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DAN MORALES September 29,1992
AlT”RSEY
GENERAL
Honorable Dwight P. McDaniel Opinion No. DM-172
Sabine County Attorney
P. 0. Box 1783 Re: Whether a petition calling for a
Hemphill, Texas 75948 county election to adopt the Optional
County Road System that contains
provisions not authorized under V.T.C.S.
article 6702-1, chapter 3, subchapter C,
invalidates the petition (RQ-80)
Dear Mr. McDaniel:
Sabine County asked for the attorney general’s opinion whether a petition
calling for a county election to adopt the Option& County Road System, V.T.C.S.
article 6702-1, chapter 3, subchapter C, is valid where the petition contains
provisions in addition to those authorized by subchapter C and provisions contrary
to subchapter C, and whether such a petition should be presented to the county
voters. We conclude that a petition for election containing material modifications
of the optional County Road System of subchapter C is invalid. and not a proper
predicate for calling an election.
Chapter 3 of V.T.C.S. article 6702-l provides three methods for the
administration of county roads. Chapter 3, subchapter A provides that the
commissioners court members may act as ex officio road commissioners of their
respective precincts with responsibility for road construction, maintenance, and
supervision under rules adopted by the commissioners court. V.T.C.S. art. 6702-l.
90 3.001- .004. Sabine County has previously adopted subchapter A for the
administration of Sabine County roads. Subchapter B authorizes counties to employ
one or more road commissioners or superintendents to control or supervise the
maintenance or construction of county roads on a county-wide or precinct-wide
basis. Id. 36 3.101- .lW. Subchapter C, also known as the Optional County Road
System, provides that county roads may be maintained on a county-wide basis by a
county road department, under the supervision of the county road engineer or
county road administrator. Id. 03 3.201- 213.
Subchapter C, states that a county, by a majority of the county’s qualified
voters, may adopt the OptionaKCounty Road System. Id. 45 3.201(a), (c). The
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Honorable Dwight P. McDaniel - Page 2 (1~1-172)
Optional County Road System provides that county roads shall be administered on a
county-wide basis, rather than a precinct-by-precinct basis, by the county road
department. Id. 05 3.203 - 204. The county road department is responsible for
construction and maintenance of county roads under the supervision of the county
road engineer, who is appointed by the county commissioners, and who acts as chief
executive officer of the department. Id. 00 3202 - 204,3208(a), (b). The county
road engineer must be a licensed professional engineec if a professional engineer is
not available, the coullty commissioners may employ a county road administrator.
Id. 0 3204. The optional County Road System must be submitted to the county
voters for approval if ten percent of the number voting for governor at the last
county general election petition for an election on the issue. Id. 0 3.201(b).
Your question concerns a proposed petition to be submitted to the Sabine
County Commissioners Court calling for a county election for the adoption of a
3mdifkd unit road t4ystem.q This petition calls for the adoption of the Optional
County Road System, subject to the following modifications: A county road
superintendent would be appointi, all Sabine County road maintenance
equipment would be sold; the road superintendent would be responsrble for putting
out bids for road maintenance to private contractors, subject to the approval of the
Sabine County Commissi oners Court, and supervising the work of the private
contractors; the salaries of county commissioners would be rolled-back to the 1972
level of $406.00 per month with expenses of S12S.00 per mot@ and the
commissioners court would meet at least two times a month You ask whether the
proposed modi&ations of subchapter C are valid, and whether the petition is valid.
The right to hold an election is dependent on authority conferred by law.
Countz v. Mtlchell, 38 S.W.2d 770,774 (Tex. 1931); Ellis v. State, 383 S.WL?d635.636
vex. Civ. App.-Dallas 1964, no writ); Smith v. Morton Indep. Sch. Dkt., 85 S.W.2d
853, 857 (Tex Civ. App.-Amarillo 1935, writ dismissed w.0.j.); WJliruns v. Clover.
259 S.W. 957,960 (Tex. Civ. App.-Waco 1924, no writ); Trurtees of Itip. Sch. L&t.
No. 57~. Elbon, 223 S.W. 1039, 1040 (Tex. Civ. App.-Fort Worth 1920, no writ); see
ako Cb& v. L&b, 107 S.W.2d 406, 409 (Tex. Civ. App.-Eastland 1937, no writ)
(holding that where the constitution or statutes prescrii conditions for the holding
of an election, there must be substantiaJ compliance witb the conditions). In Smith,
the court stated: “In our form of government elections must be held by virtue of
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Honorable Dwight P. McDaniel - Page 3 W-172)
some legal authority, and an &r&n held withwt @native starutoty autho@v or
cofttmytaamatcrialprovision ofthehvistt&maUy~to&atttdUty~ 85 S.W2d
at 857 (emphasis added). The methods for county road administration are limited
to those methods authorized by statute or other act of the legislature. See canalcr v.
L.aughh, 214 S.W2.d 451,454-57 (Tex. lw8) (holding that there was no statutory
authority for office of “county road unit administrative offi&‘); Guema v. R&guer,
239 S.W2d91S,91&20 (Tez Civ. App.-San Antonio 195& no writ) (holding that
there was no statutory authority for the office of “ex 05cio road superintendent”).
The “modified unit road system” of the proposed petition materially alters
the scheme of subchapter C. The proposed petition contains matters not authorized
by subchapter C (such as tbe requirements that all county road maintenance
equipment be sold, all county road work be performed by private contractors,
county commissioners’ salaries be rolled-back, etc.) and a proposal that is contrary
to subchapter C (the requirement that a road superintendent be appointed, rather
than a county road engineer or administrator). Because the proposed petition
materially alters the scheme of subchapter C, and because there is no other legal
basis for holding an election on the various proposed “modii%ations,”we conclude
that the petition is invalid.
SUMMARY
Chapter 3, subchapter C of Y.T.CS. article 6702-1, also
known as the Optional County Road System, provides a scheme
for administration of county roads which may be adopted
pursuant to a county election in conformance with subchapter C.
However, an election may be held only in conformance with the
statutory authorization for the election. Moreover, the statutory
methods provided for road administration may not be altered by
county election. Therefore, a petition calling for a county
election under subchapter C but which materially alters the
scheme of subchapter C is invalid and need not be presented to
the voters.
DAN MORALES
Attorney General of Texas
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Honorable Dwight P. McDaniel - Page 4 (IS!-172)
WIJL PRYOR
First Assistant Attorney General
MARYKBUER
Deputy Assistant Attorney General
RBNEAHlcIcs
Special Assistant Attorney General
MADELEU’JE B. JOHNSON
Chair, Opinion Committee
Prepared by Geoffrey HeMessey
Assistant Attorney General
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