               OFFICE      OF THE   ATTORNEY      GENERAL    OF TEXAS
                                       AUSTIN




mnorabie Cohn H. Shook
Crlmlnal Dlatrict Attorney
Bra   County
m Antonio, Texas

Dear sir:                            0plnion lo. O-6448
                                     80: Lsga11ty 0
                                          to bo ieeu
                                          pore or re                       lloI
                                          held by Be                       rir-
                                          tlaa or the




            ‘n‘e ye   ln   rece~y\~~eoent                           dote,     read-
ing 88 rollowo-


                                                         opinion   rela-




                                            e original   request   of the


                           ing this requeet,  certain personeli-
                           nto the dlsouesion  thereof,  end oer-
                    ted acouaatlonm   hare been directed by the
      bonding companies toward8 this oliloe,    and for this
      reaeon we deem it advieable to tranemit to you this file
      with the request that you kindly answer the legal quea-
      tions  propounded by our County Auditor, aa wall 88 an
      additional  question  which thle orrice wishes to pro-
      pound to you.
or the provIslons    or fib. 2368h of the HevIeed Ciril
Statute8 of the date      of Texas, and are suoh bond8,
we believe,  ti61ar,e held to be not refundable In the
cmae or Jarrereon County v. Sellers,     180 5. W. (26)
5t pags 138.

       “It would thererore eeen that if the same are
therefore  rerun&able, they would be so by virtue only
ot the fact that they tire owned and eontrolled  by the
refunding authority.

        *you will not*   also rror the letter or tb county
,&iitor   to thie orfice    thnt there 18, clt thu prsrrmt
thus, in tlm sinking ibid of the8e meveral bond8, the
aggregate 8ua 0r Sixteen      thouaad    ($16,000.00)  Dollar*,
wbioh is at thirr time available      for tha purpoee of re-
tiring a portion of the bond8 now in Bexar County*8
hands, and eought by thin oontraot        to be refunded.

           *The queotionr       propounded by the County Auditor
ara   as    r0liow0:

           *‘(1.)   Oan them     rour   bowl    imues  be legally
                    reiunded, am t&me          bond8 1881~8 afo
                      eria   bond@ and ~FO not op ional bonda?
                    r See 6 ookran County Ca8e ana Parasaph  3
                    or thie letter)

           “( 2)    Il? these bonds oan be legally   refUnded,
                    aan th6y be rerunaed by a bond irreue with
                    a mturity    ubaequent to the maturity of
                    the bonds being rerunbed?     (bee Paragraph
                    5 or this letter)

            “( tith      above referencea      belug   to the lettsr    of
            tb county Auditor)

       “In addition thereto,             the queetioa      propounded    by
thli# @ifloe 18 aa follow8~

                    “There being In the verioua afnk~idna;funds
                    or  the bead iesuaa in quemaioa  the sua or
                    gla,ooO.Oo,  which ia available  tar the pur-
                    pose or retiring   bonar now nought to be re-
                    run&e&, is It or uot   incumbent upon the
                    CommIseionero* Court   to apply suoh fund8
                    to the rettra~ent of   the available  bond8,
                    and refund only that   portion in exoe88
                    or auoh amunt?

           "Your early anewer to the above queatione        will   be
         greatly appreoiated by thie offlOe.*


           The Ziret question   propounded by the County Auditor 18
a8wered in the arrirmatire.     The matter of refunding outstanding
bonds 18 one for the Conxni88ioner8* Court to determine.     8eotion 7
of artiole  2st@A rradm,in part, a8 follow8:

            "See.    7.
                     The Co:nmi8sionerr* Court of any oounty
    or the governing body oi any oity in the State of Tcxa8
    mny pws all neoessary order8 and ordinanae8 to provide
    for funding or rerunding the whole or any part of the
    legal debt oi euoh oounty or city, by oanoelling    evid-
    ences thereof and issuing to the holders or oreditorr,
    notea, bon&e or treasury warrants with or without     coupoxu,
    bearing intereet  payuble annua&l~ or 8eni-annually    at a
    rate not to exoe.4 six per cent r S$) per u&mm. The
    uerofae   oi much authority ahall ba rsguhted    a@ follow8:

            "(a) Suoh Commi8eioner8~ Courts and euoh governing
     bodism shall have the ri    tet all time8 to 188~ raiund-
     ing bond8 ior the refun a.?ng of any outetandlDg bond8 legal-
     ly 18eued and outstanding matured intereat on any leglly
     18sued outstanding bonds, subject to law8 applicable    to
     the irauanoe of refunding bond8 and without the neae88ity
     or any notice or right to a referenduta vote.
            "i 1 *


             *(o) * * * The runding bona8 hereb nut c ed
     shall be payable ssriolly     not eroeeding Iortyhpdf      year8
     iron the date thereof,     unless oomi88ioner81    aourte   or
     governing body affirm&ively       adjudge that the f lnsnoisl
     oondition or euoh oounty or oity will not permit in 8uoh
     installments   aa will make tbr, burden of taxation       to rup-
     port ewe,    approximately   uniform throughout tin term of
     8816 bond Ieeue.      3uoh bonds 8hall be axeouted and 18-
     sued in the same manwr no1 provided by law for the
                                                                                  220     “.



    mwrsble    JOhh d. &hook, &ge     4
I



         lxeoutioh and issuance of bond8 to refund outstanding
         county or olty bonds.   Said bond8 shall bear Interest
         sot eroeedlng six per osnt (6%) psr ahnun, and rhall
         be approved by the 4ittorney General and registered  by
         the state Comptroller in the same ;Mnner as other oounty
         or city refunding or runding bmkn

                 TAO CoOhran  ColUlty case tild that bond8 ierued under a
    partioular ohapter were optional whether expressed im the proceedinga
    cr not, but did not hold that bond8 whioh were not optional      could not
    bs rerunded with the consent Or the holder8 or suoh bonda.       Yince the
    &xar County bond8 tire owned by 8inking rWd8 of oertain othsr bond
    irruea under the oontrol 0r the Oo3missioner8* Court of &rar County,
    ad that oolirt ha8 oonsented to the rerunding thsrwi,       it i8 tb
    opinion of this departmnt     that the four 18suer of bonda mq be
    legally rerun&s&. ThI8 department ha8 alwaya approvrd rerunaing of
    non-optional   bond8 with ths oonaent 0r the holder8 0r aame.
                The opinion in the oaae of Road Distriot   Ho. 1, Jerter8on
    Ooanty v. tieller8,   12O 8. V. (2d) lM, does not hold ttlat bond8 oannot
    be refuuaed with the coneent 0r the bolder8 0r the outstanding bondr*
    on the oontrary     it hold8 that they may be rerunded with 8uoh oonsent.
    We quote the foilowing    from thm opinion of the Court in that oaae:

                -That article   dose anthoriu     blWi88iOlur8'    COUZtE




         8ought to be refunded we- then redeemable, or when the
         oould be redeemed with ths eonoent ot the ownerd                     '
         \rtalio8 our*)

                The second question 18 anmered in the arrirnratira alao.
    The only limit,ition  in the law 18 that they Ohall mature not exeeed-
    ing forty (40) year8 rrcm their date.
                   In answer to the quertion propounded by your offloe,       wo     ‘,
    think it 18 a matter within the discretion      or the Oommi88loners*
    Cooit,    except that bond8 maturingwithin   the ourrent    year,   ii any,
    should bs paid out or the #16,000 in the sinking fund.           We are of
    the opinion     that the xttorney Oeneral 1s wlthout   authorltf    to require
    the county to apply this money on iuture     maturitioa.     In the Oa8e of
    city or E;aoo f. &UUI, 127 S. W. (26) 879, it was agoad that oertain
    bond8 were due or would be due during the then ourrent         year and that
                                                                        223.




the oity had i0ma and 00u00tea tare* 8urfiolont        to pay mm.
Tbr ktt0m.y  General   ooatenaea that  said  bona8 80 mturing  should
Q# paid with the   money oolieotea for  that  .purposoana @hOuld not
b r0fwia0a. The Court held that the Attorney       G4naralwan oorreot
a that oontrntion.

                                              Your8 tory truly
                                        ATTolUUY GZNEXAL OF TEXAS


                                         By    ub
                                                      ‘C. 1. Gibron
                                                          Arrcrlstant




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