Hon. John R. Shook

Criminal District Attorney of Bexar County SanAntonio, Texas

Dear Sir: This Opinion modifles

::cFan OAttention: Assistant W.Pat Camp,

Re: Opinion No. O-1522 Issuance of Poll TaxReceipts andExemption Certificates in cities of over 10,000 population. Wehave given careful consideration to the questions propounded to us in your letter of November4, 1939 andyour supplemental letter of December 26th, all of which questions are set out below:

“1. Cana duly qualified elector, living in a city of ten thousand inhabitants or more, secure a poll tax with which hewould be entitled to vote by filling out anaffidavit (a copy of which is hereto attached), swearing to the samebefore a notary public, andmailing the samewith the tax required bylaw to the tax collector of his county prior to February 1st of the year in which he desires to vote?

“2. Cana duly qualified elector, under the circumstances outlined in question One, receive an exemption certificate?

“3. Canapoll tax be Issued upon the affidavit referred to in question #l, whensuch affidavit is delivered in person by the elector to the tax collector, together with the tax required by law, before February 1st of the year in which he desires to vote?

“4. Canthe husband or wife obtain a certificate of exemption for the other under the circumstances outlined in question #Q?

‘$5. Canthe Tax Assessor-Collector of Bexar County, Texas, establish substations outside of the courthouse for the purpose of collectlne: advalo~rem andpoll taxes?” - -
Yom ance We wish to thank you for the able brief presented in letter of November 14th, which,has been of material assistto us.Hon. John R. Shock, page 2 . -

Theform of affidavit which you enclosed in your letter of November4th is of the type contemplated to be used by Article 2961, Revised Civil Statutes of Texas, 1925. This article reads:

“If the taxpayer does not reside in a city of ten thousand Inhabitants or more, Ns poll tax must either be paid by himin person or by someone duly authorized by himin writing to pay the same, andto furnish the collector the information necessary to fill out the blanks in the poll tax receipt. Such authority andInformation mustbe signed by the party whoowes the poll tax, andmustbe deposited with the tax collector andfiled andpreserved by him.” It is to be noted that the above article applies only to ataxpayer who“does not reside in a city of ten thousand inhabitants or more” andtherefore can have no application to residents of the city of SanAntonio. article expressly so states: In fact the succeeding

“Art. 2962. In all cases where the taxpayer resides in a city of ten thousand Inhabitants or more the tax must be oaid in uersu by the taxpayer entifled to the receipt, except as provided by this article. If a person residing in a city of ten thousand inhabitants whois subject to pay a poll tax, intends to leave the precinct of his residence before the.first day of October with the intention not to return until after the first day of the following February anddoes not return before that time, he shall be entitled to vote if posessing all other legal qualifications, by pay&g his poll tax or obtaining his certificate of exemption through en agent authorized by himin writing, which shall state truly his intention to depart from the precinct, the expected period of his absence enable the tax collector to $ and every fact necessary to ill the blanks in his re-8 ceipt

. citizen, Such authority, in fact, must be sworn to by the

andcertified to by someofficer authorized to administer oaths

. It shall be deposited with the tax collector andkept in his office.” (Underscoring ours.> Article 2963, as last amendedby the Forty-first Legislature in 1929, reads as follows:

“Whenin cases permitted by this Title, the tax is paid by anagent, the tax receipt shall not be delivered to such agent, but shall be sent by mail to the taxpayer or kept anddelivered to him in person by the TaxCollector. Whereaproperty taxpayer residing either within orHon. John R. Shook, page 3

without a city of ten thousand inhabitants or more, has a poll tax assessed against himor his. wife or,both;.he may, at t,he sametime -that he pays his property tax by bank check or moneyorder, also pay the poll tax of himself andwife, or either, andin the sameway the duty of the Tax Collector 1 ahd~ its.shall .be n su~chcases, to mail such poll tax receipts, together with the property tax receipt to such property taxpayer. Exemption certificates shall- be mailed in like manner, with the property tax receipt upon the payment of property taxes.

“All tax receipts issued for anyyear after January 31st shall~ begstamped on~theface.thereof;

‘Holder not entitled to vote’, Andy the names.of the holders of such polltax receipts .shall not be Included In the list of qualified voter,s:.W It is also to be noted that the above article authorizes the taxpayer whenpaying his property tax by bank check or moneyorder, also to pay his, ~011~ tax “inthe. sameway, andit shall be the duty of Tax Collectors. in such cases, to mail such poll tax receipts”

. Noauthorization is tom ,befound in the Article to permit the taxRayer to mail his application for poll tax to the collector. It seems to us that express authority was given to the TaxCollector to mail the receipt to the tqayer

“in such cases” for the logical purpose of giving the check time to clear before the receipt is delivered. There being no conflict between Articles 2963 and2962, they~mustboth be given effect. It follows, therefore, that in cities of 10xOOOinhabitants or more all poll’ taxes “must be paid in person with only two exceptions:

(1) That “the husband maypaythe poll tax of his wife” andvice versa, as provided in ‘.Artlcle VI, Section 2 of the Constitution of Texas, and (2) Where the person intends .to be absent from his precinct during the tax paying period, as provided by Article 2962. In our Opinion No. o-1461, addressed to the-Honorable TomL. Hartley, under date of November 7,~1939, we expressed the view that Article 2963 provides a third exceptions to. the general rules for payment of poll taxes laid downin Article 2961, applicable to taxpayers not residing in cities of over 10,000, I.e., the taxpayer might pay his poll tax by-mail where the samewas assessed against himandhe paid it together with his propertyHon. John R. Shook, page 4

tax. Uponreconsideration wehave concluded that it was not the purpose of Article 29b3 to create such third exception so as to permit **thd** payment of poll taxes by mail, although accornanied by payment of property taxes. f: Oursaid Opinion No. O-l 61 Is hereby amendedaccordingly. Although our Opinion No. o-1461, dealing with Article 2961, has no direct application to the questions presented,by you, correct our former opinion. wetake this opportunity to

Thedistinction madeby the Legislature in the matter of paying poll taxes between cities of over 10,000 and other communities finds precedent in the Constitution, which in Article VI, Section 4 authorizes the Legislature to "provide by law for the registration of all votes in all cities containing a population of ten thousand inhabitants or more". .Assaid by Baugh, Judge of the Austin Court of Civil Appeals in Texas Power &Light Co. v. BrownwoodPublic Service Co., 111 S.W. (2d) 1225 (19381, at p. 1227:

"Andthe Constitution in Section 4 of Article 6, recognized that in order to preserve the purity of elections, safeguards maybe required in cities of more than 10,000 inhabitants which are not authorized in cities of lesser population." In Parker v. Busby, 170 S.W. 1042 the Galveston Court of Civil Appeals said:

I1*** the law does not provide for the payment by a taxpayer of his poll taxes through the mails." Weare aware of the general rule announced by the courts of this state in such cases as Wallis v. Williams, 110 S.W. 785; Warren v. Robinson, 32 S.W. (2d) 875, landRamseyv. Wilhelm, 52S.W. (2d) 757 that the election laws will be liberally construed so as not to disfranchise citizens, otherwise qualified to vote, because of harmless irregularities in the mannerof obtaining poll tax receipts, etc. R.C.S. But Articles 2961, 2962 and2963, shall geprescribe the rules whereby the TaxAssessors-Collectors

guided in issuing poll tax receipts andthese officials are duty bound to abide thereby. Article 199 of the Penal Code subjects aTax Collector to penalty for failure to do so:

"Art. 199. - Anytax collector whodelivers apoll tax receipt or certificate of exemption to any one except the one~entitled thereto and at the time whenthe tax is paid or the certificate of exemption is applied for, except as specially permitted by law shall be finedHon. John R. Shook, page 5

not less than one hundred nor morethan one thousand dollars, and shall be removed from office.” I. In answer to your first question, you are therefore respectfully advised that a duly qualified elector, living in a citv of ten thousand inhabitants or moremavonlv secure apoll tax receipt in oersop andnot by an agent-upon’affidavits except that --

(1) ahusband maypay the or awife for her husband and- poll tax for Ns wife
(2) if the taxpayer intends to be out of the precinct of his residence from October 1st to February 1st he mayobtain his poll tax receipt or exemption certificate “through an agent authorized by him in wrltlr@. II. In answer to your second question, you are advised that the samerequirements apply to exemption certificates as apply to poll tax receipts. It was so,held by the Austin Court of Civil Appeals in Texas Power andLight Co. v. BrownwoodPublic Service Co., 111 S.W. (2d) 1225 (writ of error refused) wherein the court said at page 1227:

“It is clear, wethink, that if the Legislature has the power to require a poll tax receipt of all the citizens of the state as a qualification for voting, andfor reasons sufficient to itself, sees fit to exempt certain classes from the payment of such tax, it has equal power to prescribe, as a qualification for voting uitous y exempted from poll tax payments, as It does i equal or similar requirements for those gratfor those whoare required to pay the tax, ***

“Vernon’s Annotated Civil Statutes, Article 2968, expressly requires, in cities of morethan 10000 habitants those whoare exempted from paymen c inof a poll tax co procure an exemption certificate before February 1st of the year in which they offer to vote. This statute prescribes these requirements with the sameparticularity and exactness as do the statutes relating to payment of poll taxes. .AndArticle 3004 R-S., relating to voting reference to exemp t makesthe samerequirements wi h 4 ion certificates, as essential to the right to vote, as it does with reference to poll tax receipts OnHon. John R Shook, page 6

III. Replying to your third question wewill say that if a duly qualified elector pays his tax in person before February 1st he is entitled to receive apoll tax receipt upon giving the requisite information as to his residence, etc. under oath to the collector so that the delivery of his ownaffidavit at such time would ie Immaterial.

IV. In answer to your fourth question, it Is our oplnion that since Section 2 of Article VI of the Constitution of Texas authorizes a husband to pay the poll tax for his wife, and since under the doctrine announced byTexas Power &Light Co. v. BrownwoodPublic Service Co., suprai the samerules apply to exemption certificates as apply to po 1 tax receipts, it would seem reasonable to construe Article 2968, R.C.S., which prescribes the issuance of exemption certificates so as to permit either a husband or wife to act as agent for the other, without written authorization in obtaining exemption certifi~cates.

v. In order to answer the question submitted in your letter of December 26th, whether the TaxAssessor-Collector of Bexar County mayestablish substations outside of the courthouse for the purpose of collecting advalorem andpoll taxes, it will be necessary to consider the several applicable statutes.

Article 2971 expressly directs the collector to establish such a substation in cities of 10,000 or more other than the county seat.
collector, Article 7255, as amendedin 1939, provides that the tax

“when so ordered bythe Commissioners’ Court? “may post upnotices - not less than three (3) - at public places in each voting or justice precinct in his county, at least twenty (20) days previous to the day said taxpayers are required to meet himfor the purpose of paying their taxes, stating In said notice the times andplaces the sameare required to be paid ***I’ This statute clearly authorizes the establishment of “substations” upon the conditions stated.

Article 7256, as amendedin 1937, directs the Assessor andCollector to “keep his office at the county seat of his counZi;;: As said by Murray, Judge in Oliver v. Lindsay, 125 S.W. (2d)

“It will be kept in mindthat the collector is not required to keep his office in the courthouse of the county, but only at the county seat.” TheAustin Court of Civil Apeals, byway of dicta in 1913 in the case of Davis v. Riley, 1R S.W. 314, declared thatHon. John R. Shook, page 7

“The payment by a citizen of his poll tax at any other place than the office of the tax collector does not constitute in law a payment of said tax

. . .” The statutes have been repeatedly amendedsince the decision of that case, andwebelieve that the dictum above quoted, has In effect been subsequently overruled by Oliver v. Lindsay supra andbythe Texas Court of Criminal Appeals In Hlbbetts v. SCt a e, I23 S.W. @cl.) 898 wherein the court sustained a conviction for misapplication 01 public funds by a deputy tax collector whoaccepted moneyin payment of taxes in a corridor of the courthouse. The court distinguished the case of Davis v. Riley by saying:

“It is obvious that Grim (the deputy in the Davis case) was acting for the taxpayers andnot for the collector

. . .n There being no express statutory prohibition against the establishment of substat%ons for the collection of taxes, webelieve that poll taxes paid at such a substation to the collector or aproperly authorized deputy would be avalid payment. In this connection, it .mustbe borne In mind, however, that the statutes prescribing the form of poll tax receipts andexemption certificates require separate books for each precinct. Article 2970 requires that:

“Certificates of exemption for u precinct shall be numbered consecutively

. . .‘l (Underscoring ours.) Wecall attention to these statutes merely to indicate -theymayeffect to someextent the practical operation of that substations for payment of poll taxes*

“Each Commissioners’ Court, before the first day of October levery year shall furnish to the County Tax Collector blank books for each , which shall be markedwith the nameandnumberof the precinct for which they are intended.

. .w ours.) (Underscoring Similarly, Article 2968 requires that:

APPROVED

DEC.29, 1939 /s/ Gerald C. Mann Yours very truly ATTORNEY

GENEXUL

OFTEXAS ATTORREY

GERFRAL

OFTEKAS By/s/ Walter Il. Koch WRK:ob:wb Walter R. Koch, Assistant
This opinion considered andapproved in limited conference.