Honorable Denver E. Perkins

County Attorney Gonzales County Gonzales,Texas Dear Sir: Opinion Number O-2088 Re: Constructionof the validity of conditionalelection order.

Your request for an opinion on the following questionhas been receivedby this office. We quote from your letter as follows:

"OnAugust 19, 

### 1938, the Board of Trustees of the Gonzales IndependentSchool District passed an order calling an election for the purpose of submittingthe question as to whether or not bonds of such schooldistrict shouldbe issued for the purpose of erecting certain schoolbuildings. At the samemeeting at which the electionwas called the Board of Trustees passed another order reciting.that such election had been called; that an applicationhad been made to'the Public Works Administration for funds to supplementthe funds derived from the sale of such bonds, and that in the event the said grantwas not received from the PublicWorks Administration the Board covenantedand agreedwith the voters that saidbonds would not be issued. Notice of the electionwas given, but nothing was said in the notice in regard to the resolutionnot to issue the bonds in the event the PWA grantwas not secured. However, in paid newspaper advertisements,paid for and signedby the said Board of Trustees, the statementwas made that suchbonds would not be issued if voted unless the PWA grantwas secured. The electionwas held and it resulted in a majority vote for the issuanceof the bonds. "The application for the grant from the PWA was denied for some reason. The Board of Trustees would still like to erect certain buildings for the high school. They propose to hold a referendum on the question as to whether or not the bonds shallbe issued, even though no PWA grant was secured. They propose to hold this referendum at the time the regular school trustees are elected inApril. If the referendum shows a majority in favor of the issuance of these bonds, even though no~PWA,grantwas secured, then the Board of Trustees intend to proceedwith the sale of these bonds. Assuming that the majority of the people voting at such trustee election and referendum are in favor of issuing the bonds, the question is whether or not the Board can legally issue them even though no PWA grant was received."Honorable Denver E. Perkins, page 2 (o-2088)

The order passedby the Board of Trustees on August 19, 1938, which was prior to the electionauthorizing the issuance'ofbonds, reads in part as follows:

'WHEREAS,applicationhas been made to the PublicWorks Administration for a grant to supplementthe funds derived from the sale of the above mentionedbonds; "NOW,THEREFORE,BE IT RESOLVED BY THE BOARD OF TRUSTEES OF GONZALES INDEPENDENTSCHOOL DISTRICT: "That in the event the above mentioned application to the Public Works Administrationfor a grant is not approved, Said bonds as authorizedat the election, shall not be issued, and this Board hereby covenantsand agrees with the voters that said bonds will not be issuedunless the District receivesa grant from the Public Works Administration." 'The authorities seem to hold that the approvalby the electors of the proposedbond issuewith whatever terms and conditionsthat the governingbody imposes thereon previous to the election, creates a status analogous to a contractualrelation. In construinga similar order passed by a commissioners'courtprior to a county-widebond election, the Supreme Court of Texas in the case of Black et al vs. Strength et al., 

### 246 LW. 79, said:

"The orderwould nothave been made save,witha view to its being relied on by the voters. With the bond issue authorized by votes cast in reliance on the order, as must be assumed, it could not be arbitrarily ignored or repudiatedwithout involving the perpetrationof fraud or its equivalent on the voters. "Under these circumstances,the orderwas, in effect, a contract with the people, and good faith required that the contract be kept." Any other rule would tend to underminepublic confidence in the acts of public officers. See also Golden Gate Bridge and Highway District vs. Filmer, 21 Pac. (2d) 112; Perry vs. Los Angeles, 203 Pac. 992.

Whatever might be the moral effect of releasing the Board of Trustees from their promise not to issue the bonds unless the PublicWorks Administrationgrantwas received, the proposed referendum electionwould amount to no more than a "strawvote" and would be ineffective for any purpose since the qualificationsof ,theelectorswho vote on bond electionsand those who vote at general trustee elections are not the same. City of Houstonvs. ,McCraw,113 S.W. (2d) 1215. (Texas Supreme Court, 1938).Honorable Denver E. Perkins, page 

### 3 (O-2088)

Therefore, it is the opinion of this department that the Board of Trustees cannot legally issue the bonds in question unless the district receives a grant from the Public Works Administration.

Trusting that this answers your question,we are Very truly yours ATTOBNEYGENXBALOFTEXAS

By /a/ Claud 0. Boothman

Claud 0. Boothman

Assistant COB-s-lm

APPROVED MAY 1, 1940

/s/ Gerald C. Mann ATTORNEY OwERAt OF TEXAS

APPROVED OPINION coMMITl!EE
BY /s/BWB CHAIRMAN