Untitled Texas Attorney General Opinion ( 1948 )

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AUSTIN. TEXAS
May 10, 1948
Hon. E. V. Spence, Chairman
Board of Water Engineers
Austin, Texas ~' Opinion No.~V-564
Re: Authority of Board of
Directors,ofWater Con-
trol & Imgrovement~Dis-
trict to call special
election to fill vacancy
occurrQig on the Board.
DearSir:
Your letter of April 20, ~1948, requests our
opinion on the following matter:
I
"Organizationof Hares County Water
Control"andImprovementDistrict No.13
was authorizedby this-Board and five
temporary directors designated.
"The Board now has four members. It
is unable'to agree as to the fifth
member. The question is, can the
Board hold a special election under
the Laws of the State of Texas to
place a fifth man on the Board?"
The'District waspor anlzed by your Board by
ordersentered November 2,~194% . Although your letter
is subject to the,'interpretationthat the District is
operating through the ,temporaryBoard of Dirgctors:ap-
pointed bv the,Board of,Water Engineers, we understand
that ~the.DSstricthas been confirmed as required by
Article 7880-23, V..C..S., and that it is presently
operating through permanent directors dulyklected and
Hon. E. V. Spence - Page 2 - v-564
qualified as required by Article 7880-25. The ques-
tion Is whether a special election may be held to
fill a vacancy on the permanent Board created by the
resignationof one director. The Legislaturehas
made Provision for this situation in Article 7880-38,
which provides as follows:
"All vacancies In the office of the
director and other officers shall be
filled by appointmentby the board of
directors for the unexpired term. In
the event the number of directors shall
be reduced to less than three then the
remaining director or directors shall
call a special election to fill said va-
cancies, and if they shall fall to do so
within fifteen days after such vacancies
occur the judge of any district court
withinthe jurisdictionof which any part
of such district may be situated, upon
petition of any voter or creditor there-
of may order the holding of such election,
fixing the date thereof, and order the
publication of notice thereof by any
county sheriff and name the officers to
hold such election. In any such election
,heldby order of a district judge the re-
turns of an election shall be made to and
filed in the office of the clerk of the
court and he shall declare the result
thereof. The officers'electedshall fur-
nish bond and qualify in the manner pro-
vided herein with reference to .directors
first anwointed for a district upon its
organization: (A&s 1925, 39th Leg. Ch.25,
p. 96 II38).”
The matter of filling vacancies is fully and clear-
ly covered by the above article. In the event that there are
less than three vacant places, the remaining members of the
Board are directed to fill the vacant place or places for the
unexpired termor terms by appointment. In the event there
are as many as three,vacantplaces, the remaining members are
directed to call a special election to fill the vacancies and
Hon. E. V. Spence - Page 3 - V-564 499
lf.they fall to do.so within 15 days after the va- ,~
cancies occur, provision is made under which the
District Judge may call the election.
The authority to hold elect1ons.i.sa poli-
tical matter and can only exist by virtue of some
authority conferred by law. An election held without
constituionalor stat,utory
.afflzvnative authority is
well recognized,asbeing a null$ty. The~rule is
stated.ln 18 Am,.Jur., .pa.ge
~243,as follows:
"There is no.&nherentrlght in the
people,;whetherof the state.or,of
some partlcular~subdivision$he,reof,
;.I to hold,an-eleationfor~any purpose.
: Such action may be taken only.by vir-
tueof some constitutionalor statu-
tory enactment which expressly.or by
direct,impllcatlonauthorizes the par-
ticular election. The rule Is firmly
,establishedthat anelection held without
authority of law is void, even though it
Is fairly and honestly conducted~."
See, also, 29.C.Z.S. 90; 16 Tex. Jur. 18; Stephens v.
Dodd;~(Civ.App.), 243 S. W.,710; Countz v. Mitchell
(Corn.App.;.,opinlon.adoptedbg.Sup. Ct;).38 S, W. (2)
770, 773,.774: WIllLams ,v,.
Glover (Clv. Ap . 1259 S.W.
957; ~Coffeev. Lieb (,Civ..App.) 107.,S.,W.':
2 ,.406,
i,l 409;
Smith v. Morton IndependentS&ool~Distrlct (Civ. App.,
writ dismiplsed)a5 S.W. (2) 853.
The Legislaturehas not provided means by elec-
tion for .fillingvacancies occurring In the number out-
.linedin your letter. On the contrary, it has expressly
consideredthe~.matter and has provrded that such vacan-
cies s&:11 be filled by appolntnient.
,..Weha%been advised that the District in.ques-
tion ,is hopel.ess.ly~deadlockedon a&l matters, two~for and
two against any decIsiona required bg the Board. Under
these clrcumstsnces,:~it is very dlfflcult.for,us.to,say
that the remainln~members of the Board, as$u@ng that
they can agree to a special election,have no,auth?rity
500 Hon. E. V. Spence - Page 4 - v-564
to call such an election, to be followed by appoint-
ment under Art. 7880-38'of~theperson receiving the
largest vote. Nevertheless,the authoritiesare
clear as to the effect of such an election and it is
our opinion that neither the special election nor the
expense incidental thereto would be authorized. No
doubt the remaining members of the Board may test the
public will by 8ome sort of straw vote provided it is
free of expense to the District, but this is not the
question. What we have been called on to decide and
we do decide is that there is no authority under the
present circumstancesto call a special election
under the laws of the State of Texas. A special
election under Art. 7880-38 would only be valid and
authorized If two more vacancies occurred on the Board,
in which case the remaining two members would come
squarely within the election provisions of Art. 7880-38.
SUMMARY
The remaining four members of the
five member board of directors of Harris
County Water Control and ImprovementDls-
trict No. 13 have no authority to call a
special election to fill the fifth place.
Article 7880-38,v. c. s.
Yours very truly
ATTORNEYGENEFUUOFTEUS
BDP:bt
APPROVED: