Untitled Texas Attorney General Opinion ( 1939 )

This Opinion
modif les
:: c Fan O-
Hon. John R. Shook Attention: W. Pat Camp,
Criminal District Attorney Assistant
of Bexar County
San Antonio, Texas Re: Opinion No. O-1522
Issuance of Poll Tax Receipts
and Exemption Certificates in
cities of over 10,000 popula-
Dear Sir: tion.
We have given careful consideration to the questions
propounded to us in your letter of November 4, 1939 and your
supplemental letter of December 26th, all of which questions
are set out below:
“1. Can a duly qualified elector, living in a
city of ten thousand inhabitants or more, secure a
poll tax with which he would be entitled to vote
by filling out an affidavit (a copy of which is here-
to attached), swearing to the same before a notary
public, and mailing the same with the tax required
by law to the tax collector of his county prior to
February 1st of the year in which he desires to vote?
“2. Can a duly qualified elector, under the
circumstances outlined in question One, receive an
exemption certificate?
“3. Can a poll tax be Issued upon the affidavit
referred to in question #l, when such affidavit is
delivered in person by the elector to the tax collec-
tor, together with the tax required by law, before
February 1st of the year in which he desires to vote?
“4. Can the husband or wife obtain a certifi-
cate of exemption for the other under the circum-
stances outlined in question #Q?
‘$5. Can the Tax Assessor-Collector of Bexar
County, Texas, establish substations outside of the
courthouse for the purpose of collectlne: ad valo~rem
and poll taxes?” - -
We wish to thank you for the able brief presented in
Yom letter of November 14th, which,has been of material assist-
ance to us.
. -
Hon. John R. Shock, page 2
The form of affidavit which you enclosed in your
letter of November 4th is of the type contemplated to be used
by Article 2961, Revised Civil Statutes of Texas, 1925. This
article reads:
“If the taxpayer does not reside in a city of
ten thousand Inhabitants or more, Ns poll tax must
either be paid by him in person or by some one duly
authorized by him in writing to pay the same, and to
furnish the collector the information necessary to
fill out the blanks in the poll tax receipt. Such
authority and Information must be signed by the party
who owes the poll tax, and must be deposited with the
tax collector and filed and preserved by him.”
It is to be noted that the above article applies only
to a taxpayer who “does not reside in a city of ten thousand
inhabitants or more” and therefore can have no application to
residents of the city of San Antonio. In fact the succeeding
article expressly so states:
“Art. 2962. In all cases where the taxpayer re-
sides in a city of ten thousand Inhabitants or more
the tax must be oaid in uersu by the taxpayer entifled
to the receipt, except as provided by this article. If
a person residing in a city of ten thousand inhabitants
who is subject to pay a poll tax, intends to leave the
precinct of his residence before the.first day of Octo-
ber with the intention not to return until after the
first day of the following February and does not return
before that time, he shall be entitled to vote if po-
sessing all other legal qualifications, by pay&g his
poll tax or obtaining his certificate of exemption through
en agent authorized by him in writing, which shall state
truly his intention to depart from the precinct, the ex-
pected period of his absence and every fact necessary to
enable the tax collector to $ill the blanks in his re-8
ceipt . Such authority, in fact, must be sworn to by the
citizen, and certified to by some officer authorized to
administer oaths . It shall be deposited with the tax
collector and kept in his office.” (Underscoring ours.>
Article 2963, as last amended by the Forty-first Legis-
lature in 1929, reads as follows:
“When in cases permitted by this Title, the tax is
paid by an agent, the tax receipt shall not be delivered
to such agent, but shall be sent by mail to the taxpayer
or kept and delivered to him in person by the Tax Collec-
tor. Where a property taxpayer residing either within or
Hon. John R. Shook, page 3
without a city of ten thousand inhabitants or
more, has a poll tax assessed against him or his.
wife or, both;.he may, at t,he same time -that he
pays his property tax by bank check or money or-
der, also pay the poll tax of himself and wife,
or either, and in the same way ahd~its. shall .be
the duty of the Tax Collector 1n su~ch cases, to
mail such poll tax receipts, together with the
property tax receipt to such property taxpayer.
Exemption certificates shall- be mailed in like
manner, with the property tax receipt upon the
payment of property taxes.
“All tax receipts issued for any year after
January 31st shall~ beg stamped on ~the face.thereof;
‘Holder not entitled to vote’, Andythe names. of
the holders of such polltax receipts .shall not
be Included In the list of qualified voter,s:.W
It is also to be noted that the above article author-
izes the taxpayer when paying his property tax by bank check or
money order, also to pay his, ~011~tax “inthe. same way, and it
shall be the duty of Tax Collectors. in such cases, to mail such
poll tax receipts”. No authorization is tom,be found in the Ar-
ticle to permit the taxRayer to mail his application for poll
tax to the collector. It seems to us that express authority was
given to the Tax Collector to mail the receipt to the tqayer
“in such cases” for the logical purpose of giving the check time
to clear before the receipt is delivered. There being no con-
flict between Articles 2963 and 2962, they~ must both be given
effect. It follows, therefore, that in cities of 10xOOO inhabi-
tants or more all poll’ taxes “must be paid in person with only
two exceptions:
(1) That “the husband may pay the poll tax of
his wife” and vice versa, as provided in ‘.Artlcle VI,
Section 2 of the Constitution of Texas, and
(2) Where the person intends .to be absent from
his precinct during the tax paying period, as pro-
vided by Article 2962.
In our Opinion No. o-1461, addressed to the-Honorable
Tom L. Hartley, under date of November 7,~1939, we expressed the
view that Article 2963 provides a third exceptions to. the general
rules for payment of poll taxes laid down in Article 2961, appli-
cable to taxpayers not residing in cities of over 10,000, I.e.,
the taxpayer might pay his poll tax by-mail where the same was
assessed against him and he paid it together with his property
Hon. John R. Shook, page 4
tax. Upon reconsideration we have concluded that it was not
the purpose of Article 29b3 to create such third exception so
as to permit thd payment of poll taxes by mail, although ac-
corn anied by payment of property taxes. Our said Opinion No.
O-l f: 61 Is hereby amended accordingly. Although our Opinion No.
o-1461, dealing with Article 2961, has no direct application to
the questions presented,by you, we take this opportunity to
correct our former opinion.
The distinction made by the Legislature in the matter
of paying poll taxes between cities of over 10,000 and other
communities finds precedent in the Constitution, which in Arti-
cle VI, Section 4 authorizes the Legislature to "provide by law
for the registration of all votes in all cities containing a
population of ten thousand inhabitants or more". .As said by
Baugh, Judge of the Austin Court of Civil Appeals in Texas Power
& Light Co. v. Brownwood Public Service Co., 111 S.W. (2d) 1225
(19381, at p. 1227:
"And the Constitution in Section 4 of Article 6,
recognized that in order to preserve the purity of
elections, safeguards may be required in cities of
more than 10,000 inhabitants which are not authorized
in cities of lesser population."
In Parker v. Busby, 170 S.W. 1042 the Galveston Court
of Civil Appeals said:
I1 *** the law does not provide for the payment by
a taxpayer of his poll taxes through the mails."
We are aware of the general rule announced by the
courts of this state in such cases as Wallis v. Williams, 110 S.W.
785; Warren v. Robinson, 32 S.W. (2d) 875, land Ramsey v. Wilhelm,
52 S.W. (2d) 757 that the election laws will be liberally con-
strued so as not to disfranchise citizens, otherwise qualified to
vote, because of harmless irregularities in the manner of obtain-
ing poll tax receipts, etc. But Articles 2961, 2962 and 2963,
R.C.S. prescribe the rules whereby the Tax Assessors-Collectors
shall ge guided in issuing poll tax receipts and these officials
are duty bound to abide thereby. Article 199 of the Penal Code
subjects a Tax Collector to penalty for failure to do so:
"Art. 199. - Any tax collector who delivers a poll
tax receipt or certificate of exemption to any one ex-
cept the one~entitled thereto and at the time when the
tax is paid or the certificate of exemption is applied
for, except as specially permitted by law shall be fined
Hon. John R. Shook, page 5
not less than one hundred nor more than one thou-
sand dollars, and shall be removed from office.”
I. In answer to your first question, you are there-
fore respectfully advised that a duly qualified elector, living
in a citv of ten thousand inhabitants or more mav onlv secure
a poll tax receipt in oersop and not by an agent- upon’ af f ida-
vits except that --
(1) a husband may pay the poll tax for Ns wife
or a wife for her husband and -
(2) if the taxpayer intends to be out of the
precinct of his residence from October 1st to Febru-
ary 1st he may obtain his poll tax receipt or exemp-
tion certificate “through an agent authorized by him
in wrltlr@.
II. In answer to your second question, you are advised
that the same requirements apply to exemption certificates as
apply to poll tax receipts. It was so, held by the Austin Court
of Civil Appeals in Texas Power and Light Co. v. Brownwood Pub-
lic Service Co., 111 S.W. (2d) 1225 (writ of error refused) where-
in the court said at page 1227:
“It is clear, we think, that if the Legislature
has the power to require a poll tax receipt of all the
citizens of the state as a qualification for voting,
and for reasons sufficient to itself, sees fit to ex-
empt certain classes from the payment of such tax, it
has equal power to prescribe, as a qualification for
voting equal or similar requirements for those grat-
uitous i y exempted from poll tax payments, as It does
for those who are required to pay the tax, ***
“Vernon’s Annotated Civil Statutes, Article 2968,
expressly requires, in cities of more than 10 000 in-
habitants those who are exempted from paymenc of a
poll tax co procure an exemption certificate before
February 1st of the year in which they offer to vote.
This statute prescribes these requirements with the
same particularity and exactness as do the statutes re-
lating to payment of poll taxes. .And Article 3004 R-S.,
relating to voting makes the same requirements wi 4h
reference to exempt ion certificates, as essential to the
right to vote, as it does with reference to poll tax
receipts On
Hon. John R Shook, page 6
III. Replying to your third question we will say that
if a duly qualified elector pays his tax in person before Febru-
ary 1st he is entitled to receive a poll tax receipt upon giving
the requisite information as to his residence, etc. under oath
to the collector so that the delivery of his own affidavit at
such time would i e Immaterial.
IV. In answer to your fourth question, it Is our opln-
ion that since Section 2 of Article VI of the Constitution of
Texas authorizes a husband to pay the poll tax for his wife, and
since under the doctrine announced by Texas Power & Light Co. v.
Brownwood Public Service Co., supra the same rules apply to ex-
emption certificates as apply to po i 1 tax receipts, it would seem
reasonable to construe Article 2968, R.C.S., which prescribes the
issuance of exemption certificates so as to permit either a hus-
band or wife to act as agent for the other, without written au-
thorization in obtaining exemption certifi~cates.
v. In order to answer the question submitted in your
letter of December 26th, whether the Tax Assessor-Collector of
Bexar County may establish substations outside of the courthouse
for the purpose of collecting ad valorem and poll taxes, it will
be necessary to consider the several applicable statutes.
Article 2971 expressly directs the collector to estab-
lish such a substation in cities of 10,000 or more other than
the county seat.
Article 7255, as amended in 1939, provides that the tax
collector, “when so ordered by the Commissioners’ Court? “may
post up notices - not less than three (3) - at public places in
each voting or justice precinct in his county, at least twenty
(20) days previous to the day said taxpayers are required to meet
him for the purpose of paying their taxes, stating In said notice
the times and places the same are required to be paid ***I’ This
statute clearly authorizes the establishment of “substations” upon
the conditions stated.
Article 7256, as amended in 1937, directs the Assessor
and Collector to “keep his office at the county seat of his coun-
As said by Murray, Judge in Oliver v. Lindsay, 125 S.W. (2d)
Zi;;:
“It will be kept in mind that the collector is
not required to keep his office in the courthouse of
the county, but only at the county seat.”
The Austin Court of Civil Ap eals, by way of dicta in
1913 in the case of Davis v. Riley, 1 R S.W. 314, declared that
Hon. John R. Shook, page 7
“The payment by a citizen of his poll tax at any other place
than the office of the tax collector does not constitute in law
a payment of said tax . . .” The statutes have been repeatedly
amended since the decision of that case, and we believe that
the dictum above quoted, has In effect been subsequently over-
ruled by Oliver v. Lindsay supra and by the Texas Court of
Criminal Appeals In Hlbbetts v. SCat e, I23 S.W. @cl.) 898 where-
in the court sustained a conviction for misapplication 01 public
funds by a deputy tax collector who accepted money in payment of
taxes in a corridor of the courthouse. The court distinguished
the case of Davis v. Riley by saying:
“It is obvious that Grim (the deputy in the Davis
case) was acting for the taxpayers and not for the
collector . . .n
There being no express statutory prohibition against
the establishment of substat%ons for the collection of taxes,
we believe that poll taxes paid at such a substation to the col-
lector or a properly authorized deputy would be a valid payment.
In this connection, it .must be borne In mind, however, that the
statutes prescribing the form of poll tax receipts and exemption
certificates require separate books for each precinct. Article
2970 requires that:
“Each Commissioners’ Court, before the first day
of October levery year shall furnish to the County Tax
Collector blank books for each , which
shall be marked with the name and number of the pre-
cinct for which they are intended. . .w (Underscoring
ours.)
Similarly, Article 2968 requires that:
“Certificates of exemption for u precinct shall
be numbered consecutively . . .‘l (Underscoring ours.)
We call attention to these statutes merely to indicate
that -they may effect to some extent the practical operation of
substations for payment of poll taxes*
APPROVED DEC.29, 1939 Yours very truly
/s/ Gerald C. Mann ATTORNEY GENEXUL OF TEXAS
ATTORREY GERFRALOF TEKAS By /s/ Walter Il. Koch
Walter R. Koch, Assistant
WRK:ob:wb
This opinion considered and approved in limited conference.