Texas Attorney General Opinion: GA-0621 Page: 4 of 7
7 p.View a full description of this text.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
The Honorable Rex Emerson - Page 4
The Authority's enabling legislation, as previously recited, does provide that "the
Commissioners Court of Kerr County shall appoint [the board members] within 10 days after
declaring the authority created." Act of May 19, 1967, 6(a), at 897. To the extent the city
attorney's argument is premised on the fact that the 1970 commissioners court no longer exists to
exercise the power of appointment, we do not believe this serves as a barrier. We believe that it was
the intent of the Legislature to vest the power of appointment in the commissioner positions, rather
than the specific persons who held those positions in 1970. See Tarrant County v. Ashmore, 635
S.W.2d 417, 420-21 (Tex. 1982) (explaining that public offices belong to the people and are given
to particular officeholders temporarily in trust); Tex. Att'y Gen. Op. No. DM-140 (1992) at 2
(concluding that the current commissioners court could serve as the governing body of a drainage
district even though the enabling legislation spoke in terms of the governing board on the effective
date of the Act).
To the extent the city attorney's argument is premised on the notion that appointments made
outside the ten-day window would be invalid, we also disagree. The court in Burton v. Ferrill, 531
S.W.2d 197 (Tex. Civ. App.-Eastland 1975, writ dism'd) considered whether the failure to timely
appoint temporary directors to a hospital district invalidated those appointments. 531 S.W.2d at
198-99. In that case, the hospital district's enabling legislation provided that "[o]n the effective date
of this Act, the Commissioners Court of Comanche County shall appoint five persons to serve as
temporary directors." Id. at 198. The court held that the timing requirement in the enabling
legislation was directory in nature and that the appointments did not have to be made on the effective
date of the legislation to be valid. Id. at 199. The court relied, in part, on the principle of statutory
construction that
[i]f the statute directs, authorizes or commands an act to be done
within a certain time, the absence of words restraining the doing
thereof afterwards or stating the consequences of failure to act within
the time specified, may be considered as a circumstance tending to
support a directory construction.
Id. (quoting Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956)); see Helena Chem. Co.
v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001); compare Sullivan v. Tex. Dept. of Pub. Safety, 93
S.W.3d 149, 153-54 (Tex. App.-Beaumont 2002, no pet.) (Burgess, J., dissenting) (discussing the
fact that when the statutory phraseology denies the exercise of a power after a certain time or
restrains performance after a certain time the statute is generally mandatory in nature); City of
Uvalde v. Burney, 145 S.W. 311, 312 (Tex. Civ. App.-San Antonio 1912, no writ) (explaining that
timing requirements expressed in the negative are necessarily mandatory).
In the case before us no restraining words are attached to the requirement that the County
appoint the board members within ten days of declaring the Authority created. Act of May 19, 1967,
6, at 897. And the Legislature did not provide any consequence for noncompliance with the ten-
day requirement. Id. We look then to the statute's purpose in determining the proper consequence
of noncompliance. Helena Chem. Co. v. Wilkins, 47 S.W.3d at 494; Tex. Dep 't of Pub. Safety v.
Dear, 999 S.W.2d 148, 152 (Tex. App.-Austin 1999, no pet.). The stated purpose of the enabling(GA-0621)
Upcoming Pages
Here’s what’s next.
Search Inside
This text can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Text.
Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0621, text, May 1, 2008; (https://texashistory.unt.edu/ark:/67531/metapth275517/m1/4/: accessed July 8, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.