          EATTORNEY                            GENERAL
                     OFTEXAS
                     AUSTIN      11.   TExas




                              September 10, 1949

Hon. J. M. Wllllams                Opinion No. V-899
County Auditor
Tarrant County                     Re: Validity  of an optional
Fort Worth, Texas                      county road law election
                                       order without the peti-
                                       tion prescribed  by law.
Dear Mr. Wllllams:
           Your request         for an opinion relating to Sec-
tion 2 of the Optional          County Road Law of 1947 Is sub-
stantially  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 con-
     structlon    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 elec-
     tion by the Commissioners Court of' such coun-
     ty, 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    procla-
     mation 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 compll-
ante with such Act.     One of the requirements of said
Act is that an election     be held for the purpose of de-
termining 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 elec-
tion.
            “Where a statute authorizes    an elec-
     tion on specific    questions when petition-
     ed for, the presentation     of such a petl-
     tlon, signed by the prescribed     number of
     qualified   voters and containing the pro-
     per 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. O-2750,        dated Octo-
ber 1, 1940; stated:
           "If a county comes within the provl-
     slons of Article 4478, this department con-
     strues 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 opln-
ion 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 Qov-
     ernor 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
                                                                       /


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