**AUS~N, TEXAS** 

February 5, 1948

Hon. L. A. Woods, State Superintendent, Opinion Ao, V-494
Department of Education, Austin, Texas

Dear Sir: Re: The validity of a schoolbond election on February 21, 1948, sincb tha poll tax rollsWill not be compiledbeforeApril lst, 1948.

We refer to your letter of January 24, 1948 in which you submitthe following:

"1. The Fort Worth Board of Education has calleda bond election for February 21st, 1948.

"2. Certain Fort Worth attorneys have advised the Board that such election cannotbe valid because of the absence of
a poll tax list as required by Article 2975 of the Revised Civil Statutes of Texase The poll tax list will be absent because the tax,office cannot complete it beforeApril lst, 1948.

"3. Will the election be valid should it be held without such a list having been furnished by the Collector?ll

You have informed us that the boundaries of

. FortWorth IndependentSchool District do not coincide with the boundariesof the City of FortWorth, by reason of which we assume that such district boundariesare not coincidentwith the boundaries of the voting precincts.

The poll tax receipt and exemption records in the office of the countytax assessor-collectorof a county contain the names of those who have paid poll taxes or obtained exemption certfffcates in each electionHon. L. A..Woods - Page 2 (V- 494 )

precinct of the county, separately. It is not stated in those recordswhether the poll tax payer or exemption certificateholder resides in any school district, by reason of which no certified list of the voters in the FortWorth IndependentSchool District, as such could be furnishedto the electionofficials of such district by such county officerbased upon the records of his office.

It is elementarythat the law does not require an officer to certify that things exist or are disclosed by his recordswhich things are not so disclosed.

read: The pertinentparts ofArticle 2955,.V.C.S.

"0 0 e 0provided that any voter who is subject to pay a poll tax under the laws of this State, shallhave paid said tax before offering to vote at any election in this State and holds a receipt showing that saidpoll taxwas paid before the first day of Februarynext preceding such election;and, if saidvoter is exempt from paying a poll tax and resides in a city of ten thousand (10,000) inhabitants or more9 he or shemust procure a certificate showinghis or her exemptions
as required by this title. 0 0The provisions of this Article&s to cu bal-

. &&= shallapply to all elections includ-

. fng general, special and primary elections.*

(Emphasisadded)
Article 2785? V.C.S, provides for elections to determine the proportionof the levy of such tax or the issuance of schoolbonds. The pertinent part of that article reads: It0D 0 0 said~electionshall be held and conducted as providedby law for general **elections, ex**  cept as providedherein." (Emphasisadded)

FortWorth IndependentSchool Districtwas created by House Bill No9 528,Chapter 

### 230,Local and SPecial Laws, Acts 1925, 39th Legislature,page 674,with full powers to call and hold elections for the issuanceof bonds.Hon. L. A. Woods - Page 3 (V-494)

There is no requirementthat Its election officialsbe furnished a list of poll tax payers.

The provisionsofArticles 2955 and 2785, V.C.S. pertain to the method of conducting elections, such as casting and counting ballots and making returns.

Article 2975 requiresCounty Tax Collectors to “deliver to the Board certified lists of citizens in each precinct who have paid their poll tax or received their certificates of exemptiorY~ before April 1st of each year.

In Schrock v. Hylton, 133 S. W. (2d)175, the Court quoted and approved other cases as follows:

“So, for the purpose of this opinion, assuming that the electionwas held under and governedby the provisions of the general election laws of the State of Texas, which evidentlywas not the case, by virtue of the above statute,Art. 3054, supra,Q& burden of proof rested upon contestants to show that a poll list at the polling place would have materially changed the result of the election, or that the absence of such list did materially change the result; thus, in the absence of such showing, the failure of the election officersto have a certified list at the polling place at the time the election was held, becomes immaterial,

“In State ex rel? Paggi v, Fletcher, Ter. Civ. App,, 50 S. W. 2d 450, 452, in an election-contest,among ether assignments of error, the contentionwas made, as here, to void the election, that a list of voters was not furnishedthe election officers in compliance with Art, 2975,R.S. The court said: ‘Becausethe voting lists furnished the election judges failed to furnish all the information prescribedby article 2975, appellants insist that the electionwas absolutely void * * * In support of theirproposition ap lants cite yett v0 Cook, 115 Tex, 205, iel2 1 S.W. 8379 and articles 29759 3005, and 3012.

Hon. L. A. Woods - Page 

### 4 (V-494)

of the Revised Statutes. While it Is true that the Supreme Court, in Pett v. Cook, dlscussed the office of the list of voters provided for by article 

### 2975and in effectheld that the provisions of this articlewere mandatory, the facts of that case have no relation to the facts of this case,and what was said there can throw but little light on the proposition befere us. * * l To have relief because Its provisionswere not compliedwith, appellants rested under the burden of alleeinr and proving Itinjury,w which was not done.-~~& apht to vote is a constitutionalrieht and while the Legislaturehas the Dower to &tablish rules.regulatingthis right, such regulations should generallybe given a liberal construction to effectuatethe constitutional right of suffrage. Regulationswhich, from their very nature, are deemedabsolutely essential to accomplish the purposes of constitutional suffrage, are deemedmandatory; such as, that voting shallbe by ballot, that it shall take place on a certain daywithin certain precincts, etc. Rut reaulationsthat are no u&g the election are consideredmerely formal in characterand should be construedas directory. This is the clearholding of the SupremeCourt in McKinney v. O'Connor, 

### 26Tex. 

### 5,and Fowler
v. State, 

### 68 Tex. 

### 30 3 S.W. 255.also of this court In State ex rel. Pace t j v. Logan (Tex.Clv. App.) 5 S.W. 2d 247, and Scurlock
v. Wlngate (Tex.Civ.~ App.) 283 S.W. 307. See, also, Turner v. Teller (Tex.Civ. App.) 

### 275 S.W. 115;Bass v. Lawrence (Tex.Civ.App.) 300 S.

### W. 207

. . . "The decisions cited on the question of whether the provisions of the law, relative to election officershaving a properly certified list of the qualifiedvoters or of the polls,
are mandatory or directory,are clearly in favor of the rule that, the failure of either the voters or election officers to perform their respective duties at the polls accordingto theHon. L. A. Woods - Page 5 (V-494)

Do eround to

al t&q-- setaside an election other isa

. In McCrary on Elections, 4thWEd. the author says: ‘The justice of this rule S apparent, and it may be said to be the underlying principle to be applied In determining this question. The requirements of the law upon the electors are in the Interest of pure elections, and shouldbe compliedwith at least in substance, but to disfranchise the voter because of the mistakes or omissions of election officerswould be to Put him entirely at the mercy of politicalmanipulators. The perforran&e by the election officers of the duties inposed upon them can be reasonablywell secured by providing a penalty for failure so to do.‘” &mphasis added) c It will be noted that the list to be compiled by the county tax collectorunder the provisions of Article 2975 must be deliveredbefore the first day of April of each year. In otherwords, the tax collectorhas until such date to deliver the list, and the statutewould not be violated if such listwere not delivered until the last day of March. Therefore, if an election is to be held under appropriate statutoryprovisions after January 31st and beforeApril 1st) and the list has not been delivered, then Article 2975 couldhave no application or bearing on such election.

We are of the opinion that failure of the Assessor and Collector of Taxes for Tarrant County to furnish election officials in a school bond election in Fort Worth Independent School Districtwith a certified list of voters in said districtwill not invalidate such election.

Opinions Nos. o-1178 and O-3350 by a former Attorney General, and bpinionNo. V-220 by us are pertinent to your inquiry, and a copy of each of them is enclosed for your information. Said Opinion Noo.o-1178 holdsHon. L.A. Woods - page 6 (v-494) !

that Article 2955v, V.C.S., which requires T~axAssessors to furnish election officialswith a list of property taxpayers, Is void. That 

### opinionIs in accordwith the cases of Lucchese v. Mauermam, ,195 S.W. (26) 422, ref. n.r.0. certioraridenied 

### S.W. (2d) 1186. 67 S. Ct. 633 and Border V. Abel1 lil

&aid Opinions N:s. O-3350 and~V-220 &Ftaln to the qualification of voters In such e1Cctlons.

Fall+re of the Countyhssessor and Collector of Taxes to furnishelection officials In a school districtbond election with a list of holders of poll 

### taxreceipts and exemption certificates In such school ‘district

will not invalidate suchelection.

Yours vary tr$ay,

ATTORNEY GEHE3ALOF TEXAS

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