Honorable Maurice P. Bullock 

county Attorney 

Peoos county 

F't. Stocktcn, Texts 

Ik2.r Sir: Opinion Number O-2667 

Re: Validity of road bonds voted 

upon the condition that they 

he taken ever and assmcd 

for paymnt by the State, 

:Ve have your letter in which cur opinion is requested on 

the folIow5r.g state of facts: 

"A oonsidernSle portion of the State highwys 

in Peoos county ore what are generally knom as uninprwmd dirt roads, end the citizens of Feces County 

are desirous of having these State highways Improved 

and herd surfaced. A plan h&s been suggested to the 

x?mnty Comnissj~oners’ Court whereby an election mey 

be called for the purpose, of voting bor.ds to finance 

this proposed highway oCnShW&iCn and imprOVement 

without the county actually in the long run being 

burdezed x%th the necessity of levying tares for the 

pa>mnt of such bonds. It has been suggested that 

the orr?ers ar.d notices for such election night bo so 

drwm BS to condition their issuance upon the State 

Iiiglx%y Department's using the proceeds thereof for 

construction, improvement, etc. of roads in Pecos 

county 8s State highways, and conditioned further upon 

Eouse El1 688 of the 46th Legislature, Regulm Session, 

1X5?, being hereafter amendod in such mnnner as to 

enthorize the fu13 aswmption by the Strrte of Texas 

of the psynx%t of all bonds thus issued." 

Your q~uestion is: 

"Kill a bond j~ssue thus voted and thus limi.ted 

be valid, and would bonds thus voted hut issued in 

violation of said conditions he null and void?" 

Although your staterront of facts conton;p!ates the preperetion and passcge of orders and the issuance of not!ce for an election 

to vote road bonds conditionally, it does not disclose in ooncrete 

form the proposition proposed to be submitted to the oaalified voters 
- 

Honorable Maurice R. Bullook, page 2 O-2667 

for their'action thereon. Under the law there is no inherent right 

in the people to hold eleotions. Sea ~~llliams vs. Glove=, 259 S. W. 

957. Eleotions may be held only where authorized by law. In tho 

voting of road bonds we must look to Article 752a, et seq., Title 22, 

Chaper 3, of Vernon's Annotated Civil Statutes, for the specific authorityto vote and issue them. It will be noted that Article 762b 

provides that the election order and notioe of election shall state, 

first, the purpose for which the bonds are to be issued: seoond, the 

amount thereof; third, the rate of interest; and, fourth, that ad 

valorem taxes are to be levied annually on all taxable property within 

said issuing subdivision to pay the annual interest and provide a 

sinking fund to pay the bonds at maturity. Subsequent articles detail 

the steps that must be taken preparatory to voting at this election, 

and, likewise, prescribes the manner of holding same. Other articles 

under this title prescribe the maturity dates, interest rate and denQnination to which bonds issued thereunder must conform. 

We call your attention to the following language appearing in Artiole 762b: 

"Upon the petition of fifty resident property 

taxpaying voters of any county, the Conrmissionersl 

Court of suoh county. at any regular or special session 

thereof, shall order an election to be held in suah 

oountv to determine whether or not the bonda of suah 

county shall be issued for the purpose of the oonstruo- -- -- 

& operation of macadamieed 

ore roads and 

, $ravei;ed 

- -- 

turnpikes, or% aid thereof * * * --- 

In our opinion the underscored language in the above article establishes what may be considered the statutory purpose for 

whioh road bonds may be issued'and that the use of such language tends 

to exclude other purposes, even though related. In other words, the 

underscored portion of the above quoted statute appears to be the purpose that the Legislature intended having submitted to the property 

taxpaying voters of any county whenever the proposition for the issuance 

of road bonds is subnitted to them for their action thereon. 

For purposes of this opinion we must assume that it is 

your intention to subnit a proposition to the voters of your county 

containing a purpose phrased at set forth in Article 752b, hereinabove 

underscored, and in addition thereto it is planned that the orders and 

notices, as well as the petition, shall provide that in the event the 

bonds are authorized the proceeds thereof shall be used only for the 

oonetruation and improvement of State highways within the county and 

then only in the event that House Bill 666, Forty-sixth Legislature, 

Regular Session, 1939, is so amended as to make such bonds 10% 

eligible for partiaipation in the State gasoline tax fund allocated to 

the Board of County and District Road Indebtedness. Re feel it 

necessary to restate your proposition in order that our answer shall 
- - 

Honorable Maurice R. Bullock, page~3 O-2667 

be deer. This question differs from the problem presented in the 

Moore VS. Coffman case, 200 S. A. 374, wherein the general rule is 

stated that the purposes for issuing bonds stated in the petition, 

order and notice of the election determines for what purposes the 

bonds were,issued, and that the voters have no right to rely upon any 

other state@nt or order for ascertaining the purposes for which 

bonds are to be issued. In the instant matter theconditions are 

made a part of the petition, ordar and,notice,.,and, therefore, become 

without question a part of the election proceedings, and ,in view of 

the language used by the Supreme Court in.the above,.mentioned Moore vs. 

?Xffman ease, we think,that a c;on<ition might properly.be inserted in 

the preelection orders. We quote the following frora the opinion in 

that case: ,, 

"That any Commissioners' Court in Texas is 

within its legal rights in annexing a condition in 

its preelection orders which fixes the exact purpose 

for which the bond money constituting the proceeds of 

a bond.issue sul-mitted to a vote is to~be used." 

In view of the foregoing quotation we think it would not 

be unlawful to annex the further oondition that the,bonds should not 

issue except upon the happening of some named event. The result thus 

obtained would have the effect and foroe of a contract. See,Black vs. 

Strength, 246 S. W. 75; 19 RCL, pages 1163 and 11641 Roane County Court 

~6. O'Brien, 122 S. E. 352 and 355; also Fletcher vs. Ely, 53 S. W. 

(2d) 817 (Writ Refused)4 We, therefore, conclude that if the bonds 

are voted for the straight statutory purpose, that isa "for the construction, maintenance and operation of maoadamizad, graveled or paved 

roads and turnpikes, or in aid thereof," that the proceeds be used for 

the construction of State designated highways, and that the issuance 

thereof' is conditioned upon House Bill 688 being mended in a manner 

so as to permit the participation of such bonds to the extent of 10% 

in the,Stete gasolj~ne tax fund allocated to the Board of County and 

Cistriot Road Indebtedness, that suoh bonds would not be rendered ipso 

facto void because of the inclusion of suoh namedcondition in the 

proceedings. We conclude further that without the happening of the 

last stated contingency the bonds could not be lawfully issued. 

It seems clear from your letter and statement of facts 

that the prinoipal thought underlying thiS suggested method of voting 

and issaing road bonds is that House Bill 688 shall be amended in such 

manner as to permit the "full assumption" by the State of the payment 

of all bonds thus issued. If this were not possible it is reasonable 

to assume that the property taxpaying voters of your county would 

perhaps react unfavorably to the authorization of further debt for road 

construction within, the oouxty. We think it advisable to call your 

attention to the following language appearing in the present "Road 

Bond Law!', commonly knoTI es T1ouse Bill 688, Section 8 thereof reading, in part, as fOllOWs: 
- - 

Honorable Maurice R. Bullook, pge 4 O-2667 

"No provision of this Aet shell be construed 

. . . . to pledge the credit of the State in any 

mannar whateverfor the payment of any of the outstanding road indebtedness herein referred to of the 

county or districts of the State. It is hereby declared 

that all eligible indebtedness, es hereindefined, shall 

remain indebtedness of the rsspeotive county or defined 

road district nhioh issued it, and said counties or defined road districts shall remain liable on said indsbtedness aacording to its term8 and tenor3 and it is not the 

purpose or intention of this Act or any prt hetoof to 

obligate the State of Texas direotly or indirectly or 

contingently for the payment of any suoh ObligatiOns, or 

that the State of Texas should assume the payment of 

said obligations, and this Act is not to be construed 

es obligating the State of Texas to the holders of any 

of said obligations to make any payment of the same of 

any pert thereofl nor shall such holders have any right 

to enforce the appropriation of any of the moneys hereinabove provided for; nor shell any provision hereof 

constitute a oontraot on' the part of the State to make 

money available to any oounty'for the oonstruotion of 

edditional lateral roads, but the provisions hereof are 

intended solely to compensate, repay and reimburse such 

oounties and diatricta for the aid end assiatenoe given 

to the State in furnishing, advancing and aontributing 

money for building end conatruoting State highways end 

lateral roads * * *". 

It till be seen that Rouse Bill 688, end its predecessors, 

have been and are nothing more then appropriation bills. Biennially 

the Legislature appropriates one-fourth of the gasoline tax to the 

credit of the County and Road Distriat Highwey Fund to be used for the 

purposes speoifioally set forth in the Aot. Se&ion 6, subsection 

(j).of House Bill 688, oonstitutes the appropriation clause of the dot. 

The constitutionelity of this Aot would ba seriously questioned if 

the terms thereof should contemplate a pledging or en appropriation of 

one-fourthof the gasoline tax to the purposes defined in the Act for 

a period of longer than two years. Seotion 6, Artiole 8 of the Constitution, reads, in pert, as follows: 

"No money shall be drawn from the treasury but in 

pursuance of specific appropriation made by law; nor shall 

any appropriation of money be made for a longer term than 

two years * * *'. 

It seems olear that any amendment to the present Road 

Bond Law which would contemplate the "full assumption" by ,the Stats of 

the payment of all bonds issued in aooordanoe with the suggested plan 

would be unconstitutional and at once the condition sought tobe imposed 

by the voters of your county loses muoh of its force. Under the terms 
O-2667 

of '~!o:isc ?'?I. 688 the road bonds of the various counties upldor ~ert~:i 

condition5 become eligible for participation in the funds sccruir,rS tllT 

the Board of County and i&strict Road Indebtedness, and so long as 

such funds accn.~e tothe Eoard through the collection of gasoline ta~nx 

and the subsequent appropriation by the Legislature, the principal a::o 

interest of bonds made eligible for participation can be legally paid 

by the Powd to the extent the funds on hand available for that purpose 

will apply. 'Tie quote the following significant language from subsoctior: !g) of Seotio-. 6 of House aill 686: 

"in the event the amount so estimated to be 

applied to the payment of eligible obligations for 

any coun%y or defined road distrjct is sufficient to 

meet aS1 maturjng interest, principal and sinking 

fund requirements, the Commissioners %ourt may dispense with the collection of ad valorem levies for 

such calendar year for such interest, pr,inoipal. or 

sinking fund requirements. In the event the amount 

of payment so estimated to be applied is not suffi~cient to meet the maturing interest, principal and 

sinkjng find requirements, the County Commissioners' 

Court shall collect from taxes cn the property in 

said respective counties and defined road districts 

an amount of money equal to the difference between 

tile *mount of such requirement and .the amount available for application." 

Ihis subsection further provides t2la.t in the event the r.- 

r;,o!zt of finds available for application to meet ,the maturing interest., 

prj,ncipel aud sirking fund roqu.irement8 in eny yecr is aot sufflcien*. 

to sa,tisfy such requirement, then the funds shall he prorated I~:: tl-r 

ma:iner presorj~bed therein. In other words, this and foregoing quo'tltions, p?sinly and forcefully operate against the "full assumptior" 

sy the State of any bonds. 

It is entirely possible that House Bill 686 mi&t be so 

amended by the next session of the &gislature as to permi.t of a fuZI 

participation 1::: bonds of the type sought to be voted in your county, 

tn:t there can he no guarantee that succeeding legislature will reennct laws and make sufficient appropriations to provide for the f'lil' 

~ayxer!?; of such bonds prjor to maturity thereof; and as can be seen 

from the above quoted portion of the existing Act, any time in the 

future that there may be an insufficiency in the fund to meet the 

maturitrg principal and interest in any year, it immediately becomes 

the duty of the Commissioners' Court of the county to levy a tax in 

such wn amount as will provide the additior.al sum necessary to promptly 

pay the maturing interest and principal when due. In other words, the 

oUig&tion, of necessity, must remain the primary obligation of the 

county voting the same, and the property of the taxpayers of said 

cou,~ty remains liable to taxation in such proportion RS is r,eoesscry 

to make up the insufficiency of the gasoline tax fund. it is spparem. 
ibnoruble Maurj~ce H. Bullock, prlgo 6 O-2667 

that thsrc cm be no legal 'assumption" of tho bonds. 'IYe bonds b~cme 

eligible for participation it? the fund and to the extent funds W-A aTai.leb1.e to meet that perticipatiol: each bend stands on a par3ty with 

a?1 other bonds made eligible for participation. 

:n view of the foregoj.ng we reach tho ccmalusion the,t. a 

road bond election would be rendered wholly ineffective if the 

ultimate issuance of such bonds WRS oondi~tioned upor 6, "full assumption" 

of the payment thereof by the Sixte. iImwer, this would not be true 

if the arwoxed condition contemplntes end prcwidos nnl,y for the issuanno 

of such bonds upor! a change being mada in the prest:.nt law permitting 

them to partic?pate to the extent of' lOO$ i:? the @soLine tsx funds 

allocated to the Roard of County and C5strir.t Road Indebtedness, 6 

"fu',.l Issumpticr: " could moan nothi~ng less than an absolute ivl'.ease 

of the county from any liability cr obli~gatiop to pay such bonds, and 

this, se believe, could not be done under the present Constitution. 

Te concede tha~t. .tte irmnedixte?y foregoing discussion is 

no,t necessary to a proper dotarrniflrttlcn of the qxestiorr propow~dsd in 

your letter, but in view of the widespread mFainterpretation as to ,the 

extent of the obligation of tho State uider the ,tenr.s of Eouse Eil:L 

688, we +&irk it necessary to give you ,the bwofit of cur views as to 

the ultimate effectiveness of the present law and as to the likelihood 

of a subsequent Act bsi~ng passed mak5r.g possible a more bir.ding 

"assurrpticn". 

Trusting that the foregoing satisfactorily a~~swers your 

inquiry, we are 

'T&y sL Clarence 5. Crow3 

Clarence i. Crcwe 

Assis.tant