Untitled Texas Attorney General Opinion ( 1959 )

E
OF TEXAS
Honorable Jimmy Morris Opinion No. WW-594
County Attorney
Navarro County Re: Whether the holder of an
COrSiCana, TeXaB exemption certificate may
vote upon making affidavit
that the certificate has
been lost, mislaid, or
Dear Mr. Morris: left at home,
You have requested an opinion on the following question:
"May a person who is exempt by law from the pay-
ment of a poll tax and who applied for and received
an exemption certificate from the Tax Collector vote
at an election by making his affidavit of the fact
that he has lost, mislaid, or left at home his
certificate?"
In explanation of the question, we quote the following
excerpt from your request:
"Article 5.16 of the Election Code (the last two para-
graphs thereof) states:
"'Although entitled to an exemption certificate,
no one shall vote who does not possess a current
exemption certificate.
"'In the event of loss of certificate of exemp-
tion, the voter may secure a reissue under his old
number by making affidavit of such loss before the
County Tax Collector.' (Italics mine.)
"Article 8.08 of the Election Code states I+ l *
if the voter has lost, mislaid, or left at home his
receipt or certificate, and shall present his affl-
davit of that fact, * l *I then the person is allowed
to vote.
Honorable Jimmy Morris, page 2 (W-594)
"Some of our election judges have taken the
position that Article 5.16 is the controlling stat-
ute and that it is mandatory that once an exemption
certificate is issued, the voter must possess'said
certificate (or secure a reissue of his old number)
before he Is allowed to vote" Other election judges
have taken the position that Article 8.08 is the
con,trollingstatute when an exemption certificate
is lost, mislaid, or left at home."
You then state that in your opinion Article 8.08 is the
controlling statute. We agree with this conclusion. We do not
interpret Article 5.16 as being in conflict with Article 8.08.
There is no apparent reason why the law should permit voters sub-
ject to payment of the poll tax to make an affidavit of loss of
the poll tax receipt without allowing the same privilege to the
holders of exemption certificates, and it Is our opinion that the
law does not make a distinction between these two classes of voters.
A review of the legislative history of Article 5.16 of
Vernon's Election Code will be helpful in understanding the pur-
pose and intended meaning of the two paragraphs quoted above.
Prior to 1930, all exemption certificates had to be obtained
annually. By an amendment in that year to Article 29bo, Revised
Civil Statutes of 1925 (Chapter 26, Acts of the 41st Legislature,
5th Called Session), provision was made for issuance of "perma-
nent" exemption certificates to certain exempt voters, including
those over 60 years of age. The permanent certificate continued
in force so long as the holder continued to reside in the pre-
cinct in which he resided at the time of issuance. Among other
changes in language, the following provision was added by the
1930 amendment:
"In the event of loss of certificate of exemp-
tion the voter may secure a reissue under his old
number, by making affidavit of such loss before the
County Tax Collector."
While this provision was not limited to permanent certificates,
it seems likely that the principal motivation for putting it
into the law was to permit permanent certificate holders to
obtain a reissued certificate and thereby eliminate the neces-
sity for their having to make an affidavit of loss every time
they voted. The language of the provision was permissive ("the
voter w secure a reissue"), and there was no prohibition
against voting upon making an affidavit of loss as~provided fin
Articles 3004 and 3005, R.C.S. (now Articles 8.07 and 8.08 of
Vernon's Election Code) if the voter failed to secure a reissue
.
c
Honorable Jimmy Morris, Page 3 (W-594)
In 1945 the Legislature amended Article 2968 to delete
provisions for issuance of permanent certificates and to provide
that "all certificates of exemution shall be renewed or TeiBSUed
annually." Chapter 333, Acts of the 49th Legislature, In 1948
the Texas Supreme Court held in the case of Thomas v. Groebl,
147 Tex. 70, 212 S.W.2d 625, that the provision in the 1945 amend-
ment stating that all certificates of exemption shall be-renewed
or reissued annually was directory and not mandatory, and that
holders of permanent exemption certificates obtained prior to the
1945 amendment, or of certificates obtained after 1945 for a year
prior to the year in which they offered to vote, could still vote
on those certificates.
When the Election Code was adopted in 1951, Article
2968 was carried into the Code as Section 48 (Article 5.16, Ver-
non's Election Code) In substantially the same form as the 1945
amendment, but with two significant changes so far as this opin-
ion is concerned. A sentence was added, stating that the certif-
icate "shall entitle such voter to vote at any election held
between the date of Its Issuance and a period of one year from
the 31st day of January following its issuance"; and the follow-
ing sentence was substituted for the provision that certificates
should be renewed or reissued annually:
"Although entitled to an exemption certificate,
no one shall vote who does not possess a current
exemption certificate.U
The evident purpose of these changes was to overcome the holding
in Thomas v. Groebl by removing the provision which had been held
to be directory only and by adding provisions expressly stating
the effective perlod of the certificate and prohibiting voting
unless the voter possessed a current certificate. See Historical
Comment under Article 5.16 of Vernon's Annotated Texas Election
Code. The purpose of these provisions was to make it plain that
a new certificate had to be obtained each year. We are of the
opinion that the word "possess" was intended to mean no more than
that the voter must have secured a current certificate, and that
the Legislature did not intend to deprive a voter who had secured
a current certificate of the right to vote upon making an affi-
davit that it had been lost, mislaid, or left at home.
In addition to Article 8.08, other provisions of the
Election Code permitting certificate holders as well as poll tax
receipt holders to make an affidavit of loss are found in Article
5.05, Subdivision 2 (absentee voting),.Artlcle 5.15 (removal to
another county or election precinct), and Article 8.07 (presenta-
tion of receipt or'certificate at polling place). All of these
sections were amended in some manner when the Election Code was
adopted, and obviously came under the scrutiny of the Bame Legis-
.,
‘.
Honorable Jimmy MorriB, page 4 (WW-594)
lature which added the provision to Article 5.16 concerning pos-
session of a current exemption certificate. It would have been
a simple matter for the Legislature to have deleted provisions
permitting affidavits of loss of exemption certificates if it had
intended any such effect by the provision in Article 5*16.
SUMMARY
A voter who is exempt from the payment of a
poll tax and who has obtained a current exemption
certificate from the tax collector may vote at an
election by making affidavit of the fact that the
certificate has been lost, mislaid, or left at
home.
Yours very truly,
WILL WILSON
At,torneyGeneral of Texas
MKW:pjc
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Houghton Brownlee, Jr.
Tom Burrus
Jot Hodges, Jr.
Larry Jones
REVIEWED FOR THE ATTORNEY GENERAL
BY:
W. V. Geppert