195 

PRICE DANIEL 

Al-IO- GENERAL 

Februaw 20, 1948 

_.. . ..~. : .- .._. 

lions;-John A; 'Biimber~ 

Coimty.Attorney 

Gontile~~ coaiiity 

Gonzales, Texas 

_. . 

opinion No. .+of 

Re:. The autho&ty of the 

coIimLtssloners' ~Collrt to 

dlsitolve aroad district which has an 

authorlzatlofi for the 

iixmance of bonds and 

upon which n'o action 

has been taken. 

Dear Mr. Bombergi 

Yak I'eijuest for an cipinlbn of this. Department 

reUt.ting'~o'a bond autlio~lzatlon'tid the dlssolutlon.of 

Boad.Mstriat No. 11 In your county Is, in part, as follows: 

. "Bgorder Of the CoIsmissionerls Court 

Of Gonzal&w Couiit$, Texas, date&Jam&y lst, 

1937, Rotid District Hoi'll-was crest&d. This 

Rdad Dltitriot No; 11 Included the.t'&rI.t6ry 

imiluded in Road Districts &a. liarid 3 of 

Gonzales Cotity, both of which had been in 

exUt&nce for.- years prior to 1937. A 

road'bond eleotlen was ordered-by.the Commlasloner's Court on January 27th, 1937 'to deter&n& whether or not the bonds of said Road 

Dl~trl6t~No.~li of Go&ales County; .Texas 

shall be issued in the aUOImt of F6@ty Thoueand:Dollare', for the purpose of constiwct&m; maintenance and.operation of macadamiz- 

.ed, graveled, ompaved roads and ttiq&kes, 

or in aid thereof, and whether'or not ad 

valorem taxes shall be-levied annually on 

all taxable propertjwlthln said'Road Mstrict Ifow.ll, of Gon%ales County, Texas for 

.the'purpose of paging the interest on said 

bonda'and to proqide a sinking fund for the 

reddption thereof at waturity. This bond 

election~barried by the~~reqtisiti3 vote. The 

Road District Ro. 11 bonds have never been 
Hon. John A. Rquberg, page 2 (V-507) 

issued and after the order of the Consuls- ConsulsslOner*s slOner*s Court canvassing canvassing the returns returns and 

declaring declaring the proposition proposition carried, carried, no further action was taken. 

"At the time this bond election was 

petitioned for, ordered, and voted on, both 

Road District No. 1 and Road District Ro. 3 

had outstanding bonded lndebtednesses aggregating In excess of $100,000.00. 

"The Comndssion~r~S Court nowirishes 

to abolish Road District No. 11, and dispose of the bond authorization, in order. 

that the territory can be redlatricted more 

in line vith current road demands and a new 

bonded indebtedness on the new district can 

be created. : 

"QUl?&TLO& How can t&is authorization%o issue $40.000.00 bonds-cif Road '. 

bistrht Nd. 11 vdted in 1937 be &et aside 

and the Road District 11 abol%shed? 

"Now, l.Q.view of thifact'that the'::. 1 -, 

purpose for which the bonds were voted no '. .:. .i 

longer exists, and.that the wording of 

tS viilldatiog iAatute"(Aptiule 752Y-33 

nierely authorizes and empower% the Com-.~-. 

ndsslonerls Court to proceed with the'issuanoe of bonds not voted.in S;ccordam% 

wlththe Compensation Bond Title, ipnirl tbat 

over 10 years have pass&d since the bonds 

were authorized, would an ord&% of the:Comndss$onkr*s Court, reciting such faots, and 

ordering and declaring th6 authcirBatb.ivoid and dis~olviug.the R&d District, be 

effetittil and valid to the extent'that At. 

Would not be siecessary for a proposed Ma.4 .' 

,dIstrlct IneludIng portloii:oS-R&ad Diatiiet~ 

lVo.i-ll,-tp admpl~~w%th Bond .C~n@ensiPtlon - 

3tatut~es.U regard to the authorl~e~.bc@s 

of such'R6ad Diitrlct 'll, i?hen sub& gro-:' 

posed Road Mstrlct votes new~bqxds? 

- ThkC~esion6~~s Com.%& a c&r& of.lUdted 

juriad3.cticiti and confined %to th&authorlty conferred upon the court by the Legislature. 

'~., 
: 

Ron. John Ai Bomberg;. page.3 '(V-507) 19’7 

'8rticle 7&&a, Vernon~a'Clvil.Sta&tee,~'provides 

that in the evi%t any road~bond voted oti leijtiedby a

county, po%iti&al aribdi~lsion or deflmSd &citplet remain 

uneold at the time of I&e passage of this A&; theh'the 

Commlsslonera~ Court may upon petition order an election 

to determine whether or not sucfi road bonds shall be Fevoked-mor eancelled. .Rowever, the effecti*e iitateyof this 

Act was'.Septe%ber.22, 1932, &ml foti bonds-'were voted in 

1937, n&d.ng the provlalona of this.Act lnapplic8ble'lnasmuOh as it applies only to those Situations In effeot 

at the time ~of the.passage of this Act. 

_ 

-~ in'the'case of Orr v. Marrs, 47 8. W. (26) 440, 

the court stated: 

. 

-%he bonds canaot"be'revokizid'o* cancelled by 8ny agency mess-the power.350 40. so 

la conferred~by 1e~Lalatlve 8uthoHty 8nd 

any doubt &~to the exlstence'of.suc~power 

is,-und~r~well establ.Ssl&d~prlnclples, resolved against its existence.' 

Y&r~'fim;t;u&l.situstio~ reflects thsf'Rtid'Dl.strlct HO; ll;:liiclud& Road'MatrSOts R&S. 1 and.3 in 

Gon%al;es Ceuuty, both-of'which had an outstimdlng bonded indebt&ine*s~ tiexcetiam‘of #&OO,OOC~OO, &id that-'iti 

th&ereiatioti~of R&d District No. 11 the Conimlsifon6rir' 

Court failed to.oomply vith the Competiatioti-Bond.Act. 

. '. 

'Article 767d, V.-C. S.; provides as follows: 

.~ .. .. 

%liere~any road dlstrlct-created under 

the proviai'6ns of this-Act includes wItbin. 

its llndts any previously tieated POWI distrlct; okanji polltlcal subtlivisi& or pre: 

cinct, havbg at such time road bo@debts 

outstandlug,, such included district or.SubdlvQion.shall be fully and fairly competisated by the new district in tin amount equal. 

to the 8mount of the bonds'outatanding against 

such included subdivision or district, 8nd 

which tihallbe done in'the formandmanner 

prescribed fo5 the lsimance.of'coimty bonds 

under Sectlon~ 25 to 27, intiluaive, of.this 

Act, except the petition sh&ll be signed by 

fifty or a majority of the resident property taxpa* voters of the new district, and 

the bonds:&roposed to be Issued shall be for 

the purehaae or construction of roads in 
Han, John A. Romberg, page 4 (V-507) 

the included subdlviaons or districts 

and the further aoristructlou; maluteuauce 

aud operation of macadamlsed, graveled or 

paved roads and turnpikes; or in aid there; 

%I 16, Sec. 26. 

Acts 1926 .Jgth Leg., 1st C.S., p. 23, 

In San Antonio &A. P. fry 'Co. v. State, (Con. 

App.) 95 3. W. (26) 6gO;the court said: 

"Section 28 (Vernon*s'Auu.Clv. St. 

art. 767d 9 

1 

in connection tith seCtIons 

25 to 27 Vernon's Am. Civ. St. arts. 

767aL767c , of said act provides that 

where any road district created under 

the provisions of said act includes one 

previously created aud having road bonds 

outstanding, such included district shall' 

be fully and fairly compensated by-the'new 

district in this'manuer: Au even exchange 

made with the holders of the otitstaudlng 

bonds, 'and if th+ cannot be done, theh an 

equal .amotmt of the new.bonds marked 'nonnegotiable' shall be deposlted'wlth the 

county treasurer for the credit of the interest and sinking fund as a guarantee for _ 

the'payment~ of such outstaudlug bonds that 

have not been exchanged, after which no : 

levy shall be made under the orlglual bond 

issue, but ln.lieu thereof, fromthe taxes . 

eolleoted on the new bond iasue.shall be 

passed to the-credit of such included dlstrlot the nesessaxy sums (interest and 

sinking fund as so collected) to.be'used 

to gay In full the outstanding bonds thereof. 

It will be seen from the foregqing that'the 

Commlssioriersl Court of &Males Oouuty;-in ;dreatlng~ ..e 

Road'Dlstrict Ho. 11 faiied to oemply~tith AMlcle 767d; 

supi-a, &nd it ls..the~opinion‘oS~this'De~tmeat~thst 

Road Mstriot Hd:~ il, although &Mated by,the Cotissioners' Court, dld not function pursuantto~law; and 

even though a bond issue wasauthorized in'said aistrict, the same is of no force aud effect. 

Inasmuoh as no bonds wepe issued; it is aaswaed that no tax waa~levled in Road Distriot Ro. ll.for 

the indebtedness in Road Districts~Ros. 1 and 3. There- 
. . . 

_.. ._ -. ..-_ k . . II-99 - ., 

'-Hon. Jo& A. ~Rombetig,~ Gagi 5 ~(V-507) 

,,,._: 

,.. 

- _ i . ': . 

' fore,...it follows that had.Districtk Boos. ~'1 &..3-were-' ' 

not.af'fected.~.&y the:.imeakion-of Road Mstrict X9,.11 on 

Jantm-y l,-.:l~~a%nce 't~~pnrpose-.for-~phich haid district was created.was nev6r put in exlstenee. The.district never,dSU. fuuctlon as a district. .-' ~. 

-. . _ - . 

It'ls.trti~ 'tlkt the.50th -Lsgialati@e (&it. 

752y-3, V; C. S:) validated &issued bolid 1sSuijs of road 

dlstric$s,. sncfi~&s Road Mstrlbt Ro. Il. ,Valmsting 

acts, however, are.e'usually e&acted'for the'piose of' 

. curing matters,of procedure Or mechanics, alid it is oW 

opinion that by'necessa~y'impllcatlon the Act would apply only Eo bon&issues; 'the proceeds.of which could be 

used. to caw:out the mandate of the voters. For instance, mppoae'a situation @ere cOunty bonds.&re voted 

to'constmct a specific road, and after the prdposition 

is voted upoti bat b&fore the bonds Sir&-issued-aiid deUv- 

. ePed,Ythe Stat6 Highk&y'Departmeiit deslgWteti'~tti roadaa'k state.hlghmiy and full3 cotitructs ths same. It- is 

clearly evldent.ifi~sach a ;situation that the @rpose.for 

.wbioh said l)onds acre voted would cease to exist. .We do' ' 

not think that it c0ti.d be~the .leglslative intent in the 

enactment of such's validating act that said bbnds could 

ther&ftep.be issued and sold. The Act could apply only 

to.bmil IstiiPBs, th~proceeds of which could~be used to 

.oamy out the bond purpose. 

Based-upon yam factual situatLon; it is our 

~oplni?n that the road diat?ict never cam& into active 

existence. Before a.n&w road dlstrlct, vhich includes 

5 previously created district vit&outstanding bonds, 

can effectlv6ly come into eti&tence, ooapenqation bonds.~ 

bust be voted.', CompBnsation-bond& were mever votad In 

the riltimtion underSoonsideration; moreover, the p&pose 

fog whldhthe rogd bonifs fiere voted iri.DlatrIct~~No; '11 - 

no longer existii; We do note think that th& word "abolish" could tie applied.to stich a district, for fhe.same 

would necess&rily contemplate prWloua ed actnsl'existence. We do l&L& t&at the Comisslonetist-Co&t, under the circu&stances;would,have the power, implied at 

lea&t, to rescind its former order; It passed an order 

purporting~ablish the district for the constitutional and statutory purpose, but that purpose was not 

cem?ied out, and.has now ceased to exist. uithln its 

valid discretion, therefore, the court may determine to 

Pescind Its fdrmer order. 
H6n. John A, Romberg, page 6 (V-507) 

After the Fescission of such order, the Court 

may, If it so det&mines;' create another road district 

under the statutdry procedme, which dihtrict would lnelude part of the terrltorg which was purportedly wlthin the district, the order for the establishment of 

which was rescinded. 

SUMMARY 

1. The Ueation of a road district 

which Includes a previously created road 

district with an outstaridlng bonded lndebteduess, requires compliance with the 

ijrovislons of the Compensaticin Bond Act 

'an&compensation bo+ds must.be voted. _ I 

2.. An Act which.validates~pi=evlous1s voted but unissued bonds does not apply to bonds if the purpose for which 

they were voted no longer exists. 

3.. 'The Conmdssloners' Cotirt of‘ 

Gonzales Comity, Texas, under the facts 

aubmitted,.may by ap@ropriate order. 

rescind Its previously' enacted'ordei. . 

tatter ~%Xch Road'Dlsti.ict'N~. 11 was 

purP;ortedly estibllshed, snd'may thereupon establish another road district ;' 

which would Include apart of.the terrl- . . - :' 

to%y w&L@.i *as purportedly tilth%n said 

Road Mstrlct Ho. 11. ,~ 

Bti:mu BY Biii%GllmFfaldrep~ 

Assistant ' 

,. .’ 

APi'ROVED: ~' .: