Hon.~A. A. Miller OpinionNo. O-218 - ~Modified by V-157 County ,Attorney Re: May excess cash In sinking fund Newton County ,for retirementof 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 Departmentas to whether the excess cash in a sinking fund for the retirementof bonds may be used by a Road District for other specificpurposes.

A ttached to your reque,st is a resolutionfor ruling on the sinking fund surplus~.This resolution states in effect that there are outstandingbonds againstRoad DistrictNo. 1 in Newton County, amountingto $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 collectionof taxes levied to pay said bonds and interest,$40,224.21,or a surplus of $14,199.21.

Section 52, Article 3 of the Constitutionof Texas provides that road districtsmay vote bonds for the purpose of Athe construction,

maintenance,

and operationof macadamizedgravel 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 sufficientto 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 custodianof the funds and shall promptly pay the interestand principalas it becomes due on the bonds out of the funds collected ~fromsaid taxes.
There ins

no provision in the law for what the County Treasurer shall.dowith any excess fund collectedfrom 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 sinkingfund provided for the payment of the bonds, except for the purpose of paying the intereston such bonds or redeeming same, or for investmentin seauritiesas provide d by law.
The Supreme Court in Black v. Strength 246 S.W. 79 and in Aransas County v. Coleman-Fulton PastureCi 191 s.w. $56, and in Moore v. Coffman, 200 S.W. 374, has held thii money voted for specificpurposes or for buildingdesignatedroads or bridges, must be used for such specificpurposes.

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 authorizedby law. Since there is no provision in the law for the County Treasurermaking any dispositionof the surplus fund after the specificbonds are paid, we are inclined to the view that this surplus collectionof 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 advisablefor the County Treasurerand the County Depositoryto institutea suit in rem in the District Court in Newton County, settingup the facts and have that court enter an order authorizingthem to pay said &unds on warrants drawn by order of the Commissioners Court for the maintenanceof the roads of said district, or for whatever purpose the DistrictCourt, under all of the existing facts, should think proper.

We will next week call the attentionof SenatorRedding of Lufkin, your Senator, to the situation and suggest that he introducea bill amending ,Article 839 of ihe Revised Statutes to authorize the excess or surplusleft after bonds have been paid to be used by the County Commissionersin the districtswhere the bonds were voted for the purpose of the upkeep and maintenance of the roads in said districts. It might be wise for your CommissionersCourt 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 ATTORNEYGENERAL OF TEXAS By GeorgeW. Barcus /2/ George W. Barcus, Assistant GWB wb