Honorable B. F. Reynolds
County Attorney -.
Throckmorton, Texas
Dear Sir:                  Opinion No.‘O-1159
                           Re: Can a commissioners"couH~ use
                                money that has been voted for
                                the purpose of building county
                                highways for purchasing a~site
                                for a state hlghwag warehouse?
        Your request for an opinion on the above-stated ques-
tion has been received by this office.
        Articles 701, 702 and 703, Revised Civil Statutes,
read as follows:                                .~
        "Article 701. The bonds of a county or an in-
    corporated city or town shall never be issued for
    any purpose unless a proposition for the issuance
    of such bonds shall have been first submitted to
    the qualified voters who are Fropertg tax payers
    of such county, city or town.
        "APtlCl8 702.  In all cases when the governing
    body of a county, city or town shall order an elec-
    tion for the issuance of the bonds of the County,
    city or town or of any political subdivision or
    defined district of a county, such body shall at the
    same time submit the questlon of whether or not a tax
    shall be levied upon the property of such county,
    city or town, political subdivision or defined dis-
    trict for the purpose of paying the Interest on the
    bonds and to create a slnklng fund for the redemp-
    tlon of the bonds."
      ~' "Art. 703. The proposition to be submItted
    shall distinctly specify:
        "1 . The purpose for which the bonds are to
    be issued;
        "2 . The amount thereof;
Honorable B. F. Reynolds - page 2        O-1159


        “3 .   The rate of Interest;
        “4.   The levy of taxes sufficient to pay the
    annual lnteres-tand prOVfd8 a sinking fund to pay
    the bonds at maturity;
        “5 . The maturity date, or that the bonds may
    be issued to mature serially within any given num-
    ber of years not to exceed forty."
        Articles 6663, 6673 and 6674b transfer to the Stat8
Highway Commission jurisdiction over highways of the.State'
whkh commissioners' court previously had. Article 6674q-4
reads as follows:
       "All further .lmprovementof said State Highway
   System shall be made under the exclusive and direct
   control of the State Highway Department and with ap-
   propriations made by the Legislature out of the
   Stat8 Highway Fund; Surveys,plans and speclflcations
   and estimates for all further construction and lm-
   provement of said System~~shallbe made, prepared
   and pald.for by th8 State Highway Department. No
   fufth8r improvement of said System shall be made
   with the aid of or with any moneys furnished by the
   counties except the acqulsltforiof rights of way
   which may b8 furnished by the counties, their sub-
   dlvislons or defined road districts. But this shall
   In no wise affect the carrying out of any binding
   contracts now existing betweecthe State Highway De-
   partment and the Commissioners Court of any county,
   for such county, or for any defined road district.
   In the development of the System of Stat8 Highways
   &x3 the maintenance thereof, the Stat8 Highway Com-
   mission shall, from funds availabl8 to the State
   Highway Department, provide:
       "(a) For the efficient maintenance of all high-
   ways comprising the State System.
        "(b) For the construction, in cooperation with
    the Federal Covernment~'tothe extent of Federal Aid
    to the State, of highways of durable type of the
    greatest public necessity.
        "(c) For th8 construction of Highways, perfect:
    lngand extending a correlated system of State Rlgh-
    ways, independently from State Funds."
        The case of Iverson et UX v. Dallas County, 110 S. W.
Honorable B. F. Reynolds - page 3          O-1159


(2) 255 held among Other things that Articles 6663,   6673, 6673a,
and 6674b, and the amendments thereto, attempting to set up a
complete uniform system of state hlghways, and authorizing
Highway Commissioners to take over Stat8 hlghways, stripped
COUntieS  Of any authority to l8t Contracts for th8 construction
or maintenance of any public road comprising a portion of'the
state highway system, either in'thelr own'names or as agents
of the State, except In sp8ciflc Instances and strictly in
keeping with the provlslons of the Acts.
                                           -'
         The money mentloned in your telegram, we presume, Is
money derived from the sale of bonds duly authorized by the
qualified voters for the purpose of building county highways.
                                                    _~
         W8 quote from Texas Jurisprudence, Vol. 21, p. 686, as
follows:
        "It Is elementary that the funds derived from
    the sale of bonds may not be diverted from the
    purposes sp8cified ln the prOpOsitiOn submitted to
    the 8I8CtOrS. If fOIIOWs that Wh8r8 a departure
    from the proposition appearing on the ballot paper
    Is alleged, the only question before the court 1s
    whether the expenditure contemplated lS wlthln or
    without the proposition upon Its true construction.
    Construing propositions to this end; it has b88n
    held that 'road' includes a bridge'constltutinga
    necessary link in the road, and that 'turnpikes'
    mean hard-surfaced roads, not necessarily toll-
    roads. And, seeing that both propositions leave
    the specific allocation of the funds to the corn-.
    missioners' court, there is no variance between a
    proposition for expenditure on roads 'throughout'
    the county and an order for issuance of bonds for
    construction 'within and for' the county."          -.
Also see thecases of Aransas County v. Coleman-Fulton Pasture
co., 191 S.W. 553; Heathman v. Slngletary, 12 S.W. (2) 150;
Hugglns V.~Vaden, 259 S.W. 204; and Grayson County v. Rarrell,
202 S.W. 160.
        We quote from the case of Carroll v. WlI.llams,202
S.W. 504, decided by the Supreme Court, as follows:
        "* * *section 9 of article 8 of our state Con-
    stltution~* * * inhibits any and all transfers of tax
    money frOm~On8-to another Of the s8VercIaSSeS Of
    funds therein authorized, and, as a sequence; the
    expenditure, for one purpose therein defined, of tax
    money raised ostensibly for another such purpose.
Honorable B. F. Reynolds - page 4         O-1159


    The immediate purpose in so prescribing a separate
    DEhXimLUU
            tax rat8 for each Of the classes of purposes
    there enumerated is, no doubt, to limit, acc~ordingly,
    the amount of taxes which'may be raised from .the'peo-
    pie, by taxation, declaredly for those several pur-
    pOS8S or classes of purposes, respectively. But that
    Is not all. The ultimate and practical and obvious
    design and purpose and legal effect Is to Inhibit ex-
    cessive expenditures for anysuch purpose or~class of
    pUrpOS8S. By necessary implication said provisions
    of section 9 of article 8 were designed, not merely
    to limit the tax rate for certain th8r8ln designated
    pUrpOS8S, but to require that any and all money raised
    by taxation for any such purpose shall begapplied,
    falthfullg, to that part,icularpurpose, as needed
    therefor, and not to any Other purpose or use whatso-
    ever. Those constitutional provisions control, not
    only the raising, but also the application, of all
    such funds; * * *
        I'True,the Constitution does not say;ln So.
    many words, that money raised by a county, city, or
    town, by taxation for one such purpose shall'never
    be expended for any other purpose -- not even for
    another~of the five genera1 C1asS8S Oftpurposes de'
    fined-and approved in said section 9 -- but that, we
    think, is Its plain and certain meaning and legal
    effect. The very definitions of those several class-
    es of purposes, and th8'declaration of authority to
    tax the people therefor, r8Sp8CtiVe1y, COUpled, as
    they are, ineach instance, with a limitation of
    the tax rate for that class, must haV8 been predi-
    cated UpOnthe expectation and intent that, as a
    matter of common honesty and fair dealing, tax
    money taken from the people ostensibly for one such
    specified purpose shall be expended, as needed, for
    that purpose alone, as well as that the tax rate
    for that particular class, In any one gear, shall
    not exceed th8 prescribed maximum."
Alsb see the case of Commissioners' Court of Henderson County
et al v. Burte et al, 262 S. W. 94.
        In Vf8W of the foregoing authorities, you are resptkt-
fully advised that It Is the OpinFon of this department that
the Commissioners' Court cannot use money that Is derived from
the sale of~bonds duly issued for the purpose of building
county highways for purchasing a site for a stat8 highway
Warehouse.
Honorable B. F. Reynolds - page 5          O-1159


         Trusting that the foregoing answers your inquiry, we
remain
                                Yours very truly
                              ATTORNEY GENXRAL OF TEXAS


                                By s/Ardell WlllliXms
                                     Ardell Wlllltims
                                           Assistant

AW-MR-WC

APPROVED JDL 31, 1939
s/W. F. Moore
FIRST ASSISTANT
ATTORNEYGENERAL
Approved Oplnlon CommIttee By s/RWF Chairman
