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                 TH~,ATIY)RNEY                     GICNERAL
                                   OF    -XAS




                               October 18, 1974


    The Honorable William    K. Wilder               Opinion No. H- 425
    County Attorney
    Jackson County                                   Re: The authority of Com-
    115 West Main                                    misrioncrs  Court to order
    Edna, Texas 77957                                referendum to determine
                                                     extent of public sentiment
                                                     for a dam project.

    Dear Mr.   Wilder:

              In 1967 the voters of Jackson County voted in favor of a bond
    issue in support of the Palmetto Bend Dam Project.       Although construc-
    tion is scheduled to start soon, no bonds have been irsued and we
    assume that no other detriment has been incurred as a result of the
    election.

             hi your letter you state that the proposed project has caused
    quite a controversy    in Jackson County and that there is a feeling that
    public opinion has changed significantly since 1967. A delegation to
    Washington was assured by the Chairman of the Subcommittee on Public
    Works of the Hone Appropriations       Committee that, if a county-wide
    referendum revealed that public support no longer existed, steps could be
    initiated to stop funding of the project.

            Based on theee facts    you have asked us five questions:

                         1. Can the Commissioners’     Court authorize a
                    referendum to be held on the question of whether
                    the people of Jackson county now favor or oppose
                    the Project?    The intent of the Citizens Group is
                    not to negate the results of the Bond Election of
                    1967, but merely to determine     public sentiment.


                                                p, 1972
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            The Honorable      William   K.   Wilder    page 2 (H-425)




                                    2. What ir the procedure for the Commissioners’
                               Court   to follow in deciding whether to have the
                               referendum?

                                   3. Does any part of the Texas Election       Code
                               govern the holding of such a referendum?

                                   4. Can county funds be used to hold the referendum?

                                   5. If funding would have a bearing on the Commie-
                               sioners’decision  to hold the referendum,  then may private
                               donationa be used to fund the referendum in whole or in
                               part?

                         We believe your questions     are answered   by reference   to two well
                established principles of law:

                     First, the authority of a commissioners  court is narrowly limited
             to those powers conferred upon it by the Constitution and statutes of the
             State; Canales v, Laughlin, 214 S. W. 2d 451 (Tex. 1948): Attorney General
            ‘Opinions H-16 (1973). H-45 4973), H-51 (1973), H-374 (1974), H-392 (1974).
                                                                                                    i
                        Second, elections may be held only by virtue of some legal authority        !
                and an election held without affirmative statutory authority or contrary to
                                                                                                    i
                a material provision   of the law i4 universally held to be a nullity. Smith v.     ,
                Morton Independent School District,      85 S. W. 2d 853 (Tex. Civ. App. --Amarilld
                1935, writ dism.); Williams v. Clover. 259 S. W. 957 (Tex. Civ. App. --Waco
                1924, no writ).

                         We have searched the Texar statutes and find none which would
                authorize the calling of an election such as the one you 4uggest.

                        Article 717g, V. T. C. S., which authorizer the calling of elections to
                revoke or cancel authority to issue bonds is inapplicable ar you state in your
                first question.  The bonds in question here are those of the Lavaca-Navidad
                River Authority, .not of Jackson County. Therefore,    we are of the opinion
                that the Commissioners    Court of Jackson County lacks legal authority to



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         The Honorable    William   K. Wilder    page 3 J-l-425)
Z..,”


          call for a referendum on the question of whether the people of the county
          now favor or oppose the Project,    We answer your first question in the
          negative.

                   As to your second and third questions, there is no procedure to
          be followed by the Commissioners    Court. No provision in the Texas
          Election Code governa.

                   With reference  to your fourth and fifth questions,   we answer that,
          in our opinion, county funds may not be used to hold the proposed referendum.
          If private funds can be found to finance the referendum in whole, it is our
          opinion that any group of persons may call for it and hold it as an unofficial
          act.   But even with donated funds, the Commissioners        Court has no authority
          to call for the referendum officially.

                                                SUMMARY

                                In the absence of express constitutional or statutory
                           authority, a commissioners     court may not call for a
                           referendum to test the public’s reaction to a proposed
                           dam project.     Public funds cannot be used for such a
                           referendum although an unofficial referendum may be
                           held if financed entirely by private donations.

                                                        -Very      truly    yours,




                                                           Attorney        General   of Texas




              DAVID h-t. KENDALL,    Chairman
              Opinion Committee



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