                     ,,
                          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




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