Can a Texas commissioners court change the weekday it holds its regular monthly meetings?

Plain-English summary

The Caldwell County Criminal District Attorney asked the Attorney General two related questions about section 81.005 of the Local Government Code, which sets how a county commissioners court fixes the day of the week it holds its regular monthly meetings. At the final meeting of one fiscal year, the Caldwell County commissioners voted to designate Monday as the day they would convene during the next fiscal year, as subsection 81.005(a) requires. The county judge was absent for that vote, and at the first meeting of the new fiscal year he asked the court to reconsider and switch to Tuesday. The court's counsel advised that, having already chosen a day at the last meeting of the prior year, the court could not change it. The district attorney asked the Attorney General whether the court could change the day during the current fiscal year, and whether it could instead have tabled the designation into the next fiscal year and stayed in compliance.

On the first question, the opinion looked to subsection 81.005(h), which expressly says the commissioners court "may designate a day of the week" for its regular term "other than the day of the week designated under Subsection (a)." Reading that plain language, the opinion concluded the court may change the designated day during the county's current fiscal year. So Caldwell County could move from Monday to Tuesday.

On the second question, the opinion concluded a court that tables the designation until a new fiscal year is not in compliance with subsection 81.005(a), which requires the designation to be made at the last regular term of each fiscal year and presumes a day was already set under subsection (a). But noncompliance did not necessarily void the action. Texas courts treat "shall" as sometimes only directory, especially in statutes that set a time for a public officer to perform a duty without stating consequences for missing the deadline or restraining performance afterward. Because section 81.005 sets no consequence for a late designation and subsection (h) expressly allows a change after the subsection (a) deadline, the opinion read the timing component of subsection (a) as directory. As a result, a reviewing court would be unlikely to invalidate a commissioners court order, tabled from the prior fiscal year, that designated a new meeting day in the current fiscal year.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

County commissioners courts (as the opinion described it): The opinion told these courts that subsection 81.005(h) authorizes changing the designated regular meeting day during the current fiscal year, so a court is not locked into the day it picked at the prior year's last meeting.

County judges and commissioners who missed a vote (as the opinion described it): The opinion's reading meant a court could revisit and change the meeting day after the fact, which fit the situation of a judge absent for the original designation seeking a different day.

Government attorneys (as the opinion described it): The opinion laid out the directory-versus-mandatory analysis: subsection 81.005(a)'s timing requirement is directory because the statute states no consequence for a late designation and subsection (h) allows a later change, so a late or tabled designation, while not technically compliant with subsection (a), would likely survive judicial review.

Common questions

Can a Texas commissioners court switch the day of the week it holds regular meetings?
Yes, according to the opinion. It read subsection 81.005(h) of the Local Government Code to expressly let a commissioners court designate a regular meeting day other than the one it set under subsection (a), so the court may change the day during the current fiscal year.

Does the court have to pick its meeting day at the last meeting of the fiscal year?
Subsection 81.005(a) requires the designation to be made at the last regular term of each fiscal year for the next fiscal year. A court that tables the matter into the new fiscal year is not in compliance with subsection (a).

If the court misses that deadline, is its later choice invalid?
The opinion concluded that is unlikely. It treated subsection (a)'s timing as directory rather than mandatory, because the statute states no consequence for missing the deadline and subsection (h) allows a change afterward, so a reviewing court would probably not invalidate the order.

What is the difference between a mandatory and a directory statute here?
The opinion explained that a directory provision gives directions that ought to be followed but does not limit the power so that it cannot be exercised without observing them, and a duty under a directory statute may be performed after the prescribed time has passed.

Background and statutory framework

The opinion construed section 81.005 of the Local Government Code. Subsection (a) requires that, at the last regular term of each fiscal year, 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." Subsection (h) provides that the court "may designate a day of the week" for its regular term "other than the day of the week designated under Subsection (a)." The opinion read subsection (h)'s plain text, citing R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, to allow a mid-year change.

For the directory-versus-mandatory question, the opinion relied on Chisholm v. Bewley Mills ("shall" is usually mandatory but sometimes directory), Government Code section 311.016(2) ("shall" imposes a duty unless context requires otherwise), Helena Chem. Co. v. Wilkins (a statute that does not declare consequences for noncompliance is generally directory, and the absence of words restraining later performance points the same way), Murray v. State (defining a directory provision), Tex. Dep't of Pub. Safety v. Dear (a directory provision is one whose observance is not necessary to the validity of the proceeding), and Markowsky v. Newman (a thing a statute directs to be done at a particular time may still be done afterward). It cited Comm'rs Ct. of Titus Cnty. v. Agan for the limited supervisory power of a district court over a commissioners court (invoked only for acts beyond jurisdiction or an abuse of discretion), and a prior AG opinion (JM-397 (1985)) for the rule that statutes prescribing the time for a public officer's duty are generally directory. The opinion also cited Lipari v. State on the meaning of a "term" of a commissioners court.

Citations

Cases:

• Lipari v. State, 19 Willson. 431, 433-34 (Tex. Ct. App. 1885)
• R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)
• Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956)
• Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001)
• Murray v. State, 21 Tex. Ct. App. 466, 477, 1 S.W. 522, 524 (1886)
• Tex. Dep't of Pub. Safety v. Dear, 999 S.W.2d 148, 151 (Tex. App.-Austin 1999, no pet.)
• Markowsky v. Newman, 136 S.W.2d 808, 812 (Tex. 1940)
• Comm'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 80 (Tex. 1997)

Statutes:

• Tex. Loc. Gov't Code Ann. § 81.005(a) (West 2008); § 81.005(h) (West 2008); § 81.005 (West 2008); § 81.005(a)-(h)
• Tex. Gov't Code Ann. § 311.016(2) (West 2005)

Other authority:

• Tex. Att'y Gen. Op. No. JM-397 (1985)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1001
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1001.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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 of the Local Government Code
(RQ-1095-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.1. 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. Id. 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 of the Local Government Code?

Request Letter at 1.

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 compliance with section 81.005 of the [Local] Government Code[.]"[2] 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. Id. 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 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. Id. § 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).

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

[1] Letter from Honorable Richard R. Hicks III, Caldwell Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Oct. 24, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[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.).