            HE   AITORNTEY            GENERAL
                      OFTEXAS
                     AUSTIN 11.-rExan


                      March   9, 1959

Honorable Dorsey B. Hardeman, Chairman
State Affairs Committee
Senate of Texas
Austin, Texas
                              Opinion No. W-568
                                Re:   Constitutlonallty of
                                      Ii.B. No. 179, 56th
                                      Leg., requiring the
                                      Commissioners Court
                                      of Tarrant County to
                                      submit the Optional
                                      County Road Law to
                                      the vote of the quali-
                                      fied voters of the
Dear Senator Hardeman:                County.
        Your request for an opinion as to the constitutlon-
allty of House Bill No. 179 of the 56th Legislature is sub-
stantially as follows:
             Is House Bill No. 179, 56th~~Legisla-
        ture, requiring the Commissioners Court of
        Tarrant County to submit the Optional Coun-
        ty Road Law to the vote of the qualified
        voters of the county, constitutionally val-
        id?
        Section 2 of Senate Bill No. 226, Acts of the 50th
Legislature, Regular Session, 1947 (codified as Article
6716-1, Vernon's Civil Statutes), known as the Optional
County Road Law of 1947, reads in part as follows:
            'By a majority vote of Its qualified
       voters, any county in this state, at an
       election held for that purpose, may adopt
       the provisions of this Act for the con-
       struction and maintenance of county roads
       and bridges and for ~the expenditure of the
       County Road and Bridge Fund. Such question
Honorable Dorsey B. Hardeman, page 2, (~~-568)


        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 coun-
        ty, not less than thirty (30) days nor more
        than sixty (60) days after the petition is
        filed with the Commissioners Court. . . .'
        The Optional County Road Law of 1947, as seen from
these'portions, Is a general law which is available to any
county conforming to its adoptive procedure. It relates
both to county road construction and to maintenance, and
not merely to the latter.
        Article III, Section 56, of the Constitution of
the State of Texas provides, among other things, as fol-
lows:
             "The Legislature shall not, except as
        otherwise provided in this Constitution,
        pass any local or special law authorizing:
             I,
              . . .
             "Regulating the affairs of counties,
        cities, towns, wards or school districts;
             ,t
              . . .
            'Authorlzing,the laying out, opening,
       altering or maintaining of roads, highways,
       streets or alleys;
            II
             . . .
            "Creating offices, or prescribing the
       powers and duties of officers, in counties,
       cities, towns, election or school districts;
            II
             . . .
             "And in all other cases where a general
        law can be made applicable, no local or spe-
        cial law shall be enacted; . . .'
Honorable Dorsey B. Hardeman, page 3, (~~-568)


        House Bill No. 179, the subject of this opinion,
Is clearly intended as a local and special law pertain-
ing only to Tarrant County, as stated in its caption,
which reads as follows:
            "AN ACT requiring the Commissioners
        Court of~Tarrant County to submit the
        Optional County Road Law to the vote of
        the people; and declaring an emergency.'
        As a local and special law, House Bill No. 179
by requiring actions by the Commissioners Court of Tar-
rant County attempts to regulate the affairs of that
county, although such legislative action is prohibited
by the above Constitutional provisions.
        Rouse Bill No.179 purports to avoid this consti-
tutional prohibition by reciting in Section 4, in part,
as follows:
            "The fact that Section 9, Article
        VIII, of the Constitution, gives the
        Legislature the power to enact local
        laws regarding the maintenance of pub-
        lic roads and highways and the need
        for local roads and highways in Tarrant
        County create an emergency $nd an lmpera-
        tive public necessity . .,.
        However, such mere recitation cannot establish
the nature of an enactment and thereby make the Act valid
under Section 9 of Article VIII of the Constitut,on. Even
if House Bill No. 179 were to be a local road law, it
would have to be limited to the maintenance of public roads
and highways to be valid under Section 9 of Article VIII.
House Bill No. 179 Is not a local road law for such mainte-
nance, and, by its very language, Is only an attempt to
force the Commissioners Court to submit at an election the
proposition of whether or not to adopt the Optional County
Road Law of 1947, which itself Is not limited to such maln-
tenance. Thus, House Bill No. 179 is not authorized by
Section 9 of Article VIII and is merely an attempt to regu-
late the affairs of a county and therefore unconstitutional.
        Attention is called further to Opinion No. V-899 of
the Attorney General, dated September 10, 1949, and addressed
to the County Auditor of Tarrant County. That Opinion stet-
ed as follows:
                                                          -..




Honorable Dorsey B. Hardeman, page 4, (W-568)


             "The filing of a petition of a
         number of qualified voters of a coun-
         ty equal to ten per cent of the num-
         ber voting for Governor in the preced-
         ing general election is a condition
         precedent to the exercise of power to
         call an election pursuant to the Op-
         tional County Road Law of 1947. Art.
         6716-1, V.C.S."
        Therefore, under the provisions of the Optional
County Road Law itself, the act of the Commissioners
Court sought by House Bill No. 179 would not be suffi-
cient to secure a valid adoption of the Optional County
Road Law by the voters of Tarrant County.
                        SUMMARY
            House Bill No. 179, 56th Legis-
            lature, Regular Session, 1959,
            requiring the Commissioners
            Court of Tarrant County to sub-
            mit the Optional County Road Law
            to the vote of the qualified vot-
            ers of the County, is unconstitu-
            tional, being In violation of
            Section 56, Article III of the
            Constitution of Texas.
                              Very truly yours,
                              WILL WILSON
                              Attorney General of Texas



                              BY
                                   Assistant
CCC:rm
Honorable Dorsey B. Hardeman, page 5, (~~-568)


APPROVED:
OPINION COMMITTEE
Geo . P. Blackburn, Chairman
J. Arthur Sandlln
Jack Goodman
Riley Eugene Fletcher
Robert T. Lewis
REVLEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert
