Honorable Forrester Hancock
Criminal District Attorney
Waxahachie, Texas
Dear Sir:                 Attentton:   Honorable F.L. Wilson,
                                       Assistant.
                          Opinion No, O-3703
                          Re: Can a county commissionerswho
                               takes road bond money voted in
                               one road district and spends it
                               in another road district be suc-
                               cessfully prosecuted under Art.
                               94, P. C,?

       In your letter of June 12, 1941, you request the ~opinlon
of this department upon the above stated question. We quote
the following statement taken from your letter, material to the
above question:
       "The facts are that a certain count commis-
    sioner fs alleged to have taken about $2000 .oo
    of bond money, voted and belonging to Road Dis-
    trict X, and expended it in Road District Y. The
    people of Road District Y are very much displeased
    and some of them desire to brfng the matter be-
    fore the Grand Jury. The money can not be repaid,
    it   seems.”

         Article 94 of Vernon's Annotated Penal Code provides:
        "Whoever shall wllfullg borrow, withhold or in
    any manner divert from its purpose, any special
    fund, or any part thereof, belonging to or under
    the control of the State, which has been set apart
    by law for a specific use, shall be confined in
    the penitentiary not less than two nor more than
    ten gears."
       The foregolng penal provision expressly relates to the
diversion of any part of OP the whole of any special fund "be-
longing to or under the con,trolof tty State, which has been
set apart by law for a specific use,    This article has been
brought down from the Penal Code of Texas,  1911, In substantlal-
Honorable Forrester Hancock, page 2            O-3703



lg the same language as when originally adopted. It seems clear
that the article only relates to State funds, under the direct
control of the Legislature for State purposes. We find no case
applying or construing this provision of OUP criminal laws.
Our attention fs called however by 'thepublishers of the 1911
Penal Code of Texas, totArtIcle gl Sec. 7 of the Constitution
of Texas and upon viewing this provision of our Constitution
brought forward from that adopted in 1876, it is evldent that
the article was enacted by the Legislature in pursuance to this
constitutional mandate for the purpose of better safe-guarding
special funds which may or ought to come into the Tree%-tiyof
the State.
       Funds derived from the sale of road dlstrLct bonds do
not constitute funds belonging to OP under the control of the
State.
       It is therefore the opinion of this department that
Article 94 of Vernon's Annotated Penal Code has no application
to a dlversion of funds derlved from the sale of road district
bonds under the control of the counties,
                                        Yours very truly
                                      ATTORNEY GENERAL OF TEXAS

                                        By s/trm.J,R, King
                                             Wm. J.R, King
                                             Assistant
WJRK:RS:wc

APPROVXD JUL 7, 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/&U3 Chairman
