Hon. ~A. A. Miller Opinion No. O-218 - ~Modified by V-157 

County ,Attorney Re: May excess cash In sinking fund 

Newton County ,for retirement of bonds be used by, 

Newton, Texas Road District for other purposes 

named? 

Dear Sir: 

We are in reoeipt of your ~letter of February 22, 1939 

in which you request an opinion from this Department as to 

whether the excess cash in a sinking fund for the retirement of 

bonds may be used by a Road District for other specific purposes. 

A ttached to your reque,st is a resolution for ruling on 

the sinking fund surplus~. This resolution states in effect that 

there are outstanding bonds against Road District No. 1 in Newton 

County, amounting to $26,025.00 principaland accrued interest; 

that there is now in the County Treasury to the ‘credit of said 

fund, as a result of the collection of taxes levied to pay said 

bonds and interest, $40,224.21, or a surplus of $14,199.21. 

Section 52, Article 3 of the Constitution of Texas provides that road districts may vote bonds for the purpose of Athe 

construction, maintenance, and operation of macadamized gravel 

or paved roads and turnpikes, or in aid thereof.” 

Article 752k Revised Statutes, provides that when the 

bonds are issued, the Commissioners Court shall levy an ad valorem tax sufficient to pay the interest on such bonds, and to provide a sinking fund to.pay the bonds at maturity. 

Article 752n Revised Statutes, provides that the Tax 

Collector shall collect said ‘,’ taxes and’ pay same to the County 

Treasure~r. Article’7520, Re~vised Statutes, provides that the 

County Treasurer is the custodian of the funds and shall promptly 

pay the interest and principal as it becomes due on the bonds out 

of the funds collected ~from said taxes. 

There ins no provision in the law for what the County 

Treasurer shall .do with any excess fund collected from the taxes 

levied, over and above the amount required to pay the bonds, principal and interest. 
h 

Hon. A. A. Miller, page 2 

Article 839, Revised Statute,s, provides that the County 

Treasurer shall not honor or pay any draft upon the interest and 

sinking fund provided for the payment of the bonds, except for 

the purpose of paying the interest on such bonds or redeeming 

same, or for investment in seaurities as provide d by law. 

The Supreme Court in Black v. Strength 246 S.W. 79 

and in Aransas County v. Coleman-Fulton Pasture Ci 191 s.w. $56, 

and in Moore v. Coffman, 200 S.W. 374, has held thii money voted 

for specific purposes or for building designated roads or bridges, 

must be used for such specific purposes. 

The County Treasurer, as well as the County Depository, 

are under bond to pay the fund out, and are authorized to pay 

same out only for the purposes authorized by law. Since there 

is no provision in the law for the County Treasurer making any 

disposition of the surplus fund after the specific bonds are paid, 

we are inclined to the view that this surplus collection of taxes 

could be used in said road district for the upkeep and maintenance of the roads in said district. Since, however, the custodians of said funds are under bond, we think it advisable for the 

County Treasurer and the County Depository to institute a suit 

in rem in the District Court in Newton County, setting up the 

facts and have that court enter an order authorizing them to pay 

said &unds on warrants drawn by order of the Commissioners Court 

for the maintenance of the roads of said district, or for whatever purpose the District Court, under all of the existing facts, 

should think proper. 

We will next week call the attention of Senator Redding 

of Lufkin, your Senator, to the situation and suggest that he 

introduce a bill amending ,Article 839 of ihe Revised Statutes to 

authorize the excess or surplus left after bonds have been paid 

to be used by the County Commissioners in the districts where the 

bonds were voted for the purpose of the upkeep and maintenance 

of the roads in said districts. It might be wise for your Commissioners Court to communicate with the Senator relative to the 

matter. 

It is our opinion that it would be unwise for the County 

Treasurer and County Depository to pay said fund except on the 

direct order of the District Court. 

APPROVED : 

/s/ Gerald G. Mann 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

ATTORNEY GENERAL OF TEXAS By George W. Barcus /2/ 

George W. Barcus, Assistant 

GWB 

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