§ 15.143. ‘‘Shall’’ and ‘‘may.’’
(a) Function of statute. The principal functions of a statute are to:
(1) Create.
(2) Impose a duty or obligation.
(3) Prohibit.
(4) Confer a right, power or privilege.
(b) Duty, obligation or prohibition. Whenever possible, use ‘‘shall’’ only in the imperative sense. A duty or obligation is expressed by ‘‘shall’’ and a prohibition by ‘‘shall not.’’ However, ‘‘may’’ should be used in the case of a negative subject. For example, ‘‘No person shall....’’ means that no one is required to act. So read, it negates the obligation, but not the permission, to act. On the other hand, ‘‘No person may .....’’ negates also the permission and is, therefore, the stronger prohibition.
(c) Right, power or privilege. Whenever possible, use ‘‘may’’ only in the permissive sense. A right, power or privilege is expressed by ‘‘may’’ and an abridgement of a right, power or privilege by ‘‘may not.’’ Where an intended right might be construed as merely an unenforcible privilege, use ‘‘is entitled.’’ Where a power conferred on a public authority is liable to be construed by the courts as a duty, the word ‘‘may’’ should be followed by words such as ‘‘in his discretion’’ unless ‘‘may’’ has been expressly defined as being only permissive.
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