### 435



## THEA~~OHNEYGENEEZAL

OIFTEXAS

Hon. D. D. Williams County Attorney ThrockmortonCounty Throckmorton,Texas OpinionNo.

## V-684

Re: Authority of Commisslonerst Court to transfer Road Bond interest and sinking fund and rental received for use of trucks to Road and Bridge Fund.

Dear Sir:

We refer tc your letter in which you submit the following:

"1. ThrockmortonCounty voted certain road bonds and sold certainroad bonds and part of this money was used for the purchase of right df way, building roads, etc., and there remains from the sale of such road bonds approximately$10.000 in the road bond fund account. The State has assumed the payment of the road bonds in Throckmorton County and there will be no more highwaysbuilt by the State Highway Department so far as we know and there is no need for this partlcular money for State Highwaypurposes at this time, nor do we contemplateany need for such money In the future.

"Weadohave a great need for this money on lateral county roads and we would appreciateyour advice as to whether or not this money canbe used on the County roads. And in this connection, I understand that the AttorneyGeneSal Department furnished an opinion to the Commissioners'Court of Haskell County or the CountyAttorney of Haskell County; involvinga situation exactly the same as ours and I would appreciate a copy of this opinion.

### 436 Hon. D. D. Williams, page 2 (V-684)

"2. Throckmorton Countyhas set up an Interestand sinking fund to pay the principal and interestwhen due on two issues of road bonds. The State has assumed the payment of these bonds and the interestwhen the samebecomes due and we have a surulus of aoproximately $9.000.00 In the road bond i&e;- est and sinking fund for which there is no need at the present time,nor will therebe
a need in the future as the State has assumed the payment of thesebonds and the lnterest on same.

"Wewould appreciate an opinion from you in view of the above circumstancesas to whether or not this money in the road bond interest and sinking fund can be,,used on lateralroads in Tbrockmorton County. (Emphasisadded)

The money referred to in your letter was derived from two sources,viz: (1)Unused proceeds of countyroad bonds voted for the purpose of constructionand maintenance of macadamized,graveled, and paved roads and turnpikes, or in aid thereof, in ThrockmortonCounty, $lO,OOO.OO; (2)Unused road bond interestand,sinking fund raisedby taxation to pay saidbonds and the interestthereon, $9,000.00.,

In final analysisyou ask if said sums of money may be used to build countyroads in Throckmorton county. Your questions are answered in the order as above.
(1) The sum of $lO,OOO.OO is the unused portion of the proceeds of a bond issue voted and soldby ThrockmortonCounty for the purpose of constructing, maintainingand oueratlnamacadamized.graveled- or uaved roads and turnpikes. or in aid thereof, in Throokmorton County. All of the electionproceedings specifically earmark the proceeds of the saidbonds as follows:

"Onroads from the Northbase line of said Tbrockmorton County through Throckmorton to the South Base line of saidThrockmorton County,and from the East base line of said Throckmorton County throughAlbert and lntersectlng the saidproposed road from the North 'base line of said ThrockmortonCounty to the Southbase line of said ThrockmortonCountyHon. D. D. Williams,page 3 

## (V-684) 437

and from the North base line of Stephens County throughWoodson and intersecting the saidproposed road from the North base line to the Southbase line of said Throckmorton County." NothIng

contained in any of such electionproceedings enlarges the purpose of the bond issue as above recited to authorize the use of any of the .proceedsof saidbonds for any other purpose.

In OpinionNo. O-7213by a former admlnistration, a copy of which Is enclosed, it was held that an unused portion of a bond issue made under authority of Sectioff

52 of Article III of the Constitution,not 'earmarked for specifiedroads, may be used to purchase right-of-way for farm-to-marketroads. It is there held:

"Itappears from the proceedings that
no referencewas made 'earmarking'the money for a particularroad or a particular type of construction. We are furnishedwith no facts or orders showing that the proceeds of saidbonds were 'earmarked'.
"Basedon the transcript of proceedings thatwe have before us, It Is our opinion that the Comm?ssl.onersl Court of Haskell C.ounty may sell the Series D issue of bonds and use the funds for the purpose of aiding In the constructionof and purchasing rightof-;ay for farm-to-marketroads in said County.

funds were

T$e above o@nlon further states that if the earmarked for a particular road or a partlcular tqpe of construction 'a different conclusionwould result. In your case the records reflect that thebonds were voted for particularroads; therefore, in view of the foregoing it is our opinion that the unused portion of the proceeds of suchbond issue may not be used for county roads other than those for which the bonds were voted.

If thebond purpose has been completed, then the $lO,OOO.OO left over should be used to retire outstandingbonds. If the owner or owners of suchbonds
are unknown to the county, then the money shouldbe plaoed In the sinking fund.

### 438 Hon. D. D. Williams,page 4 (V-684)

,._,~. ,,,,,,*,I1

! (2) The sum of approximately $g,OOO.OO in the road"'bo'nd

interest and sinking fund was obtainedby a tax which was levied and collected to pay interestand create a sinking fund to pay road bonds voted and sold as authorizedby Section 52 of Article III of the Constitution. The bonds have not been paid and ThrockmortonCounty is primarily liable for their payment,which liability continues until suchbonds are paid in full.

In OpinionNo. V-157 of this office it was held that money In a sinking fund may be used only to pay the principal and Interest on the obligation for which said fund was created, until such obligationsare fully paid. It is there further held that after all such obligations
are paid, any surplus then remaining in such fund may be disposed of in accordancewith the provisions of Article 752a,V. C. S., as amended. We enclose a copy of that opinion.

SUNNARY

The portion of the proceeds of a bond issue voted and sold under the provisions of ConstitutionArt. III, Section 52, and earmarked for particular roads, may not be used for the construction,ofcountyroads other than those for which thebonds were voted. Money In the Road Bond Interest and SinkingFund for the payment of road bonds may not be used for any purpose other,than the payment of such bonds and the interest thereonbefore suchbonds are paid in full. After suchpayment such money may be used for the purposes specified in Art. 752a,
v. c. s.

Yours very truly,

APPROVED: ATTORNEY GENERAL OF TEXAS 

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FIRST ASSISTANT ATTORNEY GENERAL 

# By m7-wdLib da+ W. T. Williams Assistant

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