Untitled Texas Attorney General Opinion ( 1962 )

Superseded by Art. 5.14a
Election Code enacted in
1965
Honorable
- . . . Alfred H. Flanagan Opinion NO. ww-1298
District Attorney
76th Judicial District Re: Whether a Tax Asaessor-
P. o. BOX 986 Colleotor eihould leaue a
Mt. Pleasant, Texas voting poll tax receipt to
a person who mailed a proper
application therefor, post-
marked January glat,but
received by the Tax Assessor-
Dear Mr. Flanagan: Collector on February 2nd.
In your letter you state:
“A lady mailed a requeet for a Poll Tax
Receipt from Au&in, Texas, on January 3&t,
1962, to the Tax Aseeeeor-Collector of Titus
County, Texas, at -Mr. Pleaeant, Ttxas. This
written request contained all of the requlred
InSormatlon, including the remittance, but was
not received in the office of aaid Tax Assessor-
Collector until February 2, 1962, but the enve-
lope containing the ap llcation bore the port
mark of January 31, 19g 2. The Tax Aesessor-
Collector refused to lsrrue a voting poll tax
receipt because said application wan not
received In his office by January 31, 1962."
Art. 5.09, Texas Sleotion Code, provides In part PB
follows :
“A poll tax ahall be oollected Srom every
person between the ages of twenty-one (21) anb
sixty (60) yeers who resided in thla state on
the first day of January preceding It8 levy . . .
It shall be paid at any time between the Slret
day of October and the first day of February
Sollowing; *. . ”
Art. 5.11, Texas Election Code, provides In part a8
sollows:
m.. A taxpayer may pay hl# poll tax by
a rem,ittance of the amount of the tax through
the United States mail to the County Tax
Collector, accompanying: said remittance with
a statement in writing ehowlng all the lnSOI?ULatlOn
Honorable Alfred H. Flanagan Page 2 Opinion No. W-1298
necessary to enable the Tax Collector to Sill II
out the blank form of the poll tax receipt, . * .~-
Sec. 2 of Art. 6, Texas Constitution,reads In part as
sollows:
If... any voter who Is subject to pay a
poll tax under the laws of the State of Texas
shall have paid said tax before offering to
vote at any election In this State and hold a
receipt showing that said poll tax was paid
before the first day on February next preceding
such election ...”
In Davis v. Riley, 154 S.W. 314 (Civ. App. 1913), Riley and
70 others had delivered $1.75 each to one Holloway, and at the
same time had signed a statement authorizingone Grim to deliver
the money to the tax collector,Davis, In payment Sor’their poll
taxes. Holloway forwarded the money by mail on January 30, 1912,
to Grim, who In turn delivered It to the tax collector on the 1st
and 2nd days of February, 1912. The Court stated at pages 316
and 317:
II... The law further provides that all poll
taxes shall be paid on or before the 1st day of
February of each year, and makes it a penal
offense for the collector to receive poll taxes
and antedate the receipts therefor after sald time.
“The Plaintiffs,under the circumstances,con-
stituted Holloway and Crlm their agents to receive
and deliver said money and orders to the collector,
and must abide by their failure to deliver the same
within due time. While the collector could have
received the money and orders when tendered to him at
his office, and issued the receipts and certificates
as of date when In fact received by him, still he was
not justified in receiving and antedating such receipts
and certificates;.*. IS the plalntlffswere dlsquali-
f’ied as voters for said year by reason of their
failure to pay the poll taxes and procure the exemption
certificateswithin due time, it was chargeableto the i
fault and neglect of their own agents ...’
Attorney General’s Opinion No. ~-2836 (1952) to County
Attorney George M. Kelton of Ector County, held likewise, and
cited Davis v. Rilex. We find no Texas cases covering~the
situation under consideration,where the taxpayermails his
remittance and applicationdirectly to the tax collector which
is postmarked on January 31st, but not received through the
mail by the tax collector until some time in February. While
Art. 5.11, Texas Election Code, permits payment of the tax by
- -
Honorable Alfred H. Flanagan Page 3 Opinion No. w-1298
mall, nothing is said about accepting a tax as being paid on
time where It Is postmarked In time, but delivered by mail after
the deadline. Art. 13.12, Texas Election Code, on the subject
of filing application to have one'8 name oh the primary ballot
as a candidate, specificallymakes provlslon.Sormeeting the
filing deadline by mailing by registeredmall within the time
for filing. Prior to this provision the Supreme Court of Texas,
in the case of Burroughs v. Lyle6 142 Tex. 704, 181 S.W.2d 570,
(1944), had held th t th I &w on filing (Art. 3112, V.C.S.)
did not authorize aaSili~gp~yo~ail,where postmarked within the
time allowed by law, but received by the county chairman through
the mail after the filing deadline.
It is our opinion that the poll tax Is not paid until the
remittance is In the hands of the tax assessor-collectoror his
authorized deputy, and any other holding would be contrary to
Sec. 2, Art. 6, Texas Constitution. The United States mall Is
not a deputy tax collector. In Webb v. Champion Coated Paper
31 N E 2d g6 (Ohio Ct. App 940) the appellant had mailed
%*ihe cl&k of the court by regisiered'mail a motion for new
trial In time to reach its destinationIn t&ee days, which
would have met the deadline for filing the motion. For some
reason the letter containingthe motion was not delivered until
the fourth day, or one day too late. The Court said at page 97:
'While, undoubtedly,the appellant was
justified In having a firm expectationthat
the mail would be forwarded In the usual
manner, nevertheless,it chose the postal
departmentas Its agent and must be charged
with its failure to meet lb oxpectatlorrsto
the same extent that it would be charged
with the failure of any other agent selected
by it. The failure of the Post Office Depart-
ment was the appellant'sfailure. ..."
In Roberts v. Sims, 111 Okla. 1, 237 P. 852, the Court
stated at page 853:
'When the defendantdeposited the motion
for new trial In the United States mall, he
thereby selected the postal department as his
agency for delivery. *.."
We also direct your attention to Art. 5.12 of the Election
Code which specificallyprovides that all poll tax receipts
"issued for any year after January 3lst shall be stamped on the
face thereof: 'Holdernot entitled to vote' and the names of the
holaers of such poll tax receipts shall not be Included in the
list of qualified voters."
It is therefore our opinion that the Tax Assessor-Collector
rightly regused to Issue a voting poll tax receipt to the tax-
payer whose remittance and applicationwas received by such Tax
Assessor-Collectorthrough the United States mall after the 3lst
day of January.
Honorable Alfred H. Flanagan Page 4 Opinion No. W-1298
S IiN,ilA R.Y
A County Tax Assessor-Collectormay not
issue a voting poll tax receipt to a taxpayer
whose remittance and application sent to the
Tax Assessor-Collectorby United States mall,
was received by such Tax Assessor-Collector
after the 31st day of January.
Yours very truly,
WILL WILSON
Attorney General of Texas
-Y .
Riley &en, Fletchek
Assistant
REF:bjh
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
John Reeves
Arthur Sandlin
Vernon Teofan .'
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
.