Nmember 10, 1986

HonorableLarkin C. Eakin, .Jr. OpinionNo. m-574 Wailer CountyAttorney 836Austin Street Re: Sufficiencyof rollbackpetition Hempstead,Texas 77445 under section 26.07 of the Tax Code

Dear Mr. Eakin:

You have providedus u:Lththe following information:

By way of factualbackground, the commissioners court of Wailer County approved a tax rate for Wailer County that: exceededthe rate calculatedas provided by sectj.m 26.04 of the Texas Property Tax Code by more 1:han eightpercent (8%). A petitionwas circulatedand 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 signatures verified by the county election administrator,Mr. A. S.Wier. After disallowinga number of signatures as mt listed on the voter rolls or as duplicates of (othersignatures, the petition
was found,by the commissionerscourt, to be some 200 signatures short of the requirednumber.
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:d as petition 'B'. Petition 'B' consisted of a photostatic copy of the first petition presentelIto 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 clearduring the presentation that petition 'B'was a new petition and that the new, original signatureswere not to be considered aa mpplementary to the first petition. The commis:;ioners court once again refused to order a 'rolLback' election, rejecting the petition as insufficient.

p. 2559HonorableLarkin C. Eakin, Jr. - Page 2 (JM-574)

You askwhether thepresent;ltion of thepetition, consisting ofphotostatic 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~nt to authorize the calling of a tax rate rollback electionunder sec,::ion 26.07 of theTax Code. We answer your 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 determinewhet'xeror not to reduce the tax rate adopted for the current year to a rate that exceeds the rate calculatedas providedby Section 26.04 of this codeby only eightpercent.
(b) A petition isvalid 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 currentyear; (2) it is c;igned by a number of qualified voters of theTaxing unit equal to at least 10 percent of th#inumber of qualified voters of the taxing unit according to the most recent official list of qualifiedvoters 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:ning body adopted the tax rate for the currentyear.
(c) Not later than the 20th day after the day a petition is sulmlitted, the governingbody shall determinewhether-ornot thepetition isvalid and pass a resoluticz stating its finding. If the governing body Fails to act within the time allowed, thepetition is treatedas if ithad been foundvalid.
(d) If the gcverningbody finds that thepetition is valid (or fails to act within the time

p. 2560HonorableLarkin C. Eakin, Jr. - Page 3 ~(JM-574)

allowed), it shall order that an electionbe 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 llpecified date does not apply to the electionunless a specified date fallswithin 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 '(nameof 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).

. . .' (Emphasisadded). 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 qualifiedvol:ers.

. . ." We conclude that it does not.

In Attorney General Ol#inionJM-501 (1986).we concluded that a voter registrar acted properly when rejecting a petition circulated for the purpose of determir.ing whether the sale of certain alcoholic beverageswould be authorixd within the county. The voter registrar disallowed an undisclosed number of voters' signatures when there appearedminor variations b?r:weenthe signaturesand 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 couldnot be counted in an :.nstance inwhich

the name of the va-teris not signed exactly as it appears on the official copy of the current list of registeredvotrrs for thevoting year in which thepetition 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 theAlcoholicBeverage Code, but the rationale by which we concluded in Attorney General Opinion JM-501 that thepetitionrequ:irements shouldbe strictlyconstruedare equallyapplicable toboth 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 ~~rovisionswhich are clearly mandatory. Statler v. Petzer, 630 S.W.:2d782 (Tex.App. - Houston [lst Dist.]

p. 2561HonorableLarkin 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 qualificationsofvoters art! usually construed tobe 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,anchise voters 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 conformitywith 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 popularvote, we are of the opinion that the statute should be strictiyecomplied 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).

InWest End, the speciill. electionat issuewas one to consolidate school districts; the issue was whether the petition to call the electionwas defective. The petition failed to specify correctiy the school districts involved. In discussina the conditions precedent necessary to call the election, the courtdeclared the following:

Article 2806 [gowrning schooldistrict consolidation elections] does not purport to confer unlimited power, or jurisdiction, upon a county judge to call spe<::ial elections for thepurpose of effecting consolidation of school districts. The - statute expressly limits his jurisdiction to the instances inwhicl;he is presentedwith a petition complying with tKz above-noted requirements; in otherwords, with~1proper petition. The requirements pointed 0l.tare 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 requirements limithis p',tential jurisdiction. (Emphasis added).

221 S.W.2dat 779.

p. 2562Honorable 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 qualificationsof a candidate. It does, however, concernwhether
an election issue, rather than a candidate'sname, 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. ServiceMotors, 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 docxunent when he writes ormarks somethingon 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). InAttornevGeneralOpinion JM-501,however,we construed the 'signaturerequirements 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 signaturesof a petition previously submitted to and rejected by the commissioners court. We have found no statutewhich permits copies of signatures,
as opposed to actual signatures, to be sufficient to qualify as a conforming petition. , e.g., V.T.C.S. arts. See 179d (Bingo Enabling Act); 6702-l (CountyRoad and Bridge Act). In each instance,a petition must be "signed." Accordinglywe conclude that a petition that consists in part of *s, of signatures comprising a previously submitted and rejectedpetition does not comportwith the requirement of section 26.07 of the Tax Code that such petition be signed by a requisitenumber ofvoters.

SUMMARY

A petition fo.ra tax rollback election that consists in part of copies 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 signedby a rec,uisite number of voters. 

# V-7

rulyyours 

# s MiiJtGj(

& JIM MATTOX AttorneyGeneral of Texas

JACKHIGHTOWER FirstAssistantAttorneyGer.eral

p. 2563Honorable Larkin C. Eakin. Jr. - Page 6 (JM-574)

MARY KELLER ExecutiveAssistantAttorneyGeneral

RICK GILPIN Chairman,Opinion Committee
Preparedby Jim Moellinger AssistantAttorneyGeneral

p. 2564