435
THEA~~OHNEYGENEEZAL
OIFTEXAS
Hon. D. D. Williams Opinion No. V-684
County Attorney
Throckmorton County Re: Authority of Commis-
Throckmorton, Texas slonerst Court to
transfer Road Bond
interest and sinking
fund and rental re-
ceived for use of
trucks to Road and
Bridge Fund.
Dear Sir:
We refer tc your letter in which you submit
the following:
"1. Throckmorton County voted certain
road bonds and sold certain road bonds and
part of this money was used for the purchase
of right df way, building roads, etc., and
there remains from the sale of such road
bonds approximately $10.000 in the road bond
fund account. The State has assumed the pay-
ment of the road bonds in Throckmorton Coun-
ty and there will be no more highways built
by the State Highway Department so far as we
know and there is no need for this partlcu-
lar money for State Highway purposes at this
time, nor do we contemplate any need for such
money In the future.
"We adohave a great need for this money
on lateral county roads and we would appre-
ciate your advice as to whether or not this
money can be used on the County roads. And
in this connection, I understand that the
Attorney GeneSal Department furnished an
opinion to the Commissioners' Court of Has-
kell County or the County Attorney of Has-
kell County; involving a situation exactly
the same as ours and I would appreciate a
copy of this opinion.
436 Hon. D. D. Williams, page 2 (V-684)
"2. Throckmorton County has set up an
Interest and sinking fund to pay the princi-
pal and interestwhen due on two issues of
road bonds. The State has assumed the pay-
ment of these bonds and the interest when the
same becomes due and we have a surulus of ao-
proximately $9.000.00 In the road bond i&e;-
est and sinking fund for which there is no
need at the present time, nor will there be
a need in the future as the State has assum-
ed the payment of these bonds and the lnter-
est on same.
"We would appreciate an opinion from you
in view of the above circumstances as to wheth-
er or not this money in the road bond interest
and sinking fund can be,,usedon lateral roads
in Tbrockmorton County. (Emphasis added)
The money referred to in your letter was de-
rived from two sources, viz: (1) Unused proceeds of coun-
tyroad bonds voted for the purpose of construction and
maintenance of macadamized, graveled, and paved roads
and turnpikes, or in aid thereof, in Throckmorton Coun-
ty, $lO,OOO.OO; (2) Unused road bond interest and,sink-
ing fund raised by taxation to pay said bonds and the
interestthereon, $9,000.00.,
In final analysis you ask if said sums of
money may be used to build county roads in Throckmorton
county. Your questions are answered in the order as
above.
(1) The sum of $lO,OOO.OO is the unused por-
tion of the proceeds of a bond issue voted and sold by
Throckmorton County for the purpose of constructing,
maintaining and oueratlna macadamized. graveled-or uav-
ed roads and turnpikes. or in aid thereof, in Throok-
morton County. All of the election proceedings specifi-
cally earmark the proceeds of the said bonds as follows:
"On roads from the North base line of
said Tbrockmorton County through Throckmorton
to the South Base line of said Throckmorton
County, and from the East base line of said
Throckmorton County through Albert and lnter-
sectlng the said proposed road from the North
'base line of said Throckmorton County to the
South base line of said Throckmorton County
Hon. D. D. Williams, page 3 (V-684) 437
and from the North base line of Stephens
County through Woodson and intersecting
the said proposed road from the North base
line to the South base line of said Throck-
morton County."
NothIngcontained in any of such election pro-
ceedings enlarges the purpose of the bond issue as above
recited to authorize the use of any of the .proceedsof
said bonds for any other purpose.
In Opinion No. O-7213 by a former admlnistra-
tion, a copy of which Is enclosed, it was held that an
unused portion of a bond issue made under authority of
Sectioff52 of Article III of the Constitution, not 'ear-
marked for specified roads, may be used to purchase
right-of-way for farm-to-market roads. It is there
held:
"It appears from the proceedings that
no reference was made 'earmarking' 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 'earmarked'.
"Based on the transcript of proceedings
that we have before us, It Is our opinion
that the Comm?ssl.onerslCourt of Haskell
C.ountymay sell the Series D issue of bonds
and use the funds for the purpose of aiding
In the construction of and purchasing right-
of-;ay for farm-to-market roads in said Coun-
ty.
T$e above o@nlon further states that if the
funds were earmarked for a particular road or a partl-
cular tqpe of construction 'a different conclusion would
result. In your case the records reflect that the bonds
were voted for particular roads; therefore, in view of
the foregoing it is our opinion that the unused portion
of the proceeds of such bond issue may not be used for
county roads other than those for which the bonds were
voted.
If the bond purpose has been completed, then
the $lO,OOO.OO left over should be used to retire out-
standing bonds. If the owner or owners of such bonds
are unknown to the county, then the money should be plao-
ed In the sinking fund.
438 Hon. D. D. Williams, page 4 (V-684)
,,,,,,*,I-
,._ ,~.
1
! (2) The sum of approximately $g,OOO.OO in the
road"'bo'nd
interest and sinking fund was obtained by a tax
which was levied and collected to pay interest and create
a sinking fund to pay road bonds voted and sold as auth-
orized by Section 52 of Article III of the Constitution.
The bonds have not been paid and Throckmorton County is
primarily liable for their payment, which liability con-
tinues until such bonds are paid in full.
In Opinion No. V-157 of this office it was held
that money In a sinking fund may be used only to pay the
principal and Interest on the obligation for which said
fund was created, until such obligations are fully paid.
It is there further held that after all such obligations
are paid, any surplus then remaining in such fund may be
disposed of in accordance with the provisions of Article
752a, V. C. S., as amended. We enclose a copy of that
opinion.
SUNNARY
The portion of the proceeds of a bond
issue voted and sold under the provisions
of Constitution Art. III, Section 52, and
earmarked for particular roads, may not be
used for the construction,of county roads
other than those for which the bonds were
voted. Money In the Road Bond Interest and
Sinking Fund for the payment of road bonds
may not be used for any purpose other,than
the payment of such bonds and the interest
thereon before such bonds are paid in full.
After such payment such money may be used
for the purposes specified in Art. 752a,
v. c. s.
Yours very truly,
APPROVED: ATTORNEY GENERAL OF TEXAS
c2$.-&& By m7-wdLib
FIRST ASSISTANT da+
ATTORNEY GENERAL W. T. Williams
Assistant .
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