                      The Attorney                  General of Texas
                                            April     15,   1981

MARK WHITE
Attorney General

                   Honorable Mike Driscoll                         Opinion No.   MW-3 2 4
                   Harris County Attorney
                   1001 Preston, Suite 634                         Re:    Notice    requirements     for
                   Houston, Texas     ‘7’7002                      changing boundary lines of election
                                                                   precinct   under article 2.04 of the
                                                                   Election Code

                   Dear Mr. Driscoll:

                         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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              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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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 commmis-
             sioners 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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