. _ 

. 

Honorable J. K. Williams 

Commissioner, Coordinating Board 

Texas College and University System 

Sam Houstoh State Office Building 

Austin, Texas 78701 

_ 

Opinion No. K-214 

. 

Dear Mr. Williams: 

Re: Whether the submitted 

proposed form of affldavit for an election 

to authorize the Travis 

County Junior College 

District to levy and 

collect a maintenance 

tax and issue bonds 

will substantially 

comply with Article 

5.04 of the Election 

Code, 

In your recent opin'ion request 

following relevant facts: 

.(!I T ravis County Junior 

you have submitted the 

College' Dlsttiict'was 

createa ana seven trustees were elected at an election 

held within the District on November 9, 1963. At the 

same election the electorate failed to vote authorization 

for the District to Issue bonds or levy a maintenance tax. 

.In a subsequent election the voters failed to approve the 

Issuance of bonds or the levying of a maintenance tax. 

(2) The Board of Trustees plans to call an election 

for April 20 1968, for the purpose of submitting propositions to the voters which If passed would authorize 

the District to levy a maintenance tax'and Issue bonds 

for school purposes. ' 

(3) Since the District has never been authorized 

to levy a maintenance tax, no tax rolls have ever been 

compiled or adopted by the Trustees. No one has ever 

rendered property to the Dlstr1c.t for taxation. ,. 

.-~ -;1027- 
Honorable J. K. Williams, page 2 (K-214) 

(4) Pursuant to the requirements of Article 5.04 

of the Election Code, the Secretary of State has promulgated a form of affidavit to be signed by each voter 

in a bond election, which requires that the affiant 

identify property which has been rendered for taxation 

to the political subdivision holding the election. 

Since no one has rendered property for taxation to the 

District no one could truthfully sign the affidavit 

promulgated by the Secretary of State In this Instance. 

A form of affidavit which the District proposes to use 

in view of the above situation Is attached to your opinion 

request which reads as follows: 

"AFFIDAVIT OF OWNERSHIP OF PROPERTY 

SUBJECT TO TAXATION 

For Voting at Election held by 

Travis County Junior Colle e District 

on April 20, 196 8 " ,~ " 

"I so1emnl.y swear that I own property which is subject 

to taxation by the Travis County Junior College District; 

and that the following Is a description of one Item of 

property so owned by me on this date. 

(Description of Property) 

"I understand that the giving of false'lnformation in 

this affidavit Is a felony punishable by a fine not to 

exceed $5000.00 or by Imprisonment In the penitentiary 

not to exceed 5 years, or by both such fine and.lmprlsonment. 

X 

(Signature of Voter) 

"Sworn to before me by the above-signed voter on this the 

20th day of April, 1968. 

nlgnatureT6!fficer Administering Oathr ' 

-1028- 
Honorable J. K. Williams, page 3 (M-214) 

You then ask whether this form of affidavit, If used 

by the District in the election to be held on April 20, 1968, 

would substantially comply with the requirements of Article 

5.04 of the Election Code. 

1964, 

In Mlnthorn v. Hale, 372 S.W.2d 752 (Tex. Clv. APP., 

no writ) the Court said at page 753: 

"The rule Is that statutes regulating the manner 

of holding an election are merely directory, and a 

departure from their provisions will not, ordlnarllz, 

invalidate an election, unless such departure or such 

irregularity have affected or changed the result of 

the election." (Emphasis added.) 

,. 

Ordinarily, before a person may vote In a bond election, 

he must render his property for taxation to the polltlcal 

subdlvlslon holding the election and must execute an affidavit 

to that effect. Article 6, Sec. 3a, Texas Constitution, Articles 5.03 and 5.04, Election Code. However, the requirement 

that a person render his property before being allowed to vote 

in bond elections Is not absolute In situations, such as In 

the Travis County Junior College District, ,where no tax rolls 

have been prepared or adopted, no tax levy has been authorized 

by the electorate, and no one has rendered property for taxation. The Supreme Court said In Hanson, v.:Jors, 145 Tex. 

320, 198 S.w.2d 262 (1946), at page 263, In talking about a 

similar situation, 

I, . ..In other words, each voter at the election 

was a property owner, and the only reason he had not 

rendered his property for taxes was the very sufflclent one that there were no taxes to pay. To hold 

that a voter In that situation could not legally cast 

hls ballot would be to punish a citizen who has been 

guilty of no dereliction or omission whatever. It 

would amount to a disfranchisement of the entire property-owning citizenship of Cleveland because for a 

decade that city very commendably levied no taxes 

when no taxes were necessary.... We do,not believe 

the voters of this state had any such lntendment In 

mind when they adopted Art. VI, Sec. 3a, supra. To 

hold the election In this case Invalid, under the facts 

stated, would accomplish no good; It would remedy no 

evil." 

Article 5.04 contemplates that each voter sign an affiv1029- 
Honorable J. K. Williams, page 4 (~-214) 

: 

davlt promulgated by the Secretary of' State. Sl~nce~n6 

voter in the District could truthfully sign such affidavit, 

to require each voter to do so would disfranchise every 

voter In the District, We do not believe that the Leglslature intended such a result in amending Article 5.04 of 

the Election Code during~the last session of the Legislature. 

The form of affidavit which the District proposes to 

use In the election to be held on April 20, 1968, requires 

that the voter state that he owns property subject to taxation located in the District and that he describe such 

property as contemplated by Article 5.04, supra. We cannot 

see that the use of such affidavit would lead to fraud, misconduct, or other irregularity In the conduct of the proposed 

bond election. Absent such a showing it is the opinion of 

this Department that under the submitted facts the use of 

the proposed form will substantially comply with the requlrements of Article 5.04 of the Election Code. 

SUMMARY 

The submitted proposed form of affidavit for 

use in a bond election, In a political subdivision 

In which a tax roll has never been prepared to 

authorize the Travis County Junior College l%strict 

to levy and collect a maintenance tax and issue bonds 

will substantially comply with Article 5.04 of the 

Election Code. 

t'ruly yours, 

Prepared by John W. Fainter, Jr. 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Philllos. Chairman 

Kerns Taylor Co&airman 

W. V. Geppert . 

Tom Fortescue 

Bill Craig 

Malcolm Quick 

A. J. Carubbi Jr. 

Executive Assistant 

-1030- 

C. MARTJN 

General of Texas