August 4, 1975

The Honorable Ronald L. Wilson Criminal District Attorney 405 County Courthouse Galveston, Texas 77550 Opinion No. H-658 Re: Whether Galveston County may use the proceeds from certain previously authorized bonds for other road projects within the county. Dear Mr. Wilson:

You have requested our opinion regarding whether Galveston County may use the proceeds from certain previously authorized bonds for other road projects within the County. You state that on October 20, 1969, the Commissioners Court ofGalveston County adopted an order committing the Court to allocate $5million from aproposed bond election to partial construction ofthe Bolivar Crossing on State Highway 87. Thereafter, on October 27, 1969, the Court called the bond election, setting itfor December 9, 1969. The bonds were approved by the voters by the requisite margin buthave not been sold. Since present costs of construction ofthe Bolivar Crossing greatly exceed previous estimates, the Commissioners Court now wishes to divert the $5million committed tothat project to other road projects within the County.

It iswell established that acommissioners court may, by pre-election orders, fix the exact purpose for which bond proceeds are to be used. Fletcher v. Ely, 53S.W.2d 817, 818 (Tex.Civ.App. -- Amarillo 1932-writ ref ’QmG< apre-election order so states a specific purpose, the courts will enjoin diversion ofthe bond proceeds to any other purpose. Id. at 818. Since the order is made : with aview to its being relied onby the voters

. . . it [may] not be arbitrarily ignored or repudiated without involving the perpetration of fraud or its equivalent onthe voters
. . .
[T] hewill ofthose having tobear the bond burden should not be defeated by amere change ofmind **on** the **part** ofthe members of the commissioners court with respect tothe particular roads needing improvement, [since] any other rule would tend to undermine public confidence inthe acts ofpublic officers. Black v. Strenght, 246S.W. 79, 80 (Tex. Sup. 1922).

p. 2887The Honorable Ronald L. Wilson - Page 2 (H-658)

See also Wright v. Allen, 257S.W. 980(Tex. Civ. App. --Dallas, 1923, writ

‘i77q-F The only recognized exception tothe general rule that commissioners court must not divert bond proceeds from the purposes stated in its pre-election orders occurs where evidence indicates that conditions have somaterially changed since the bonds were voted that use ofthe bond proceeds for the particular named purpose would be “an unwise and unnecessary expenditure” ofpublic funds. Hudson v. San Antonio Independent School District, 95S.W. 2d 673, 674-75 (Tex. Sup. 1936). Inour view, however, the Hudson rationale is limited tothe situation inwhich the project is determined tobe unwise and unnecessary subsequent to the sale ofthe bonds.

Since the bonds approved for the Bolivar Crossing project have not been sold, we donot believe the Hudson principle to be applicable. Accordingly, it is our opinion that the Commissioners Court ofGalveston County may not divert to other road projects within the County $5million inbond proceeds committed tothe Bolivar Crossing project in apre-election order. We donot mean to imply, however, that the bond proceeds must necessarily be expended upon the Bolivar Crossing project. Article 717g, V. T. C.S., confers discretion upon the commissioners court as towhether to order a revocation election. See Attorney General Opinion H-592 (1975). - SUMMARY The Commissioners Court of Galveston County may not divert to other road projects within the county $5million inbond proceeds committed tothe Bol.ivar Crossing project inapre-election order. Very truly yours,

Opinion Committee jad: p. 2888