Honorable Weldon Holcomb Opinion No. WW-1210 

Criminal District Attorney 

Smith County Re: Time Warrants, 

Tyler, Texas County Budgets, 

Road and Bridge 

Dear Mr. Holcomb: Programs. 

You inform us that Smith County has embarked upon 

a road and bridge project to cost some $2,500,000.00. 

The undertaking is being financed by the issuance 

of time warrants. 

The program and its problems have heretofore been 

dealt with in Attorney General's Opinion No. WW-1174, dated 

October 25, 1961, addressed to you. 

Now, you submit some nine (9) additional questions 

raised by the County Auditor in connection with the program 

and the means of its execution. 

We will undertake to render our opinion on each 

question in the same order as presented but for the sake of 

brevity we shall paraphrase some of them. 

1. Does Article 236Sa, V.C.S., require 

a separate issue of time warrants for each 

contract involving the expenditure of $2000 

or more that the county may enter into in 

connection with its proposed road and bridge 

improvement program? 

The Commissioners' Court has estimated the overall 

cost of the completed project as not exceeding $2.500.000.00 
Honorable Weldon Holcomb, page 2 (WW-1210 

and has authorized the issuance of time warrants in that 

amount to evidence the indebtedness. Contracts looking to 

the compl@tion of the job may be let and as they or their 

phases are performed, time warrants in amounts necessary 

to evidence due legal claims may be drawn from the balance 

left in the original overall lump-sum authorization from 

time to time until the project is completed or the issue is 

exhausted. The order provides for the cancellation of any 

time warrants not needed to complete the program. 

In actuality, the procedure followed here is an 

"issuance of Time Warrants for each contract." Witness this 

proviso in the order of the Commissioners' Court, Smith County, 

dated September 1, 1961. 

II . . . Although provision is hereby 

made to cancel claims and accounts yet to 

be incurred and to pay contracts yet to be 

entered into, no warrant or warrants shall 

ever actually be issued by delivery until 

and unless in exchange for an equal amount 

of indebtedness represented by the claims 

and accounts herein authorized, and which 

have been actually incurred by said County 

in acquiring rights-of-way, laying out, 

improving or constructing certain roads 

and bridges within the County, and which 

claims and accounts shall have been duly 

presented to, audited, allowed and approved 

by the Commissioners' Court, or until and 

unless in payment of itemized estimates or 

accounts duly submitted to and approved by 

the Commissioners' Court showing the amounts 

due contractors for the supervision, labor, 

materials, tools, equipment, machinery and 

supplies necessary for the construction and 

improvement of the County Roads and Bridges 

ccntemplated, under contracts duly and legally 

entered into." 
Honorable Weldon Holcomb, page 3 (WW-1210) 

We deem such procedure legal under Article 2368a, 

V.C.S. In the absence of compelling language to be found 

therein, a statute should not be given a technical or unreasonable construction. 39 Tex.Jur. Sec.gl,p* 174. 

2. Does Article 2368a authorize the issuance of 

time warrants to evidence indebtedness arising from the 

services of investment bankers rendered in connection with 

the financing of the project? 

We understand that Smith County does not intend to 

meet this obligation by issuing time warrants. Consequently, 

the question is hypothetical and there is no necessity for 

our opinion. 

3. Smith County has arranged with a local bank for 

the latter to take up and pay face value for audited and approved claims arising from the project. The bank will carry 

these claims until the county exercises its right to exchange 

time warrants therefor. The claims will earn for the bank 

4Jr% interest from the date payment is made to the recipient 

until such exchange is made. The time warrants will bear 4% 

interest from their date until paid. 

The first question is - Can the County legally contract to pay interest on the claims? It is our opinion that 

it may. Lasater v. Lopez, 110 Tex.179, 217 S-W.373 (1919); 

Tyler v. Shelby County, 47 Fed.2d. 103: Rains v. Mercarztile 

Nat. Bank, 144 Tex.466, 191 S.W.Zd 850 (1946). 

The second question is - Does this agreement to pay 

interest create a new debt for which no tax has been levied? 

In our opinion - no. The terms of the exchange will be on a 

dollar for dollar basis and the interest as adjusted will be 

the same. Therefore, no new obligation is imposed upon the 

county other than that dealt with in Attorney General's Opinion 

No. WW-1174, supra. 

~4. This question is quite close to a re-submission 

of cuestion #l which we have answered. The author of the 

question r2lses two points tha t are obviously considered as 
I 

l 

Honorable Weldon Holcomb, page 4 (WW-1210) 

reasons why Article 2368a, V.C.S., contemplates separate 

time warrant issues for "specific contracts as the specific contracts are let." 

The first point is that Section 3, Article 2368a, 

V.C.S., "can not be complied with." 

We have an Affidavit of Publication before us 

dated September 11, 1961, and executed by the Classified 

Advertising Manager of a City of Tyler newspaper. The 

attached "Notice to Bidders" shows a compliance with Section 3, Article 2368a, V.C.S. 

The other point suggests that bidders could not 

compete by agreeing to a lesser interest rate than that 

specified. 

The contractors under the facts do not carry the 

county's debt. They receive face value for audited and 

approved claims and accounts and nothing more. 

Assume , however, it was otherwise. We fail to 

perceive why a bidder could not figure his bid lower or 

higher to offset what he deemed an advantageous or unfavorable (as the case might be) rate of interest on the 

debt he would carry. 

5. We quote: " . . . does the law authorize the 

issuance of Time Warrants for the purpose of purchasing 

lands necessary for right-of-way as provided, etc.?" 

Articles 6674n, 6674n-2, 6673e-1, 6703, 2351, V.C.S., 

give authority to Commissioners' Courts to purchase rightsof-way; consequently, under the doctrine announced in Lasater 

v. Lopez, supra, the Court has the implied power to issue time 

warrants to accomplish the purpose. See also Madison County v. 

Wallace, 118 Tex. 279, 15 S,W,2d 535 (1929). 

6 ,. We quote: " . e . Can any of the Warrant Funds 

be used for the purpose of paying right-of-way agents, attorneys' fees, court costs, brokerage fees, expert witness 
, 

Honorable Weldon Holcomb. Page 5 (WW-1210) 

fees, etc., or any other cost that might be deemed incidental 

expenditures?" 

The time warrants can be used only for the purpose 

for which they were authorized; to-wit: paying the expenditures to be made in the purchase of lands necessary for 

rights-of-way in respect to Federal, State, Farm-to-market 

and County Roads throughout Smith County and other necessary 

expenditures incidental to the purchase of such rights-of-way; 

for supervision, labor, materials, tools, equipment, machinery 

and supplies necessary for the construction and improvement of 

the County Roads and Bridges contemplated, under the direct 

supervision of the Commissioners' Court or contracts duly and 

legally entered into. 

We note the purpose clause includes - 

8, . . . other necessary expenditures 

incidental to the purchase of such 

rights-of-way . . .'I 

It is our opinion that the matter of decision, along 

with the official responsibility therefor, relative to the 

ascertainment and adjudication of what are other necessary 

incidental expenditures, is a function singularly at rest in 

the jurisdiction of the Commissioners' Court. See subdivision 

10, Article 2351, V.C.S. Corvell County v. Fesette, 68 S.W. 

2d 1066 (Civ.App., 1934, error dism.). 

7. We quote: U . . . Does the County have the authority to invade (sic) the Constitutional Road and Bridge Fund 

Tax of said County and pledge the same for Time Warrants . . .?'I 

The Constitutional Road and Bridge Tax is the proper 

one to look to for the financing of the proposed improvements. 

Section 9, Article VIII, Constitution of Texas. - Carroll v. Williams, 109 Tex.155, 202 S.W. 504 (1918). 

8. This is a question directed at what person will 

advertise for bids on material to be used in the road and bridge 

program. Article 2368a, V.C.S., is silent on this detail. 
. . 

Honorable Weldon Holcomb, page 6 (WW-1210) 

In this case the publication of the required notice 

was over the County Judge's name and title. 

It is our opinion that this was a compliance with 

Article 2368a. V.C.S. 

Article 1659, V.C.S., is a general statute, whereas 

Article 2368a is special in the sense that it deals with the 

procedure to be followed in issuing time warrants. 

The general terms of'Article 1659, supra, must yield 

to the specific provisions of Article 2368a. supra, on this 

matter of publication. 39 Tex.Jur. 213, Sec. 114. 

The act by the County Judge was a ministerial function 

of his official capacity and the publication reflected a true 

statement of what the Court had ordered, and we deem it proper 

for it to issue over his signature. Akers v. Reminqton, 115 

S.W.2d 714 (Civ.App. 1938). 

9. We quote: "None of the expenditures which I am 

now called on to approve are set forth in the budget for the 

year 1961, and the budget has not been amended so as to bring 

the same into that budget. No budget has been made and no 

hearing held as required by Article 689a-11 by Smith County 

for expenditures for the year 1962, and no tax rate has been 

fixed by any order entered of record by the Commissioners" 

Court for 1962. Therefore, I am of the opinion that the expenditures already made and those proposed to be made are 

illegal and that I cannot approve the same. Please advise me 

regarding this situation." 

The questions regarding the 1961 Budget have been 

answered in Attorney General's Opinion No. WW-1174, supra. 

As for the 1962 Budget, we have been advised that it 

has been approved by the Commissioners' Court of Smith County 

in November, 1961, and that it includes the expenditures under 

the project, provides for a tax levy, and estimates the revenues to be derived therefrom, all as the law provides. 
Honorable Weldon Holcomb, page 7 (WW-1210) 

The question then has been reduced to one of timeliness. The law provides that the county judge shall budget 

the fiscal affairs of the county in July and present it to 

the Commissioners' Court in August. Articles 689a-9, 689a-11, 

V.C.S. 

There is no language in the Uniform Budget Law applicable to counties to indicate that the matter of time is 

one of essence. It provides no penalty nor imposes any forfeiture for a belated adoption of a budget. 

. . . it does not necessarily follow that 

a thing which a statute directs to be done 

at a particular time may not be done afterwards. Nor is it implied that an act, for 

which a statute affirmatively provides, will 

be ineffectual if it is done at a different 

time than that prescribed." 39 Tex.Jur. 38, 

Sec. 16. 

SUMMARY 

Under the facts as submitted, Smith County 

has complied with Article 2368a, V.C.S., 

in authorizing time warrants to evidence 

indebtedness arising from the designated 

road and bridge improvement program. 

Very truly yours, 

WILL WILSGN 

Attorney General of Texas 

GW- s 
Honorable Weldon Holcomb, page 8 (m-1210) 

APPROVED: 

OPINION COMMITTEE: 

W. V, Geppert, Chairn'm 

J. C. Davis 

W. Ray Scruggs 

Bill Allen 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Houghton Brownlee, Jr.