Untitled Texas Attorney General Opinion ( 1968 )

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Honorable J. K. Williams
Commissioner, CoordinatingBoard
Texas College and University System
Sam Houstoh State Office Building
Austin, Texas 78701 Opinion No. K-214
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Re: Whether the submitted
proposed form of affl-
davit for an election
to authorize the Travis
County Junior College
. District to levy and
collect a maintenance
tax and issue bonds
will substantially
comply with Article
5.04 of the Election
Dear Mr. Williams: Code,
In your recent opin'ionrequest you have submitted the
following relevant facts:
.(!I Travis County Junior College'Dlsttiict'was
createa ana seven trustees were elected at an election
held within the District on November 9, 1963. At the
same election the electorate failed to vote authorization
for the District to Issue bonds or levy a maintenance tax.
.In a subsequent election the voters failed to approve the
Issuance of bonds or the levying of a maintenance tax.
(2) The Board of Trustees plans to call an election
for April 20 1968, for the purpose of submitting propo-
sitions to the voters which If passed would authorize
the District to levy a maintenance tax'and Issue bonds
for school purposes. '
(3) Since the District has never been authorized
to levy a maintenance tax, no tax rolls have ever been
compiled or adopted by the Trustees. No one has ever
rendered property to the Dlstr1c.tfor taxation. ,.
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Honorable J. K. Williams, page 2 (K-214)
(4) Pursuant to the requirementsof Article 5.04
of the Election Code, the Secretary of State has pro-
mulgated a form of affidavit to be signed by each voter
in a bond election, which requires that the affiant
identify property which has been rendered for taxation
to the political subdivision holding the election.
Since no one has rendered property for taxation to the
District no one could truthfully sign the affidavit
promulgatedby the Secretary of State In this Instance.
A form of affidavit which the District proposes to use
in view of the above situation Is attached to your opinion
request which reads as follows:
"AFFIDAVITOF OWNERSHIP OF PROPERTY
SUBJECT TO TAXATION
For Voting at Election held by
Travis County Junior Colle e District
on April 20, 1968 " ,~ "
"I so1emnl.yswear that I own property which is subject
to taxation by the Travis County Junior College District;
and that the following Is a description of one Item of
property so owned by me on this date.
(Descriptionof Property)
"I understand that the giving of false'lnformationin
this affidavit Is a felony punishable by a fine not to
exceed $5000.00 or by Imprisonment In the penitentiary
not to exceed 5 years, or by both such fine and.lmprlson-
ment.
X
(Signature of Voter)
"Sworn to before me by the above-signed voter on this the
20th day of April, 1968.
nlgnatureT6!fficer AdministeringOathr '
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Honorable J. K. Williams, page 3 (M-214)
You then ask whether this form of affidavit, If used
by the District in the election to be held on April 20, 1968,
would substantiallycomply with the requirementsof Article
5.04 of the Election Code.
In Mlnthorn v. Hale, 372 S.W.2d 752 (Tex. Clv. APP.,
1964, no writ) the Court said at page 753:
"The rule Is that statutes regulating the manner
of holding an election are merely directory, and a
departure from their provisions will not, ordlnarllz,
invalidate an election, unless such departure or such
irregularity have affected or changed the result of
the election." (Emphasis added.)
,.
Ordinarily, before a person may vote In a bond election,
he must render his property for taxation to the polltlcal
subdlvlslon holding the election and must execute an affidavit
to that effect. Article 6, Sec. 3a, Texas Constitution,Art-
icles 5.03 and 5.04, Election Code. However, the requirement
that a person render his property before being allowed to vote
in bond elections Is not absolute In situations, such as In
the Travis County Junior College District,,where no tax rolls
have been prepared or adopted, no tax levy has been authorized
by the electorate, and no one has rendered property for tax-
ation. The Supreme Court said In Hanson, v.:Jors, 145 Tex.
320, 198 S.w.2d 262 (1946), at page 263, In talking about a
similar situation,
I,
...In other words, each voter at the election
was a property owner, and the only reason he had not
rendered his property for taxes was the very suffl-
clent one that there were no taxes to pay. To hold
that a voter In that situation could not legally cast
hls ballot would be to punish a citizen who has been
guilty of no dereliction or omission whatever. It
would amount to a disfranchisementof the entire prop-
erty-owning citizenship of Cleveland because for a
decade that city very commendably levied no taxes
when no taxes were necessary.... We do,not believe
the voters of this state had any such lntendment In
mind when they adopted Art. VI, Sec. 3a, supra. To
hold the election In this case Invalid, under the facts
stated, would accomplish no good; It would remedy no
evil."
Article 5.04 contemplates that each voter sign an affi-
v1029-
Honorable J. K. Williams, page 4 (~-214)
:
davlt promulgatedby the Secretary of'State. Sl~nce~n6
voter in the District could truthfully sign such affidavit,
to require each voter to do so would disfranchise every
voter In the District, We do not believe that the Legls-
lature intended such a result in amending Article 5.04 of
the Election Code during~the last session of the Legislature.
The form of affidavit which the District proposes to
use In the election to be held on April 20, 1968, requires
that the voter state that he owns property subject to tax-
ation located in the District and that he describe such
property as contemplated by Article 5.04, supra. We cannot
see that the use of such affidavit would lead to fraud, mis-
conduct, or other irregularity In the conduct of the proposed
bond election. Absent such a showing it is the opinion of
this Department that under the submitted facts the use of
the proposed form will substantiallycomply with the requlre-
ments of Article 5.04 of the Election Code.
SUMMARY
The submitted proposed form of affidavit for
use in a bond election, In a political subdivision
In which a tax roll has never been prepared to
authorize the Travis County Junior College l%strict
to levy and collect a maintenance tax and issue bonds
will substantiallycomply with Article 5.04 of the
Election Code.
t'rulyyours,
C. MARTJN
General of Texas
Prepared by John W. Fainter, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Philllos. Chairman
Kerns Taylor Co&airman
W. V. Geppert .
Tom Fortescue
Bill Craig
Malcolm Quick
A. J. Carubbi Jr.
Executive Assistant
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