Texas Attorney General Opinion: GA-0286 Page: 4 of 8
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Mr. R. Dyke Rogers - Page 4
part of the presiding officers, if these have not affected the true result of the election."). This
principle also applies to statutes regulating elections that are found outside of the Election Code.
See Ferrell v. Harris County Fresh Water Supply Dist. No. 23, 241 S.W.2d 242 (Tex. Civ.
App.-Galveston 1951, no writ) (bond election pursuant to provisions of the Texas Water Code);
Pollard v. Snodgrass, 203 S.W.2d 641 (Tex. Civ. App.-Amarillo 1947, writ dism'd) (local option
election pursuant to provisions of the Texas Alcoholic Beverage Code).
Where a statute is directory, substantial compliance with its provisions is sufficient. See
generally Waters v. Gunn, 218 S.W.2d 235, 237 (Tex. Civ. App.-Amarillo 1949, writ ref'd n.r.e.)
(stating that irregularities in compliance with statutory provisions concerning conduct of election
will not invalidate election unless shown to have affected or changed result); Turner v. Lewie, 201
S.W.2d 86, 89 (Tex. Civ. App.-Fort Worth 1947, writ dism'd). Substantial compliance does not
mean literal and exact compliance with every requirement of a statute, but simply compliance with
the essential requirements of the statute. See Tex. Att'y Gen. Op. No. JC-0255 (2000) at 4
("'Substantial compliance' means one has performed the 'essential requirements' of a statute.").
"A deviation from the requirements of a statute which does not seriously hinder the legislature's
purpose in imposing the requirement is 'substantial compliance."' Harris County Appraisal Dist.
v. Bradford Realty, Ltd., 919 S.W.2d 131, 135 (Tex. App.-Houston [14th Dist] 1994, no writ)
(examining substantial compliance in context of Tax Code provisions pertaining to taxpayer
challenges).
III. Legal Analysis
With respect to Webb County, you state that the Commission asks whether Webb County's
timely submission of its precinct returns would satisfy the certification requirement of section
16.01(a). See Request Letter, supra note 1, at 3. If not, you wish to know whether the lack of formal
certification in November 2000 precludes the Commission from moving forward on the pending
applications from Webb County. See id. at 3. If our opinion is that the Commission is so precluded,
you inquire whether the Commission may reinitiate the application process based on the formal
certification that occurred in June 2004. Your question related to Hidalgo County is whether the
Commission may accept and act on applications from a county where certification occurs more than
ten days after the canvass of the election. We consider sections 16.01(a) and 16.12(a) as we
formulate the answer to these questions.
A. Section 16.01(a)
Section 16.01(a) is framed in mandatory terms: the "commission shall not issue a
racetrack license or accept an application for a license... until the commissioners court has certified
to the secretary of state that the qualified voters of the county have approved the [pari-mutuel
propositions]." TEX. REV. CIV. STAT. ANN. art. i 79e, * 16.01(a) (Vernon Supp. 2004-05) (emphasis
added). With regard to the mandatory term "shall," the Texas Supreme Court stated:
There is no absolute test by which it may be determined whether a
statutory provision is mandatory or directory. The fundamental rule
is to ascertain and give effect to the legislative intent .(GA-0286)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0286, text, December 20, 2004; (https://texashistory.unt.edu/ark:/67531/metapth275182/m1/4/: accessed May 21, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.