## 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 CountyRoadLawof 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, aportion of the Act commonlyreferred to as the Optional County RoadLawof 1947, Is aa folloWa:

"Byamajority vote of its qualified voters, any county In this state, at an election held for that purpose, mayadopt the provisions o+ this Act for the constructlon andmaintenance of county roads andbridges and for the expenditure of the County RoadandBridge 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 anumberof qualified voters of such county equal to ten (10) per cent of the numbervoting 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 RoadLaw of 1947’ ; or

“‘Against the Optional County Road Lawof 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, mayvote 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. ” TheCommlssloners~ Court, being a court of limited jurisdiction, maynot adopt the provisions of the Optional County RoadLawof 1947 except by compllante with such Act. Oneof the requirements of said Act is that anelection be held for the purpose of determining If a particular county Is to participate. A prerequisite to the election is apetition therefor of anumberof qualified voters equal to ten percent of the numbervoting for Governor at the last general election. “Wherea statute authorizes anelection onspecific questions whenpetitioned for, the presentation of such a petltlon, signed by the prescribed numberof qualified voters andcontaining the proper averments, la a condition precedent to holding the election.” 29C.J.S. 92, Elections, Sec. 69. In the cs~seof 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 

### meanthat apetition Is a necessary prerequisite to the calling of anelection for the purpose of voting bonds for the purposes enumerated in this statute." Inasmuchas the statute expressly requires the submlsslon of apetition for an election, It Is our oplnion that the clear provisions of the Act makesthe filing of such petition a condition precedent for such election. SUMMARY Thefiling of apetition of a number of qualified voters of a county equal to ten per cent of the numbervoting for Qovernor in the preceding general election IS a condition precedent to the exercise of power to call anelection pursuant to the Optional County RoadLawof 1947. Art. 6716-1, V.C.S.
Your8 very truly, ATTORHBY

Q-AL OFTECAS

BW:eb:mw Burnell Waldrep / \ Assistant

APPROVED