Honorable John F. May

CountyAttorney Karnes County Karnes City,Texas

Dear Sir: OpinionAumber O-1797

Re: Authority of Commissioners' Court to refund road bonds to mature in lesser t'ime than that of the underlyingbonds.

We are in receipt of your letter ofDecember 29, requesting our opinion as to the legality of the procedurepro8osed in the matter of refunding certainbonds OSRoad District 3 of Karney County. The facts are briefly as follows:

"RoadDistrict #3 ofKarnes County,Texas, voted-abond issue of $32,000, bearing interest at a rate of not more than 4$, due and payable serially, one bond of $1,000 due each year for twenty-sixyears, and one bond of $1500 due each year for the following four years, vlth option of prior redemption after five years from the date of suchbonds. A bond buyer has proposed to purchase the bonds as they were voted and then have the Commisslonerst Court to refund the bond issue so as to make them due and payable serially Fn twentyyears and make the payments due each year about equal, payment." with ten year option as to

Your question is:

"Can this be legally done withaut another election?"Honorable John F. May, page#2 (O-1797)

After a carefulreading of the statutegoverning the issuance of refundingbonds, we must advise that we have failed to find any provisionwithin the statute requiring the submlsslon of the proposltlon of the issuance of refundingbonds to the electorate. We, therefore, must answer your question in the affirmative.

By giving an affirmative answer we do not intend that this opinion shallbe construed as approving the procedure outlined in your letter. Article 752x of theRevised Civil Statutes of 1925 is the law appertaining to the refunding of road bonds, and reads as follows:

"That the commissioners'court of the several counties in Texas shall have authority to refund any road bonds that have been issued or that may hereafterbe issuedby authority of any law enacted pursuant to Section 52 ofArticle 3 of the Constitution ofTexas, when such road bonds have been issued for and on behalf of a political subdivision or defined district or consolidated district in such aounty. Such refunding bonds shall be made to mature serially over a period not exceeding forty (40)years from their date, as x & determined& the commissioners court,-@ they stax

be made tobear Interest atthesame or -- lower ratethant.G originalbondswhm are being refunded. - 'PhecGiiiiissioners' court7iE71have

provide for the levy of ad valorem taxes on all taxable property In the political subdivision or defined district, or consolidateddistrict, as the
casemay be, sufficientto pay the current Interest on said refundingbonds and to pay the principal
as itmatures."

It will be noted Prom a careful reading of this statute that a great deal of latitude Is vested in the commissioners' court in the matter of determining the feasibility of refundFng road bonds. We have underscored certain languageHonorable John F. May, page #3 (o-1797)

used .inthis statute which we think'~indlcatlve .ofthe legislative intention to make the advisability of a refunding a matter of dlscretlon. we must conclude,therefore, that it is legallywithin the power OS the commis'sloners' court .to refund any bonds that have been issuedwheresuch,'d'ourt deems it advisable and to the best interest of the'district that such refundingbe done.

The courts of this State, have often announced the principle that where a statute gives authority to commissioners' courts; it will be reasonably construed in orderto effect its purpose. See Sheffield vs. Sheppard,'39S. W,.' (26) 1111,Wallace vs. Commlssloners~Court OS Madlson County, 281 s. w. 593. Jurisdiction has been conferredupon the county commissioners'court to effectuaterefundings for the various definedroad districts situated in~its county; and having acquired that jurFsdiction they may, except as restrainedbylawi exercise such~powersaccording to their discretion.,See the case of Raberbekken vs. Coryell County, 247 S. W. 1086. In the case of Cameron vs.Earnest, the Court of CltilAppeals stated that:

"In the absence OS Sraud,no courthas right to set aside decision of commissioners'court on matters within Its,jurisdiction." 685, error dismissed. 34 S.W. (2d)

And again the Court OS CivilA peals held in the
case ofKing vs. Falls County, 42 S. W. 72d) 481, that:

“A dlstrlct court cannot revFew dlscretlon of commissioners~court unless it appears there has been clear abuse of court's discretion."

It will be seen from the above quoteddecisions that where a matter comes wLthin the discretlonargpowers of a commisslonerslcourtmuch latitude of action is permitted said court. And since we have heretofore determinedthat Article 752x invests the commissioners'courtwlth a certain amount of discretion In the matter of determining the necessity for a refunding, we must indulge the presumptionthatHonorable 3ohn F. May, page #4 (o-1797)

the cornmIssioners

### courtis actkg within Its authority ia proposing to refund the road bonds of District #3 to mature in twenty fears Instead of the thirty-year period authorized In the election. In the absence of an abuse of this discretion the presumptionmust be in favor of the legality of the traasactioa.

You are, therefore,advised that unless it appears that the c'osnsissioners~ court is abusing that discretion,the proposed refunding cannotbe said to be Illegal. This would be true even though a greaterburden was placed upon the taxpayer thaia

was anticipatedby the electorate at the time the bonds were authorized.

You are furtherexpressly adtisdd that the commissioners' court'sauthority to refund any Issue of bonds ari.ses onlyafter the underlyingbonds have been issued, and, under the law,bonds are not considered to have been Issued until they have been sold and the proceeds thereof placed In the cujtody of the CountyTreasurer. Hence, itmust follow that the agreement%o refund bonds prior to their issuance is not only prematurebut is unauthorized.
Very truly yours
ATTORIiRYGFZRRAL OFTRXAS

CEC-s:mjs

APPROVED JAR 27, 1940 /s/Gerald C. Mann ATTORIiZYWFBRALOFTRXAS

APPRWED OPIHION COMMITl!RB By ,&fJgf&cPmwJ BY /s/ ClarenceE. Crow0 ClarenceE. Crowe

Assistant