                                                    The Attorney          General of Texas
                                                                     October 27, 1981

MARK WHITE
Attorney General


                                                 Honorable James F. Hury, Jr.             Opinion No. MW-380
Supreme      Court Building
P. 0. Box 12546
                                                 Criminal District Attorney
Austin, TX. 76711                                Galveston County                         Re:     Election   to    create
512/475-2501                                     Galveston County Courthouse              Dickinson    Bayou    Watershed
Telex    9101674-1367                            Room 405                                 Drainage District
Telecopier     5121475-0266
                                                 Galveston, Texas   77550

1607 Main St., Suite                1400         Dear Mr. Hury:
Dallas. TX. 75201
2141742.6944                                          You ask several questions regarding an election to establish the
                                                 Dickinson Bayou Watershed Drainage District.     House Bill No. 2300
4624   Alberta      Ave.,     Suite        160
                                                 enacted by the 67th Legislature created the district subject to an
El Paso, TX.        79905                        election to be held. Acts 1981, 67th Leg., ch. 660, at 2501. section
9151533.3464                                     4(b) of House Bill No. 2300 provides as follows:

                                                                The temporary board [of directors of the
1220 Dallas Ave., Suite                   202
Houston,      TX. 77002
                                                           district] shall call an election to be held on
7 131650-0666                                              November 3, 1981, within the boundaries of the
                                                           proposed district to determine if the proposed
                                                           district  will   be  created  and   boundaries   of
606 Broadway,           Suite       312
                                                           existing drainage districts changed or existing
Lubbock.     TX.       79401
6061747.5236
                                                           drainage districts dissolved.  (Emphasis added).

                                                      You first ask if section 4(b) is mandatory, and if so, whether
4309 N. Tenth, Suite                6            any penalty may be imposed on the temporary board of directors if they
McAllen,     TX. 76501
                                                 fail to so call and hold the election on that date.      You also ask
5121662.4547
                                                 whether the results of an election held on a date other than the one
                                                 specified in the enabling legislation would be valid.
200    Main   Plaza,        Suite       400
San Antonio,         TX.      76205                   Section  4(b)  is a mandatory     provision.   The term "shall"
5121225-4191
                                                 generally connotes a mandatory duty. -See Hess & Skinner Engineering
                                                 Co. v. Turnep, 203 S.W. 593, 594 (Tex. 1918). Provisions of statutes
An Equal         Opportunity/                    regulating the time of elections are mandatory, and elections held at
Affirmative        Action     Employer           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




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