EATTORNEY GENERAL 

OFTEXAS 

AUSTIN 11. TExas 

September 10, 1949 

Hon. J. M. Wllllams 

County Auditor 

Tarrant County 

Fort Worth, Texas 

Opinion No. V-899 

Re: Validity of an optional 

county road law election 

order without the petition prescribed by law. 

Dear Mr. Wllllams: 

Your request for an opinion relating to Section 2 of the Optional County Road Law of 1947 Is substantially as follows: 

"IS the filing of the petition for 

the election with the Commlssloners Court 

a condition precedent to the exercise of 

power to call the election?" 

Section 2 of Article 6716-1, Vernon's Civil 

Statutes, a portion of the Act commonly referred to as 

the Optional County Road Law of 1947, Is aa folloWa: 

"By a majority vote of its qualified 

voters, any county In this state, at an 

election held for that purpose, may adopt 

the provisions o+ this Act for the constructlon and maintenance of county roads 

and bridges and for the expenditure of the 

County Road and Bridge Fund. Such question 

shall be submitted to the qualified voters 

of such county at a general or special election by the Commissioners Court of' such county, upon petition of a number of qualified 

voters of such county equal to ten (10) per 

cent of the number voting for Governor at 

the last preceding general election in such 

county, not less than thirty (30) days nor 

more than sixty (60) days atter the petition 

la filed with the Comalsslonera Court. The 

ballot for such election shall read: 
Hon. J. M. WIlllams, page 2 (V-899) 

“‘For the Optional County Road Law 

of 1947’ ; or 

“‘Against the Optional County Road 

Law of 1947.’ 

“If there be a favoring vote at such 

election, the provisions of this Act shall 

become effective with the official proclamation of the results of such election. In 

like manner, a county having voted to come 

under the provisions of this Act, may vote 

to ebandon the provisions of this Act, but 

no election on the questions of adopting 

or abandoning the provisions of this Act 

shall be held oftener than every two (2) 

years. ” 

The Commlssloners~ Court, being a court of 

limited jurisdiction, may not adopt the provisions of 

the Optional County Road Law of 1947 except by compllante with such Act. One of the requirements of said 

Act is that an election be held for the purpose of determining If a particular county Is to participate. A 

prerequisite to the election is a petition therefor of 

a number of qualified voters equal to ten percent of 

the number voting for Governor at the last general election. 

“Where a statute authorizes an election on specific questions when petitioned for, the presentation of such a petltlon, signed by the prescribed number of 

qualified voters and containing the proper averments, la a condition precedent 

to holding the election.” 29 C.J.S. 92, 

Elections, Sec. 69. 

In the cs~se of Coffee v. Leib, 107 S.W.2d 406 

(Tex.Clv.App.1937), at page 410, the court stated: 

the presentation of such petition 

1s i iondition precedent to holding the 

election and unless signed by the number 

of qualified electors prescribed by the 

statutes, the election will be void. The 

petition must contain all the averments 

necessary to @ve jurisdiction to call 

the election. 
Hon. J. M Wllllama, page 3 (V-899) 

This office in opinion Ho. 

ber 1, 1940; stated: 

O-2750, dated Octo- 

"If a county comes within the provlslons of Article 4478, this department construes that article to mean that a petition 

Is a necessary prerequisite to the calling 

of an election for the purpose of voting 

bonds for the purposes enumerated in this 

statute." 

Inasmuch as the statute expressly requires the 

submlsslon of a petition for an election, It Is our oplnion that the clear provisions of the Act makes the filing 

of such petition a condition precedent for such election. 

SUMMARY 

The filing of a petition of a number 

of qualified voters of a county equal to 

ten per cent of the number voting for Qovernor in the preceding general election IS 

a condition precedent to the exercise of 

power to call an election pursuant to the 

Optional County Road Law of 1947. Art. 

6716-1, V.C.S. 

Your8 very truly, 

ATTORHBY Q-AL OF TECAS 

BW:eb:mw 

Burnell Waldrep 

/ 

\ 

Assistant 

APPROVED