Honorable Charles J. Lieck, Jr.      Opinion lo. WW-769
Criminal District Attorney
Bexar County   Courthouee            Ret Legality   of   uae of
San Antonio,   Texas                     bond funds for pur-
                                         chase of building.
Attention: Eon. L. J. Gittinger,
           Asst. Grin. Dist. Atty.
           Chief, Civil Section

Dear Sir:

You have requested the opinion of this office as to the legality
of the proposed purchase by the County of an exiating building,
a portion of which ia to~be uaed for jail purposes, with funds
received from the sale of Bexar County Jail Bands, dated Sep-
tember 10, 1959, aggregating the sum of $3,650,000.00.

These bond8 were issued under the authority of Article 237C$,
V.C.S., (Acta 1957, 95th Leg., R.S., p. 1386, ch. 4761, herein-
after called the "Act..

Certain broad powers, but none to iasue bonds, are granted to
Cosmisaloners Courts in Section 1 of the Act, which follows:

             -Section 1. Whenever the Comiaelonera
         Court of any county determines that the county
         courthouse is not adequate in site or facili-
         ties to properly hEuse all county and district
         offices and alL.county and district courts and
         all'justice of the peace courts for the pre-
         cincts in which the courthouse is situated, and
         to adequately store all county record? and
         equipment (including voting machines) and/or
         that the county jail ia not adequate in size
         or facilities to properly confipe prisoners
         and other persons who may be legally confined
. .


  ~~~~ marlea   J. Lie&k, Jr., Page 2 W-769)



            or detained in a county jail, the Qmmis-
            sioners Court may purchase, constrxt.
            reconstruct, remodel, improve and equip,
            or otherwise acauire an office buildinq
            or buildings. or courts buildins or build-
            inos, or jail buildina or buildinas (a
            addition to the existins courthouse and/or
            jail), or an additional buildins or build-
            inas in which anv one or more of the county
            or district offices or county, district or
            justice of the peace courts, or the countr
            jail or any other county facilities or
            functions mav be housed. conducted and main-
            tained: and may purchase and improve the
            necessary site or sites therefor, and may
            use such building or buildings for any or
            all of such purposes, provided that any
            such building or buildings so acquired shall
            be located in the county seat. and provided
            that no justice of the peace court shall be
            housed, conducted or maintained in any such
            building if said building is Located out of
            the boundaries of the precinct of au&
            justice of the peace court.”  (Rnpbaais added)


  The power to issue bonds, and the purposes far which they may
  be issued. are contained in Section 3 of the Act. whicla is,
  in part, as follows:

                *Sec. 3.  To pay for the purchase. construc-
            tion, reconstruction. remodelins. imnrovement
            -z&d eauirnaent of anv such buildina or buildinas
            and/or iails, includins the nurchase and im-
            p&,the
            cosm&ssioners Coure'is authorized to issue
            negotiable bonds of the county and to levy and
        ^   collect taxes in payment thereof. . . . : and
            the issuance of such bonds and ttae levy and
            collectipn of such taxes shall otherwise be in
             accordance with the provisions of Chapter 1,
            Title 22,. Revised Civil Statuteg of Texas,
B~.   axles   J. Lieck, Jr., page 3 M+76g)



          governing the issuance of bonds 3.:.cities,
          towna and/or counties in thie Sta?.?."
          (Rnphasis added)


It is clear that bonds may be issued for any one or all of
the saveral purposes specified in Section 3, above, pro-
vide' such purpose; or purposes8 are clearly stated by the
Commissioners Court in the proposition submitted to the
property taxpaying voters of zhe county and approved by them
at an election properly called and held in accordance with
the requirements of Chapter 1, Title 22, Revised Civil Stat-
utes of Texas, and provided all other requirements of law are
properly observed.

But all of the purposes of issue named in Section 3 were not
included in the proposition as worded by the Bexar County
Coannissioners Court and voted upon by the property taxpaying
voters in this instance. As pertains to the manner of acqui-
sition of a County Jail building the word "construction" was
singled out by the Comnissioners  Court, and only that~one word
appears in that connection in the voted proposition and through-
out the election proceedings, viz- *. . . for the purpose of
paying for the construction and equipment of a County Jail
buildinq, including the purchase anil improvement of the site
therefor, . . .I (~hasis    added).

Thus, the Coanni.ssi.oners
                         Court chose to sharply narrow the propo-
sition submitted to the voters, omitting the words "purchase",
"reconstruction", "reauxdelingn. Uimprovement*, and "buildings".

There can be no doubt that ihe Commissioners Court possessed
the power to thus limit and restrict the purpose to be voted
upon for it is specifically granted in Section 4 of the Act,
which is as follows:
                           ..
              "Sec. 4. The Cosuulssioners Court may
          submit at any bond election one proposition
          for the issuance of such bonds which propo-
          sition may include al1 the nurnoses au'thorieed
          herein kor which such bonds may be issuedp or
          it may,, at its option, submit $t any bond
                                                          --.   _




Hon. Charles J. Lie&,   Jr., page 4 (WW-769)



         election one or more separate =zc.q ::itions
         for the issuance of such bon&,  9%cn of which
         separate propositions ray inc.luc'eany one or

         such bonds may be issued."   (Emphasis added)


The vzd "construction * is of definite and limited meani.ng.
In its ordinary sense it meam to build or erect something
which theretofore did not eathit;the creation of something
new, as distinguished from the repair or improvement of same-
thing already existing. Carlson v. Kitsan County, Supreme
Court of Washington, 124 Wash.. 155, 213 P. 930, 931: Board of
Supervisors of Covinaton Cou*.tv v. State Hiabwav Comr~esio~,,
Supreme Court of Missi6sippi, 194 So. 743, 748, 188 Miss. 274.
And it has been held that a statute authorizing a town to
"constrilct* a town hall can not be construed as authorizing
the purchase of a buiPding already constructed.   Barker v.
Town of Flovd, Supreme Court of New York,, 66 N.Y.S. 216, 2~17,
32 Misc. 474.

An applicable dictionary definition of the word "construction'
is the *Process or art of constructing; act of building: erec-
tion: act of devising and forming: fabrication: composition;
     l  Webster's New Internat,iona% Dictionary~Second  JW.tion,
&bridsed.   p. 572 (1957).

It IS fundamental that the proceeds of bonds voted for a par-
ticular purpose by the people -ozstitute a truet fund which
must be expended for the purpose for which the bonds were
voted and may not be diverted from such purpose and applied
to some other use. Clark, et a% v, Greer. et al, (Civ.App.)
232 S.W.2d 876 (No writ history): Gillham v. CitV of Dallas
(Civ.App.) 207 S.W.Zd 978, 983 (Writ ref., n.r.e.): Lewis v.
ci+,r of Fort Worth, 89 S.W.Td 975, P26 Tex. 458x Moore v. Coffman,
1.89S.W. 94, affirmed 200 S.W. 374, 109 Tex. 93: blcQuillin. Muni-
cinaltornorations.   Vol. P5, p. 598, et seq..

It is our opinion that funds derived from the sale of bonds
voted by the people for the purpose of "Daying for the con-
struction and equipment of a County Jai.?.building, including
                                        :
HOG. Charles J. Lieck,'JrI, Page 5 (W-769)



the purchase and improvement of the site the-efor" may not be
 ~g%d for the purchase of an existing structux, a portion of
which '.sto be used for jail purposes.

Of course, in the purchase and improvement of a site for the
County Jail building the Commissioners Court, in the exercise
of its sound discretion and pursuant to the terms of its con-
tract with the City of San Antonio, may choose such land as 1'
deems proper.   The fact that such tract, or tracts, of land at
the time of purchase haa thereon an existing structure, or struc-
Lllres, would have no bearing upon the authority of the Commis-
sioners Court to acquire the land. The Commissioners Court, after
the site is acquired, may then utilize or demolish such struc-
tures, if any, as it might, in the exercise of its sound discre-
tion, determine would be proper in improving the site for the
County Jail building.   However, it is clear that none of these
bond funds could be expended upon such structures.


                             SUMNARY

             Bond proceeds voted for the construction
             and equipment of a County Jail building,
             including the purchase and improvement of
             the site therefor, may not be used to pur-
             chase an existing structure, a portion of
             which is to be used for jail purposes, al-
             though such proceeds may be used to purchase
             and improve the site for the County Jail
             building.

                                       Very   truly yours,

                                       WILL WILSON

                             1.
HWM-s
APPROVED:
OPINION-COMMITTEE                              Howard W. Ways
Korgan Nesbitt, Chairman                       Assistant
Charles D. Cabaniss
C. Dean Davis
Grundy Williams
RFXIEMD  FOR THE ATTORNEY GRWRRAL
By: Leonard Passmore
