OFFICR OF THE ATTORNEYGENERAL OF TEXAS 

AUSTIN 

Honorable Paul T. Holt 

County Attorney 

Travis County 

Austin, Texas 

Dear Sir: 

Opinion No. O-1840 

Re: (1) Payment of poll taxes by 

an agent where the taxpayer 

resides in a city of ten thousand (10,000) inhabitants or 

more. 

(2) When, and under what circumstances, a tax collector 

may issue a voting poll tax 

receipt to a taxpayer who has 

undertaken to pay his poll 

tax by mail. 

Vie have carefully considered your letter of recent date in which you request the opinion of this department on two questions propounded by you, the first of which 

reads: 

"1. Does the exemption as provided in Art. 

2962, R. C. S., referred to in your opinion No. 

1522, for the payment of a poll tax by an agent 

where the taxpayer is out of the precinct of 

his residence during the entire taxpaying period, 

require that the agent must be appointed before 

October lst, or may such agent be appointed between October lst and February lst?" 

provides; 

Article 2962, Revised Civil Statutes of Texas, 

"In all cases where the taxpayer resides 

in a city of ten thousand inhabitants or more, 

the tax must be paid in person by the taxpayer 

entitled to the receipt, except as provided by 

this article. If a person residing in a city 

of ten thousand inhabitants who is subject to 
Honorable Paul T. Holt, Page 2 

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, and does 

not return before that time, he shall be entitled 

to vote, if possessing all other legal qualifications, by paying his poll tax or obtaining his 

certificate of exemption through an agent authorized by him in writing, which shall state truly 

his intention to depart from the precinct, the 

expected period of his absence, and every fact 

necessary to enable the tax collector to fill the 

blanks in his receipt. Such authority in fact, 

must be sworn to by the citizen, and certified to 

by some officer authorized to administer oaths. 

It shall be deposited with the tax collector and 

kept in his office." 

The method employed by the Legislature in enacting this statute is described in the following observation 

by the court in the case of STATE V. COUNTRY CLUB, 173 S.W. 

570, 580: 

"It is the usual and the only safe method, 

where en act is intended to embrace all but a 

few, to first enact a sweeping clause, which includes everybody, and then, by proviso or subsequent articles, to name those who are intended 

to be exempted. , . .I' 

The effect of such a proviso or exception is described by the Supreme Court of Texas in the case of POTTER 

V. ROBISON, 102 Tex. 448, 119 S. W. 90, as follows: 

"The ,proviso above copied is to be restricted and applied to the preceding enacting clause 

of the statute and its effect is to limit the 

scope ,of that clause and to except out of its 

general terms the case stated in the proviso which 

otherwise would be embraced in the language used. 

1, . . . 

"A proviso is substantially an exception. hits 

natural and appropriate office is to restrain or qualify 

some preceding matter." 39 TMhS JURISPRUDENCE, p. 192, 

par. 102. SPENCE V. FENZUER, 107 Tex. 443, 180 S. Vi. 597. 
Honorable Paul T. Holt, Page 3 

To operate as a proviso, it is not essential that the 

clause be proceeded by the words "provided". Thus it was 

held in the case of GALVESTON AND W. RY. CO. V. CITY OF 

GALVESTON, 155 S. W. 273, 281: 

"Although this language is not preceeded 

by the word 'provided' it is nevertheless, in 

substance a proviso, and must be so construed. 

;;;;k,,on Interpretation of Law, p, 270; 36 Cyc. 

"Exceptions and provisos are, as a rule, strictly construed and applied , , . an exception or $;o;~i;o 

will.not be extended beyond its plain terms.1' . 

Juris., p. 278, par. 148. 

Accordingly, it was held in the case of MISSOURIUNSAS-TFXAS R. CO. V. THOMSON, 280 S. W. 325, 327: 

1, 

specific' . 

The proviso is in the nature of a 

and express exception to that general 

rule. It has long been the rule of the courts 

to construe such provisos strictly. In Roberts 

v. Yarbro & Wimberly, 41 Tex. 449, Judge Gould 

quotes with approval the rule laid down by Judge 

Story in United States v. Dickson, 15 Pet, 165 

(10 L. Ed. 689), as follows: 

"'When the enacting clause is general in 

its language and objects, and a proviso is 

afterward introduced, that proviso is construed 

strictly, and takes no case out of the enacting 

clause which does not fall fully within its 

terms. I 

"See, also Collins v. Warren, 63 Tex. 411; 

and McCuistion v. Fenet (Tex. Civ. App.) 144 S. 

w. 1155." 

To the same effect is the case of BRIGHT V. HRISCOE, 193 S. W. 156, the opinion, in part, reading as follows: 

"The statute which engrafts an exception 

on the general statute must be strictly constured and will not be extended by judicial 

construction. Simon v, Middleton, 51 Tex. Civ. 

App. 531, 112 S. W. 441." 
Honorable Paul T. Halt, Page 4 

A reading of Article . _ 

2962, in the light of the . . __. foregoing principles of construction, compels the holding 

that, in all cases where the taxpayer resides in a city of 

ten thousand (10,000) inhabitants or more, and payment of 

his poll tax is made by an agent, the sworn agency authorization must have been executed prior to October 1st; otherwise, the tax collector is without authority to accept the 

poll tax payment by such agent and issue to the taxpayer a 

poll tax receipt, entitling the taxpayer to vote. 

is 

The "pa-yent by agent" provision of this statute 

clearly a proviso or exception to the general law enacted in the first part of the statute, to-wit, "in all cases 

where the taxpayer resides in a city of ten thousand (10,000) 

inhabitants or more, the tax must be paid in person bv the 

taxpayer entitled to the receipt, except as provided by this 

article." (Underscoring ours). As such, it must be strictly 

construed, the language read according to its plain meaning 

and not extended by implication or construction. The language sim ly says that if a taxparer intends to leave (present tense P the precinct of his residence before the first 

day of October with the intention not to return before the 

following first day of Februarv, he may secure his poll tax 

through an, agent, rather than in person, by executing a sworn 

agency authorization stating truly his intention to depart 

from the precinct of his residence, the expected period of 

his absence and the facts necessary to enable the tax collector to fill in the blan'-s in the tax receipts. 

The statute nowhere provides, either expressly or 

by necessary implication, that an agency authorization may 

be executed after October 1st or after he has departed, 

which departure necessarily must be before October lst, else 

the proviso will have no apq=tion for the simple reason 

that if the taxpa,ver leaves after October lst, he may secure 

his poll tax in person before leaving because the taxpaying 

period is fro:! October 1st through January 31st. 

YOU are, therefore, respectfully advised that it 

is the opinion of this department that the agency authorization provided for in Article 2962, supra, ap lying to a 

taxpayer who resides in a city of ten thousand ? 

habitants or more, 

lO,COO), inmust have been executed prior to October 

1st; if it is executed, and the agent thereby appointed, subsequent to October lst, the tax collector is without authority to accept payment of the taxpayers poll tax from such 

agent and issue to the taxpayer a valid voting poll tax receipt. 
Honorable Paul T. Holt,,Page 5 

In so holding, we are in accord with the ruling 

of this department, under date of February.1, 1913, in a 

conference opinion signed by Honorable B. F. Looney, Attorney General, and written bv Honorable C. A. sweeton, Assistant Attorney General, addressed to Honorable George R. Gillette, 

San Antonio, Texas, wherein it was held on the identical question you have submitted: 

"In our opinion the tax collector would not 

be authorized to accept payment of poll tax by 

an agent if the authority of the apent was sworn 

to after October 1st." 

ions, Vol. 27, p. 304) 

(Attorney General's OpinThe second question propounded by you reads: 

"2,. Where the taxpayer nays his poll tax; 

either with or without paying his property tax, 

by mail, accompanied by an affidavit containing 

all information necessary for making out his 

poll tax receipt, prior to February lst! may 

the Tax Collector make out the tax receipt and 

deliver it to the taxpayer either before or 

after February lst?" 

In opinion No. O-1522, by Assistant Attorney General Walter R. Koch, addressed to Honorable John R. Shook, 

Criminal District Attorney of Bexar County, San Antonio, 

Texas, construing Article 2963, Revised civil Statutes of 

Texas, as last amended by the Forty-first Legislature ir 

1929, this department held: 

"We have concluded that it was not the purpose of Article 2963 to create such third exception so as to permit the payment of poll taxes 

by mail, although accompanied by payment of property taxes . . .'I 

Accordingly, before a taxpayer may secure a voting 

poll tax receipt, he must have paid his poll tax in person, 

or in the agency method provided for in Articles 2961 or 2962, 

Revised Civil Statutes of Texas. Iie may not secure a voting 

poll tax by mail. 

We have in response to the question submitted by 

YOU, reconsidered our opinion No. O-1522, with reference to 

the payment of poll taxes by mail, under Article 2963, supra. 
Honorable Paul T. Holt, Page 6 

We reaffirm the correctness of this opinion to the effect 

that a voting poll tax receipt may not be validly issued by 

a tax collector when pa.vment therefor, and the necessary information incident thereto, is sent to the tax collector by 

mail, and where there is co personal application therefor by 

the taxpayer, or by his legally appointed agent. In addition 

to the considerations set out in our opinion Vo. O-1522, we 

further point out that an examination of the caption to the 

bill enacted by the Forty-first Legislature, at its First 

Called Session in 1929, as an amendment to Articles 2963, 2965 

and 2968 (Acts 1929, 41st Legislature, 1st C.S., p. 111, ch. 

51, par. 1) likewise demonstrates that it was not the intention of the Legislature to authorize a new method of paying 

poll taxes; whereby a voting poll tax receipt might be issued 

upon the taxpayer's -mailing to the tax collector the pa.yment 

therefor, either with or without his property tax payment.. 

Should it be held that the 1929 amendment, supra, was intended to authorize such a method of pay.nent, a serious question 

of its constitutionality would arise because of the insufficiency of the caption. 

It is therefore our considered opinion that the 

construction of Article 2963, supra, as amended, set out in 

our opinion No. O-1522, is correct, as comporting with the 

language therein and its validity in all respects. 

Turning now specifically to the second question 

submitted by you, the last paragraph of Article 2963, supra, 

becomes pertinent. It reads: 

"'All tax receipts issued for any year after 

January 31st shall be stamped on the face thereof: 

'Holder not entitled to vote', and the name of 

the holder of such poll tax receipt shall not be 

included in the list of qualified voters." 

since our opinion No. O-1522 holds that a tax collector is without authority to issue a voting poll tax receipt 

to a taxpayer who sends the payments therefor through the mail, 

it follows that the onl;! wav such taxpayer may secure a voting 

poll tax receipt is by personal application as required by 

Articles 2961 or 2962, Xevised Civil Statutes of Texas. Therefore, if the taxpayer, who has undertaken to pay his poll tax 

by mail, either with or without a property tax payment; personally applies for such receipt before February lst, the tax 

collector may thereupon issue him a voting tax receipt; whereas, 

if the taxpayer fails to personally apqly therefor before February lst, the tax collector is compelled, under the abovequoted provision of Article 2963, to issue the poll tax ret 

ceipt with the words stamped thereon "not entitled to vote". 
Honorable Paul T. Holt, Page 7 

In answer to your second questicn, therefore, you 

are respectfully advised (1) that where the taxpayer undertakes to pay his poll tax by mail, either with or without a 

property payment, with all the necessary information therewith, the tax ccllector may ?ot, upon these facts alcne, issue a voting poll tax receipt to such taxpayer; (2) if, before February lst, the taxpayer personally aor>lies therefor, 

the tax collector may issue and deliver to him a voting 

poll tax receipt; and (3) if there is no personal application therefor prior to February lst, the tax collector may 

only issue and deliver the poll tax receipt with the words 

thereon "not entitled to vote". 

tax collector may issue, 

In any case, of course, the 

and the taxpayer is entitled to receive, either by personal delivery or b!v mail, his tax receipt for taxes paid of any nature, including the poll tax; 

the foregoing determining only the right of the taxpayer to 

a voting poll tax receipt. 

We point out that it would be entirely proper for 

the tax collector to inform the taxpayers, who undertake to 

pay their poll taxes by mail,, that it is necessary, under 

the statutes of Texas, that they personally apply for their 

pcll tax, prior to February lst, before they may be issued 

a poll tax receipt giving them the right to vote, 

We fully recognize, and regret exceedingly, the 

inconvenience and hardship which may be caused many of the 

citizens of Texas when this department seeks to .give force 

to the laws of our State, as we are doing in this opinion. 

Vie may not, in the discharge of our responsibilities, be 

guided by expediency, convenience or personal desires. Ye 

conceive it to be our dusty to give effect to the will of 

the Legislature of Texas as expressed in its statutory enactments, and as construed by our courts. In so doing, we 

point out to the Legislature the effect and status of our 

present statutory law, whereby it may, as deemed by it necessary and proper, modify those laws whioh it believes to 

be oppressive, burdensome, or too stringent. 

Very truly yours 

ATTORREY %EE.'RAL OF TEXAS 

ZCS:LM 

APPROVED: JAN. 1S 1940 

(Signed) Gerald 6. Mann 

ATTORNEY GENCERAL OF TEXAS 

(Signed) Zollie C.Steakley 

BY 

Zollie C. Steakley