May 1, 1946

Honorable Arthur Foster County Attorney, Haskell County Haskell, Texas
Dear Sir: Opinion O-7213 Re: Can the Commissioners* Court of Haskell County sell the Series D issue ofbonds and use the funds for thepurpose of aiding in the construction ofand purchasing right ofway for farm tomarket roads in said County?
We acknowledge receipt of the opinion request ofHonorable Fred Stockdale, District Attorney, 39th Judicial Distriat, and we quote fromhis letter as follows: "TheCommissioners' Court ofHaskell County desire tohave an opinion from your department concerning certain road bonds oreviouslv voted and issued. Kindly address your Foster, County Attorney of reply ioHonorable Arthur Haskell County. "Haskell County now holds an issue of $243,000.00 road bonds which havenot been sold. This issue isapart of an original issue of $760,000, andwere designated as Series D. Ihave before me a transcript of the original bond issue showing this particular $243,000.00 Series D being apart of said issue and the certificate of the Attorney General appearing in this Series D transcript is datedApril 4, 1941, and at the bottom of said certificate appears # 1975, Book #Se
"It ismy understanding that this original issuewas voted and issued for the purpose of aiding inthe purchase of right of way and construction of state highways and bridges through the county. However, thiswork has already been completed. At this time the Commissioners' Court proposes to obtain right ofwayfor farm tomarket roads which were not contemplated at the time of the original issue. "Thequestion is submitted: Can the Commissioners CourtHon. Arthur Foster - Page 2 O-7213

ofHaskell County sell the above Series D issue and use the funds for the purpose of aiding in the construction ofand purchasing right ofway for farm to market roads in said county. A certified copy of the pre election order is enclosed. The following authorities are also submitted: Blackvs. Strength, 246 S.W. 79; Aransas County, et al vs. Coleman-Fulton Pasture Co. etal, 191 SW 556; Fletcher vs. Ely, 53 SW (2)817; Sparks vs. Sparks 189 SW (2) 354."
We have carefully examined the transcript of theproceedings on file in the Comptroller's office authorizing the issuance of the bonds mentioned inyour request, and we find that said bonds were issued "for thepurpose of the construction, maintenance and operation ofmaoadamieed, graveled orpaved roads and turnpikes, or in aid thereof, in said County, under andbyvirtue of Section 52 ofArticle 3 of the Constitution of the State ofTexas, and under the laws enacted pursuant thereto, including Chapter 16Acts of the First Called Session of the 39th Legislature ++?&.)I
It appears from theproceedings that no reference was made "earmarking1 the money for aparticular road or aparticular type of construction. We are furnished with no facts or orders showing that the proceeds of saidbonds were "earmarkedw. Based on the transcript ofproceedings thatwe have before us, it is our opinion that the Commissioners' Court ofHaskell Countymay sell the Seried D issue ofbonds and use the funds for the purpose of aiding in the construction of and purchasing right-of-way for far-to-market roads in said County. Ifwe are inerror inassuming thatno conditions were attached to saidbonds, ashereinbefore state, a different conclusion would result.
In this Department's opinion No. O-2088, we held as follows: % 8G The authorities seem to hold that the approval of the electors of the proposed bond issuewith whatever terms and conditions that the governing body imposes thereon previous to the election, creates a status analogous to a contractual relation. In construing a similar orderpassed by a commissionersr court prior to a county-wide bond election, the Supreme Court of Texas in the case of Black et alv. Strength et al., 246 S.W. 79, saidr "rThe orderwould not have beenmade save with aview to itsbeing relied onby thevoters. With thebond issue authorized by votes cast in reliance on the order, as must be assumed, it couldnot be arbitrarily ignored or repudiated without involving theperpetration of fraud or_ _ ,-

Hon. Arthur Foster -Page 3, O-7213

its equivalent on the voters. "rUnder these circumstances, the order was, in effect, a contract with thepeople, and good faith required that the aonstract be kept.' "Any other rule would tend to undermine public confidence in the acts ofpublic officers. See also Golden Gate Bridge andHighway Distriot v. Filmer, 21 Pac. (2d) 112; Perry v. Los Angeles, 203 Pac. 992." We believe that there is some error in the facts stated in the opinion request wherein the statement was made thatHaskell Copnty holds as issue of $243,000 road bonds which have not been sold. We have checked with the Board ofCounty and District Road Indebtedness, and their records reveal that $105,000 Haskell County Road Bonds Series Dhave been sold ad that said bonds participate in the County andRoad District Bighway Fund.
We callyour attention to our opinionRo. o-6706, wherein we held '*thatunder the provisions of Chapter 244,Acts of the 48th Legislature, Regular Session 1943, the State Highway Commission is authorized to designate farm-to-market roads, provided the Commissioners' Court inwhich any such county road is located shall pass and‘enter in itsminutes an order waiving any rights such county may have forparticipatian by the State in any indebtedness incurred by the county in the construction of such county roads." For your information a copy of this opinion is enclosed.

. Trusting that this answers your questions, we are Very truly yours, ATTORNEY GET?ERALOF TEXAS s/ Claud 0. Boothman

APPROVED MAY 2, 1946 s/ Grover Sellers ATTORNEY GENERAL OFTEXAS COB:V/cg BY: Claud 0.Boothman Assistant

Approved Opinion Committee By BWB, Chairman