The Attorney General of Texas 

October 27, 1981 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin, TX. 76711 

512/475-2501 

Telex 9101674-1367 

Telecopier 5121475-0266 

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Dallas. TX. 75201 

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El Paso, TX. 79905 

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Houston, TX. 77002 

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McAllen, TX. 76501 

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200 Main Plaza, Suite 400 

San Antonio, TX. 76205 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Honorable James F. Hury, Jr. 

Criminal District Attorney 

Galveston County 

Galveston County 

Room 405 

Galveston, Texas 

Dear Mr. Hury: 

Courthouse 

77550 

Opinion No. MW-380 

Re: Election to create 

Dickinson Bayou Watershed 

Drainage District 

You ask several questions regarding an election to establish the 

Dickinson Bayou Watershed Drainage District. House Bill No. 2300 

enacted by the 67th Legislature created the district subject to an 

election to be held. Acts 1981, 67th Leg., ch. 660, at 2501. section 

4(b) of House Bill No. 2300 provides as follows: 

The temporary board [of directors of the 

district] shall call an election to be held on 

November 3, 1981, within the boundaries of the 

proposed district to determine if the proposed 

district will be created and boundaries of 

existing drainage districts changed or existing 

drainage districts dissolved. (Emphasis added). 

You first ask if section 4(b) is mandatory, and if so, whether 

any penalty may be imposed on the temporary board of directors if they 

fail to so call and hold the election on that date. You also ask 

whether the results of an election held on a date other than the one 

specified in the enabling legislation would be valid. 

Section 4(b) is a mandatory provision. The term "shall" 

generally connotes a mandatory duty. See Hess & Skinner Engineering - 

Co. v. Turnep, 203 S.W. 593, 594 (Tex. 1918). Provisions of statutes 

regulating the time of elections are mandatory, and elections held at 

another time are invalid. Cartledge v. Wortham, 153 S.W. 297 (Tex. 

1913); Clark v. Stubbs, 131 S.W.2d 663 (Tex. Civ. App. - Austin 1939, 

no writ); Gray v. Ingleside I.S.D., 220 S.W. 350 (Tex. Civ. App. - 

Fort Worth 1920, writ dism'd). One Texas court has held that an 

election may be held within a reasonable time after the statutorily 

provided date, where it is impossible to hold the election on the 

statutory date and also comply with other applicable election laws. 

Castillo v. State, 404 S.W.2d 97 (Tex. Civ. App. - San Antonio 1966, 

P. 1283 
Mr. James F. Hury, .Jr. - Page 2 (MW-380) 

no writ). As the court analyzed the issue, the only other 

alternatives were to hold an invalid election on the statutory date, 

or never to hold the election. To avoid construing the statute as 

meaningless on the facts before it, the court ruled that the provision 

on time of the elections was directory. 404 S.W.2d at 99. 

In our opinion, the general rule requiring that elections be held 

on the statutory date applies to the construction of section 4(b). 

There is time between the June 15 effective date of House Bill No. 

2300 and the November 3 election date to comply with the provisions 

regulating election procedures. sec. 4. The circumstances which 

justified an exception to the general rule in Castillo v. State, 

supra, are not present here. We conclude that the district directors 

have a mandatory duty to call the election for November 3. If the 

election is not held on that day, it will not be valid. 

House Bill No. 2300 does not include a penalty provision 

applicable to the directors who fail to call the election for November 

3. However, if the appropriate showing of intent is made, they may be 

found guilty of official misconduct under section 39.01 of the Penal 

Code. See also Water Code §56.063 (removal provision). 

You next draw our attention to section 4(d) of House Bill NO. 

2300 which provides: 

The ballots for the election shall be printed 

to provide for voting for or against the 

proposition: ' The creation of the Dickinson Bayou 

Watershed Drainage District and change of 

boundaries or dissolution of drainage districts 

within the boundaries of the proposed district.' 

You ask whether the temporary Board of Directors is prohibited by 

section 4(d) from submitting to the voters at the same election the 

proposition of the imposition of a maintenance tax as provided in 

section 53 of the act. 

Section 53 provides that the district shall assess a maintenance 

tax at the same time taxes are levied to pay bonded indebtedness. 

Acts 1981, 67th Leg., ch. 660, at 2511. A provision virtually 

identical to section 53 has been construed as merely directory as to 

the time of levy. Matagorda County Drainage District No. 1 v. 

Commissioner's Court of Matagorda County, 278 S.W.2d 539 (Tex. Civ. 

ADD. . . - Galveston 1955, writ ref'd n.r.e.). Thus, section 53 does not 

prohibit the submission of a maintenance tax proposition to the 

voters, even though the district has no outstanding bonds at the time 

of election. 

However, we believe the intent of House Bill No. 2300 is to limit 

the November 3 election to the creation of the district. The district 

is not legally created until it is approved at the election held under 

section 4 of the act. Sets. 2, 4(b). Section 4, which details the 

P. 1284 
Mr. James F. Hury, Jr. - Page 3 (MW-380) 

election procedure, specifies the purposes for which the election may 

be called and does not indicate that any other matter may be added to 

the November 3 election. Compare Water Code 556.027 (election to 

determine whether drainage district should be created and whether it 

should issue bonds and levy taxes). The directors cannot exercise the 

power granted in section 53 unless the district is in fact approved 

pursuant to election. In our opinion an election to impose 

maintenance tax may be held only after the district is legally 

created. 

You finally ask whether the provisions found in sections 4(g) and 

8(b) requiring the election of new directors on the first Tuesday 

after the first Monday in November, 1982, violates article 2.01b of 

the Election Code. Article 2.01b of the Election Code provides in 

part: 

(c) In even-numbered years the only issu& 

which may be included on the ballot of the 

election held on the first Tuesday after the first 

Monday in November shall be the election of state 

and county officers, [elections in certain 

cities], and constitutional amendments submitted 

to the people by the legislature. 

House Bill No. 2300 was enacted subsequent to the most recent 

amendments to article 2.01b of the Election Code. See Acts 1979, 66th 

Leg., ch. 234, at 503 (amending article 2.01b(c)); Acts 1981, 67th 

Leg., ch. 314, at 888; Acts 1981, 67th Leg., ch. 607, at 2401 

(amending article 2.01b(a) of the Election Code). To the extent that 

House Bill No. 2300 is irreconcilable with article 2.01b(c) of the 

Election Code, it will prevail as the most recent expression of 

legislative intent. Conley v. Daughters of the Republic, 157 S.W. 937 

(Tex. 1913). Thus, the election for new dj~rectors may be held on the 

first Tuesday after the first Monday in November, 1982, pursuant to 

section 4(g) of House Bill No. 2300. 

SUMMARY 

Section 4(b) of House Bill No. 2300 creating 

the Dickinson Bayou Watershed Drainage District is 

mandatory. If the election required by section 

4(b) to approve creation of the district is held 

on another day, it is invalid. The directors of 

the district may not submit a proposition on 

imposition of a maintenance tax at a section 4(b) 

election. The election for directors may be held 

in November of 1982 pursuant to section 4(g). 

p. 1285 
. . 

Mr. James F. Hury, Jr. - Page 4 (MW-380) 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Susan L. Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Jim Moellinger 

p. 1286