                        May 1, 1946


Honorable Arthur Foster
County Attorney, Haskell County
Haskell, Texas

Dear Sir:                Opinion O-7213
                         Re: Can the Commissioners* Court of
                             Haskell County sell the Series
                             D issue of bonds and use the
                             funds for the purpose of aiding
                             in the construction of and
                             purchasing right of way for farm
                             to market roads in said County?

We acknowledge receipt of the opinion request of Honorable
Fred Stockdale, District Attorney, 39th Judicial Distriat, and
we quote from his letter as follows:

     "The Commissioners' Court of Haskell County desire to have
     an opinion from your department concerning certain road
     bonds oreviouslv voted and issued. Kindly address your
     reply io Honorable Arthur Foster, County Attorney of
     Haskell County.

     "Haskell County now holds an issue of $243,000.00 road
     bonds which have not been sold. This issue is a part of
     an original issue of $760,000, and were designated as
     Series D. I have before me a transcript of the original
     bond issue showing this particular $243,000.00 Series D
     being a part of said issue and the certificate of the
     Attorney General appearing in this Series D transcript is
     dated April 4, 1941, and at the bottom of said certificate
     appears # 1975, Book #Se

     "It is my understanding that this original issue was
     voted and issued for the purpose of aiding in the purchase
     of right of way and construction of state highways and
     bridges through the county. However, this work has al-
     ready been completed. At this time the Commissioners'
     Court proposes to obtain right of wayfor  farm to market
     roads which were not contemplated at the time of the
     original issue.

     "The question is submitted:   Can the Commissioners Court
Hon. Arthur Foster - Page 2 O-7213



     of Haskell County sell the above Series D issue and
     use the funds for the purpose of aiding in the con-
     struction of and purchasing right of way for farm to
     market roads in said county. A certified copy of the
     pre election order is enclosed. The following authorities
     are also submitted:  Black vs. Strength, 246 S.W. 79;
     Aransas County, et al vs. Coleman-Fulton Pasture Co. et al,
     191 SW 556; Fletcher vs. Ely, 53 SW (2) 817; Sparks vs.
     Sparks 189 SW (2) 354."

We have carefully examined the transcript of
the proceedings on file in the Comptroller's office authorizing
the issuance of the bonds mentioned in your request, and we
find that said bonds were issued "for the purpose of the
construction, maintenance and operation of maoadamieed, graveled
or paved roads and turnpikes, or in aid thereof, in said County,
under and by virtue of Section 52 of Article 3 of the Consti-
tution of the State of Texas, and under the laws enacted pur-
suant thereto, including Chapter 16 Acts of the First Called
Session of the 39th Legislature ++?&.)I

It appears from the proceedings that no   reference was made
"earmarking1 the money for a particular   road or a particular
type of construction.  We are furnished   with no facts or orders
showing that the proceeds of said bonds   were "earmarkedw.

Based on the transcript of proceedings that we have before us,
it is our opinion that the Commissioners' Court of Haskell
County may sell the Seried D issue of bonds and use the funds
for the purpose of aiding in the construction of and purchasing
right-of-way for far-to-market roads in said County.

If we are in error in assuming that no conditions were attached
to said bonds, as hereinbefore state, a different conclusion
would result.

     In this Department's opinion No. O-2088, we held as follows:

     % 8 G The authorities seem to hold that the approval of
     the electors of the proposed bond issue with whatever terms
     and conditions that the governing body imposes thereon
     previous to the election, creates a status analogous to a
     contractual relation. In construing a similar order passed
     by a commissionersr court prior to a county-wide bond
     election, the Supreme Court of Texas in the case of Black
     et al v. Strength et al., 246 S.W. 79, saidr

     "rThe order would not have been made save with a view to
     its being relied on by the voters. With the bond issue
     authorized by votes cast in reliance on the order, as
     must be assumed, it could not be arbitrarily ignored or
     repudiated without involving the perpetration of fraud or
     _      _      ,-




Hon. Arthur Foster - Page 3, O-7213



         its equivalent on the voters.

         "rUnder these circumstances, the order was, in effect,
         a contract with the people, and good faith required that
         the aonstract be kept.'

         "Any other rule would tend to undermine public confidence
         in the acts of public officers. See also Golden Gate
         Bridge and Highway Distriot v. Filmer, 21 Pac. (2d) 112;
         Perry v. Los Angeles, 203 Pac. 992."

We believe that there is some error in the facts stated in the
opinion request wherein the statement was made that Haskell
Copnty holds as issue of $243,000 road bonds which have not
been sold. We have checked with the Board of County and
District Road Indebtedness, and their records reveal that
$105,000 Haskell County Road Bonds Series D have been sold ad
that said bonds participate in the County and Road District
Bighway Fund.

We call your attention to our opinion Ro. o-6706, wherein we
held '*that under the provisions of Chapter 244, Acts of the
48th Legislature, Regular Session 1943, the State Highway
Commission is authorized to designate farm-to-market roads,
provided the Commissioners ' Court in which any such county
road is located shall pass and‘enter in its minutes an order
waiving any rights such county may have for participatian by
the State in any indebtedness incurred by the county in the
construction of such county roads." For your information a
copy of this opinion is enclosed. .

Trusting that this answers your questions, we are

                                         Very truly yours,

                                   ATTORNEY GET?ERAL OF TEXAS

                                   s/ Claud 0. Boothman

                                   BY:
APPROVED MAY 2, 1946                         Claud 0. Boothman
s/ Grover Sellers                                    Assistant
ATTORNEY GENERAL OF TEXAS

COB:V/cg
Approved Opinion Committee By BWB, Chairman
