Honorable Bruce L. Parker            Qpinion No. V*45
County Attorney
Gmy county                           Re:    Autharkty of the Commis-
Pampa, Texas                               sionereg Court of Gray
                                           couaty t, irsue and se1
                                           suffic.iaQt bnnde cut of un-
                                           issued &     uR8old bonda
                                           to pna*sff    rig&-of-wa
                                           for StatRtHlghwap Ne, 6 r
                                           in @mid CouRty.



         Your reque& for an opinion on the above subject pre-
sents the following question:

         “~1~0
             the Commiesioners’ Court of this ColLntynow
    authorized to issue and rell s&f$oient bonds out of
    the foregoing $4~2.,OQQunissued and unsold bonds and
    use the proceeds tftertaf in purchasing the right-of-
    way for State Highway No. 66 in thi,s Co~untyas the
    same has been rsllocated and re&urveyed by the State
    Highway Department? ”

          We have examined the certified copy of the petition pre-
sented to the Commissioners’ Court of your County in 1931, which
you were kind enough to furnish us, together with the Transcript
of the Proceedings on file in the Comptroller’s Office, wherein
the bond issue in question was authorized. Your question r&ate6
only to the unissued and unsold bonds of the $gOO,OOObond issue
authorized by the second provision of said Petition. The erZ#oU
purpose for said issue is as follows:

         “Second: Bands to be issued in the aggregate sum
    of Eight Hundred Thousand Dollars ($gOO,OOO.OO)f,or
    the construction, maintenance and operation of macad-
    amized, graveled or paved roads and turnpikes, or in
    aid thereof, desi nated as State Highways, within such
    County, and whit.% bonds may run for a term not to ex-
    teed twenty years from their date and may mature
    serially or otherwise at the discretion of the Commis-
    sioners’ Court and bear interest at the rate of 5 per
    centum per amum or less.”
                                                                       , . _

Honorable Bruce L. Parker, page 2                               v-45



The Comptroller’s    Transcript reveals no pre-election order by
the Commissioners’ Caurt limiting or changing this purpose in
any degree. From the facts before us, there are none which es-
tablish a definite identification of any particular mad or highway
to be paved or improved; no funds from the bond issue have been
4clrmarlrhd f0.r 4ny s,pecific project. Consequently, the author-
i5sil **mpose is .general .in nattfhe. Whrc   this circurnstazce ex-
ists, the applicable law is ably stated in the case of FM&o& YB.
Ely (Court of Civil Appeals); 53 S. W. (2d) 817:

          ‘(2,3) (2) That, in the absence of a de,fin&e iden-
    tification of the specific road to be paved, a discretion
    exists in the commissioners’ court as to which of two
    or moie routes may be followed bstwuen control points
    named iz the pre-uloction orde,rs, which discretion,
    how-err may be amI i,s surrendered when in response
    to a ~w#orfMd*,    umier a proper order of submissiun,
    the port&u&or route and road to be paved is identified
    and named. Brown v. Preston County Court, 18 W. Va.
644, $0 S, E. 166, 167; Wright v. Allen (Tez. Giv. A&
    257 s. w. 98,@.

         *(4) (3) That, when the voters thus speak, the pro-
    ceeds of the bond issue are “‘earmarked’ with the charac-
    ter of a trust fund which may not be diverted to another
    purpose or project, and any such attempt will be en-
    joined by a court of equity. The result thus obtained has
    been referred to as having the binding effect and force of
    a contrwt.    Black v. Strength, 112 Tex. 198, 246 S.W.
79; 19 Rawle C. L. pp. 1163, 1164; Roane County Court v.
    O’Brien, 95 W. Va. 32, 122 S.E. 352, 355.”

For further authority, see the Supreme Court Opinion in Flctch-
er vs. Ely, 39 S. W. (2d) 32.

         This general purpose authority granted by the people
to the Commiszioners’ Gzurt cr~.&es with it the right to pur-
chase right-of-way.  Stitoe vs. Sutton County (Civ. App.), 272
S.W. 506.

          Our v&ews‘are governed ,by the foregoing aut.koritie,s,
and we therefore conclude that the Commissioners’ &urt of
Gray C,onnty is now autherizcd to issue unissued and unsold
bonds of the $g0fl,0f10.00 bond issue authorized by t&e elect&n
in 1931 for the purpose theraiz stated.

          Fran the records in the Comptre&lcr*s Qdficr, it is fe-
vealed that of ihe $RQO,OBB.OOoriginally authorized, two instaB-
ment issner iz the uno,nzt bf $l~,O$tO.~g sU&$&g,mO.O@,      rc-
spectively, have been approved by the Attorney Gozeral, azd
    Honerable Bruce L. Parker, page 3                                  v-45



    registered by the Comptroller of Public Ac:counts, as previde,d by
    appropriate statutory regulations. It would thus appear that, of
    the total amount, all but $20,000.00 have been issued. However,
    it is indicated by the records that of the $U?O,OOO.OOinstallment
    (180 bonds at $l,WO.OO denomination) that bonds Nos. 49 to 180,
    inclueive, were destroyed by the county officers prier to sale.
    In other words, only $4g,QOQ.O0 of the $lgg,g9O.W were actually
    sold and $132,OOQ.00 of said bonds were destreyed by burning, and
    were never sold. This is confirmed in your letter Wherein yeu
    state that the $48,8Eo.@S be*Js issued and sold wtre used for the
    purcbars of the right-of&way for appronimately 14 miles ef High-
    way No. 66. X?&s leaves a ~b&Unc&~therefare, of $152,000.00 of
    unissued and unsold bends out of the original $8OO,QOO.Q0author-
    ized isrued, which may be now issued for the purchase of right-
    of-way for state highways, which would include State Highway No.
    66 as it has been relocated and resurveyed by the State Highway
    Department. For the purpose of keeping the records straight, we
    believe if it is contemplated to issue more than $20,000 in such
    bonds that it would be necessary to furnish competent and ade-
    quate preef as to the destruction of bonds ,numbered 49 tc lP0;
    and that the purpose for which the bonds were issued still etists
    and has never been abandoned.

                                   SUhatARY

.             The C~ssioners’       Court of Gray County may is-
         sue sad ,sell unissued snd unsold bonds of t&t $JW3,lW
         bond issue &utboripxll by the election of 1931 for the pur-
         &se    of right-rf-way for State Highway 66 ~1sthe same
         has bee-n xdm?atod mJ. rssurveyed by the Highway De-
         ptrtament.

                                       Very   Wy    pours,

                                    ATTORNEY       GENKRAL OF TEXAS




                                                   Charles E, Crenshmw
    ,QB;Ckl%Sl                                     Assistamt



    AP*ILQIvED                      AlePROVED FESS 25 1947

    BY   MWJ