                             ATTORNEYGENERAL                     OF TEXAS
                                          GREG       ABBOTT


                                            December 20,2004



Mr. R. Dyke Rogers, Chairman                       Opinion NO. GA-0286
Texas Racing Commission
Post Office Box 12080                              Re: Whether the Texas Racing Commission may
Austin, Texas 7871 l-2080                          grant a license for a racetrack without a formal
                                                   certification of election results to the Secretary of
                                                   State; and whether the Commission may initiate a
                                                   license application process for a county following a
                                                   formal election certification that occurs more than ten
                                                   days after the canvass of returns (RQ-0258.GA)


Dear Mr. Rogers:

          The Texas Racing Act (the “Act”) sets forth the provisions governing pari-mutuel wagering
in Texas. See TEX. REV. CIV. STAT. ANN. art. 179e (Vernon Supp. 2004-05). The Texas Racing
Commission (the “Commission”) may grant racetrack licenses to applicants from counties whose
voters have voted to legalize pari-mutuel wagering, and where the county has certified the election
results to the Secretary of State within ten days. See id. art. 179e, $5 16.01(a), .12(a). You inquire
about the Commission’s authority to accept and consider a license application “for a racetrack in a
county which passed the local option election before the license application was filed if the only
record of timely election results certification to the Secretary of State that can now be found is the
County’s submission of the election results for the two propositions.“’ You also inquire about the
Commission’s authority to “initiate a license application process for a county following a formal
certification that occurs more than 10 days after the canvass ofreturns.” Request Letter, supra note
 l,at2.

I.      Background

        By way of background, you state that your questions are prompted by the unusual situations
facing the Commission with respect to Webb and Hidalgo counties. See id. at 1.

        A.       Webb County

               You inform us that Webb County conducted a local option election in November
2000 in which voters approved two pari-mutuel propositions.  See id. You indicate that at some
point following the November 14, 2000 canvass of the election by the commissioners court, the


          lLetterfromR. DykeRogers, Chairman, TexasRacing Commission, toHonorable Greg Abbott, Texas Attorney
General, at 2 (Aug. 17, 2004) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
Mr. R. Dyke Rogers         - Page 2                      (GA-0286)




Webb County election precinct returns were filed in the County’s election register and sent to the
Secretary of State. See id. at 3. You presume that because the Webb County precinct returns for
November 2000 included the results of contested races, the precinct returns must have been filed
with the Secretary of State soon after the election. See id. You also inform us that the Commission,
aware ofthe election results, accepted two class II* applications for horse racetrack licenses in Webb
County. See id. at 1,3. According to your letter, in June 2004 after the Commission had received
the license applications from Webb County, the Webb County Interim Elections Administrator
signed an affidavit certifying the November 2000 election results. See id. at 3, Exhibit D.

           B.       Hidalgo County

                With respect to Hidalgo County, you inform us that Hidalgo County voters passed
a pari-mutuel proposition at the November 3, 1987 general election. See id. at 3. The Hidalgo
County election results were certified to the Secretary of State on August 12, 2004, which date is
outside the ten-day period provided for in the Act. See id. at 3, Exhibit E. You add that on August
12, 2004 the Commission voted to open an application period, commencing on April 1,2005, to
accept class II racetrack license applications from Hidalgo County. See id. at 1.

        As we discuss below, the ultimate determination ofwhether the Commission may accept or
act on a particular license application from Webb or Hidalgo County depends largely upon the facts
and is beyond the scope of an attorney general opinion. See Tex. Att’y Gen. Op. No. GA-0139
(2004) at 5.

II.        Leeal Principles

           A.       The Texas Racing Act

                The Act prohibits the Commission from issuing a racetrack license or accepting an
application for a license for a racetrack in a county “until the commissioners court has certified to
the secretary of state that the qualified voters of the county have approved the legalization of pari-
mutuel wagering on horse races or greyhound races in the county at an election held under this
article.” TEX.REV. CIV. STAT.ANN. art. 179e, 5 16.01(a) (Vernon Supp. 2004-05). The local option
election may be initiated by the commissioners court or on petition of registered voters. See id.
§ 16.02. The election is to be conducted, and the election returns prepared and canvassed, as
provided by the Texas Election Code. See id. 5 16.1 l(a). The Act specifies the exact ballot language
to be submitted to the voters of the county.3 See id. 5 16.11 (b). Where the majority of the voters are


         ‘Here, we use the Roman numeral nomenclature used in you letter. The Act, however, uses arabic numerals.
A class 2 racetrack “is a racetrack on which live racing is conducted for a number of days to be determined by the
commission         A class 2 racetrack is entitled to conduct 60 days of live racing in a calendar year.” TEX. REV.CN.
STAT.ANN. art. 179e, 5 6.02(c) (Vernon Supp. 2004.05). By contrast, a class 1 racetrack is only permitted in certain
populous counties, see id. 5 6,02(b), a class 3 racetrack may only be operated by a county or nonprofit fair for not rno~e
than 16 days, see id. 5 6.02(d), and a class 4 racetrack is operated no more than five days by a county fair. See id. $
6.02(g).

           ‘Currently, the Act provides language for three ballot propositions: “Legalizingpari-mutuel wagering on horse
races in            County,” “Legalizing pari-mutuel wagering on greyhound races in              County,” or “Authorizing
                                                                                                            (continued...)
Mr. R. Dyke Rogers       - Page 3                     (GA-0286)




in favor ofpari-mutuel wagering in the county, the “commissioners court shall certify that fact to the
secretary of state not later than the 10th day after the date of the canvass of the [election] returns,”
id. § 16.12(a), but the Act does not provide any particular form or procedure for a commissioners
court to use. The Act provides that no “other [pari-mutuel] election may be held in the county
until five years have elapsed since the date of the preceding election.” Id. 5 16.12(b).

        B.        Texas Election Law Principles

                 Because the Act calls for a local option election, it is appropriate to review
fundamental principles underlying the right to vote. “The right to free exercise of intelligent choice
by a citizen at the polls is surely one of the most treasured of all American heritages guaranteed
by the Constitution and Bill of Rights.” Wooley v. Sterrett, 387 S.W.2d 734, 738 (Tex. Civ.
App.-Dallas 1965, no writ). The “free exercise ofthis right [should not] be unreasonably curtailed
or restricted byjudicial decree which places a narrow or strict construction on legislative rules.” Id.;
see also Thomas Y. Groebl, 212 S.W.2d 625,630 (Tex. 1948) (“[Sltatutes regulating the right to vote
should be given a liberal interpretation in favor of that right.“). Thus,

                  irregularities of the officers in the conduct and return of the election
                  as have not prevented the electors from a free and fair exercise of the
                  right to suffrage, and from having their votes fairly estimated for the
                  candidate [or proposition] of their choice, and which the law has not
                  declared shall set aside their ballots, must be treated as informalities
                  not vitiating the election.

Orth Y. Benavides, 125 S.W.2d 1081, 1084 (Tex. Civ. App.-San Antonio 1939, writ dism’d).
Accordingly, statutory enactments concerning elections must be liberally construed in order to
ascertain and effectuate the will of the voters. Groebl, 212 S.W.2d at 630.

         Statutes regulating the manner of holding an election, even though mandatory in form, are
ordinarily given a directory construction, and a departure from their provisions will not invalidate
an election unless such departure affects or changes the result of the election. Honts v. Shaw, 975
S. W.Zd 8 16,82 1 (Tex. App.-Austin 1998, no pet.) (combining election precincts); Hill v. SmithviNe
Zndep. Sch. Dist., 251 S.W. 209, 210 (Tex. Comm’n App. 1923, judgm’t adopted) (examining
procedural irregularities in school tax election); Groebl, 212 S.W.2d at 630 (renewing poll tax
exemption certificates); Deffebach Y. Chapel Hill Zndep. Sch. Dist., 650 S.W.2d 510, 512 (Tex.
App.-Tyler 1938, no writ) (irregularities in conduct ofbond election); Little v. Altolndep. Sch. Dist.
ofAlto, Cherokee County, 513 S.W.2d 886, 891 (Tex. Civ. App.-Tyler 1974, writ dism’d) (bond
election); Orth, 125 S.W.2d at 1084 (“Electors must not be deprived oftheir votes on account of any
technical objection to the manner in which the election has been held, or for any misconduct on the


          ‘(...continued)
pari-mutuel wagering on simulcast *aces in               County.” TEX. REV. Crv. STAT.ANN. art. 5 16.1 l(b) (Vernon
Supp. 2004-05). Prior to its amendment by the Seventy-fifth Legislature to allow for pari-mutuel wagering on simulcast
races, the Act included only the fust two ballot propositions. See Texas Racing Act, 75th Leg., R.S., ch. 1275, 5 46,
1997 Tex. Gen. Laws 4840,4867. We presume for purposes of this opinion that the Hidalgo County ballot included the
pre-amendment language pertaining to horse racing. See Request Letter, supra note 1, at Exhibit E (Hidalgo County
Canvass Report for 1987 Constitutional Amendment and Referendum Election, containing proposition for “Local
Option-Horse Racing”).
Mr. R. Dyke Rogers    - Page 4                 (GA-0286)




part of the presiding officers, if these have not affected the true result of the election.“). This
principle also applies to statutes regulating elections that are found outside of the Election Code.
See Ferrell v. Harris County Fresh Water Supply Dist. No. 23, 241 S.W.2d 242 (Tex. Civ.
App.-Galveston     195 1, no writ) (bond election pursuant to provisions of the Texas Water Code);
Pollard Y. Snodgrass, 203 S.W.2d 641 (Tex. Civ. App.-Amarillo 1947, writ dism’d) (local option
election pursuant to provisions of the Texas Alcoholic Beverage Code).

         Where a statute is directory, substantial compliance with its provisions is sufficient. See
generally Waters v. Gunn, 218 S.W.2d 235,237 (Tex. Civ. App.-Amarillo          1949, writ ref d n.r.e.)
(stating that irregularities in compliance with statutory provisions concerning conduct of election
will not invalidate election unless shown to have affected or changed result); Turner v. Lewie, 201
S.W.2d 86, 89 (Tex. Civ. App.-Fort Worth 1947, writ dism’d). Substantial compliance does not
mean literal and exact compliance with every requirement of a statute, but simply compliance with
the essential requirements of the statute. See Tex. Att’y Gen. Op. No. JC-0255 (2000) at 4
(“‘Substantial compliance’ means one has performed the ‘essential requirements’ of a statute.“).
“A deviation from the requirements of a statute which does not seriously hinder the legislature’s
purpose in imposing the requirement is ‘substantial compliance.“’ Harris County Appraisal Dist.
v. Bradford Realty, Ltd., 919 S.W.2d 131, 135 (Tex. App.-Houston         [14th Dist] 1994, no writ)
(examining substantial compliance in context of Tax Code provisions pertaining to taxpayer
challenges).

III.    Legal Analvsis

          With respect to Webb County, you state that the Commission asks whether Webb County’s
timely submission of its precinct returns would satisfy the certification requirement of section
 16.01(a). See Request Letter, supra note 1, at 3. Ifnot, you wish to know whether the lackofformal
certification in November 2000 precludes the Commission from moving forward on the pending
applications from Webb County. See id. at 3. If our opinion is that the Commission is so precluded,
you inquire whether the Commission may reinitiate the application process based on the formal
certification that occurred in June 2004. Your question related to Hidalgo County is whether the
Commission may accept and act on applications from a county where certification occurs more than
ten days after the canvass of the election. We consider sections 16.01(a) and 16.12(a) as we
formulate the answer to these questions.

        A.      Section 16.01(a)

                 Section 16.01(a) is framed in mandatory terms: the “commission shall not issue a
racetrack license or accept an application for a license. untilthe commissioners court has certified
to the secretary of state that the qualified voters of the county have approved the [pari-mutuel
propositions].” TEX. REV. CIV. STAT. ANN. art. 179e, 4 16.01(a) (Vernon Supp. 2004-05) (emphasis
added). With regard to the mandatory term “shall,” the Texas Supreme Court stated:

                There is no absolute test by which it may be determined whether a
                statutory provision is mandatory or directory. The fundamental rule
                is to ascertain and give effect to the legislative intent. .
Mr. R. Dyke Rogers          - Page 5                 (GA-0286)




                   [Clonsideration should be given to the entire act, its nature and
                   object, and the consequences    that would follow from each
                   construction.

Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956). A strong indicator of a mandatory
construction is the use ofnegative, prohibitionary, or exclusionarywords. See Gomez Y. Timon, 128
S.W. 656, 657 (Tex. 1910). Where statutory restrictions are couched in negative terms they are
usually held to be mandatory. See id.

          In our review of the Act, we note that section 3.021 (a) gives the Commission broad power
to “license and regulate all aspects of greyhound racing and horse racing in this state.” TEX. REV.
CIV. STAT. ANN. art. 179e, 4 3.021(a) (Vernon Supp. 2004-05). However, article 16 of the Act
makes the exercise of that authority contingent on the outcome of a local option election. Section
16.01(a) further restricts the Commission by limiting the exercise of its authority until certification
is made to the Secretary of State that the voters of a particular county approved pari-mutuel wagering
in the county. Id. 5 16.01(a). Considering that article 16 generally, and section 16.01(a) in
particular, are restrictions upon the Commission’s authority, we conclude that section 16.01(a) is
mandatory. Certification of pari-mutuel election results must be made to the Secretary of State
before the Commission can accept or act on a license application. As previously stated, the Act
provides no particular form or procedure by which this certification must be made. Since no
direction is given to the Commission t?om the Act or the Election Code as to what constitutes
certification, we determine that the Commission has discretion, subject to judicial review, to decide
whether the jurisdictional certification requirement is met by any given action or document (such as
the submission of election precinct returns) that precedes the tiling of an application with the
Commission.

        B.         Section 16.12(a)

                  Reaching the conclusion that section 16.01(a) is mandatory, we must address your
questions pertaining to section 16.12(a). Section 16.12(a) states that where a “majority ofthe votes
cast in the election are for the legalization ofpari-mutuel wagering.        the commissioners court shall
certify that fact to the secretary of state not later than the 10th day after the date of the canvass of the
returns.” Id. 3 16.12(a). In construing a statute, the legislature directs that, where possible, the
statute be construed so that every part is effective. See TEX. GOV’T CODE ANN. $ 311.021(2)
(Vernon 1998). A court must attempt to construe a statute as a whole, harmonizing the statute in
its entirety. Helena Chem. Co. v. Wikins, 47 S.W.3d 486, 493 (Tex. 2001) (“[W]e must always
consider the statute as a whole rather than its isolated provisions.“).        We cannot construe section
 16.12(a) in isolation, but must consider other sections of article 16. Section 16.12 is contained in
article 16 of the Act and sets out the requirements for the conduct of pari-mutuel local option
elections.    Article 16 provides for initiating the election,4 ordering the election5 determining




        %x.      REV.   CN. STAT.ANN.art.179e,$5 l&02-.09(VernonSupp. 2004-05).

        'Id. 5   16.10.
Mr. R. Dyke Rogers      - Page 6                (GA-0286)




the results of and contesting fhe election,6 and rescinding the election? Additionally, article 16
incorporates certain provisions of the Texas Election Code. See TEX. REV. CIV. STAT. ANN. art.
 179e, 5 16.1 l(a) (Vernon Supp. 2004-05). With the exception of section 16.01, every section in
article 16 relates to fhe conduct of a local option election. Section 16.12(a) is a “statutory enactment
concerning elections.” As such, its provisions are subject to the general rule that statutes regulating
the right to vote are directory absent a negative effect on the outcome of the election. See Smithville
Indep. Sch. Dist., 251 S.W. at 210; Tex. Att’y Gen. Op. No. JM-467 (1986) at 3.

         Moreover, section 16.12(a) is not the type of election-related provision usually given a
mandatory construction.     Mandatory provisions generally have been limited to “those provisions
requiring an election to be held by ballot, setting the day and place where the election is to be held,
and prescribing qualifications and eligibility requirements.” Branaum v. Patrick, 643 S.W.2d 745,
750 (Tex. Civ. App.-San Antonio 1982, no writ). Bycontrast, section 16.12(a) is merelyareporting
requirement directing that the commissioners court timely inform the Secretary of State ofthe results
of the election.

       Section 16.12(a) has two distinct components:        a certification   component   and a timing
component. Each component merits further discussion.

          First, we note here that the certification component of section 16.12(a) is different from the
certification requirement of section 16.01(a). Section 16.01(a) focuses on the jurisdictional
prerequisite to fhe Commission’s exercise of authority over license applications. By contrast, the
certification component of section 16.12(a) relates to the election procedure ofthe applicable county.

          The certification component requires a commissioners court to certify the results of an
election to the Secretary of State. However, article 16 does not contain any particular form or
language for this certification. Article 16 contains no requirement that certification specifically be
made of precinct returns or canvass reports. Instead, section 16.12(a) requires certification that “a
majority of the votes cast       are for the legalization of pari-mutuel wagering        in the county.”
TEX. REV. CIV. STAT. ANN. art. 179e, 3 16.12(a) (Vernon Supp. 2004-05). The emphasis is the
accurate reporting of the results of the election to the state’s election officer. Once the canvass of
precinct returns is complete, fhe results of the election are determined.         Departure from strict
compliance with certification to the Secretary of State does not affect or change the outcome ofthe
election.

         Section 16.1 I(a) of the Act requires that election returns be prepared and canvassed “in
conformity with the Election Code.” Id. 5 16.1 l(a). However, the Election Code does not provide
direction on how to certify an election. Under section 67.007, the county clerk is directed to prepare
the county election returns, see TEX. ELEC. CODE ANN. $ 67.007(a) (Vernon 2003), and sign the
returns to “certify” their accuracy. See id. $ 67.007(c). Additionally, section 67.007 requires the
clerk to deliver within 24 hours “to the Secretary of State          the county returns in a sealed


        61d.   $5 16.12-.17

        ‘Zd. 4 16.18
Mr. R. Dyke Rogers    - Page 7                  (GA-0286)




envelope.    The envelope shall be labeled: ‘Election Returns for                   (name) County, for
              (election).“’ Id. 3 67.007(d). Where a county has an elections administrator, he or she
must have a seal “on which shall be inscribed a star with five points surrounded by the words
‘County Elections Administrator,              County, Texas’ for use in certifying documents.” Id.
5 31.041, Apart from these few directives, the Election Code does not provide county clerks, or
election administrators, with any precise language, or form, by which election returns are to be
formally “certified.” Certifying the results of an election is a ministerial act. See Williamson v.
Kemp& 574 S.W.2d 845, 847 (Tex. Civ. App.-Texarkana           1978, writ ref d n.r.e.). Without formal
certification requirements in the Act or the Election Code, a mandatory construction of the
ministerial certification requirement that would essentially nullify the wishes of the voters is a harsh
result contrary to the policy of protecting a citizen’s fundamental right to vote. For these reasons,
we conclude that the certification requirement of section 16.12(a) is directory.

         The timing component of section 16.12(a) requires the commissioners court to certify the
election results to the Secretary of State within ten days after the canvass of the election. TEX. REV.
CIV. STAT. ANN. art. 179e, $ 16.12(a) (Vernon Supp. 2004-05). While the time period is specific,
we believe it is nonetheless directory. See Lewis v. Jacksonville Bldg. &Loan Ass ‘n, 540 S.W.2d
307, 310 (Tex. 1976) (“If the provision directed doing of a thing in a certain time without any
negative words restraining it afterwards, the provision as to time is usually directory.“). Where the
majority of voters in a county favor the pari-mutuel propositions, allowing a technical defect in the
ministerial act of certification within the specified time period would deprive the Commission of
authority to accept or act on a license application, thwart the wishes of the voters, and render the
election meaningless. Texas courts have consistently stated that “[ellectors must not be deprived
of their votes on account of any technical objection to the manner in which the election has been
held,      if these have not affected the true result of the election.” Orth, 125 S.W.2d at 1084. A
mandatory construction of the timing component of section 16.12(a) would serve to defeat the will
of the voters. Accordingly, we conclude that the timing component of section 16.12(a) is directory.

        C.      Substantial   Compliance

                Our conclusion that section 16.12(a) is directory does not fully dispose of your
questions. The question remains as to whether Webb County or Hidalgo County substantially
complied with the timing and certification requirements of section 16.12(a). Substantial compliance
is performance of the essential requirements of a statute. See Harris County Appraisal Dist., 919
S.W.2d at 135; Tex. Att’y Gen. Op. No. JC-0255 (2000) at 4. We believe the essential requirement
of section 16.12(a) is the prompt and accurate determination ofwhether a majority of the voters are
in favor of the pari-mutuel wagering proposition.

         Determination of substantial compliance is a question of fact beyond the scope of an attorney
general opinion.      Common Cause Y. Metro. Transit Auth., 666 S.W.2d 610, 613 (Tex. Civ.
App.-Houston     [lst Dist.] 1984, writ ref d n.r.e.) (framing question of substantial compliance as a
fact issue). See also Tex. Att’y Gen. Op. No. GA-0003 (2002) at 1 (stating that opinion process does
not determine facts); Tex. Att’y Gen. Op. No. JC-0282 (2000) at 4 (“Whether a governing body has
substantially complied        is generally a fact question.“). This office cannot determine whether
Webb County or Hidalgo County substantially complied with section 16.12(a). Accordingly, we
leave that question to be resolved by the Commission.
Mr. R. Dyke Rogers   - Page 8                 (GA-0286)




                                       SUMMARY

                        As a restriction on the Texas Racing Commission’s authority,
               section 16.01(a) of the Texas Racing Act is mandatory. Certification
               of local option election results must be made to the Secretary of State
               before the Texas Racing Commission may accept or act on a license
               application.    The Texas Racing Commission has the discretion to
               determine whether a given action or document preceding a license
               application constitutes certification under section 16.01(a).

                        Section 16.12(a) is a statutory enactment        concerning
               elections and, absent a showing that departure from the requirement
               changes the result of the election, ordinarily should be given a
               directory construction.    Both the certification component and the
               timing component of section 16.12(a) are directory and require
               only substantial compliance. Questions ofsubstantial compliance are
               fact questions outside the scope of the opinion process. Accordingly,
               this office cannot determine whether Webb County or Hidalgo
               County substantially complied with section 16.12(a), but leave that
               determination to the Commission.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
