Nmember 10, 1986 

Honorable Larkin C. Eakin, .Jr. Opinion No. m-574 

Wailer County Attorney 

836 Austin Street Re: Sufficiency of rollback petition 

Hempstead, Texas 77445 under section 26.07 of the Tax Code 

Dear Mr. Eakin: 

You have provided us u:Lth the following information: 

By way of factual background, the commissioners 

court of Wailer County approved a tax rate for 

Wailer County that: exceeded the rate calculated as 

provided by sectj.m 26.04 of the Texas Property 

Tax Code by more 1:han eight percent (8%). A petition was circulated and 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 disallowing a number 

of signatures as mt listed on the voter rolls or 

as duplicates of (other signatures, the petition 

was found, by the commissioners court, to be some 

200 signatures short of the required number. 

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 presentelI to 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 clear during the 

presentation that petition 'B' was a new petition 

and that the new, original signatures were 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. 2559 
Honorable Larkin C. Eakin, Jr. - Page 2 (JM-574) 

You ask whether the present;ltion of the petition, consisting of photostatic 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 election under sec,::ion 26.07 of the Tax 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 determine whet'xer or not to reduce the tax rate 

adopted for the current year to a rate that 

exceeds the rate calculated as provided by Section 

26.04 of this code by only eight percent. 

(b) A petition is valid 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 

current year; 

(2) it is c;igned by a number of qualified 

voters of the Taxing unit equal to at least 10 

percent of th#i number of qualified voters of 

the taxing unit according to the most recent 

official list of qualified voters 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 current year. 

(c) Not later than the 20th day after the day 

a petition is sulmlitted, the governing body shall 

determine whether-or not the petition is valid and 

pass a resoluticz stating its finding. If the 

governing body Fails to act within the time 

allowed, the petition is treated as if it had been 

found valid. 

(d) If the gcverning body finds that the petition is valid (or fails to act within the time 

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

allowed), it shall order that an election be 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 election unless a specified date falls within 

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 '(name of taxing unit) for the 

current year from (the rate adopted) to (the rate 

that is only eigt,t percent greater than the rate 

calculated as provided by Section 26.04 of this 

code). . . .' (Emphasis added). 

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 qualified vol:ers. . . ." We conclude that it does not. 

In Attorney General Ol#inion JM-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 

beverages would be authorixd within the county. The voter registrar 

disallowed an undisclosed number of voters' signatures when there 

appeared minor variations b?r:ween the signatures and 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 

could not be counted in an :.nstance in which 

the name of the va-ter is not signed exactly as it 

appears on the official copy of the current list 

of registered votrrs for the voting year in which 

the petition 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 the Alcoholic Beverage Code, 

but the rationale by which we concluded in Attorney General Opinion 

JM-501 that the petition requ:irements should be strictly construed are 

equally applicable to both 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 ~~rovisions which are clearly mandatory. 

Statler v. Petzer, 630 S.W.:2d 782 (Tex. App. - Houston [lst Dist.] 

p. 2561 
Honorable Larkin 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 

qualifications of voters art! usually construed to be 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 conformity with 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, (17 S.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 popular vote, we are of the opinion that the statute 

should be strictiye complied 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). 

In West End, the speciill. election at issue was one to consolidate 

school districts; the issue was whether the petition to call the 

election was defective. The petition failed to specify correctiy the 

school districts involved. In discussina the conditions precedent 

necessary to call the election, the court declared the following: 

Article 2806 [gowrning school district consolidation elections] does not purport to confer 

unlimited power, or jurisdiction, upon a county 

judge to call spe<::ial elections for the purpose of 

effecting consolidation of school districts. - The 

statute expressly limits his jurisdiction to the 

instances in whicl;he is presented with a petition 

complying with tKz above-noted requirements; in 

other words, with~1 proper petition. The requirements pointed 0l.t are 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 limit his p',tential jurisdiction. (Emphasis 

added). 

221 S.W.2d at 779. 

p. 2562 
Honorable 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 qualifications of a candidate. It does, however, concern whether 

an election issue, rather than a candidate's name, will be placed on 

the ballot. Cf. Leach v- Fischer, supra. Moreover, because we 

believe subsection (b) is c:lear and unambiguous, it must be enforced 

according to its express language. Call v. Service Motors, 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 or marks something on 

it in token of his intentit,n to 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). In Attornev General Opinion JM-501, however, we 

construed the 'signature requirements 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 signatures of a 

petition previously submitted to and rejected by the commissioners 

court. We have found no statute which permits copies of signatures, 

as opposed to actual signatures, to be sufficient to qualify as a 

conforming petition. See , e.g., V.T.C.S. arts. 179d (Bingo Enabling 

Act); 6702-l (County Road and Bridge Act). In each instance, a petition must be "signed." Accordingly we conclude that a petition that 

consists in part of *s, 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 signed by a 

requisite number of voters. 

SUMMARY 

A petition fo.r a 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 signed by a rec,uisite number V-7 of voters. 

ruly yours s & MiiJt

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney Ger.eral 

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

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 2564