Untitled Texas Attorney General Opinion ( 1946 )

May 1, 1946
Honorable Arthur Foster
County Attorney, Haskell County
Haskell, Texas
Dear Sir: Opinion O-7213
Re: Can the Commissioners* Court of
Haskell County sell the Series
D issue of bonds and use the
funds for the purpose of aiding
in the construction of and
purchasing right of way for farm
to market roads in said County?
We acknowledge receipt of the opinion request of Honorable
Fred Stockdale, District Attorney, 39th Judicial Distriat, and
we quote from his letter as follows:
"The Commissioners' Court of Haskell County desire to have
an opinion from your department concerning certain road
bonds oreviouslv voted and issued. Kindly address your
reply io Honorable Arthur Foster, County Attorney of
Haskell County.
"Haskell County now holds an issue of $243,000.00 road
bonds which have not been sold. This issue is a part of
an original issue of $760,000, and were designated as
Series D. I have before me a transcript of the original
bond issue showing this particular $243,000.00 Series D
being a part of said issue and the certificate of the
Attorney General appearing in this Series D transcript is
dated April 4, 1941, and at the bottom of said certificate
appears # 1975, Book #Se
"It is my understanding that this original issue was
voted and issued for the purpose of aiding in the purchase
of right of way and construction of state highways and
bridges through the county. However, this work has al-
ready been completed. At this time the Commissioners'
Court proposes to obtain right of wayfor farm to market
roads which were not contemplated at the time of the
original issue.
"The question is submitted: Can the Commissioners Court
Hon. Arthur Foster - Page 2 O-7213
of Haskell County sell the above Series D issue and
use the funds for the purpose of aiding in the con-
struction of and purchasing right of way for farm to
market roads in said county. A certified copy of the
pre election order is enclosed. The following authorities
are also submitted: Black vs. Strength, 246 S.W. 79;
Aransas County, et al vs. Coleman-Fulton Pasture Co. et al,
191 S.W. 556; Fletcher vs. Ely, 53 SW (2) 817; Sparks vs.
Sparks 189 SW (2) 354."
We have carefully examined the transcript of
the proceedings on file in the Comptroller's office authorizing
the issuance of the bonds mentioned in your request, and we
find that said bonds were issued "for the purpose of the
construction, maintenance and operation of maoadamieed, graveled
or paved roads and turnpikes, or in aid thereof, in said County,
under and by virtue of Section 52 of Article 3 of the Consti-
tution of the State of Texas, and under the laws enacted pur-
suant thereto, including Chapter 16 Acts of the First Called
Session of the 39th Legislature ++?&.)I
It appears from the proceedings that no reference was made
"earmarking1 the money for a particular road or a particular
type of construction. We are furnished with no facts or orders
showing that the proceeds of said bonds were "earmarkedw.
Based on the transcript of proceedings that we have before us,
it is our opinion that the Commissioners' Court of Haskell
County may sell the Seried D issue of bonds and use the funds
for the purpose of aiding in the construction of and purchasing
right-of-way for far-to-market roads in said County.
If we are in error in assuming that no conditions were attached
to said bonds, as hereinbefore state, a different conclusion
would result.
In this Department's opinion No. O-2088, we held as follows:
% 8 G The authorities seem to hold that the approval of
the electors of the proposed bond issue with whatever terms
and conditions that the governing body imposes thereon
previous to the election, creates a status analogous to a
contractual relation. In construing a similar order passed
by a commissionersr court prior to a county-wide bond
election, the Supreme Court of Texas in the case of Black
et al v. Strength et al., 246 S.W. 79, saidr
"rThe order would not have been made save with a view to
its being relied on by the voters. With the bond issue
authorized by votes cast in reliance on the order, as
must be assumed, it could not be arbitrarily ignored or
repudiated without involving the perpetration of fraud or
_ _ ,-
Hon. Arthur Foster - Page 3, O-7213
its equivalent on the voters.
"rUnder these circumstances, the order was, in effect,
a contract with the people, and good faith required that
the aonstract be kept.'
"Any other rule would tend to undermine public confidence
in the acts of public officers. See also Golden Gate
Bridge and Highway Distriot v. Filmer, 21 Pac. (2d) 112;
Perry v. Los Angeles, 203 P. 992."
We believe that there is some error in the facts stated in the
opinion request wherein the statement was made that Haskell
Copnty holds as issue of $243,000 road bonds which have not
been sold. We have checked with the Board of County and
District Road Indebtedness, and their records reveal that
$105,000 Haskell County Road Bonds Series D have been sold ad
that said bonds participate in the County and Road District
Bighway Fund.
We call your attention to our opinion Ro. o-6706, wherein we
held '*that under the provisions of Chapter 244, Acts of the
48th Legislature, Regular Session 1943, the State Highway
Commission is authorized to designate farm-to-market roads,
provided the Commissioners ' Court in which any such county
road is located shall pass and‘enter in its minutes an order
waiving any rights such county may have for participatian by
the State in any indebtedness incurred by the county in the
construction of such county roads." For your information a
copy of this opinion is enclosed. .
Trusting that this answers your questions, we are
Very truly yours,
ATTORNEY GET?ERAL OF TEXAS
s/ Claud 0. Boothman
BY:
APPROVED MAY 2, 1946 Claud 0. Boothman
s/ Grover Sellers Assistant
ATTORNEY GENERAL OF TEXAS
COB:V/cg
Approved Opinion Committee By BWB, Chairman