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Honorable J. K. Williams

Commissioner,CoordinatingBoard Texas College and University System Sam Houstoh State Office Building Austin, Texas 78701

_ Opinion No. K-214

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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 followingrelevant facts:

.(!I Travis County Junior you have submitted the
College'

Dlsttiict'was createa ana seven trustees were electedat an election held within the District on November 9, 1963. At the same election the electoratefailed to vote authorization for the District to Issue bonds or levy a maintenancetax. .In a subsequentelection the voters failed to approve the Issuanceof bonds or the levying of a maintenancetax. (2) The Board of Trustees plans to call an election for April 20 1968, for the purpose of submittingpropositions to the voters which If passed would authorize the District to levy a maintenancetax'and Issue bonds for school purposes. ' (3) Since the District has never been authorized to levy a maintenancetax, 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 requirementsof Article 5.04 of the Election Code, the Secretaryof State has promulgated a form of affidavit to be signed by each voter in a bond election,which requires that the affiant identifypropertywhich has been rendered for taxation to the politicalsubdivisionholding the election. Since no one has rendered property for taxation to the District no one could truthfully sign the affidavit promulgatedby the Secretaryof State In this Instance.
A form of affidavitwhich the District proposes to use in view of the above situation Is attached to your opinion request which reads as follows:

"AFFIDAVITOF OWNERSHIPOF 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 propertywhich is subject to taxationby the Travis County Junior CollegeDistrict; and that the following Is a descriptionof 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 punishableby a fine not to exceed $5000.00or by ImprisonmentIn the penitentiary not to exceed 5 years, or by both such fine and.lmprlsonment.
X (Signatureof Voter) "Sworn to before me by the above-signedvoter on this the 20th day of April, 1968.

nlgnatureT6!fficer Administering Oathr '

-1028-HonorableJ. 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 substantiallycomply with the requirementsof 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 regulatingthe manner of holding an electionare merely directory,and a departure from their provisionswill not, ordlnarllz, invalidatean election,unless such departureor such irregularityhave affected or changed the result of the election." (Emphasisadded.)

,. Ordinarily,before a personmay vote In a bond election, he must render his property for taxation to the polltlcal subdlvlslonholding 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 propertybefore being allowed to vote in bond elections Is not absolute In situations,such as In the Travis County Junior College District,,whereno tax rolls have been preparedor adopted, no tax levy has been authorized by the electorate,and no one has rendered propertyfor 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,

...Inother words, each voter at the election was a propertyowner, 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 derelictionor omission whatever. It would amount to a disfranchisement of the entire property-owningcitizenshipof Clevelandbecause for a decade that city very commendablylevied no taxes when no taxes were necessary.... We do,not believe the voters of this state had any such lntendmentIn mind when they adopted Art. VI, Sec. 3a, supra. To hold the election In this case Invalid,under the facts stated, would accomplishno good; It would remedy no evil." Article 5.04 contemplatesthat each voter sign an affiv1029-HonorableJ. K. Williams, page 4 (~-214)
: davlt promulgatedby the Secretaryof' State. Sl~nce~n6 voter in the District could truthfullysign such affidavit, to require each voter to do so would disfranchiseevery voter In the District, We do not believe that the Leglslature intended such a result in amending Article 5.04 of the ElectionCode during~thelast session of the Legislature. The form of affidavitwhich 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 propertyas contemplatedby Article 5.04, supra. We cannot see that the use of such affidavitwould lead to fraud, misconduct,or other irregularityIn the conduct of the proposed bond election. Absent such a showing it is the opinion of this Departmentthat under the submitted facts the use of the proposedform will substantiallycomply with the requlrements of Article 5.04 of the Election Code. SUMMARY The submittedproposedform of affidavit for use in a bond election, In a politicalsubdivision In which a tax roll has never been prepared to authorize the Travis County Junior College l%strict to levy and collecta maintenancetax and issue bonds will substantiallycomply with Article 5.04 of the Election Code. t'ruly yours,

Prepared by John W. Fainter, Jr. AssistantAttorney General
APPROVED: OPINION COMMITTEE HawthornePhilllos.Chairman Kerns Taylor Co&airman W. V. Geppert
. Tom Fortescue Bill Craig Malcolm Quick
A. J. Carubbi Jr. ExecutiveAssistant -1030- C. MARTJN Generalof Texas