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 

school bond election on February 

21, 1948, sincb tha 

poll tax rolls Will 

not be compiled before April lst, 1948. 

We refer to your letter of January 24, 1948 

in which you submit the following: 

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

"2. Certain Fort Worth attorneys 

have advised the Board that such election 

cannot be valid because of the absence of 

a poll tax list as required by Article 

2975 of the Revised Civil Statutes of 

Texas e The poll tax list will be absent 

because the tax,office cannot complete it 

before April 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 . 

Fort Worth Independent School District do not coincide 

with the boundaries of the City of Fort Worth, by reason 

of which we assume that such district boundaries are not 

coincident with the boundaries of the voting precincts. 

The poll tax receipt and exemption records 

in the office of the countytax assessor-collector of a 

county contain the names of those who have paid poll taxes or obtained exemption certfffcates in each election 
Hon. L. A..Woods - Page 2 (V- 494 ) 

precinct of the county, separately. It is not stated 

in those records whether the poll tax payer or exemption certificate holder resides in any school district, 

by reason of which no certified list of the voters in 

the Fort Worth Independent School District, as such 

could be furnished to the election officials of such 

district by such county officer based upon the records 

of his office. 

It is elementary that the law does not require an officer to certify that things exist or are 

disclosed by his records which things are not so disclosed. 

read: 

The pertinent parts of Article 2955,.V.C.S. 

" 0 0 e 0 provided that any voter who is 

subject to pay a poll tax under the laws 

of this State, shall have paid said tax 

before offering to vote at any election 

in this State and holds a receipt showing that said poll tax was paid before 

the first day of February next preceding 

such election; and, if said voter is exempt from paying a poll tax and resides 

in a city of ten thousand (10,000) inhabitants or more9 he or she must procure a 

certificate showing his or her exemptions 

as required by this title. 0 0 The provisions of this Article &s to cu bal- . 

&&= shall apply to all elections includ- 

. fng general, special and primary elections.* 

(Emphasis added) 

Article 2785? V.C.S, provides for elections 

to determine the proportion of the levy of such tax or 

the issuance of school bonds. The pertinent part of that 

article reads: It0 D 0 0 said~election shall be held and 

conducted as provided by law for general elections, except as provided herein." (Emphasis added) 

Fort Worth Independent School District was 

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 issuance of bonds. 
Hon. L. A. Woods - Page 3 (V-494) 

There is no requirement that Its election officials be 

furnished a list of poll tax payers. 

The provisions of Articles 2955 and 2785, 

V.C.S. pertain to the method of conducting elections, 

such as casting and counting ballots and making returns. 

Article 2975 requires County 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 election was held under 

and governed by the provisions of the general election laws of the State of Texas, 

which evidently was 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 officers to 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 contention was made, as here, to 

void the election, that a list of voters was 

not furnished the election officers in compliance with Art, 2975, R.S. The court said: 

‘Because the voting lists furnished the election judges failed to furnish all the information prescribed by article 2975, appellants 

insist that the election was absolutely void 

* * * In support of their proposition ap 

lants cite yett v0 Cook, 115 Tex, 205, i 

el2 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 2975 and in effect held 

that the provisions of this article were 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 provisions were not complied with, appellants rested under the burden of alleeinr and 

proving Itinjury,w which was not done.-~~& 

apht to vote is a constitutional rieht and 

while the Legislature has the Dower to &tablish rules.regulating this right, such regulations should generally be given a liberal 

construction to effectuate the constitutional 

right of suffrage. Regulations which, from 

their very nature, are deemed absolutely essential to accomplish the purposes of constitutional suffrage, are deemed mandatory; such 

as, that voting shall be by ballot, that it 

shall take place on a certain day within certain precincts, etc. Rut reaulations that are 

no u&g 

the election are considered merely formal in 

character and should be construed as directory. 

This is the clear holding of the Supreme Court 

in McKinney v. O'Connor, 26 Tex. 5, and Fowler 

v. State, 68 Tex. 30 3 S. W. 255. also of 

this court In State t ex rel. Pace 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 officers having a properly certified 

list of the qualified voters 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 according to the 
Hon. L. A. Woods - Page 5 (V-494) 

Do eround to 

al 

t&q-- 

set aside 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 should be complied with at least 

in substance, but to disfranchise the voter because of the mistakes or omissions of election 

officers would be to Put him entirely at the 

mercy of political manipulators. The perforran&e by the election officers of the duties inposed upon them can be reasonably well 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 collector under the provisions of Article 2975 must be delivered before the first day of April 

of each year. In other words, the tax collector has until 

such date to deliver the list, and the statute would not 

be violated if such list were not delivered until the last 

day of March. Therefore, if an election is to be held under appropriate statutory provisions after January 31st 

and before April 1st) and the list has not been delivered, 

then Article 2975 could have 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 District with a certified list of 

voters in said district will not invalidate such election. 

Opinions Nos. o-1178 and O-3350 by a former 

Attorney General, and bpinion No. 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 holds 
Hon. L. A. Woods - page 6 (v-494) ! 

that Article 2955v, V.C.S., which requires T~ax Assessors 

to furnish election officials with a list of property taxpayers, Is void. That opinion Is in accord with the cases 

of Lucchese v. Mauermam, ,195 S.W. (26) 422, ref. n.r.0. 

certiorari denied 

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 County hssessor and 

Collector of Taxes to furnish election officials In a school district bond election 

with a list of holders of poll tax receipts 

and exemption certificates In such school 

‘district will not invalidate such election. 

Yours vary tr$ay, 

ATTORNEY GEHE3AL OF TEXAS 

WTW :wb 

Encls. 

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Assistad 

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