Untitled Texas Attorney General Opinion ( 1986 )

Nmember 10, 1986
Honorable Larkin C. Eakin, .Jr. Opinion No. m-574
Wailer County Attorney
836 Austin Street Re: Sufficiency of rollback petition
Hempstead, Texas 77445 under section 26.07 of the Tax Code
Dear Mr. Eakin:
You have provided us u:Lththe following information:
By way of factual background, the commissioners
court of Wailer County approved a tax rate for
Wailer County that:exceeded the rate calculated as
provided by sectj.m 26.04 of the Texas Property
Tax Code by more 1:haneight percent (8%). A peti-
tion was circulated and presented to conmissioners
court calling fol, a 'rollback' election in con-
.formity with section 26.07 of the Texas Property
Tax Code. The petition was examined and signa-
tures verified by the county election adminis-
trator, Mr. A. S. Wier. After disallowing a number
of signatures as mt listed on the voter rolls or
as duplicates of (other signatures, the petition
was found, by the commissioners court, to be some
200 signatures short of the required number.
Thereafter, wi:hin the time limits provided by
section 26.07, the citizens conducting the
petition campaign presented the commissioners
court with a new petition which the petition
organizers labellf:das petition 'B'. Petition 'B'
consisted of a photostatic copy of the first
petition presentelI to the commissioners together
with sufficient Driginal signatures that, when
taken together, apparently exceeded the required
number of signatwes to call a 'rollback' election
under section 26.C7. It was made clear during the
presentation that petition 'B' was a new petition
and that the new, original signatures were not to
be considered aa mpplementary to the first peti-
tion. The commis:;ionerscourt once again refused
to order a 'rolLback' election, rejecting the
petition as insufficient.
p. 2559
Honorable Larkin C. Eakin, Jr. - Page 2 (JM-574)
You ask whether the present;ltionof the petition, consisting of photo-
static copies of signatures that comprised the first petition coupled
with new lists of actual signatures that were less in number than the
required amount, is sufficie~ntto authorize the calling of a tax rate
26.07 of the Tax Code. We answer your
rollback election under sec,::ion
question in the negative.
Section 26.07 of the T.m Code sets forth the following:
(a) If the governing body of a taxing unit
other than a s&o01 district adopts a tax rate
that exceeds the rate calculated as provided by
Section 26.04 of this code by more than eight
percent, the qualified voters of the taxing unit
by petition may require that an election be held
to determine whet'xeror not to reduce the tax rate
adopted for the current year to a rate that
exceeds the rate calculated as provided by Section
26.04 of this code by only eight percent.
(b) A petition is valid only if:
(1) it states that it is intended to
require an eltztion in the taxing unit on the
guestion of Isducing the tax rate for the
current year;
(2) it is c;ignedby a number of qualified
voters of the Taxing unit equal to at least 10
percent of th#i number of qualified voters of
the taxing unit according to the most recent
official list of qualified voters not counting
the signatures-of voters gathered by a person
who received $mpensation for circulating the
petition; and
(3) --
it is submitted to the governing body
on or before the 90th day after the date on
which the govt!r:ningbody adopted the tax rate
for the current year.
(c) Not later than the 20th day after the day
a petition is sulmlitted,the governing body shall
determine whether-or not the petition is valid and
pass a resoluticz stating its finding. If the
governing body Fails to act within the time
allowed, the petition is treated as if it had been
found valid.
(d) If the gcverning body finds that the peti-
tion is valid (or fails to act within the time
p. 2560
Honorable Larkin C. Eakin, Jr. - Page 3 ~(JM-574)
allowed), it shall order that an election be held
in the taxing unit on a date not less than 30 or
more than 90 days after the last day on which it
could have acted to approve or disapprove the
petition. A state law requiring local elections
to be held on a llpecifieddate does not apply to
the election unless a specified date falls within
the time permitwd by this section. At the
election, the balLots shall be prepared to permit
voting for or against the proposition: 'Reducing
the tax rate in '(name of taxing unit) for the
current year from (the rate adopted) to (the rate
that is only eigt,tpercent greater than the rate
calculated as provided by Section 26.04 of this
code). . . .' (Emphasis added).
Essentially, you wish to klow whether a petition which consists, in
part. of a photostatic cop:? of signatures already obtained complies
with subsection 26.07(b)(2) requirement that the petition be "signed
by a number of qualified vol:ers. . . ." We conclude that it does not.
In Attorney General Ol#inion JM-501 (1986). we concluded that a
voter registrar acted properly when rejecting a petition circulated
for the purpose of determir.ingwhether the sale of certain alcoholic
beverages would be authorixd within the county. The voter registrar
disallowed an undisclosed number of voters' signatures when there
appeared minor variations b?r:weenthe signatures and the names of the
voters as they appeared on the official copy of the current list of
registered voters. The s:atute at issue, section 251.10 of the
Alcoholic Beverage Code, specifically provided that the signature
could not be counted in an :.nstancein which
the name of the va-ter is not signed exactly as it
appears on the official copy of the current list
of registered votrrs for the voting year in which
the petition is irwued.
Alto. Bev. Code 5251.10(b)(,S). Admittedly, the requirements for a
petition set forth in section 26.07 of the Tax Code are less rigorous
than those set forth in section 251.10 of the Alcoholic Beverage Code,
but the rationale by which we concluded in Attorney General Opinion
JM-501 that the petition requ:irementsshould be strictly construed are
equally applicable to both provisions.
We noted in Attorney General Opinion JM-501 that, in construing
election laws. it is necessary to determine whether the provisions
under scrutiny are mandatory or directory in nature. Branaum v.
Patrick, 643 S.W.2d 745, 74!) (Tex. App. - San Antonio 1982, no writ).
In general, election laws are to be construed as directory in the
absence of fraud or of ``rovisions which are clearly mandatory.
Statler v. Petzer, 630 S.W.:2d 782 (Tex. App. - Houston [lst Dist.]
p. 2561
Honorable Larkin C. Eakin, Zr. - Page 4 (JM-574)
1982, writ dism'd); Attorney General Opinion JM-467 (1986). Because
the right to vote is fundamental, election law provisions relating to
qualifications of voters art!usually construed to be directory. Leach
v. Fischer, 669 S.W.2d 844 (Tex. App. - Fort Worth 1984, no writ);
Branaum v. Patrick, supra. Irregularities in the election process
which do not act to disenfx,anchisevoters or affect the result of an
election are generally treated as inconsequential. See Branaum v.
Patrick, supra, at 750. However, election law provisions regarding
candidates and their qualifications for office are usually construed
as being mandatory, because the right to hold office is considered a
privilege. Leach v. Fischer,,supra; Sparks v. Busby, 639 S.W.2d 713
(Tex. App. - Tyler 1982. writ dism'd); Geiger V. DeBusk, 534 S.W.2d
437 (Tex. Civ. App. - Dt.llas 1976, no writ). Moreover, in the
instance of a special election, the exercise of a grant of authority
to call an election must bl! in strict conformity with the provisions
of the legislative grant. West End Rural High School District of
Austin County v. Columbus Consolidated Independent School District of
Colorado County, 221 S.W.:z 777 (Tex. 1949); Mesquite Independent
School District v. Gross, (17S.W.2d 242 (Tex. 1934). As the Supreme
Court has declared: "Whe1 a statute which authorizes a special
election . . . prescribes :he form in which the question shall be
submitted to the popular vote, we are of the opinion that the statute
should be strictiye complied with." Reynolds-Land & Cattle Co. v.
McCabe, 12 S.W. 165 (Tex. 38,881;Coffee v. Lieb, 107 S.W.2d 406, 411
(Tex. Civ. App. - Eastland 'L937,no writ).
In West End, the speciill.
election at issue was one to consolidate
school districts; the issue was whether the petition to call the
election was defective. The petition failed to specify correctiy the
school districts involved. In discussina the conditions precedent
necessary to call the election, the court declared the following:
Article 2806 [gowrning school district consolida-
tion elections] does not purport to confer
unlimited power, or jurisdiction, upon a county
judge to call spe<::ial
elections for the purpose of
effecting consolidation of school districts. - The
statute expressly limits his jurisdiction to the
instances in whicl;he is presented with a petition
complying with tKz above-noted requirements; in
other words, with~1 proper petition. The require-
ments pointed 0l.t are conditions precedent to
invoke the jurisdiction of a county judge to call
an election for creating a district or districts
by consolidation; and consequently the require-
ments limit his p',tentialjurisdiction. (Emphasis
added).
221 S.W.2d at 779.
p. 2562
Honorable Larkin C. Eakin, .Jr.- Page 5 (JM-574)
In this instance, as xLth the provisions addressed in Attorney
General Opinion .JM-501,we construe the requirements of section 26.07
of the Tax Code to be mandatory. Admittedly, it does not deal with
the qualifications of a candidate. It does, however, concern whether
an election issue, rather than a candidate's name, will be placed on
the ballot. Cf. Leach v- Fischer, supra. Moreover, because we
believe subsection (b) is c:learand unambiguous, it must be enforced
according to its express language. Call v. Service Motors, Inc., 660
S.W.2d 814, 815 (Tex. 1983).
Subsection (b)(2) of section 26.07 of the Tar Code requires that
a conforming petition be "signed" by a requisite number of voters.
One ordinarily "signs" a docxunentwhen he writes or marks something on
it in token of his intentit,nto be bound by its contents. Delespine
v. State, 396 S.W.2d 133, 136 (Tex. Grim. App. 1965), cert. denied,
384 U.S. 1019 (1966). In Attornev General Opinion JM-501, however, we
construed the 'signature requirements to be mandatory and concluded
that a voter registrar acted properly in striking non-conforming
signatures, as provided by the applicable section of the Acloholic
Beverage Code. In this instance, part of the petition presented
consisted, not of actual signatures, but of copies of signatures of a
petition previously submitted to and rejected by the commissioners
court. We have found no statute which permits copies of signatures,
as opposed to actual signatures, to be sufficient to qualify as a
conforming petition. See , e.g., V.T.C.S. arts. 179d (Bingo Enabling
Act); 6702-l (County Road and Bridge Act). In each instance, a peti-
tion must be "signed." Accordingly we conclude that a petition that
consists in part of *s, of signatures comprising a previously
submitted and rejected petition does not comport with the requirement
of section 26.07 of the Tax Code that such petition be signed by a
requisite number of voters.
SUMMARY
A petition fo.r a tax rollback election that
consists in part of copies of signatures com-
prising a previously submitted and rejected
V-7
petition does not comport with the requirement of
section 26.07 of the Tax Code that such petition
be signed by a rec,uisitenumber of voters.
s MiiJt
JIM
&
ruly yours
MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney Ger.eral
p. 2563
Honorable Larkin C. Eakin. Jr. - Page 6 (JM-574)
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 2564