Case Information
*1 ,, AUSTIN. TEXAS
May 10, Hon. E. V. Spence, Chairman
Board of Water Engineers Opinion No.~V-564
Austin, Texas ~'
Re: Authority of Board of Directors,of Water 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
"Organization of Hares County Water Control"and Improvement District No.13 was authorized by 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 wasp or anlzed by your Board by orders entered November 2,~ 194 % . Although your letter is subject to the,'interpretation that the District is operating through the ,temporary Board of Dirgctors:ap- pointed bv the, Board of,Water Engineers, we understand that ~the.DSstrict has been confirmed as required by Article 7880-23, V.. C.. S., and that it is presently operating through permanent directors dulyklected and
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 resignation of one director. The Legislature has 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 appointment by 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 jurisdiction of 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 ,held by 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 'elected shall 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 II 38).”
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,vacant places, the remaining members are directed to call a special election to fill the vacancies and *3 Hon. E. V. Spence - Page 3 - V-564
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.s a poli- tical matter and can only exist by virtue of some
authority conferred by law. An election held without .afflzvnative constituional or stat,utory authority is well recognized ,as being 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 $he,reof,
;.I to hold,an-eleation for~any purpose.
: Such action may be taken only. by vir-
tueof some constitutional or statu-
tory enactment which expressly.or by
direct,impllcatlon authorizes the par-
ticular election. The rule Is firmly ,established that anelection held without authority of law is void, even though it
Is fairly and honestly conducted~."
See, also, 29.C.Z.S. 90; 16 Tex. Jur. 18; Stephens v.
Dodd;~(Civ. App.), 243 S. W., 710; Countz v. Mitchell (Corn. App.;.,opinlon.adopted bg.Sup. Ct;).38 S, W. (2) 770, 773,. 774: WIllLams ,v,. Glover (Clv. Ap . 1259 S.W. 957; ~Coffee v. Lieb (,Civ..App.) 107.,S.,W.': 2 ,.406, 409; i,l
Smith v. Morton Independent S&ool~Distrlct (Civ. App.,
writ dismiplsed) a5 S.W. (2) 853.
The Legislature has not provided means by elec- tion for .filling vacancies occurring In the number out- .lined in your letter. On the contrary, it has expressly considered the~.matter and has provrded that such vacan- s&:11 be filled by appolntnient. cies
,..We ha%been advised that the District in. ques- tion ,is hopel.ess.ly~deadlocked on a&l matters, two~for and two against any decIsiona required bg the Board. Under these clrcumstsnces,:~it is very dlfflcult .for,us.to, say that the remainln~members of the Board, as$u@ng that they can agree to a special election, have no,auth?rity
to call such an election, to be followed by appoint- ment under Art. 7880-38 'of~the person receiving the largest vote. Nevertheless, the authorities are 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 circumstances to 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 Improvement Dls- 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: