                                                      Superseded   by  Art. 5.14a
                                                      Election      Code enacted in
                                                      1965


Honorable
- .    .  . Alfred H. Flanagan               Opinion NO. ww-1298
District  Attorney
76th Judicial District                       Re:   Whether a Tax Asaessor-
P. o. BOX 986                                      Colleotor   eihould leaue a
Mt. Pleasant, Texas                                voting poll tax receipt     to
                                                   a person who mailed a proper
                                                   application   therefor,  post-
                                                   marked January glat,but
                                                   received by the Tax Assessor-
Dear Mr. Flanagan:                                 Collector   on February 2nd.
      In your letter      you state:
         “A lady mailed a requeet     for a Poll Tax
      Receipt from Au&in, Texas,      on January 3&t,
      1962, to the Tax Aseeeeor-Collector     of Titus
      County, Texas, at -Mr. Pleaeant, Ttxas.      This
      written request contained all of the requlred
      InSormatlon, including the remittance,     but was
      not received   in the office   of aaid Tax Assessor-
      Collector  until February 2, 1962, but the enve-
      lope containing the ap llcation     bore the port
      mark of January 31, 19g 2. The Tax Aesessor-
      Collector  refused to lsrrue a voting poll tax
      receipt because said application     wan not
      received In his office     by January 31, 1962."
      Art.    5.09,   Texas   Sleotion   Code, provides   In part PB
follows   :

          “A poll  tax ahall be oollected   Srom every
      person between the ages of twenty-one (21) anb
      sixty (60) yeers who resided in thla state on
      the first   day of January preceding It8 levy . . .
      It shall be paid at any time between the Slret
      day of October and the first     day of February
      Sollowing;   *. . ”
      Art.    5.11,   Texas Election     Code, provides   In part a8
sollows:
         m.. A taxpayer may pay hl# poll tax by
      a rem,ittance of the amount of the tax through
      the United States mail to the County Tax
      Collector,   accompanying: said remittance with
      a statement in writing ehowlng all the lnSOI?ULatlOn
Honorable Alfred H. Flanagan   Page 2   Opinion No. W-1298


    necessary to enable the Tax Collector to Sill II
    out the blank form of the poll tax receipt, . * .~-
     Sec. 2 of Art. 6, Texas Constitution,reads In part as
sollows:
        If... any voter who Is subject to pay a
     poll tax under the laws of the State of Texas
     shall have paid said tax before offering to
     vote at any election In this State and hold a
     receipt showing that said poll tax was paid
     before the first day on February next preceding
     such election ...”
     In Davis v. Riley, 154 SW 314 (Civ. App. 1913), Riley and
70 others had delivered $1.75 each to one Holloway, and at the
same time had signed a statement authorizingone Grim to deliver
the money to the tax collector,Davis, In payment Sor’their poll
taxes. Holloway forwarded the money by mail on January 30, 1912,
to Grim, who In turn delivered It to the tax collector on the 1st
and 2nd days of February, 1912. The Court stated at pages 316
and 317:
        II... The law further provides that all poll
     taxes shall be paid on or before the 1st day of
     February of each year, and makes it a penal
     offense for the collector to receive poll taxes
     and antedate the receipts therefor after sald time.
       “The Plaintiffs,under the circumstances,con-
    stituted Holloway and Crlm their agents to receive
    and deliver said money and orders to the collector,
    and must abide by their failure to deliver the same
    within due time. While the collector could have
    received the money and orders when tendered to him at
    his office, and issued the receipts and certificates
    as of date when In fact received by him, still he was
    not justified in receiving and antedating such receipts
    and certificates;.*. IS the plalntlffswere dlsquali-
    f’ied as voters for said year by reason of their
    failure to pay the poll taxes and procure the exemption
    certificateswithin due time, it was chargeableto the i
    fault and neglect of their own agents ...’
     Attorney General’s Opinion No. ~-2836 (1952) to County
Attorney George M. Kelton of Ector County, held likewise, and
cited Davis v. Rilex. We find no Texas cases covering~the
situation under consideration,where the taxpayermails his
remittance and applicationdirectly to the tax collector which
is postmarked on January 31st, but not received through the
mail by the tax collector until some time in February. While
Art. 5.11, Texas Election Code, permits payment of the tax by
-   -




        Honorable Alfred H. Flanagan    Page 3     Opinion No. w-1298

        mall, nothing is said about accepting a tax as being paid on
        time where It Is postmarked In time, but delivered by mail after
        the deadline. Art. 13.12, Texas Election Code, on the subject
        of filing application to have one'8 name oh the primary ballot
        as a candidate, specificallymakes provlslon.Sormeeting the
        filing deadline by mailing by registeredmall within the time
        for filing. Prior to this provision the Supreme Court of Texas,
        in the case of Burroughs v. Lyle6 142 Tex. 704, 181 SW2d 570,
        (1944), had held th t th    I   &w on filing (Art. 3112, V.C.S.)
        did not authorize aaSili~gp~yo~ail,where postmarked within the
        time allowed by law, but received by the county chairman through
        the mail after the filing deadline.
             It is our opinion that the poll tax Is not paid until the
        remittance is In the hands of the tax assessor-collectoror his
        authorized deputy, and any other holding would be contrary to
        Sec. 2, Art. 6, Texas Constitution. The United States mall Is
        not a deputy tax collector. In Webb v. Champion Coated Paper
             31 N E 2d g6 (Ohio Ct. App    940) the appellant had mailed
        %*ihe cl&k of the court by regisiered'mail a motion for new
        trial In time to reach its destinationIn t&ee days, which
        would have met the deadline for filing the motion. For some
        reason the letter containingthe motion was not delivered until
        the fourth day, or one day too late. The Court said at page 97:
                'While, undoubtedly,the appellant was
             justified In having a firm expectationthat
             the mail would be forwarded In the usual
             manner, nevertheless,it chose the postal
             departmentas Its agent and must be charged
             with its failure to meet lb oxpectatlorrsto
             the same extent that it would be charged
             with the failure of any other agent selected
             by it. The failure of the Post Office Depart-
             ment was the appellant'sfailure. ..."
             In Roberts v. Sims, 111 Okla. 1, 237 P. 852, the Court
        stated at page 853:
                'When the defendantdeposited the motion
             for new trial In the United States mall, he
             thereby selected the postal department as his
             agency for delivery. *.."
             We also direct your attention to Art. 5.12 of the Election
        Code which specificallyprovides that all poll tax receipts
        "issued for any year after January 3lst shall be stamped on the
        face thereof: 'Holdernot entitled to vote' and the names of the
        holaers of such poll tax receipts shall not be Included in the
        list of qualified voters."
             It is therefore our opinion that the Tax Assessor-Collector
        rightly regused to Issue a voting poll tax receipt to the tax-
        payer whose remittance and applicationwas received by such Tax
        Assessor-Collectorthrough the United States mall after the 3lst
        day of January.
Honorable Alfred H. Flanagan            Page 4   Opinion No. W-1298


                      S IiN,ilA R.Y
        A County Tax Assessor-Collectormay not
    issue a voting poll tax receipt to a taxpayer
    whose remittance and application sent to the
    Tax Assessor-Collectorby United States mall,
    was received by such Tax Assessor-Collector
    after the 31st day of January.
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas


                               -Y   .

                                        Riley &en,   Fletchek
                                        Assistant
REF:bjh
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
John Reeves
Arthur Sandlin
Vernon Teofan    .'
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.




                          .
