Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
April 15, 1981
MARK WHITE
Attorney General
Honorable Mike Driscoll Opinion No. MW-3 2 4
Harris County Attorney
1001 Preston, Suite 634 Re: Notice requirements for
Houston, Texas ‘7’7002 changing boundary lines of election
precinct under article 2.04 of the
Election Code
Dear Mr. Driscoll:
On August 25, 1980, the Harris County Commissioners Court approved
changes in the boundaries of certain county election precincts. Written
notices identifying the precincts to be considered by their numbers and the
date, hour, and place of the meeting were mailed to the parties designated
in article 2.04, subdivision 6(b), of the Election Code. At a subsequent
meeting held on September 22, 1980, the court “ratified and confirmed” its
August 25 order as to several precincts, as there was doubt as to whether
the notices regarding these precincts had been timely given. The questions
asked by your predecessor are essentially as follows:
1. Must the commissioners court give written notices
of a meeting at which changes in the boundaries
of county election precincts will be considered?
If so, may the notice merely state that a boundary
change will be considered, or must it also include
the nature of the proposed change and/or an
accurate description of the boundaries of the
proposed precinct?
2. Were the notices advising recipients of the August
25 meeting timely given if deposited in the mail
on August 18?
3. If the notices were timely given as to some
precincts but not others, are the changes in the
boundaries of the former valid and those in the
latter void?
4. Assuming that notices as to some precincts were
not timely given, did the court’s subsequent
ratification and confirmation of its August 25
order validate those boundary changes?
P- 1040
Honorable Mike Driscoll - Page Two (MI- 324)
5. If some or all of the boundary changes are void, may the
court hold another meeting before the beginning of the
upcoming voting year in order to change the boundaries of
those precincts?
Subdivision 6 was added to article 2.04 of the Election Code in 1979. Acts 1979,
66th Leg., ch. 545, §l, at 1138. It provides in pertinent part as follows:
(b) If a change in the boundary of one or more county
election precincts will be considered at a meeting of the
Commissioners Court, not later than seven days before the
meeting, the Commissioners Court shall give written notice to
each county chairman of a political party and to the affected
precinct chairman and presiding precinct election judges of the
proposed change, identifying the precincts to be considered and
the date, place, and hour of the meeting.
. . . .
(f) Failure to deliver notice as required by this subdivision
nullifies the boundary change as to which notice was required.
In a brief submitted to this office, it is argued that by including the phrase “of
the proposed change” in subdivision 6(b), the legislature indicated its intent that,
besides identifying the precincts to be considered and the date, hour, and place of the
meeting, notices must also provide specifics regarding the nature of any proposed
boundary change. However, we think this argument interprets subdivision 6(b) far too
literally. It is well-settled that the primary objective of statutory construction is to
ascertain and give effect to the legislature’s intent. Jessen Associates, Inc. v. Bullock,
531 S.W.2d 598 (Tex. 1957). A statute will not be construed so literally as to ascribe to
the legislature an intention to do something impractical or unreasonable if it is
reasonably susceptible of a construction which would avoid that result. Anderson v.
Penix, 161 S.W.2d 455 (Tex. 1942); Ringo v. Gulf States Utilities Co., 569 S.W.2d 31
(Tex. Civ. App. - Beaumont 1978, writ ref’d n.r.e.).
The argument set out above would inevitably lead to unforeseen and unintended
consequences. In order for a commissioners court to identify a proposed boundary
change in a notice, it would have to have some specific proposal in mind. In many
instances this will be the case, and the meeting will be called for the purpose of
considering that proposaL However, a meeting may well be called for the purpose of
considering whether any boundary changes are even necessary. Thus, the most obvious
shortcoming of this argument is that in an instance such as this, in order to hold the
meeting, a commissioners court would have to identify some specific boundary change
in its notices even though it wished to hold the meeting to determine whether a change
was even needed. The legislature could not have intended subdivision 6(b) to be
construed as requiring such a meaningless gesture.
For these reasons, we conclude that the notices required by subdivision 6(b) need
only contain the information specifically mentioned therein, i&., they must identify
P. 1041
.
Honorable Mike Driscoll - Page Three (MW- 324)
the precincts which might be involved in a boundary change and the date, place, and
hour of the meeting at which a change will be considered.
You next ask whether notices advising the recipients of the August 25 meeting
were timely given if deposited in the mail on August 18. Subdivision 6(d) of article 2.04
provides that:
Notice required by this subdivison may be delivered by regular
first-class mail or by any other method. Notice delivered by
mail is considered delivered when deposited in the mail.
It is our understanding that the notices in question were delivered by mail; therefore,
if they were mailed on August 18, they must be deemed to have been delivered on that
date. The only question is whether this satisfies the requirements of subdivision 6(b),
which states that written notice must be given to the designated parties “not later
than seven days before the meeting.”
In answering this question, we may look to the Code Construction Act, article
5429b-2, V.T.C.S., for guidance. Section 1.02(2) of the act states that the act applies
to:
each amendment, repeal, revision, and reenactment of a code,
or provision thereof, which amendment, repeal, revision, or
reenactment is enacted by the 60th or a subsequent Legislature.
As we have noted, subdivision 6 was added to article 2.04 of the Election Code by the
66th Legislature in 1979; therefore, the Code Construction Act is applicable in this
instance. See Fonseca v. Hidalgo County Water Improvement District No. 2, 496 F.2d
109 (5th Cia74). Corn re Thiel v. Harris County Democratic Executive Committee,
534 S.W.2d 891 (Tex. -5. 1976 (article 5429b-2 inapplicable where question of timeliness
of filing not dependent upon “computing a period of days”).
Section 2.04 of the Code Construction Act provides that:
(a) In computing a period of days, the first day is excluded
and the last day is included.
Subdivision 6(b) of article 2.04 of the Election Code states that the required notice
must be given “not later than” seven days before the meeting, which in this instance
was held on August 25. This language is somewhat inartful, but we believe it is clear
that a notice given seven days before a meeting satisfies the requirements of that
section. Pursuant to section 2.04 of the Code Construction Act, the date on which the
notices were mailed is excluded from the computation of time, but the day of the
meeting is included. Accordingly, the notices mailed on August 18 were delivered
seven days before the August 25 meeting in compliance with subdivision 6.
It is suggested in the brief to which we previously referred that section 2.04 of
the Code Construction Act conflicts with subdivision 6 of article 2.04 of the Election
P. 1042
.
Honorable Mike Driscoll - Page Four (MW-324)
Code, because the latter seems to indicate that the day of the meeting should not be
included in the computation of time and that the day of delivery should be included.
See §§6(b), 6(d). However, we need not address that question, because in this instance
thesame result is achieved either way.
The answer to your third question is provided by subdivision 6(f) of article 2.04,
which states that the failure to deliver notice as required by subdivision 6 “nullifies the
boundary change as to which notice was required.” Changes in the boundaries of
precincts which were first identified in notices for the August 25 meeting which were
mailed after August 18 are void. And it also follows that the answer to your fourth
question is that the action of the commissioners court in “ratifying and confirming”
those changes at its meeting on September 22 could not validate the changes. As
noted below, the commissioners court had no authority to consider changes in the
boundaries of election precincts at its September meeting.
Your last question is whether, assuming some boundary changes are void, the
commissioners court may hold another meeting before the beginning of the upcoming
voting year in order to change certain precinct boundaries.
Subdivision 1 of article 2.04 provides that:
Each county shall be divided into. . . election precincts. . .
which. . . shall be differently numbered and described by. . .
boundaries or survey lines. . . . At any July or August term, the
Court may make such changes in the election precincts as they
deem proper, by such order entered upon the minutes of the
Court. (Emphasis added).
It is true that our courts have held that:
. . . directions which are not of the essence of the thing to be
done, but which are given with a view merely to the proper,
orderly and prompt conduct of the business, and by the failure
to obey the rights of those interested will not be prejudiced, are
not commonly to be regarded as mandatory.
Federal Crude Oil Co. v. Yount-Lee Oil Co., 52 S.W.2d 56, 61 (Tex. 1932). However,
the question of whether a provision is mandatory or directory ultimately depends upon
the legislature% intent. Chisholm v. Bewley Mills, 287 S.W.2d 943 (Tex. 1956); Burton
v. Ferrill, 531 SW. 2d 197 (Tex. Civ. App. - Esstland 1975, writ dism’d). In our OS
the subdivision 1 is mandatory in the sense that if the commissioners court wishes to
make changes in precinct boundaries, it may do so only during the July or August term
of the court. This direction is “the essence of the thing to be done.” Had the
legislature not intended this to be so, it would not have specifically singled out these
two months. It is well settled that the express mention or enumeration of a particular
thing in a statute is tantamount to an express exclusion of all others. Ex arte McIver,
586 S.W.2d 851 (Tex. Crim. App. 1979); Petersen v. Calvert, 473 S.W. +2d 314 Tex. Civ.
App. - Austin 1971, writ ref’d); Carp v. Texas State Board of Examiners of Optometry,
P. 1043
Honorable Mike Driscoll - Page Five (MW-324)
401 S.W.2d 639 (Tex. Civ. App. - Dallas 1966), aff’d, 412 S.W.2d 307 (Tex. 1967). See
Wilson v. Weller, 214 S.W. 2d 473 (Tex. Ciapp. - San Antonio 1948, no writ)
‘(designation of August term in former article 2933, V.T.C.S., as time when
commissioners court may make changes in election precincts cannot be disregarded).
See also Attorney General Opinion O-6674 (1945). Cf. Plocek v. Welhausen, 144 SW. 2d
631(Tex. Civ. App. - San Antonio 1940, no writ). -
Accordingly, we conclude that changes in the boundaries of county election
precincts may be made only during the July or August terms of the commissioners
court.
SUMMARY
Article 2.04, subdivision 6(b) of the Election Code does not
require that notices identify specific proposed boundary
changes. Notices mailed on August 18 of an August 25 meeting
were timely given. Failure to deliver notice as required by
subsection 6(b) nullifies any boundary change as to which such
notice was required, and the void changes could not be validated
at the September term of the commissioners court. Subdivision
1 of article 2.04 specifies that boundary changes may only be
effected during the July or August terms of the commmis-
sioners court.
l!k$l!H
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin
Bruce Youngblood
P* 1044