Honorable Maurice P. Bullock
county Attorney
Peoos county
F't.Stocktcn, Texts

Ik2.rSir:                             Opinion Number O-2667
                                      Re: Validity of road bonds voted
                                          upon the condition that they
                                          he taken ever and assmcd
                                          for paymnt by the State,

             :Vehave your letter in which cur opinion is requested on
the folIow5r.gstate of facts:

             "A oonsidernSle portion of the State highwys
     in Peoos county ore what are generally knom as un-
     inprwmd   dirt roads, end the citizens of Feces County
     are desirous of having these State highways Improved
     and herd surfaced. A plan h&s been suggested to the
     x?mnty Comnissj~oners’       Court whereby an election mey
     be called for the purpose,of voting bor.dsto finance
     this proposed highway oCnShW&iCn          and imprOVement
     without the county actually in the long run being
     burdezed x%th the necessity of levying tares for the
     pa>mnt of such bonds. It has been suggested that
     the orr?ersar.dnotices for such election night bo so
     drwm BS to condition their issuance upon the State
     Iiiglx%yDepartment's using the proceeds thereof for
     construction, improvement, etc. of roads in Pecos
     county  8s State     highways,   and conditioned further upon
     Eouse El1 688 of the 46th Legislature, Regulm Session,
     1X5?, being hereafter amendod in such mnnner as to
     enthorize the fu13 aswmption by the Strrteof Texas
     of the psynx%t of all bonds thus issued."

             Your q~uestionis:

            "Kill a bond j~ssuethus voted and thus limi.ted
     be valid, and would bonds thus voted hut issued in
     violation of said conditions he null and void?"

             Although your staterrontof facts conton;p!atesthe prepere-
tion and passcge of orders and the issuance of not!ce for an election
to vote road bonds conditionally, it does not disclose in ooncrete
form the proposition proposed to be submitted to the oaalified voters
                                                                           -




Honorable Maurice R. Bullook, page 2             O-2667



for their'action thereon. Under the law there is no inherent right
in the people to hold eleotions. Sea ~~llliamsvs. Glove=, 259 S.W.
957. Eleotions may be held only where authorized by law. In tho
voting of road bonds we must look to Article 752a, et seq., Title 22,
Chaper 3, of Vernon's Annotated Civil Statutes, for the specific au-
thorityto vote and issue them. It will be noted that Article 762b
provides that the election order and notioe of election shall state,
first, the purpose for which the bonds are to be issued: seoond, the
amount thereof; third, the rate of interest; and, fourth, that ad
valorem taxes are to be levied annually on all taxable property within
said issuing subdivision to pay the annual interest and provide a
sinking fund to pay the bonds at maturity. Subsequent articles detail
the steps that must be taken preparatory to voting at this election,
and, likewise, prescribes the manner of holding same. Other articles
 under this title prescribe the maturity dates, interest rate and de-
nQnination to which bonds issued thereunder must conform.

             We call your attention to the following language appear-
ing in Artiole 762b:

             "Upon the petition of fifty resident property
      taxpaying voters of any county, the Conrmissionersl
      Court of suoh county. at any regular or special session
      thereof, shall order an election to be held in suah
      oountv to determine whether or not the bonda of suah
      county shall be issued --
                             for the purpose --
                                             of the oonstruo-
                        &   operation of macadamieed , $ravei;ed
     -ore      roads and turnpikes, ---
               --                   or%   aid thereof * * *

             In our opinion the underscored language in the above ar-
ticle establishes what may be considered the statutory purpose for
whioh road bonds may be issued'and that the use of such language tends
to exclude other purposes, even though related. In other words, the
underscored portion of the above quoted statute appears to be the pur-
pose that the Legislature intended having submitted to the property
taxpaying voters of any county whenever the proposition for the issuance
of road bonds is subnitted to them for their action thereon.

             For purposes of this opinion we must assume that it is
your intention to subnit a proposition to the voters of your county
containing a purpose phrased at set forth in Article 752b, hereinabove
underscored, and in addition thereto it is planned that the orders and
notices, as well as the petition, shall provide that in the event the
bonds are authorized the proceeds thereof shall be used only for the
oonetruation and improvement of State highways within the county and
then only in the event that House Bill 666, Forty-sixth Legislature,
Regular Session, 1939, is so amended as to make such bonds 10%
eligible for partiaipation in the State gasoline tax fund allocated to
the Board of County and District Road Indebtedness. Re feel it
necessary to restate your proposition in order that our answer shall
-          -




    Honorable Maurice R. Bullock, page~3                 O-2667



    be deer.   This question differs from the problem presented in the
    Moore VS. Coffman case, 200 S. A. 374, wherein the general rule is
    stated that the purposes for issuing bonds stated in the petition,
    order and notice of the election determines for what purposes the
    bonds were,issued, and that the voters have no right to rely upon any
    other state@nt or order for ascertaining the purposes for which
    bonds are to be issued. In the instant matter theconditions are
    made a part of the petition, ordar and,notice,.,and,therefore, become
    without question a part of the election proceedings, and ,inview of
    the language used by the Supreme Court in.the above,.mentionedMoore vs.
    ?Xffman ease, we think,that a c;on246 S.W. 75; 19 RCL, pages 1163 and 11641 Roane County Court
    ~6. O'Brien, 122 S.E. 352 and 355; also Fletcher vs. Ely, 53 S. W.
    (2d) 817 (Writ Refused)4 We, therefore, conclude that if the bonds
    are voted for the straight statutory purpose, that isa "for the con-
    struction, maintenance and operation of maoadamizad, graveled or paved
    roads and turnpikes, or in aid thereof," that the proceeds be used for
    the construction of State designated highways, and that the issuance
    thereof'is conditioned upon House Bill 688 being mended in a manner
    so as to permit the participation of such bonds to the extent of 10%
    in the,Stete gasolj~netax fund allocated to the Board of County and
    Cistriot Road Indebtedness, that suoh bonds would not be rendered ipso
    facto void because of the inclusion of suoh namedcondition in the
    proceedings. We conclude further that without the happening of the
    last stated contingency the bonds could not be lawfully issued.

                 It seems clear from your letter and statement of facts
    that the prinoipal thought underlying thiS suggested method of voting
    and issaing road bonds is that House Bill 688 shall be amended in such
    manner as to permit the "full assumption" by the State of the payment
    of all bonds thus issued. If this were not possible it is reasonable
    to assume that the property taxpaying voters of your county would
    perhaps react unfavorably to the authorization of further debt for road
    construction within,the oouxty. We think it advisable to call your
    attention to the following language appearing in the present "Road
    Bond Law!',commonly knoTI es T1ouseBill 688, Section 8 thereof read-
    ing, in part, as fOllOWs:
                                                               -    -




Honorable Maurice R. Bullook, pge   4           O-2667



            "No provision of this Aet shell be construed
     . . . . to pledge the credit of the State in any
     mannar whateverfor the payment of any of the out-
     standing road indebtedness herein referred to of the
     county or districts of the State. It is hereby declared
     that all eligible indebtedness, es hereindefined, shall
     remain indebtedness of the rsspeotive county or defined
     road district nhioh issued it, and said counties or de-
     fined road districts shall remain liable on said indsbted-
     ness aacording to its term8 and tenor3 and it is not the
     purpose or intention of this Act or any prt hetoof to
     obligate the State of Texas direotly or indirectly or
     contingently for the payment of any suoh ObligatiOns, or
     that the State of Texas should assume the payment of
     said obligations, and this Act is not to be construed
     es obligating the State of Texas to the holders of any
     of said obligations to make any payment of the same of
     any pert thereofl nor shall such holders have any right
     to enforce the appropriation of any of the moneys here-
     inabove provided for; nor shell any provision hereof
     constitute a oontraot on'the part of the State to make
     money available to any oounty'for the oonstruotion of
     edditional lateral roads, but the provisions hereof are
     intended solely to compensate, repay and reimburse such
     oounties and diatricta for the aid end assiatenoe given
     to the State in furnishing, advancing and aontributing
     money for building end conatruoting State highways end
     lateral roads * * *".

             It till be seen that Rouse Bill 688, end its predecessors,
have been and are nothing more then appropriation bills. Biennially
the Legislature appropriates one-fourth of the gasoline tax to the
credit of the County and Road Distriat Highwey Fund to be used for the
purposes speoifioally set forth in the Aot. Se&ion 6, subsection
(j).of House Bill 688, oonstitutes the appropriation clause of the dot.
The constitutionelity of this Aot would ba seriously questioned if
the terms thereof should contemplate a pledging or en appropriation of
one-fourthof the gasoline tax to the purposes defined in the Act for
a period of longer than two years. Seotion 6, Artiole 8 of the Con-
stitution, reads, in pert, as follows:

             "No money shall be drawn from the treasury but in
      pursuance of specific appropriation made by law; nor shall
      any appropriation of money be made for a longer term than
      two years * * *'.

             It seems olear that any amendment to the present Road
Bond Law which would contemplate the "full assumption" by ,the Stats of
the payment of all bonds issued in aooordanoe with the suggested plan
would be unconstitutional and at once the condition sought tobe imposed
by the voters of your county loses muoh of its force. Under the terms
                                                  O-2667



of '~!o:isc
         ?'?I.688 the road bonds of the various counties upldor~ert~:i
condition5 become eligible for participation in the funds sccruir,rStllT
the Board of County and i&strict Road Indebtedness, and so long as
such funds accn.~etothe Eoard through the collection of gasoline ta~nx
and the subsequent appropriation by the Legislature, the principal a::o
interest of bonds made eligible for participation can be legally paid
by the Powd to the extent the funds on hand available for that purpose
will apply. 'Tiequote the following significant language from sub-
soctior:!g) of Seotio-.6 of House aill 686:

              "in the event the amount so estimated to be
      applied to the payment of eligible obligations for
      any coun%y or defined road distrjct is sufficient to
      meet aS1 maturjng interest, principal and sinking
      fund requirements, the Commissioners %ourt may dis-
      pense with the collection of ad valorem levies for
      such calendar year for such interest, pr,inoipal.or
      sinking  fund requirements. In the event the amount
      of payment so estimated to be applied is not suf-
      fi~cientto meet the maturing interest, principal and
      sinkjng find requirements, the County Commissioners'
      Court shall collect from taxes cn the property in
      said respective counties and defined road districts
      an amount of money equal to the difference between
      tile*mount of such requirement and .theamount avail-
      able for application."

             Ihis subsection further provides t2la.t in the event the r.-
      of finds available for application to meet ,thematuring
r;,o!zt                                                         interest.,
prj,ncipelaud sirking fund roqu.irement8 in eny yecr is aot sufflcien*.
to sa,tisfysuch requirement, then the funds shall he prorated   I~::
                                                                   tl-r
ma:inerpresorj~bedtherein. In other words, this and foregoing quo'tl-
tions, p?sinly and forcefully operate against the "full assumptior"
sy the State of any bonds.

                It is entirely possible that House Bill 686 mi&t be so
amended by the next session of the &gislature as to permi.tof a fuZI
participation 1:::  bonds of the type sought to be voted in your county,
tn:t there   can he no guarantee that succeeding  legislature will re-
ennct laws and make sufficient appropriations to provide for the f'lil'
~ayxer!?;  of such bonds prjor to maturity thereof; and as can be seen
from the above quoted portion of the existing Act, any time in the
future that there may be an insufficiency in the fund to meet the
maturitrg   principal and interest in any year, it immediately becomes
the duty of the Commissioners' Court of the county to levy a tax in
such wn amount as will provide the additior.alsum necessary to promptly
pay the maturing interest and principal when due. In other words, the
oUig&tion, of necessity, must remain the primary obligation of the
county voting the same, and the property of the taxpayers of said
cou,~tyremains liable to taxation in such proportion RS is r,eoesscry
to make up the insufficiency of the gasoline     tax fund. it is spparem.
ibnoruble Maurj~ceH. Bullock, prlgo6             O-2667



that thsrc cm be no legal 'assumption" of tho bonds. 'IYebonds b~cme
eligible for participation it?the fund and to the extent funds W-A a-
Tai.leb1.e
         to meet that perticipatiol:each bend stands on a par3ty with
a?1 other bonds made eligible for participation.

             :n view of the foregoj.ngwe reach tho ccmalusion the,t.
                                                                   a
road bond election would be rendered wholly ineffective if the
ultimate issuance of such bonds WRS oondi~tionedupor 6,"full assumption"
of the payment thereof by the Sixte. iImwer, this would not be true
if the arwoxed condition contemplntes end prcwidos nnl,yfor the issuanno
of such bonds upor!a change being mada in the prest:.nt
                                                      law permitting
them to partic?pate to the extent of'lOO$ i:?the @soLine tsx funds
allocated to the Roard of County and C5strir.tRoad Indebtedness, 6
"fu',.l
      Issumpticr:" could moan nothi~ngless than an absolute ivl'.ease
of the county from any liability cr obli~gatiopto pay such bonds, and
this, se believe, could not be done under the present Constitution.

             Te concede tha~t.
                             .tteirmnedixte?yforegoing discussion is
no,tnecessary to a proper dotarrniflrttlcn
                                        of the qxestiorrpropow~dsd in
your letter, but in view of the widespread mFainterpretation as to ,the
extent of the obligation of tho State uider the ,tenr.s
                                                      of Eouse Eil:L
688, we +&irk it necessary to give you ,thebwofit of cur views as to
the ultimate effectiveness of the present law and as to the likelihood
of a subsequent Act bsi~ngpassed mak5r.gpossible a more bir.ding
"assurrpticn".

             Trusting that the foregoing satisfactorily a~~swersyour
inquiry, we are




                                             'T&ysL   Clarence   5.   Crow3
                                                      Clarence   i.   Crcwe
                                                                 Assis.tant