### HonorableCharlesJ. Lieck,Jr. Opinionlo.WW-769

CriminalDistrict **Attorney Bexar**  **County Courthouee**  **Ret Legality**  **of uae**  **of San**  **Antonio,** 

### Texas bond 

### funds forpurchaseofbuilding. Attention: **Eon.** 

### L.J.Gittinger,

**Asst. Grin.**  

### Dist. **Atty.** 

### Chief,Civil Section

Dear Sir:

You have 

### requestedtheopinionof thisofficeas to the legality of theproposedpurchaseby theCounty of an exiatingbuilding, a portionofwhich ia to~beuaed for jail purposes,with funds received fromthesale **of** 

### BexarCountyJail Bands,dated September 10, 1959,aggregatingthe sumof $3,650,000.00.
Thesebond8were issuedunder theauthority **of** 

### Article 237C$, V.C.S., (Acta1957, 95thLeg.,R.S.,p. 1386,ch. 4761,hereinaftercalled the "Act..
Certainbroad powers,but none to iasuebonds, aregrantedto CosmisalonersCourts in Section1 of the **Act,** 

### which follows:

-Section1. Whenever the Comiaelonera **Court of**  

### anycountydeterminesthat the county courthouse isnot adequate insiteor facilities toproperlyhEuse all countyand district offices 

### and alL.countyanddistrictcourts and all'justice**of the**  

### peace courts for **the** 

### precincts inwhich the **courthouse** 

### is situated,and to adequatelystoreallcounty **record?** 

### and equipment (includingvotingmachines) and/or that thecounty jail ianot adequate in size or facilitiestoproperlyconfipeprisoners and otherpersonswhomaybe legallyconfined. .

~~~~ marlea J. Lie&k, Jr., Page 2 W-769)

or detained in a county jail, the Qmmissioners Court may purchase, constrxt. reconstruct, remodel, improve and equip, or otherwise acauire an office buildinq 

### orbuildings. or courts buildins or buildinos, or jail buildina or buildinas (a addition to the existins courthouse and/or jail), or an additional buildins or buildinas inwhich anv one or more of the county or district offices or 

### county,district or justice of the peace courts, 

### or the countr jail or any other county facilities or functions mav be housed. conducted and maintained: and may purchase and improve the necessary site or sites therefor, and may use such building or buildings for any 

### or all of such purposes, provided that any such building or buildings so acquired shall be located in the county seat. and provided that **no** justice of **the** peace **court** shall be housed, conducted or maintained in any such building if said building is Located **out of**  the boundaries of the precinct of au& **justice** of **the** peace **court. ”**  (Rnpbaais added)

The power to issue bonds, and the purposes far which they may be issued. are contained in Section 3 of the **Act.** whiclais, in part, as follows:

*Sec. **3.** To pay **for the**  purchase. construction, reconstruction. remodelins. imnrovement -z&deauirnaent**of** anv such buildina or buildinas and/or iails, includins the nurchase and imp&,the cosm&ssioners Coure'is authorized to issue negotiable bonds of the county and to levy and ^ collect taxes in payment thereof. . . . : and the issuance of such bonds and ttaelevy and collectipn of such taxes shall otherwise be **in** accordance with the provisions of Chapter 1, Title 22,.Revised Civil Statuteg of Texas,B~. axles J. Lieck, Jr., page 3 M+76g)

governing the issuance of bonds 3.:. cities, 

### townaand/or counties in thie Sta?.?." (Rnphasis added)

It is clear that bonds may be issued for any one or 

### all of the saveral purposes specified in Section 3, above, provide' such purpose; or purposes8 are clearly stated by the Commissioners Court in the proposition submitted to the property taxpaying voters of zhe county and approved by them at an election properly called and held in accordance with the requirements of Chapter 1, Title 22, Revised Civil Statutes of Texas, and provided all other requirements of law are properly observed.

But all of the purposes **of** issue named in Section 3were not included in the proposition asworded by the Bexar County CoannissionersCourt and voted upon by the property taxpaying voters in this instance. As pertains to the manner of acquisition of a County Jail building the word "construction" was singled out by the **Comnissioners** Court, and only that~one word appears in that connection in the voted proposition and throughout the election proceedings, viz- *. . . for the purpose of paying for the construction and equipment of a County Jail buildinq, including the purchase anilimprovement of the site therefor, . . .I (~hasis added).
Thus, the Coanni.ssi.oners Court chose to sharply narrow the proposition submitted to the voters, omitting the words "purchase", "reconstruction", "reauxdelingn.Uimprovement*, and "buildings".

There can be no doubt that ihe Commissioners Court possessed the **power** to thus limit 

### andrestrictthe purpose to be voted upon for it is specifically granted in Section 4 of the Act, which is as follows:

..

"Sec. 4. The Cosuulssioners

### Courtmay submit at any bond election one proposition for the issuance of such bonds which proposition may include al1 the nurnoses au'thorieed 

### herein korwhich such bonds may be issuedp or it may,,at its option, submit $t any bond--. _

Hon. Charles J. Lie&, Jr., page 4 (WW-769)

election one or more separate =zc.q::itions for the issuance of such bon&, 9%cn of which separate propositions ray inc.luc'e any one or
such bonds may be issued." (Emphasis added)

The vzd "construction* is of definite and limited meani.ng. In its ordinary sense itmeam to build 

### or erect something which theretofore did not 

### eathit; the creation of something new, as distinguished from the **repair** or improvement of samething already existing. Carlson v. Kitsan County, Supreme Court ofWashington, 124 Wash..155, 213 **P.** 930, 931: Board of Supervisors of Covinaton Cou*.tvv. State Hiabwav Comr~esio~,, Supreme Court of Missi6sippi, 194 So. 743, 748, 188 Miss. 274. And ithas been held that a statute authorizing a town to "constrilct*a town hall can not be construed 

### as authorizing the purchase of abuiPding already constructed. Barker v. Town of Flovd, Supreme Court of New York,,66 N.Y.S. 216, 2~17, 32Misc. 474.

An applicable dictionary definition of the word "construction' is the *Process or art of constructing; 

### actof building: erection: act of devising and forming: fabrication: composition;

l Webster's New Internat,iona%Dictionary~Second **JW.tion,** &bridsed. p. 572 (1957).

It IS fundamental that the proceeds of bonds voted **for** a particular purpose by the people -ozstitute a **truet** fund which must be expended for the purpose forwhich the bonds were voted and may not be diverted from such purpose and applied to some other use. Clark, et a% v, Greer. et al, (Civ.App.) 232 S.W.2d 876 (Nowrit history): Gillham v. CitV of Dallas (Civ.App.) 207 S.W.Zd 978, 983 (Writ ref., n.r.e.): Lewis v. ci+,rof Fort Worth, 89 S.W.Td 975, P26 Tex. 458x Moore v. Coffman, 1.89S.W. 94, affirmed 200 S.W. 374, 109 Tex. 93: blcQuillin.Municinaltornorations. Vol. P5, p. 598, et seq..

It is our opinion that funds derived from the sale of bonds voted by the people for the purpose of "Daying for the construction and equipment of a County Jai.?. building, including :HOG. Charles J. Lieck,'JrI, Page 5 (W-769)

the purchase and improvement of the site the-efor" may not be ~g%d

### for the purchase of an existing structux, a portion of which '.sto be used for jail purposes.
Of course, in the purchase and improvement of a site for the County Jail building the Commissioners Court, in the exercise of its sound discretion and pursuant to the terms of its contract with the City **of** San Antonio, may choose such land as 1' deems proper. The fact that such tract, or tracts, of land at the time of purchase 

### haa thereon an existing structure, or strucLllres ,would have no bearing upon the authority of the Commissioners Court to acquire the land. The Commissioners Court, after the site is acquired, may then utilize or demolish such structures, if any, 

### as itmight, in the exercise of its sound discretion, determine would be proper in improving the site for the County Jail building. However, it is clear that none of these bond funds could 

### be expended upon such structures.

**SUMNARY**

Bond proceeds voted for the construction and equipment of a County Jail building, including the purchase and improvement of the site therefor, may not be used to purchase an existing structure, a portion of which is to be used for jail purposes, although such proceeds may be used to purchase and improve the site for the County Jail building. **Very** truly yours,



### 1. HWM-s APPROVED: OPINION-COMMITTEE Korgan Nesbitt, 

### Chairman Charles D. Cabaniss C. Dean Davis Grundy Williams RFXIEMD FOR THE ATTORNEY GRWRRAL By: Leonard Passmore WILL WILSON

Howard 

### W. Ways Assistant