Untitled Texas Attorney General Opinion

0
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 22, 2013

The Honorable Richard R. Hicks III Opinion No. GA-1001
Caldwell County Criminal District Attorney
Caldwell County Courthouse Re: Whether a commissioners court may change
Post Office Box 869 the designated day of the week it convenes
Lockhart, Texas 78644 during the current fiscal year under section
81.005 ofthe Local Government Code
(RQ-1 095-GA)

Dear Mr. Hicks:

You ask whether a county commissioners court may "set the day of the week to convene
during the current fiscal year if it has already picked the day to convene at the last meeting of the
previous fiscal year." 1 You indicate that Caldwell County's fiscal year runs from October 1
through September 30. Request Letter at 2, n.l. You tell us that, at the fiscal year's final
meeting of the Caldwell County Commissioners Court ("court"), the county commissioners
voted "to designate Monday as the day of the week it shall convene in a regular term during the
[next] fiscal year, as required by section 81.005 of the Local Government Code." Id. at 2. You
also tell us that the county judge was absent from the meeting and, at the first meeting of the
court in the new fiscal year, he asked the court to reconsider the matter and designate Tuesday as
the day of the week that the court would convene its regular term. !d. You inform us that the
court's legal counsel advised that, under section 81.005, the court could not designate a different
day from the one it had chosen at the last meeting of the fiscal year. See id. With these facts,
you first ask:

Does a commissioners court abuse its discretion by designating the
day of the week it shall convene in a regular term during the
current fiscal year if, at its last meeting of the previous fiscal year,
it already designated a different day of the week on which it shall
convene in a regular term during the next fiscal year in compliance
with section 81.005 ofthe Local Government Code?

Request Letter at 1.

1
Letter from Honorable Richard R. Hicks III, Caldwell Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott,
Tex. Att'y Gen. at I (Oct. 24, 2012), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Richard R. Hicks III - Page 2 (GA-1001)

Subsection 81.005(a) of the Local Government Code requires that, "[a]t the last regular
term of each fiscal year of the county, the commissioners court by order shall designate a day of
the week on which the court shall convene in a regular term each month during the next fiscal
year." TEX. Loc. Gov'T CODE ANN. § 81.005(a) (West 2008); see Lipari v. State, 19 Willson.
431, 433-34 (Tex. Ct. App. 1885) (discussing a "term" of a commissioners court). Within the
same section, subsection (h) provides that "[t]he commissioners court may designate a day of the
week on which the court shall convene in a regular term each month other than the day of the
week designated under Subsection (a)." TEX. Loc. Gov'T CODE ANN. § 81.005(h) (West 2008).
By its plain language, subsection 81.005(h) allows for a change in the designated day. See R.R.
Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex.
2011) ("We ordinarily construe a statute so as to give effect to the Legislature's intent as
expressed in its plain language."). Thus, a commissioners court may change the day of the week
on which it shall convene in a regular term each month during a county's current fiscal year.

You also ask whether the commissioners court could have, at the last term of the fiscal
year, "tabled the matter until a new term of the court during the next fiscal year, and remained in
2
compliance with section 81.005 of the [Local] Government Code[.]" Subsection 81.005(a)
requires a commissioners court to designate a day as specified, and a commissioners court that
fails to do so does not comply with the terms of the subsection. TEX. Loc. Gov'T CODE ANN.
§ 81.005(a) (West 2008). Even subsection 81.005(h), which authorizes a change in the
designated day, presumes the commissioners court has previously designated a day of the week
under subsection (a). See id. § 81.005(h) (granting authority to designate a day "other than the
day of the week designated under Subsection (a)"). We thus conclude that a commissioners
court cannot table the matter until a new term and remain in compliance with subsection
81.005(a).

Noncompliance with subsection 81.005(a) does not necessarily invalidate the court's
action, however. According to the Texas Supreme Court, while the term "shall" is usually
mandatory, there are instances when it is only directory. Chisholm v. Bewley Mills, 287 S.W.2d
943, 945 (Tex. 1956); TEX. GOV'T CODE ANN. § 311.016(2) (West 2005) (providing that "shall"
imposes a duty unless context necessarily requires a different construction). Texas courts
generally construe a statute that does not declare the consequences of a failure to comply as
directory. See, e.g., Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001). Further, the
absence of words restraining the performance of the act after the time limit suggests the timing
provision is usually directory. !d. Finally, this office has previously observed that "[s]tatutes
prescribing the time for performance of a duty by a public officer are generally held to be
directory rather than mandatory, even though the statute uses the word 'shall."' Tex. Att'y Gen.
Op. No. JM-397 (1985) at 2.

The requirement to select the day of the week on which to meet is a requirement that
regulates the conduct of public officers. Nowhere in section 81.005 is there a constraint on

2
Letter from Honorable Richard R. Hicks III, Caldwell Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott,
Tex. Att'y Gen. at 1 (Oct. 25, 2012), http://www.texasattorneygeneral.gov/opin (on file with the Op. Comm.).
The Honorable Richard R. Hicks III - Page 3 (GA-1001)

setting the day after the time limit established in subsection (a). See TEX. Loc. Gov'T CODE
ANN. § 81.005 (West 2008). As noted previously, subsection 81.005(h) expressly allows a
commissioners court to set another day. ld. § 81.005(h). In addition, section 81.005 does not
contain any consequences for a commissioners court's failure to comply with the time limit in
subsection (a). See id. § 81.005(a)-(h). When considered under these principles, and in the
absence of any evidence the Legislature intended it to be mandatory, subsection (a) should be
construed as directory with respect to the timing of the commissioners court order.

"[P]articular provisions may be regarded as directory merely; by which is meant that they
are to be considered as giving directions which ought to be followed, but not as so limiting the
power in respect to which the directions are given that it cannot effectually be exercised without
observing them." Murray v. State, 21 Tex. Ct. App. 466, 477, 1 S.W. 522, 524 (1886); see also
Tex. Dep't of Pub. Safety v. Dear, 999 S.W.2d 148, 151 (Tex. App.-Austin 1999, no pet.) ("A
directory provision is, by definition, one 'the observance of which is not necessary to the validity
of the proceeding."' (citation omitted)). A duty set out in a directory statute may be performed
after the time prescribed for the performance has passed. See Markowsky v. Newman, 136
S.W.2d 808, 812 (Tex. 1940) ("[I]t does not necessarily follow that a thing which a statute
directs to be done at a particular time may not be done afterwards."); Tex. Att'y Gen. Op. No.
JM-397 (1985) at 2. Given the directory nature of subsection 81.005(a)'s timing component and
the fact that subsection 81.005(h) authorizes a change to the designated day after the time
specified in subsection (a), it is unlikely that a reviewing court would invalidate a commissioners
court order, tabled from the prior fiscal year, that designates a new day in the current fiscal year.
See Comm'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 80 (Tex. 1997) (recognizing that the
supervisory power of a district court over a commissioners court can be invoked only when the
commissioners court acts beyond its jurisdiction or abuses its discretion).
The Honorable Richard R. Hicks III - Page 4 (GA-1001)

SUMMARY

Pursuant to subsection 81.005(h) of the Local Government
Code, a county commissioners court may change the designated
day of the week it convenes during the county's current fiscal year.

A county commissioners court that tables the designation of
the regular meeting day until the next fiscal year is not in
compliance with subsection 81.005(a) of the Local Government
Code. It is however unlikely that a reviewing court would
invalidate such an order.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee