# TheAttorney General ofTexas
October 27, 1981 MARK WHITE Attorney General

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An Equal Opportunity/ Affirmative Action Employer Honorable James F.Hury, Jr. Criminal District Attorney Galveston County Galveston County Room 405 Galveston, Texas
DearMr. 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 tobeheld. Acts 1981, 67th Leg., ch. 660,at 2501. section 4(b) ofHouse BillNo. 2300provides 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 anypenalty may be imposed on the temporary board ofdirectors 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 theenabling legislation would bevalid. Section 4(b) is a mandatory provision. The term "shall" generally connotes amandatory duty. See Hess & Skinner Engineering - Co.v. Turnep, 203 S.W. 593, 594 (Tex. 1918). Provisions of statutes regulating the time of elections aremandatory, 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. - SanAntonio 1966,

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no writ). As the court analyzed the issue, the only other alternatives were tohold an invalid election on the statutory date, or never to hold the election. To avoid construing the statute as meaningless on the factsbefore it, thecourt ruled that theprovision on timeof the elections was directory. 404 S.W.2d at 99.
Inour opinion, thegeneral rulerequiring that elections beheld 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 isnotheld on thatday, itwill notbevalid.
House Bill No. 2300 does not include a penalty provision applicable to thedirectors who fail tocall theelection forNovember 3. However, if theappropriate showing of intent ismade, theymay be found guilty of official misconduct under section 39.01 of the Penal Code. SeealsoWater Code §56.063 (removalprovision).
You next draw our attention to section 4(d) of House Bill NO. 2300which provides:

Theballots for theelection shallbeprinted to provide for voting for or against the proposition: 'The creation of theDickinson Bayou Watershed Drainage District and change of boundaries or dissolution of drainage districts within theboundaries of theproposed 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 theact. Section 53 provides that the district shall assess amaintenance 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 doesnot

.. 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, webelieve the intent ofHouse BillNo. 2300 is tolimit theNovember 3election to thecreation of thedistrict. The district isnot legally created until it isapproved at theelection held under section 4 of the act. Sets. 2, 4(b). Section 4, which details the

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election procedure, specifies thepurposes forwhich the election may be called and does not indicate that any othermatter 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 issuebonds and levy taxes). Thedirectors 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 askwhether theprovisions 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 firstTuesday after the first Monday inNovember shall be the election of state and county officers, [elections in certain cities], and constitutional amendments submitted to thepeople by the legislature.
House Bill No. 2300 was enacted subsequent to the most recent amendments toarticle 2.01b of theElection Code. SeeActs 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 theRepublic, 157S.W. 937 (Tex. 1913). Thus, the election fornew dj~rectorsmay beheld on the first Tuesday after the first Monday in November, 1982, pursuant to section 4(g) ofHouse BillNo. 2300. SUMMARY Section 4(b) of House Bill No. 2300 creating theDickinson BayouWatershed 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 amaintenance tax ata section 4(b) election. The election for directors may be held inNovember of 1982pursuant to section 4(g).

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MARK WHITE Attorney General ofTexas
JOHNW. FAINTER, JR. FirstAssistant 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 JonBible Rick Gilpin JimMoellinger

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