# The Attorney General of Texas
October 20. 1981 MARK WHITE Attorney General

Supreme Court Sulfding P. 0. Box 12543 Austin, TX. 78711 5121475-2501 Telex SlOfS74-1367 TelecODler 51214750266

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An Equal OpportunItyI AffIrmaWe Actlon Employer Honorable Tom Craddick,Chairman Committee on Natural Resources House of.Representatives Austin, Texas 78711 opinionNo. MW-377 Rt?: construction of concurrentamendments to article 2.01b Texas ElectionCode, Ann. Dear ChairmanCraddick: Inyour request for our opinionyou raise~the followingquestion: Would a confirmation election, director election or maintenance tax election held in conjunction with the creation of a political subdivision provided for by article XVI, section 59 of the 'TexasConstitution,which furnisheswater or sewer services to householdusers,be valid if conducted on a date other than one of the uniform election datesunder theprovisionof Senate Bill 776? Article 2.01b of the Election Code requires.that elections be held oncertain uniform dates, but exempts certain specific types of elections from this requirement. Prior to this session of the legislature the only exempted eleCtions were run-off elections, political subdivisions using the convention method of election, "elections held under chapter 467, acts of the 44th Legislature, 2d Called Session, 1935, as amended," &, local .option liquor elections, elections for bonds and.school maintenance taxes, and the biennial party,primaryelections. Senate Bill 776, which was finally passed by the legislature on May 23, 1981, and signed by the governor on June 8, 1981, amends paragraph (1) of article 2.01b to exempt certain other elections from itsprovisions, specifically:

.... confinaation elections, director elections, andmaintenance tax elections,held in conjunction with the creations of political subdivisions provided for by Article XVI, Section 59 of the Texas Constitution,which furnish water or sewer services tohouseholdusers.

p. 1270**Mr.** Tom.Craddick - Page 2 (Mw-377)

On May 30. 1981, Souse Bill 1487 was finally passed by the legislatureand was signedby the governoron June 15, 1981. House Bill 1487 also amends paragraph (1) of article 2.01b by substitutingthewords "local option electionheld under theAlcoholic Beverage Code" for the third type of exempted election ("elections held under Chapter 467, Acts of the 44th Legislature, 2d Called Session, as amended"), and inserting the underlined words in the fourth item listed above - "elections for bonds and elections for schoolmaintenance taxes." House Bill 1487makes no reference to Senate Bill 776, nor does SenateBill 776make reference to House Bill 1487. Based on these facts,we may rephraseyour question as follows: Did **the** adoption of House Bill 1487 repeal, by implicationor otherwise, theprovisionsof Senate Bill 776? The answer to this question'is governed by the Texas Code ConstructionAct, article 5429b-2.V.T.C.S;,which provides at section 3.05(b):

...if amendments to the same statute are enacted

at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each. If the amendments are irreconcilable,the latest in date of enactment~prevails. While the Election Code is not a "code enacted by the 60th or a subsequent Legislature as part of the state's continuing statuatory revisionprogram" article 5429b-2, section 1.02(l), the provisions in question are "amendments[s]... of a code, or provision thereof, enactedby the 60th or a subsequentLegislature." Id. sec:l.02(2). Barbee v. State 432 S.W.2d 78 (Tex. Crim. App. 1968) cert. den. 395 U.S. 924 (1969). See also Thiel v. Harris CountyDemocratic Executive Committee..534 S.W.2d 891 (Tex. 1976). Therefore, these amendments mustbe harmonized, if possible. Even if the Code ConstructionAct did not apply, it has longbeen settled law in Texas that, whenever the same session of the legislature enacts two statutes on the same subject, if neither bill referred to the other, then theywould be construed to give effect to both ifpossible. Wright v. Broeter. 196 S.W.2d 82, (Tex. 1946);9 v. State, 20 Tex. 355 (1857). This is true even when the two~bills amend exactly the **same** provisions, but use different language. Ex parte Patterson. 474 S.W.2d 463 (Tex. Crim. App. 1971). Repeal 5 implication is not favored, and will be found only if the conflict

P. 1271**Mr.** Tom Craddick -.Page 3 (MW-377)

between the contemperaneous statutes is irreconcilable. Wright v. Broeter,supra, Ex parte Patterson,B. In this case, there is no language suggesting that House Bill 1487 repeals Senate Bill 776., Furthermore,there is no irreconcilable conflict between Senate Bill 776 and House Bill 1487. It is clear that the addition of certain elections involvingwater districts, the subject of Senate Bill 776, which merely will not conflict with House Bill 1487,

clarifies existing languate regarding local option elections and school maintenance tax elections. Since there is no irreconcilable conflict, both enactments can be given effect, and those~electionsincluded in SenateBill 776may be held on non-uniform dates. SUMMARY

The provisionsof SenateBill conformation elections, director

_ 776;permitting elections, and ~malntenancetax electionsheld in conjunctionwith the creation of political subdivisions provided for by article XVI, .section 59 of the Texas Constitution which furnishwater or sewer service tom household users were not repealed by implication by the passage of House Bill 1487. Such elections need not be held on the uniform dates provided by article 2.01b of the Election Code. Very trulyyours, fl

Attorney General of Texas JOHNW. FAINTER, JR. FirstAssistantAttorney General RICHARD E. GRAY III ExecutiveAssistantAttorney General Preparedby Bus Gary AssistantAttorney General APPROVED: OPINION COMMITTEE SusanL. Garrison, Chairman Jon Bible Bus Gary Rick Gilpin Jim Moellinger

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