OFFICR OF THE ATTORNEYGENERAL OF TEXAS AUSTIN

Honorable Paul T. Holt County Attorney Travis County Austin, Texas

Dear Sir: OpinionNo. O-1840 Re: (1)Payment of poll taxes by
an agentwhere the taxpayer resides in a city of ten thousand (10,000) inhabitants or more. (2)When, and underwhat circumstances,a tax collector may issue a voting poll tax receipt to a taxpayer who has undertaken to pay his poll tax bymail.
Viehave carefully consideredyour letter of recent date inwhich yourequest the opinion of this department on two questionspropounded by you, the first ofwhich reads:

"1. Does the exemptionas provided inArt. 2962, R. C. S., referred to in your opinionNo. 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 cityof tenthousand 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 inhabitantswho is subject toHonorable 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 intentionnot to return until after the firstday of the following February, and does not return before that time, he shall be entitled tovote, if possessingall other legal qualifications, by paying his poll tax or obtaining his certificateof exemptionthrough an agent authorized by him inwriting,which shall state truly his intentionto depart from the precinct, the expectedperiod of his absence,and every fact necessary to enablethe 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 depositedwith the tax collectorand kept in his office."

The method employedby 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 enact 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 ,provisoabove copied is to be restricted and applied to the preceding enacting clause of the statute and its effect is to limit the scope ,ofthat clauseand to except out of its general terms the case stated in the proviso which otherwisewould be embraced in the language used. 1,

. . .
"A proviso is substantiallyan exception. hits natural and appropriate office is to restrain or qualify
some precedingmatter." 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 essentialthat the clause be proceeded by the words "provided". Thus itwas held in the case of GALVESTONAND W. RY. CO.V. CITY OF GALVESTON, 155 S. W. 273, 281:

"Although this language is not preceeded by theword 'provided'it is nevertheless, in substancea proviso,and must be so construed. ;;;;k,,onInterpretationof Law, p, 270; 36 Cyc.

"Exceptionsand provisosare, 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, itwas 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 quoteswith approvalthe rule laid down by Judge Story in United States v. Dickson, 15 Pet, 165 (10L. Ed. 689), as follows:

"'When the enactingclause is general in its language and objects, and a proviso is afterward introduced,that proviso is construed strictly,and takesno case out of the enacting clausewhich does not fall fullywithin its terms.I
"See, also Collinsv. Warren, 63 Tex. 411; and McCuistionv. 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, readingas follows:

"The statutewhich engraftsan exception
on the general statutemust 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 caseswhere the taxpayer resides in a city of ten thousand (10,000)inhabitantsor more, and payment of his poll tax ismade by an agent, the sworn agency authorizationmust have been executedprior to October 1st; otherwise, the tax collector iswithout 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-yentby 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 personbv the taxpayer entitled to the receipt, except as providedby this article." (Underscoringours).As such, it must be strictly construed, the language read according to its plainmeaning and not extended by implication or construction. The language sim ly says that if a taxparer intends to leave (present tenseP the precinct of his residence before the first day of Octoberwith the intentionnot to return before the following first day of Februarv, he may secure his poll tax through an,agent, ratherthan in person,by executing a sworn agency authorization stating trulyhis intention to depart from the precinct of his residence, the expectedperiod of his absence and the facts necessary to enable the tax collector to fill in the blan'-sin the tax receipts.

The statute nowhereprovides,either expressly or by necessary implication, that an agency authorizationmay be executed after October 1st or after he has departed, which departure necessarilymust be before October lst, else the provisowill have no apq=tion for the simple reason that if the taxpa,verleaves after October lst, he may secure his poll tax in personbefore leavingbecause 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 authorizationprovided for inArticle 2962, supra, ap lying to a taxpayerwho 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 taxpayerspoll 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 GeorgeR. Gillette, San Antonio, Texas, wherein itwas held on the identical question you have submitted:

"In our opinion the tax collectorwould 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) (AttorneyGeneral's OpinThe second questionpropoundedby you reads:
"2,.Where the taxpayer nayshis poll tax; eitherwith or without paying his property tax, by mail, accompanied by an affidavit containing all informationnecessary for making out his poll tax receipt, prior to February lst!may the Tax Collectormake out the tax receipt and deliver it to the taxpayer either before or after February lst?"

In opinionNo. O-1522, by Assistant Attorney GeneralWalter R. Koch, addressed to Honorable John R. Shook, CriminalDistrict Attorney of Bexar County, San Antonio, Texas, construingArticle 2963,Revised civil Statutes of Texas, as last amended by the Forty-firstLegislature ir 1929, this departmentheld:

"Wehave 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 inperson, or in the agency method provided for inArticles 2961 or 2962, Revised Civil Statutes of Texas. Iiemay 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 votingpoll tax receiptmay not be validly issued by
a tax collectorwhen pa.vment therefor,and the necessary information incidentthereto, is sent to the tax collector by mail, and where there is co personal application therefor by the taxpayer, or by his legally appointedagent. In addition to the considerations set out in our opinionVo. O-1522,we further point out that an examinationof the caption to the bill enacted by theForty-firstLegislature,at its First Called Session in 1929,as an amendment to Articles 2963, 2965 and 2968 (Acts1929, 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 avoting poll tax receiptmight be issued upon the taxpayer's-mailingto the tax collector the pa.yment therefor, eitherwith or without his property tax payment.. Should itbe held that the 1929 amendment, supra, was intended to authorize such a method of pay.nent, a serious question of its constitutionalitywould arise because of the insufficiency of the caption.

It is therefore our consideredopinion that the constructionof Article 2963, supra, as amended, set out in
our opinionNo. O-1522, is correct,as comportingwith 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: 'Holdernot entitled to vote', and the name of the holder of such poll tax receipt shall not be included in the list of qualifiedvoters."
since our opinionNo. O-1522holds that a tax collector iswithout 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 taxpayermay secure a voting poll tax receipt is by personal applicationas 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, eitherwith or without a propertytax payment; personally applies for such receipt before February lst, the tax collectormay 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 ceiptwith the words stamped thereon "not entitled to vote".Honorable Paul T. Holt, Page 7

In answer to your second questicn, therefore,you are respectfullyadvised (1) that where the taxpayer undertakes to pay his poll tax bymail, eitherwith or without a propertypayment,with all the necessary informationtherewith, the tax ccllectormay ?ot, upon these facts alcne, issue a voting poll tax receipt to such taxpayer; (2) if, before February lst, the taxpayerpersonally aor>lies therefor, the tax collectormay issue and deliver to him a voting poll tax receipt;and (3) if there is no personalapplication therefor prior to February lst, the tax collectormay only issue and deliver the poll tax receipt with thewords thereon "not entitled to vote". tax collectormay issue, In any case, of course, the and the taxpayer is entitled to receive, eitherby personal delivery or b!v mail, his tax receipt for taxespaid of any nature, including thepoll tax; the foregoing determiningonly the right of the taxpayer to
a voting poll tax receipt.

We point out that it would be entirelyproper for the tax collector to inform the taxpayers,who undertake to pay their poll taxes by mail,,that it isnecessary, 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 receiptgiving them the right tovote,

We fully recognize, and regret exceedingly, the inconvenience and hardshipwhich may be causedmany 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 guidedby expediency, convenience or personaldesires. Ye conceive it to be our dustyto give effect to thewill of the Legislature of Texas as expressed in its statutory enactments,and as construedby our courts. In so doing,we point out to the Legislature the effect and status of our present statutory law,whereby itmay, as deemed by it necessary and proper,modify those lawswhioh 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