Honorable Charles J. Lieck, Jr. Opinion lo. WW-769 Criminal District Attorney Bexar County Courthouee Ret Legality of uae of San Antonio, Texas bond funds for pur- chase of building. Attention: Eon. L. J. Gittinger, Asst. Grin. Dist. Atty. Chief, Civil Section
Dear Sir:
You have requested the opinion of this office as to the legality of the proposed purchase by the County of an exiating building, a portion of which ia to~be uaed for jail purposes, with funds received from the sale of Bexar County Jail Bands, dated Sep- tember 10, 1959, aggregating the sum of $3,650,000.00.
These bond8 were issued under the authority of Article 237C$, V.C.S., (Acta 1957, 95th Leg., R.S., p. 1386, ch. 4761, herein- after called the "Act..
Certain broad powers, but none to iasue bonds, are granted to Cosmisaloners Courts in Section 1 of the Act, which follows:
-Section 1. Whenever the Comiaelonera Court of any county determines that the county courthouse is not adequate in site or facili- ties to properly hEuse all county and district offices and alL.county and district courts and all'justice of the peace courts for the pre- cincts in which the courthouse is situated, and to adequately store all county record? and equipment (including voting machines) and/or that the county jail ia not adequate in size or facilities to properly confipe prisoners and other persons who may be legally confined . .
~~~~ marlea J. Lie&k, Jr., Page 2 W-769)
or detained in a county jail, the Qmmis- sioners Court may purchase, constrxt. reconstruct, remodel, improve and equip, or otherwise acauire an office buildinq or buildings. or courts buildins or build- inos, or jail buildina or buildinas (a addition to the existins courthouse and/or jail), or an additional buildins or build- inas in which anv one or more of the county or district offices or county, district or justice of the peace courts, or the countr jail or any other county facilities or functions mav be housed. conducted and main- tained: and may purchase and improve the necessary site or sites therefor, and may use such building or buildings for any or all of such purposes, provided that any such building or buildings so acquired shall be located in the county seat. and provided that no justice of the peace court shall be housed, conducted or maintained in any such building if said building is Located out of the boundaries of the precinct of au& justice of the peace court.” (Rnpbaais added)
The power to issue bonds, and the purposes far which they may be issued. are contained in Section 3 of the Act. whicla is, in part, as follows:
*Sec. 3. To pay for the purchase. construc- tion, reconstruction. remodelins. imnrovement -z&d eauirnaent of anv such buildina or buildinas and/or iails, includins the nurchase and im- p&,the cosm&ssioners Coure'is authorized to issue negotiable bonds of the county and to levy and ^ collect taxes in payment thereof. . . . : and the issuance of such bonds and ttae levy and collectipn of such taxes shall otherwise be in accordance with the provisions of Chapter 1, Title 22,. Revised Civil Statuteg of Texas, B~. axles J. Lieck, Jr., page 3 M+76g)
governing the issuance of bonds 3.:.cities, towna and/or counties in thie Sta?.?." (Rnphasis added)
It is clear that bonds may be issued for any one or all of the saveral purposes specified in Section 3, above, pro- vide' such purpose; or purposes8 are clearly stated by the Commissioners Court in the proposition submitted to the property taxpaying voters of zhe county and approved by them at an election properly called and held in accordance with the requirements of Chapter 1, Title 22, Revised Civil Stat- utes of Texas, and provided all other requirements of law are properly observed.
But all of the purposes of issue named in Section 3 were not included in the proposition as worded by the Bexar County Coannissioners Court and voted upon by the property taxpaying voters in this instance. As pertains to the manner of acqui- sition of a County Jail building the word "construction" was singled out by the Comnissioners Court, and only that~one word appears in that connection in the voted proposition and through- out the election proceedings, viz- *. . . for the purpose of paying for the construction and equipment of a County Jail buildinq, including the purchase anil improvement of the site therefor, . . .I (~hasis added).
Thus, the Coanni.ssi.oners Court chose to sharply narrow the propo- sition submitted to the voters, omitting the words "purchase", "reconstruction", "reauxdelingn. Uimprovement*, and "buildings".
There can be no doubt that ihe Commissioners Court possessed the power to thus limit and restrict the purpose to be voted upon for it is specifically granted in Section 4 of the Act, which is as follows: .. "Sec. 4. The Cosuulssioners Court may submit at any bond election one proposition for the issuance of such bonds which propo- sition may include al1 the nurnoses au'thorieed herein kor which such bonds may be issuedp or it may,, at its option, submit $t any bond --. _
Hon. Charles J. Lie&, Jr., page 4 (WW-769)
election one or more separate =zc.q ::itions for the issuance of such bon&, 9%cn of which separate propositions ray inc.luc'eany one or
such bonds may be issued." (Emphasis added)
The vzd "construction * is of definite and limited meani.ng. In its ordinary sense it meam to build or erect something which theretofore did not eathit;the creation of something new, as distinguished from the repair or improvement of same- thing already existing. Carlson v. Kitsan County, Supreme Court of Washington, 124 Wash.. 155, 213 P. 930, 931: Board of Supervisors of Covinaton Cou*.tv v. State Hiabwav Comr~esio~,, Supreme Court of Missi6sippi, 194 So. 743, 748, 188 Miss. 274. And it has been held that a statute authorizing a town to "constrilct* a town hall can not be construed as authorizing the purchase of a buiPding already constructed. Barker v. Town of Flovd, Supreme Court of New York,, 66 N.Y.S. 216, 2~17, 32 Misc. 474.
An applicable dictionary definition of the word "construction' is the *Process or art of constructing; act of building: erec- tion: act of devising and forming: fabrication: composition; l Webster's New Internat,iona% Dictionary~Second JW.tion, &bridsed. p. 572 (1957).
It IS fundamental that the proceeds of bonds voted for a par- ticular purpose by the people -ozstitute a truet fund which must be expended for the purpose for which the bonds were voted and may not be diverted from such purpose and applied to some other use. Clark, et a% v, Greer. et al, (Civ.App.) 232 S.W.2d 876 (No writ history): Gillham v. CitV of Dallas (Civ.App.) 207 S.W.Zd 978, 983 (Writ ref., n.r.e.): Lewis v. ci+,r of Fort Worth, 89 S.W.Td 975, P26 Tex. 458x Moore v. Coffman, 1.89S.W. 94, affirmed 200 S.W. 374, 109 Tex. 93: blcQuillin. Muni- cinaltornorations. Vol. P5, p. 598, et seq..
It is our opinion that funds derived from the sale of bonds voted by the people for the purpose of "Daying for the con- struction and equipment of a County Jai.?.building, including : HOG. Charles J. Lieck,'JrI, Page 5 (W-769)
the purchase and improvement of the site the-efor" may not be ~g%d for the purchase of an existing structux, a portion of which '.sto be used for jail purposes.
Of course, in the purchase and improvement of a site for the County Jail building the Commissioners Court, in the exercise of its sound discretion and pursuant to the terms of its con- tract with the City of San Antonio, may choose such land as 1' deems proper.
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Honorable Charles J. Lieck, Jr. Opinion lo. WW-769 Criminal District Attorney Bexar County Courthouee Ret Legality of uae of San Antonio, Texas bond funds for pur- chase of building. Attention: Eon. L. J. Gittinger, Asst. Grin. Dist. Atty. Chief, Civil Section
Dear Sir:
You have requested the opinion of this office as to the legality of the proposed purchase by the County of an exiating building, a portion of which ia to~be uaed for jail purposes, with funds received from the sale of Bexar County Jail Bands, dated Sep- tember 10, 1959, aggregating the sum of $3,650,000.00.
These bond8 were issued under the authority of Article 237C$, V.C.S., (Acta 1957, 95th Leg., R.S., p. 1386, ch. 4761, herein- after called the "Act..
Certain broad powers, but none to iasue bonds, are granted to Cosmisaloners Courts in Section 1 of the Act, which follows:
-Section 1. Whenever the Comiaelonera Court of any county determines that the county courthouse is not adequate in site or facili- ties to properly hEuse all county and district offices and alL.county and district courts and all'justice of the peace courts for the pre- cincts in which the courthouse is situated, and to adequately store all county record? and equipment (including voting machines) and/or that the county jail ia not adequate in size or facilities to properly confipe prisoners and other persons who may be legally confined . .
~~~~ marlea J. Lie&k, Jr., Page 2 W-769)
or detained in a county jail, the Qmmis- sioners Court may purchase, constrxt. reconstruct, remodel, improve and equip, or otherwise acauire an office buildinq or buildings. or courts buildins or build- inos, or jail buildina or buildinas (a addition to the existins courthouse and/or jail), or an additional buildins or build- inas in which anv one or more of the county or district offices or county, district or justice of the peace courts, or the countr jail or any other county facilities or functions mav be housed. conducted and main- tained: and may purchase and improve the necessary site or sites therefor, and may use such building or buildings for any or all of such purposes, provided that any such building or buildings so acquired shall be located in the county seat. and provided that no justice of the peace court shall be housed, conducted or maintained in any such building if said building is Located out of the boundaries of the precinct of au& justice of the peace court.” (Rnpbaais added)
The power to issue bonds, and the purposes far which they may be issued. are contained in Section 3 of the Act. whicla is, in part, as follows:
*Sec. 3. To pay for the purchase. construc- tion, reconstruction. remodelins. imnrovement -z&d eauirnaent of anv such buildina or buildinas and/or iails, includins the nurchase and im- p&,the cosm&ssioners Coure'is authorized to issue negotiable bonds of the county and to levy and ^ collect taxes in payment thereof. . . . : and the issuance of such bonds and ttae levy and collectipn of such taxes shall otherwise be in accordance with the provisions of Chapter 1, Title 22,. Revised Civil Statuteg of Texas, B~. axles J. Lieck, Jr., page 3 M+76g)
governing the issuance of bonds 3.:.cities, towna and/or counties in thie Sta?.?." (Rnphasis added)
It is clear that bonds may be issued for any one or all of the saveral purposes specified in Section 3, above, pro- vide' such purpose; or purposes8 are clearly stated by the Commissioners Court in the proposition submitted to the property taxpaying voters of zhe county and approved by them at an election properly called and held in accordance with the requirements of Chapter 1, Title 22, Revised Civil Stat- utes of Texas, and provided all other requirements of law are properly observed.
But all of the purposes of issue named in Section 3 were not included in the proposition as worded by the Bexar County Coannissioners Court and voted upon by the property taxpaying voters in this instance. As pertains to the manner of acqui- sition of a County Jail building the word "construction" was singled out by the Comnissioners Court, and only that~one word appears in that connection in the voted proposition and through- out the election proceedings, viz- *. . . for the purpose of paying for the construction and equipment of a County Jail buildinq, including the purchase anil improvement of the site therefor, . . .I (~hasis added).
Thus, the Coanni.ssi.oners Court chose to sharply narrow the propo- sition submitted to the voters, omitting the words "purchase", "reconstruction", "reauxdelingn. Uimprovement*, and "buildings".
There can be no doubt that ihe Commissioners Court possessed the power to thus limit and restrict the purpose to be voted upon for it is specifically granted in Section 4 of the Act, which is as follows: .. "Sec. 4. The Cosuulssioners Court may submit at any bond election one proposition for the issuance of such bonds which propo- sition may include al1 the nurnoses au'thorieed herein kor which such bonds may be issuedp or it may,, at its option, submit $t any bond --. _
Hon. Charles J. Lie&, Jr., page 4 (WW-769)
election one or more separate =zc.q ::itions for the issuance of such bon&, 9%cn of which separate propositions ray inc.luc'eany one or
such bonds may be issued." (Emphasis added)
The vzd "construction * is of definite and limited meani.ng. In its ordinary sense it meam to build or erect something which theretofore did not eathit;the creation of something new, as distinguished from the repair or improvement of same- thing already existing. Carlson v. Kitsan County, Supreme Court of Washington, 124 Wash.. 155, 213 P. 930, 931: Board of Supervisors of Covinaton Cou*.tv v. State Hiabwav Comr~esio~,, Supreme Court of Missi6sippi, 194 So. 743, 748, 188 Miss. 274. And it has been held that a statute authorizing a town to "constrilct* a town hall can not be construed as authorizing the purchase of a buiPding already constructed. Barker v. Town of Flovd, Supreme Court of New York,, 66 N.Y.S. 216, 2~17, 32 Misc. 474.
An applicable dictionary definition of the word "construction' is the *Process or art of constructing; act of building: erec- tion: act of devising and forming: fabrication: composition; l Webster's New Internat,iona% Dictionary~Second JW.tion, &bridsed. p. 572 (1957).
It IS fundamental that the proceeds of bonds voted for a par- ticular purpose by the people -ozstitute a truet fund which must be expended for the purpose for which the bonds were voted and may not be diverted from such purpose and applied to some other use. Clark, et a% v, Greer. et al, (Civ.App.) 232 S.W.2d 876 (No writ history): Gillham v. CitV of Dallas (Civ.App.) 207 S.W.Zd 978, 983 (Writ ref., n.r.e.): Lewis v. ci+,r of Fort Worth, 89 S.W.Td 975, P26 Tex. 458x Moore v. Coffman, 1.89S.W. 94, affirmed 200 S.W. 374, 109 Tex. 93: blcQuillin. Muni- cinaltornorations. Vol. P5, p. 598, et seq..
It is our opinion that funds derived from the sale of bonds voted by the people for the purpose of "Daying for the con- struction and equipment of a County Jai.?.building, including : HOG. Charles J. Lieck,'JrI, Page 5 (W-769)
the purchase and improvement of the site the-efor" may not be ~g%d for the purchase of an existing structux, a portion of which '.sto be used for jail purposes.
Of course, in the purchase and improvement of a site for the County Jail building the Commissioners Court, in the exercise of its sound discretion and pursuant to the terms of its con- tract with the City of San Antonio, may choose such land as 1' deems proper. The fact that such tract, or tracts, of land at the time of purchase haa thereon an existing structure, or struc- Lllres, would have no bearing upon the authority of the Commis- sioners Court to acquire the land. The Commissioners Court, after the site is acquired, may then utilize or demolish such struc- tures, if any, as it might, in the exercise of its sound discre- tion, determine would be proper in improving the site for the County Jail building. However, it is clear that none of these bond funds could be expended upon such structures.
SUMNARY
Bond proceeds voted for the construction and equipment of a County Jail building, including the purchase and improvement of the site therefor, may not be used to pur- chase an existing structure, a portion of which is to be used for jail purposes, al- though such proceeds may be used to purchase and improve the site for the County Jail building.
Very truly yours,
WILL WILSON
1. HWM-s APPROVED: OPINION-COMMITTEE Howard W. Ways Korgan Nesbitt, Chairman Assistant Charles D. Cabaniss C. Dean Davis Grundy Williams RFXIEMD FOR THE ATTORNEY GRWRRAL By: Leonard Passmore