Can a Texas county vote to adopt a modified version of the Optional County Road System?

Plain-English summary

Sabine County wanted to change how it ran its roads. The legislature had laid out three ways a county could administer its roads under article 6702-1 of the civil statutes: the commissioners could each oversee roads in their own precinct (subchapter A), the county could hire road commissioners or superintendents (subchapter B), or the county could run a single county-wide road department headed by a licensed county road engineer, called the Optional County Road System (subchapter C). Subchapter C had to be adopted by a majority vote of the county's voters, and voters could force an election on it by petition.

A petition circulating in Sabine County asked for an election to adopt the Optional County Road System, but with a string of changes bolted on. Instead of the county road engineer the statute called for, it would appoint a "road superintendent." It would sell off all the county's road maintenance equipment, hand road work to private contractors chosen by bid, roll the commissioners' salaries back to the 1972 figure (about $406 a month plus a small expense allowance), and require the commissioners court to meet at least twice a month. The county attorney asked the Attorney General whether this "modified unit road system" petition was valid and whether it had to go to the voters.

The Attorney General concluded it was invalid. The right to hold an election depends on authority granted by law, and Texas courts had long held that an election held without statutory authority, or contrary to a material statutory provision, is a nullity. The statutory methods for running county roads were limited to those the legislature had authorized, and they could not be rewritten by a local vote. Because the petition materially altered the subchapter C scheme, adding requirements the statute did not authorize and substituting a road superintendent for the required county road engineer, and because there was no other legal basis for an election on those modifications, the petition was not a proper basis for calling an election and the commissioners court did not have to present it to the voters.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The county road administration statutes cited here (former V.T.C.S. article 6702-1) have since been recodified into the Transportation Code, so the article and section numbers in this opinion no longer match current law.

Background and statutory framework

Chapter 3 of V.T.C.S. article 6702-1 provided three methods for the administration of county roads. Subchapter A let the members of the commissioners court act as ex officio road commissioners for their respective precincts, responsible for road construction, maintenance, and supervision under rules the commissioners court adopted; Sabine County had previously adopted subchapter A. Subchapter B let counties employ one or more road commissioners or superintendents to control or supervise road maintenance or construction on a county-wide or precinct-wide basis. Subchapter C, the Optional County Road System, provided that county roads could be maintained on a county-wide basis by a county road department under the supervision of a county road engineer or county road administrator.

Under subchapter C, a county could adopt the Optional County Road System by a majority of its qualified voters. The system put road administration on a county-wide basis rather than precinct-by-precinct, run by a county road department whose chief executive officer was the county road engineer, appointed by the commissioners. The road engineer had to be a licensed professional engineer; if one was not available, the commissioners could employ a county road administrator instead. The system had to be submitted to the voters if a petition signed by ten percent of the number who voted for governor at the last county general election called for an election.

The proposed Sabine County petition called for adoption of the Optional County Road System "subject to" several modifications: appointing a county road superintendent, selling all county road maintenance equipment, having the superintendent put road maintenance out for private bid (subject to commissioners court approval) and supervise the contractors, rolling the commissioners' salaries back to the 1972 level of $406 per month plus $125 in monthly expenses, and requiring the commissioners court to meet at least twice a month.

The Attorney General framed the controlling rule from a line of Texas cases: the right to hold an election depends on authority conferred by law, and where the constitution or statutes prescribe conditions for holding an election, there must be substantial compliance with those conditions. The opinion quoted Smith v. Morton Indep. Sch. Dist., noting that an election held "without affirmative statutory authority or contrary to a material provision of the law is usually fatal to its validity." The opinion added that the methods for county road administration were limited to those the legislature authorized, citing cases that found no statutory authority for offices like a "county road unit administrative officer" (Canales v. Laughlin) or an "ex officio road superintendent" (Guerra v. Rodriguez). Because the proposed "modified unit road system" added matters subchapter C did not authorize and substituted a road superintendent for the county road engineer the statute required, it materially altered the subchapter C scheme. With no other legal basis for an election on the modifications, the Attorney General concluded the petition was invalid.

Common questions

Could the petition force the county to hold the election?
No. The opinion concluded the petition was invalid because it materially altered the statutory scheme of subchapter C, so it was not a proper basis for calling an election and the commissioners court did not have to present it to the voters.

What made the petition a "material" alteration rather than a minor tweak?
It substituted a road superintendent for the county road engineer that subchapter C required, and it added requirements the statute did not authorize at all, such as selling the county's road equipment, contracting road work to private bidders, and rolling back commissioners' salaries. The opinion treated these as changes to the statutory scheme itself, not details left to local choice.

Could a county invent its own road administration system by popular vote?
No. The opinion explained that the methods for administering county roads were limited to those the legislature had authorized, and that the statutory methods could not be altered by county election. Texas courts had refused to recognize road offices the legislature had not created.

Did the county have to do anything with the petition?
The opinion concluded the petition need not be presented to the voters. An election can be held only in conformance with the statutory authorization for it.

Citations

• V.T.C.S. article 6702-1, chapter 3, subchapter C (Optional County Road System), §§ 3.201-.213
• V.T.C.S. article 6702-1, §§ 3.001-.004 (subchapter A); §§ 3.101-.109 (subchapter B)
• Countz v. Mitchell, 38 S.W.2d 770 (Tex. 1931)
• Ellis v. State, 383 S.W.2d 635 (Tex. Civ. App.—Dallas 1964, no writ)
• Smith v. Morton Indep. Sch. Dist., 85 S.W.2d 853 (Tex. Civ. App.—Amarillo 1935, writ dism'd w.o.j.)
• Williams v. Glover, 259 S.W. 957 (Tex. Civ. App.—Waco 1924, no writ)
• Trustees of Indep. Sch. Dist. No. 57 v. Elbon, 223 S.W. 1039 (Tex. Civ. App.—Fort Worth 1920, no writ)
• Coffee v. Lieb, 107 S.W.2d 406 (Tex. Civ. App.—Eastland 1937, no writ)
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Guerra v. Rodriguez, 239 S.W.2d 915 (Tex. Civ. App.—San Antonio 1951, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0172
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0172.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

September 29, 1992

Honorable Dwight P. McDaniel
Sabine County Attorney
P. O. Box 1783
Hemphill, Texas 75948

Opinion No. DM-172

Re: Whether a petition calling for a 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 Optional 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 6702-1 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. 6702-1, §§ 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. §§ 3.101-.109. 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. §§ 3.201-.213.

Subchapter C states that a county, by a majority of the county's qualified voters, may adopt the Optional County Road System. Id. §§ 3.201(a), (c). The 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. §§ 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. §§ 3.202-.204, 3.208(a), (b). The county road engineer must be a licensed professional engineer; if a professional engineer is not available, the county commissioners may employ a county road administrator. Id. § 3.204. 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. § 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 "modified unit road system." This petition calls for the adoption of the Optional County Road System, subject to the following modifications: A county road superintendent would be appointed; all Sabine County road maintenance equipment would be sold; the road superintendent would be responsible for putting out bids for road maintenance to private contractors, subject to the approval of the Sabine County Commissioners 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 $125.00 per month; and the commissioners court would meet at least two times a month. You ask whether the proposed modifications 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. Mitchell, 38 S.W.2d 770, 774 (Tex. 1931); Ellis v. State, 383 S.W.2d 635, 636 (Tex. Civ. App.—Dallas 1964, no writ); Smith v. Morton Indep. Sch. Dist., 85 S.W.2d 853, 857 (Tex. Civ. App.—Amarillo 1935, writ dism'd w.o.j.); Williams v. Glover, 259 S.W. 957, 960 (Tex. Civ. App.—Waco 1924, no writ); Trustees of Indep. Sch. Dist. No. 57 v. Elbon, 223 S.W. 1039, 1040 (Tex. Civ. App.—Fort Worth 1920, no writ); see also Coffee v. Lieb, 107 S.W.2d 406, 409 (Tex. Civ. App.—Eastland 1937, no writ) (holding that where the constitution or statutes prescribe conditions for the holding of an election, there must be substantial compliance with the conditions). In Smith, the court stated: "In our form of government elections must be held by virtue of some legal authority, and an election held without affirmative statutory authority or contrary to a material provision of the law is usually fatal to its validity." 85 S.W.2d 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 Canales v. Laughlin, 214 S.W.2d 451, 454-57 (Tex. 1948) (holding that there was no statutory authority for office of "county road unit administrative officer"); Guerra v. Rodriguez, 239 S.W.2d 915, 918-20 (Tex. Civ. App.—San Antonio 1951, no writ) (holding that there was no statutory authority for the office of "ex officio 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 the 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 "modifications," we conclude that the petition is invalid.

SUMMARY

Chapter 3, subchapter C of V.T.C.S. 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

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Geoffrey Hennessey
Assistant Attorney General