Untitled Texas Attorney General Opinion ( 1977 )

THEA'ITORNEYGENERAL
OF TEXAS
AURTIN. T-s 78711
March 31, 1977
The Honorable Joe Resweber Opinion NO. H- 969
Harris County Attorney
Harris County Courthouse Re: Use of Harris County
Houston, Texas road bonds in connection
with a project to be
constructed by the Texas
Turnpike Authority.
Dear Mr. Resweber:
You have requested our opinion regarding the use of
Harris County road bonds for a project to be constructed by
the Texas Turnpike Authority.
On December 22, 1965, the Harris County Commissioners
Court adopted an order calling for a Road Bond election to
be held on January 29, 1966. The order stated that the bonds
would be used
for the purpose of the construction,
maintenance and operation of macadamized,
graveled or paved roads and turnpikes, or
in aid thereof, within and for said county,
the proceeds of sale of said bonds to be
expended for the acquisition of right of
way and expenses incidental thereto for
[county roads and state highways and farm-
to-market roads], provided that after the
acquisition of said right of way for, and
the completion of construction of said
named roads and turnpikes, any proceeds
remaining shall be used for the general
purpose of the construction, maintenance and
operation of macadamized, graveled or paved
roads and turnpikes, or in aid thereof, within
and for said county . . . .
On January,27, 1966, two days prior to the election, the
Commissioners Court issued an order specifying how the bond
P. 4032
The Honorable Joe Resweber - page 2 (H-968)
proceeds would be spent. Included in this order is a reference
to the "Outer Belt," a circumferential route approximately
12 miles from the center of Houston and now designated as
"Beltway 8." The bond issuance was approved by the requisite
number of voters. The Commissioners Court now proposes to
adopt a resolution authorizing the Texas Turnpike Authority
to construct a portion of Beltway 8 as a toll facility, and
applying the 1966 Road Bond proceeds to the purchase of
right-of-way for the project.
It is well estalbished that the proceeds from bonds
approved by the electorate must be expended in accordance
with the purposes for which the bonds were voted. Barrington
v. Cokinos, 338 S.W.2d 133, 142-43 (Tex. 1960); Lewis v.
Krt Worth, 89 S.W.2d 975, 978 (Tex. 1936). In this instance,
the order callina for the bond election recited that the nroceeds
were "to be expended for the acquisition of right of way and
expenses thereto for [named county roads and state highways and
farm-to-market roads]." Although "any~ proceeds ramaining"
may be used for the "construction, maintainence and operation"
of "turnpikes," the term turnpike as used in the election order
does not necessarily refer to toll roads. Adams v. Mullen,
244 S.W. 1083 (Tex. Civ. App. -- San Antonio 1922ywrit ref'd).
Neither the December 22 nor the January 27 order, nor any infor-
mation released by the Commissioners Court at the time of the
election indicate any contemplation that the "Outer Belt"
would be built as a toll facility. Even several years
thereafter, the "Outer Belt" was conceived as part of the
free state highway system by both the Commissioners Court and
the State Highway Commission. See Transcript of Hearings before
the Highway Comm'n, June 12, 19x and March 6, 1969, and
Minute Order No. 62067, March 7, 1969.
In Fletcher v
Amarillo 1932, wrs %$:d:z s,~'~~u~~7e~~~~,i~~::.t~~",-the
intent of the parties to a bond election, as in all contracts,
is "the dominant ruling factor." Such intent should be examined
in the light of the circumstances surrounding
the parties at the time. . . .
Id. at 818. In Attorney General Opinion H-567 (1975), we
considered whether proceeds from the sale of bonds authorized
by the voters of an improvement district could be used to
purchase a portion of the capacity in a regional waste dis-
posal system, where the district would neither own nor operate
any part of the facilities. We concluded that such use of the
p. 4033
The Honorable Joe Resweber - page 3 (H-968)
bond proceeds "was not within the contemplation of the electorate
when it authorized the District to issue bonds."
In our opinion, the voters of Harris County could not have
contemplated the construction of a toll facility in approving the
issuance of bonds for the acquisition of right-of-way for the
"Outer Belt." As we have noted, the Commissioners Court gave
no such indication at the time of the election and for several
years thereafter. There were no toll roads in Harris County
in 1966, and the toll road concept is sufficiently different
from the traditional means of financing highway construction
in Harris County that it is, in our opinion, unreasonable to be-
lieve that the voters could have believed at the time that they
were approving the purchase of right-of-way for roads whose con-
struction would be financed by the toll method. It is our
opinion, therefore, that the Harris County Commissioners Court
is not authorized to expend 1966 Road Bond funds for acquisi-
tion of right-of-way for Beltway 8 as a toll facility to be
constructed by the Texas Turnpike Authority.
SUMMARY
The Harris County Commissioners Court
is not authorized to expend 1966 Road
Bond proceeds for acquisition of right-of-
way for Beltway 8 as a toll facility to be
constructed by the Texas Turnpike Authority
when such a purpose was not in the contem-
plation of voters approving the bond issue.
Very truly yours,
APPROVED:
C. ROBERT HERQH, Chairman
Opinion Committee
P. 4034