                                                            435

         THEA~~OHNEYGENEEZAL
                      OIFTEXAS




Hon. D. D. Williams              Opinion No.   V-684
County Attorney
Throckmorton County              Re: Authority of Commis-
Throckmorton, Texas                  slonerst Court to
                                     transfer Road Bond
                                     interest and sinking
                                     fund and rental re-
                                     ceived for use of
                                     trucks to Road and
                                     Bridge Fund.
Dear Sir:
          We refer tc your letter in which you submit
the following:
         "1. Throckmorton County voted certain
    road bonds and sold certain road bonds and
    part of this money was used for the purchase
    of right df way, building roads, etc., and
    there remains from the sale of such road
    bonds approximately $10.000 in the road bond
    fund account. The State has assumed the pay-
    ment of the road bonds in Throckmorton Coun-
    ty and there will be no more highways built
    by the State Highway Department so far as we
    know and there is no need for this partlcu-
    lar money for State Highway purposes at this
    time, nor do we contemplate any need for such
    money In the future.
         "We adohave a great need for this money
    on lateral county roads and we would appre-
    ciate your advice as to whether or not this
    money can be used on the County roads. And
    in this connection, I understand that the
    Attorney GeneSal Department furnished an
    opinion to the Commissioners' Court of Has-
    kell County or the County Attorney of Has-
    kell County; involving a situation exactly
    the same as ours and I would appreciate a
    copy of this opinion.
436   Hon. D. D. Williams, page 2   (V-684)


               "2. Throckmorton County has set up an
          Interest and sinking fund to pay the princi-
          pal and interestwhen due on two issues of
          road bonds. The State has assumed the pay-
          ment of these bonds and the interest when the
          same becomes due and we have a surulus of ao-
          proximately $9.000.00 In the road bond i&e;-
          est and sinking fund for which there is no
          need at the present time, nor will there be
          a need in the future as the State has assum-
          ed the payment of these bonds and the lnter-
          est on same.
               "We would appreciate an opinion from you
          in view of the above circumstances as to wheth-
          er or not this money in the road bond interest
          and sinking fund can be,,usedon lateral roads
          in Tbrockmorton County.   (Emphasis added)
                The money referred to in your letter was de-
      rived from two sources, viz: (1) Unused proceeds of coun-
      tyroad bonds voted for the purpose of construction and
      maintenance of macadamized, graveled, and paved roads
      and turnpikes, or in aid thereof, in Throckmorton Coun-
      ty, $lO,OOO.OO; (2) Unused road bond interest and,sink-
      ing fund raised by taxation to pay said bonds and the
      interestthereon, $9,000.00.,
                In final analysis you ask if said sums of
      money may be used to build county roads in Throckmorton
      county. Your questions are answered in the order as
      above.
                (1) The sum of $lO,OOO.OO is the unused por-
      tion of the proceeds of a bond issue voted and sold by
      Throckmorton County for the purpose of constructing,
      maintaining and oueratlna macadamized. graveled-or uav-
      ed roads and turnpikes. or in aid thereof, in Throok-
      morton County. All of the election proceedings specifi-
      cally earmark the proceeds of the said bonds as follows:
                "On roads from the North base line of
           said Tbrockmorton County through Throckmorton
           to the South Base line of said Throckmorton
           County, and from the East base line of said
           Throckmorton County through Albert and lnter-
           sectlng the said proposed road from the North
          'base line of said Throckmorton County to the
           South base line of said Throckmorton County
Hon. D. D. Williams, page 3   (V-684)                  437


     and from the North base line of Stephens
     County through Woodson and intersecting
     the said proposed road from the North base
     line to the South base line of said Throck-
     morton County."
          NothIngcontained in any of such election pro-
ceedings enlarges the purpose of the bond issue as above
recited to authorize the use of any of the .proceedsof
said bonds for any other purpose.
          In Opinion No. O-7213 by a former admlnistra-
tion, a copy of which Is enclosed, it was held that an
unused portion of a bond issue made under authority of
Sectioff52 of Article III of the Constitution, not 'ear-
marked for specified roads, may be used to purchase
right-of-way for farm-to-market roads. It is there
held:
          "It appears from the proceedings that
     no reference was made 'earmarking' 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 'earmarked'.
          "Based on the transcript of proceedings
     that we have before us, It Is our opinion
     that the Comm?ssl.onerslCourt of Haskell
     C.ountymay sell the Series D issue of bonds
     and use the funds for the purpose of aiding
     In the construction of and purchasing right-
     of-;ay for farm-to-market roads in said Coun-
     ty.
          T$e above o@nlon further states that if the
funds were earmarked for a particular road or a partl-
cular tqpe of construction 'a different conclusion would
result.   In your case the records reflect that the bonds
were voted for particular roads; therefore, in view of
the foregoing it is our opinion that the unused portion
of the proceeds of such bond issue may not be used for
county roads other than those for which the bonds were
voted.
          If the bond purpose has been completed, then
the $lO,OOO.OO left over should be used to retire out-
standing bonds. If the owner or owners of such bonds
are unknown to the county, then the money should be plao-
ed In the sinking fund.
   438      Hon. D. D. Williams, page 4    (V-684)
      ,,,,,,*,I-
,._ ,~.
                   1
                   ! (2)    The sum of approximately $g,OOO.OO in the
            road"'bo'nd
                      interest and sinking fund was obtained by a tax
            which was levied and collected to pay interest and create
            a sinking fund to pay road bonds voted and sold as auth-
            orized by Section 52 of Article III of the Constitution.
            The bonds have not been paid and Throckmorton County is
            primarily liable for their payment, which liability con-
            tinues until such bonds are paid in full.
                      In Opinion No. V-157 of this office it was held
            that money In a sinking fund may be used only to pay the
            principal and Interest on the obligation for which said
            fund was created, until such obligations are fully paid.
            It is there further held that after all such obligations
            are paid, any surplus then remaining in such fund may be
            disposed of in accordance with the provisions of Article
            752a, V. C. S., as amended. We enclose a copy of that
            opinion.
                                    SUNNARY
                        The portion of the proceeds of a bond
                   issue voted and sold under the provisions
                   of Constitution Art. III, Section 52, and
                   earmarked for particular roads, may not be
                   used for the construction,of county roads
                   other than those for which the bonds were
                   voted. Money In the Road Bond Interest and
                   Sinking Fund for the payment of road bonds
                   may not be used for any purpose other,than
                   the payment of such bonds and the interest
                   thereon before such bonds are paid in full.
                   After such payment such money may be used
                   for the purposes specified in Art. 752a,
                   v. c. s.
                                               Yours very truly,
             APPROVED:                     ATTORNEY GENERAL OF TEXAS

          c2$.-&&                          By m7-wdLib
             FIRST ASSISTANT                                           da+
             ATTORNEY GENERAL                  W. T. Williams
                                               Assistant      .
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