Honorable B. F. Reynolds 

County Attorney -. 

Throckmorton, Texas 

Dear Sir: Opinion No.‘O-1159 

Re: Can a commissioners"couH~ use 

money that has been voted for 

the purpose of building county 

highways for purchasing a~site 

for a state hlghwag warehouse? 

Your request for an opinion on the above-stated question has been received by this office. 

Articles 701, 702 and 703, Revised Civil Statutes, 

read as follows: .~ 

"Article 701. The bonds of a county or an incorporated city or town shall never be issued for 

any purpose unless a proposition for the issuance 

of such bonds shall have been first submitted to 

the qualified voters who are Fropertg tax payers 

of such county, city or town. 

"APtlCl8 702. In all cases when the governing 

body of a county, city or town shall order an election for the issuance of the bonds of the County, 

city or town or of any political subdivision or 

defined district of a county, such body shall at the 

same time submit the questlon of whether or not a tax 

shall be levied upon the property of such county, 

city or town, political subdivision or defined district for the purpose of paying the Interest on the 

bonds and to create a slnklng fund for the redemptlon of the bonds." 

~' "Art. 703. The proposition to be submItted 

shall distinctly specify: 

"1 . The purpose for which the bonds are to 

be issued; 

"2 . The amount thereof; 
Honorable B. F. Reynolds - page 2 O-1159 

“3 . The rate of Interest; 

“4. The levy of taxes sufficient to pay the 

annual lnteres-t and prOVfd8 a sinking fund to pay 

the bonds at maturity; 

“5 . The maturity date, or that the bonds may 

be issued to mature serially within any given number of years not to exceed forty." 

Articles 6663, 6673 and 6674b transfer to the Stat8 

Highway Commission jurisdiction over highways of the.State' 

whkh commissioners' court previously had. Article 6674q-4 

reads as follows: 

"All further .lmprovement of said State Highway 

System shall be made under the exclusive and direct 

control of the State Highway Department and with appropriations made by the Legislature out of the 

Stat8 Highway Fund; Surveys,plans and speclflcations 

and estimates for all further construction and lmprovement of said System~~shall be made, prepared 

and pald.for by th8 State Highway Department. No 

fufth8r improvement of said System shall be made 

with the aid of or with any moneys furnished by the 

counties except the acqulsltfori of rights of way 

which may b8 furnished by the counties, their subdlvislons or defined road districts. But this shall 

In no wise affect the carrying out of any binding 

contracts now existing betweecthe State Highway Department and the Commissioners Court of any county, 

for such county, or for any defined road district. 

In the development of the System of Stat8 Highways 

&x3 the maintenance thereof, the Stat8 Highway Commission shall, from funds availabl8 to the State 

Highway Department, provide: 

"(a) For the efficient maintenance of all highways comprising the State System. 

"(b) For the construction, in cooperation with 

the Federal Covernment~'to the extent of Federal Aid 

to the State, of highways of durable type of the 

greatest public necessity. 

"(c) For th8 construction of Highways, perfect: 

lngand extending a correlated system of State Rlghways, independently from State Funds." 

The case of Iverson et UX v. Dallas County, 110 S. W. 
Honorable B. F. Reynolds - page 3 O-1159 

(2) 255 held among Other things that Articles 6663, 6673, 6673a, 

and 6674b, and the amendments thereto, attempting to set up a 

complete uniform system of state hlghways, and authorizing 

Highway Commissioners to take over Stat8 hlghways, stripped 

COUntieS Of any authority to l8t Contracts for th8 construction 

or maintenance of any public road comprising a portion of'the 

state highway system, either in'thelr own'names or as agents 

of the State, except In sp8ciflc Instances and strictly in 

keeping with the provlslons of the Acts. 

-' 

The money mentloned in your telegram, we presume, Is 

money derived from the sale of bonds duly authorized by the 

qualified voters for the purpose of building county highways. 

_~ 

W8 quote from Texas Jurisprudence, Vol. 21, p. 686, as 

follows: 

"It Is elementary that the funds derived from 

the sale of bonds may not be diverted from the 

purposes sp8cified ln the prOpOsitiOn submitted to 

the 8I8CtOrS. If fOIIOWs that Wh8r8 a departure 

from the proposition appearing on the ballot paper 

Is alleged, the only question before the court 1s 

whether the expenditure contemplated lS wlthln or 

without the proposition upon Its true construction. 

Construing propositions to this end; it has b88n 

held that 'road' includes a bridge' constltutinga 

necessary link in the road, and that 'turnpikes' 

mean hard-surfaced roads, not necessarily tollroads. And, seeing that both propositions leave 

the specific allocation of the funds to the corn-. 

missioners' court, there is no variance between a 

proposition for expenditure on roads 'throughout' 

the county and an order for issuance of bonds for 

construction 'within and for' the county." 

-. 

Also see thecases of Aransas County v. Coleman-Fulton Pasture 

co., 191 S.W. 553; Heathman v. Slngletary, 12 S.W. (2) 150; 

Hugglns V.~Vaden, 259 S.W. 204; and Grayson County v. Rarrell, 

202 S.W. 160. 

We quote from the case of Carroll v. WlI.llams, 202 

S.W. 504, decided by the Supreme Court, as follows: 

"* * *section 9 of article 8 of our state Constltution~* * * inhibits any and all transfers of tax 

money frOm~On8-to another Of the s8VercIaSSeS Of 

funds therein authorized, and, as a sequence; the 

expenditure, for one purpose therein defined, of tax 

money raised ostensibly for another such purpose. 
Honorable B. F. Reynolds - page 4 O-1159 

The immediate purpose in so prescribing a separate 

DEhXimLUU tax rat8 for each Of the classes of purposes 

there enumerated is, no doubt, to limit, acc~ordingly, 

the amount of taxes which'may be raised from .the'peopie, by taxation, declaredly for those several purpOS8S or classes of purposes, respectively. But that 

Is not all. The ultimate and practical and obvious 

design and purpose and legal effect Is to Inhibit excessive expenditures for anysuch purpose or~class of 

pUrpOS8S. By necessary implication said provisions 

of section 9 of article 8 were designed, not merely 

to limit the tax rate for certain th8r8ln designated 

pUrpOS8S, but to require that any and all money raised 

by taxation for any such purpose shall beg applied, 

falthfullg, to that part,icular purpose, as needed 

therefor, and not to any Other purpose or use whatsoever. Those constitutional provisions control, not 

only the raising, but also the application, of all 

such funds; * * * 

I'True, the Constitution does not say;ln So. 

many words, that money raised by a county, city, or 

town, by taxation for one such purpose shall'never 

be expended for any other purpose -- not even for 

another~of the five genera1 C1asS8S Oft purposes de' 

fined-and approved in said section 9 -- but that, we 

think, is Its plain and certain meaning and legal 

effect. The very definitions of those several classes of purposes, and th8'declaration of authority to 

tax the people therefor, r8Sp8CtiVe1y, COUpled, as 

they are, ineach instance, with a limitation of 

the tax rate for that class, must haV8 been predicated UpOnthe expectation and intent that, as a 

matter of common honesty and fair dealing, tax 

money taken from the people ostensibly for one such 

specified purpose shall be expended, as needed, for 

that purpose alone, as well as that the tax rate 

for that particular class, In any one gear, shall 

not exceed th8 prescribed maximum." 

Alsb see the case of Commissioners' 

et al v. Burte et al, 262 S. W. 94. 

Court of Henderson County 

In Vf8W of the foregoing authorities, you are resptktfully advised that It Is the OpinFon of this department that 

the Commissioners' Court cannot use money that Is derived from 

the sale of~bonds duly issued for the purpose of building 

county highways for purchasing a site for a stat8 highway 

Warehouse. 
Honorable B. F. Reynolds - page 5 O-1159 

Trusting that the foregoing answers your inquiry, we 

remain 

Yours very truly 

ATTORNEY GENXRAL OF TEXAS 

By s/Ardell WlllliXms 

Ardell Wlllltims 

Assistant 

AW-MR-WC 

APPROVED JDL 31, 1939 

s/W. F. Moore 

FIRST ASSISTANT 

ATTORNEYGENERAL 

Approved Oplnlon CommIttee By s/RWF Chairman