Untitled Texas Attorney General Opinion

Honorable J. A. Mooney County Attorney, Tyler County Woodvllle, Texas Dear Sir: Opinion No. O-6973 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 the maintenance of said roads? If not, for what purpose may It be used? We acknowledgereceipt of your opinion re- quest of 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 10, 1945, reads as follows: "On June 14, 1930 an election was held that resulted In the iesuance of $300,000.00 In 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 (45P , forty (40), and Honorable J. A. Mooney, page 2 (o-6973) 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 agreementwith the State Hlghvag Department. The deposit vas secured with other bonds. The result was that Tyler County Road Bond DistrictNo. 2 lost practically all of the proceeds of the $300,000.00 bonds sold due to having as securitybonds of other counties or cities that were practically worthless. “In the meantime the State Highway De- partment built each of the above mentioned Highways in Bond Dlstrlct lo. 2 In Tyler County, except about 12 mile6 of Highway Ho. 45 which has not been built to date, although the R 0 W has been purchasedfor 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 and 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?" 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 ,lessthan two years ago and some .I '.i thirteen years after the bond issue was vo-' ted, .thesehlghways'werere-designatedond :~ .i, built completelgby the State along new :~._:.( routes. On-their aoceptance from the con-. .,'I~ tractors, the old hlghvays were .released.to~: the countg,~thlsalso occurlng more than two : ~gearsago and some thirteen years after uls bond Issue was voted. "In some Instances,the old &itei Or _"" ~:~1the3e!hlghways are completelyabandoned~~,ln- -.~~the.lnstance of Highway 45, the ferrycwhi'ch:':.:.~, connected with Its continuancein Jasper ~,I~,.~,. ! ,. County.Easterly has been abandoned,:and:.it.-:- .'~,'I. .~:' Is wholly In everg.scnsenow 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 'PORTIONSOF HIGHWAYSNO. 45,.. 40 and 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 obligationwould 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 In said Road District No. 2 of Tyler County, Texas. Based on the facts and circumstancesstated 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 (o-6973) It has repeatedly been held by the Appellate Couzts of thin State that when a county commlssloners~ court enters a pse-electionorder designatingthe road and specltlcallydeclaring the purpose for which the bond money Is to be expended, said commlsslonerstcourt, or subsequent commissioners1 courts cannot change the designation of such road or expend the money for any other purpose than that speclflcallydeal nated In the pro-election order. Black v. Strength,2&6 5. W. 79, Fletcher v. Ely, 53 5. W. (26) 817, error refused, Moore v. Kaufman, 200 S. W. 374. Any other rule would tend to undermine public confidenceIn 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 retirementof 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 /a/ Grover Sellers ATTORNEX GENERAL OF TEXAS ATTORNEY OENRRAL OF TEXAS By /s/ Claud 0. Boothman Claud 0. Boothman CCBrEP:LM Assistant APPROVED OPIXION COMKITTEE BY BWB CFJIRMAN