                                     August    4, 1975


The Honorable      Ronald L. Wilson                      Opinion   No.   H-658
Criminal   District   Attorney
405 County Courthouse                                    Re: Whether    Galveston   County may
Galveston,   Texas     77550                             use the proceeds    from certain   pre-
                                                         viously 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 Commission-
ers Court of Galveston        County adopted an order committing           the Court to allocate
$5 million   from a proposed       bond election    to partial  construction     of the Bolivar
Crossing    on State Highway      87. Thereafter,       on October    27, 1969, the Court called
the bond election,     setting it for December        9, 1969. The bonds were approved           by
the voters   by the requisite    margin    but have not been sold.        Since present     costs of
construction    of the Bolivar    Crossing    greatly    exceed previous      estimates,    the
Commissioners       Court now wishes to divert the $5 million            committed     to that pro-
ject to other road projects       within the County.

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

                       with a view to its being relied on by the voters
                       . . . it [may]  not be arbitrarily    ignored    or re-
                       pudiated without involving    the perpetration     of
                       fraud or its equivalent  on the voters     . . .



                       [T] he will of those having to bear the bond
                       burden should not be defeated      by a mere
                       change of mind on the part of the members            of
                       the commissioners       court with respect    to the
                       particular   roads needing improvement,         [ since]
                       any other rule would tend to undermine          public
                       confidence    in the acts of public officers.      Black
                       v. Strenght,    246 S. W. 79, 80 (Tex. Sup. 1922).


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




See also    Wright     v.   Allen,    257 S. W. 980 (Tex.              Civ. App.   --Dallas,   1923,   writ
‘i77q-F

          The only recognized    exception    to the 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 so materially      changed
since the bonds were voted that use of the bond proceeds           for the particular    named
purpose would be “an unwise and unnecessary           expenditure”     of public funds.
Hudson v. San Antonio Independent       School District,     95 S. W. 2d 673, 674-75 (Tex.
Sup. 1936).   In our view,   however,    the Hudson rationale      is limited   to the situation
in which the project  is determined    to be unwise and unnecessary           subsequent   to the
sale of the bonds.

           Since the bonds approved        for the Bolivar      Crossing   project   have not been
sold, we do not believe       the Hudson principle      to be applicable.       Accordingly,     it is
our opinion that the Commissioners            Court of Galveston       County may not divert to
other road projects      within the County $5 million         in bond proceeds     committed    to the
Bolivar   Crossing    project   in a pre-election    order.      We do not mean to imply,        how-
ever,   that the bond proceeds      must necessarily        be expended upon the Bolivar        Cross-
ing project.    Article    717g, V. T. C. S., confers       discretion    upon the commissioners
court as to whether      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 $5 million   in bond proceeds   committed
                       to the Bol.ivar Crossing   project in a pre-election
                       order.

                                                    Very       truly    yours,




Opinion    Committee

jad:

                                              p.   2888
