portion of'the state highway system, either in'thelr own'names or as agents of the State, except In sp8ciflc Instances and strictly in keeping with the provlslons of the Acts. -'
The money mentloned in your telegram, we presume, Is money derived from the sale of bonds duly authorized by the qualified voters for the purpose of building county highways. _~ W8 quote from Texas Jurisprudence, Vol. 21, p. 686, as follows:
"It Is elementary that the funds derived from the sale of bonds may not be diverted from the purposes sp8cified ln the prOpOsitiOn submitted to the 8I8CtOrS. If fOIIOWs that Wh8r8 a departure from the proposition appearing on the ballot paper Is alleged, the only question before the court 1s whether the expenditure contemplated lS wlthln or without the proposition upon Its true construction. Construing propositions to this end; it has b88n held that 'road' includes a bridge' constltutinga necessary link in the road, and that 'turnpikes' mean hard-surfaced roads, not necessarily toll- roads. And, seeing that both propositions leave the specific allocation of the funds to the corn-. missioners' court, there is no variance between a proposition for expenditure on roads 'throughout' the county and an order for issuance of bonds for construction 'within and for' the county." -.
Also see thecases of Aransas County v. Coleman-Fulton Pasture co., 191 S.W. 553; Heathman v. Slngletary, 12 S.W. (2) 150; Hugglns V.~Vaden, 259 S.W. 204; and Grayson County v. Rarrell, 202 S.W. 160.
We quote from the case of Carroll v. WlI.llams, 202 S.W. 504, decided by the Supreme Court, as follows:
"* * *section 9 of article 8 of our state Con- stltution~* * * inhibits any and all transfers of tax money frOm~On8-to another Of the s8VercIaSSeS Of funds therein authorized, and, as a sequence; the expenditure, for one purpose therein defined, of tax money raised ostensibly for another such purpose.
Honorable B. F. Reynolds - page
The immediate purpose in so prescribing a separate DEhXimLUU tax rat8 for each Of the classes of purposes there enumerated is, no doubt, to limit, acc~ordingly, the amount of taxes which'may be raised from .the'peo- pie, by taxation, declaredly for those several pur- pOS8S or classes of purposes, respectively. But that Is not all. The ultimate and practical and obvious design and purpose and legal effect Is to Inhibit ex- cessive expenditures for anysuch purpose or~class of pUrpOS8S. By necessary implication said provisions of section 9 of article 8 were designed, not merely to limit the tax rate for certain th8r8ln designated pUrpOS8S, but to require that any and all money raised by taxation for any such purpose shall beg applied, falthfullg, to that part,icular purpose, as needed therefor, and not to any Other purpose or use whatso- ever. Those constitutional provisions control, not only the raising, but also the application, of all such funds; * * *
I'True, the Constitution does not say;ln So. many words, that money raised by a county, city, or town, by taxation for one such purpose shall'never be expended for any other purpose -- not even for another~of the five genera1 C1asS8S Oft purposes de' fined-and approved in said section 9 -- but that, we think, is Its plain and certain meaning and legal effect. The very definitions of those several class- es of purposes, and th8'declaration of authority to tax the people therefor, r8Sp8CtiVe1y, COUpled, as they are, ineach instance, with a limitation of the tax rate for that class, must haV8 been predi- cated UpOnthe expectation and intent that, as a matter of common honesty and fair dealing, tax money taken from the people ostensibly for one such specified purpose shall be expended, as needed, for that purpose alone, as well as that the tax rate for that particular class, In any one gear, shall not exceed th8 prescribed maximum." Court of Henderson County
Alsb see the case of Commissioners' et al v. Burte et al, 262 S. W. 94.
In Vf8W of the foregoing authorities, you are resptkt- fully advised that It Is the OpinFon of this department that the Commissioners' Court cannot use money that Is derived from the sale of~bonds duly issued for the purpose of building county highways for purchasing a site for a stat8 highway Warehouse.
Honorable B. F. Reynolds - page 5
Trusting that the foregoing answers your inquiry, we remain
Yours very truly ATTORNEY GENXRAL OF TEXAS By s/Ardell WlllliXms Ardell Wlllltims Assistant AW-MR-WC
APPROVED JDL
s/W. F. Moore
FIRST ASSISTANT ATTORNEYGENERAL
Approved Oplnlon CommIttee By s/RWF Chairman