Honorable Denver E. Perkins 

County Attorney 

Gonzales County 

Gonzales, Texas 

Dear Sir: 

Opinion Number O-2088 

Re: Construction of the validity 

of conditional election order. 

Your request for an opinion on the following question has 

been received by this office. We quote from your letter as follows: 

"On August 19, 1938, the Board of Trustees of the Gonzales 

Independent School District passed an order calling an election 

for the purpose of submitting the question as to whether or not 

bonds of such school district should be issued for the purpose 

of erecting certain school buildings. At the same meeting at 

which the election was called the Board of Trustees passed another order reciting.that such election had been called; that 

an application had been made to'the Public Works Administration 

for funds to supplement the funds derived from the sale of such 

bonds, and that in the event the said grant was not received 

from the Public Works Administration the Board covenanted and 

agreed with the voters that said bonds would not be issued. Notice of the election was given, but nothing was said in the notice in regard to the resolution not to issue the bonds in the 

event the PWA grant was not secured. However, in paid newspaper 

advertisements, paid for and signed by the said Board of Trustees, 

the statement was made that such bonds would not be issued if 

voted unless the PWA grant was secured. The election was held 

and it resulted in a majority vote for the issuance of 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 shall be 

issued, even though no PWA grant was secured. They propose to 

hold this referendum at the time the regular school trustees are 

elected in April. If the referendum shows a majority in favor 

of the issuance of these bonds, even though no~PWA,grant was secured, then the Board of Trustees intend to proceed with 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 passed by the Board of Trustees on August 19, 1938, 

which was prior to the election authorizing the issuance'of bonds, reads 

in part as follows: 

'WHEREAS, application has been made to the Public Works Administration for a grant to supplement the funds derived from the 

sale of the above mentioned bonds; 

"NOW, THEREFORE,BE IT RESOLVED BY THE BOARD OF TRUSTEES OF 

GONZALES INDEPENDENT SCHOOL DISTRICT: 

"That in the event the above mentioned application to the 

Public Works Administration for a grant is not approved, Said 

bonds as authorized at the election, shall not be issued, and 

this Board hereby covenants and agrees with the voters that said 

bonds will not be issued unless the District receives a grant 

from the Public Works Administration." 

'The authorities seem to hold that the approval by the electors 

of the proposed bond issue with whatever terms and conditions that the 

governing body imposes thereon previous to the election, creates a status 

analogous to a contractual relation. In construing a similar order 

passed by a commissioners' court prior to a county-wide bond election, 

the Supreme Court of Texas in the case of Black et al vs. Strength et al., 

246 LW. 79, said: 

"The order would nothave been made save,with a 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 repudiated without involving 

the perpetration of fraud or its equivalent on the voters. 

"Under these circumstances, the order was, in effect, a contract with the people, and good faith required that the contract 

be kept." 

Any other rule would tend to undermine public 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 Public Works Administration grant was received, the proposed referendum 

election would amount to no more than a "straw vote" and would be ineffective for any purpose since the qualifications of ,the electors who 

vote on bond elections and those who vote at general trustee elections 

are not the same. City of Houston vs. ,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