The Attorney General of Texas 

April 15, 1981 

MARK WHITE 

Attorney General 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas ‘7’7002 

Dear Mr. Driscoll: 

Opinion No. MW- 3 2 4 

Re: Notice requirements for 

changing boundary lines of election 

precinct under article 2.04 of the 

Election Code 

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? 

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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 

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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 

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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, 

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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 commmissioners 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 

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