                                                         This Opinion
                                                         modif les
                                                         :: c Fan   O-


Hon. John R. Shook                    Attention:   W. Pat Camp,
Criminal District  Attorney           Assistant
  of Bexar County
San Antonio, Texas                    Re: Opinion No. O-1522
                                      Issuance of Poll Tax Receipts
                                      and Exemption Certificates   in
                                      cities  of over 10,000 popula-
Dear Sir:                             tion.
          We have given careful consideration  to the questions
propounded to us in your letter  of November 4, 1939 and your
supplemental letter  of December 26th, all of which questions
are set out below:
            “1.   Can a duly qualified    elector,  living in a
     city of ten thousand inhabitants        or more, secure a
     poll tax with which he would be entitled         to vote
     by filling    out an affidavit    (a copy of which is here-
     to attached),    swearing to the same before a notary
     public,    and mailing the same with the tax required
     by law to the tax collector       of his county prior to
     February 1st of the year in which he desires to vote?
            “2. Can a duly qualified   elector, under the
     circumstances   outlined in question One, receive an
     exemption certificate?
            “3. Can a poll tax be Issued upon the affidavit
     referred to in question #l, when such affidavit   is
     delivered  in person by the elector to the tax collec-
     tor, together with the tax required by law, before
     February 1st of the year in which he desires to vote?
           “4. Can the husband or wife obtain a certifi-
     cate of exemption for the other under the circum-
     stances outlined in question #Q?
           ‘$5. Can the Tax Assessor-Collector      of Bexar
     County, Texas, establish  substations     outside of the
     courthouse for the purpose of collectlne:      ad valo~rem
     and poll taxes?”    - -
            We     wish to thank you for the able brief presented in
Yom letter        of November 14th, which,has been of material assist-
ance to us.
                                                                               .   -




Hon. John R. Shock, page 2


            The form of affidavit which you enclosed in your
letter  of November 4th is of the type contemplated to be used
by Article   2961, Revised Civil Statutes of Texas, 1925.  This
article   reads:
               “If the taxpayer does not reside in a city of
         ten thousand Inhabitants or more, Ns poll tax must
         either be paid by him in person or by some one duly
         authorized by him in writing to pay the same, and to
         furnish the collector   the information necessary to
         fill  out the blanks in the poll tax receipt.    Such
         authority and Information must be signed by the party
         who owes the poll tax, and must be deposited with the
         tax collector  and filed and preserved by him.”
            It is to be noted that the above article   applies only
to a taxpayer who “does not reside in a city of ten thousand
inhabitants    or more” and therefore can have no application  to
residents   of the city of San Antonio.   In fact the succeeding
article   expressly so states:
                “Art. 2962.     In all cases where the taxpayer re-
         sides in a city of ten thousand Inhabitants or more
         the tax must be oaid in uersu by the taxpayer entifled
         to the receipt,     except as provided by this article.         If
         a person residing in a city of ten thousand inhabitants
         who is subject to pay a poll tax, intends to leave the
         precinct    of his residence before the.first       day of Octo-
         ber 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 po-
         sessing all other legal qualifications,          by pay&g his
         poll tax or obtaining his certificate         of exemption through
         en agent authorized by him in writing,         which shall state
         truly his intention       to depart from the precinct,      the ex-
         pected period of his absence         and every fact necessary to
         enable the tax collector       to $ill the blanks in his re-8
         ceipt . 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.”      (Underscoring     ours.>
              Article 2963, as last amended by the Forty-first         Legis-
lature     in 1929, reads as follows:
              “When in cases permitted by this Title,   the tax is
         paid by an agent, the tax receipt  shall not be delivered
         to such agent, but shall be sent by mail to the taxpayer
         or kept and delivered  to him in person by the Tax Collec-
         tor.  Where a property taxpayer residing  either within or
Hon. John R. Shook, page 3


     without a city of ten thousand inhabitants       or
     more, has a poll tax assessed against him or his.
     wife or, both;.he   may, at t,he same time -that he
     pays his property tax by bank check or money or-
     der, also pay the poll tax of himself and wife,
     or either,   and in the same way ahd~its. shall .be
     the duty of the Tax Collector     1n su~ch cases, to
     mail such poll tax receipts,     together with the
     property tax receipt to such property taxpayer.
     Exemption certificates    shall- be mailed in like
     manner, with the property tax receipt upon the
     payment of property taxes.
           “All tax receipts   issued for any year after
     January 31st shall~ beg stamped on ~the face.thereof;
     ‘Holder not entitled    to vote’,    Andythe names. of
     the holders of such polltax       receipts .shall not
     be Included In the list of qualified       voter,s:.W
            It is also to be noted that the above article        author-
izes the taxpayer when paying his property tax by bank check or
money order, also to pay his, ~011~tax “inthe.         same way, and it
shall be the duty of Tax Collectors.       in such cases, to mail such
poll tax receipts”.      No authorization     is tom,be found in the Ar-
ticle   to permit the taxRayer to mail his application        for poll
tax to the collector.      It seems to us that express authority was
given to the Tax Collector      to mail the receipt to the tqayer
“in such cases” for the logical       purpose of giving the check time
to clear before the receipt       is delivered.    There being no con-
flict   between Articles   2963 and 2962, they~ must both be given
effect.    It follows,   therefore,   that in cities    of 10xOOO inhabi-
tants or more all poll’ taxes “must be paid in person with only
two exceptions:
           (1) That “the husband may pay the poll tax of
     his wife” and vice versa, as provided in ‘.Artlcle VI,
     Section 2 of the Constitution of Texas, and
           (2) Where the person intends .to be absent from
     his precinct  during the tax paying period, as pro-
     vided by Article   2962.

           In our Opinion No. o-1461, addressed to the-Honorable
Tom L. Hartley, under date of November 7,~1939,   we expressed the
view that Article  2963 provides a third exceptions to. the general
rules for payment of poll taxes laid down in Article    2961, appli-
cable to taxpayers not residing in cities   of over 10,000, I.e.,
the taxpayer might pay his poll tax by-mail where the same was
assessed against him and he paid it together with his property
Hon. John R. Shook, page 4


tax.     Upon reconsideration     we have concluded that it was not
the purpose of Article        29b3 to create such third exception so
as to permit thd payment of poll taxes by mail, although ac-
corn anied by payment of property taxes.        Our said Opinion No.
O-l f: 61 Is hereby amended accordingly.     Although our Opinion No.
o-1461, dealing with Article 2961, has no direct application         to
the questions presented,by       you, we take this opportunity   to
correct    our former opinion.
           The distinction     made by the Legislature   in the matter
of paying poll taxes between cities      of over 10,000 and other
communities finds precedent in the Constitution,        which in Arti-
cle VI, Section 4 authorizes the Legislature        to "provide by law
for the registration     of all votes in all cities    containing a
population  of ten thousand inhabitants     or more".    .As said by
Baugh, Judge of the Austin Court of Civil Appeals in Texas Power
& Light Co. v. Brownwood Public Service Co., 111 S.W. (2d) 1225
(19381, at p. 1227:
              "And the Constitution   in Section 4 of Article   6,
       recognized   that in order to preserve the purity of
       elections,   safeguards may be required in cities     of
       more than 10,000 inhabitants which are not authorized
       in cities   of lesser population."
            In Parker v. Busby, 170 S.W. 1042 the Galveston          Court
of Civil   Appeals said:
             I1 *** the law does not provide for the payment by
       a taxpayer of his poll taxes through the mails."
           We are aware of the general rule announced by the
courts of this state in such cases as Wallis v. Williams,          110 S.W.
785; Warren v. Robinson, 32 S.W. (2d) 875, land Ramsey v. Wilhelm,
52 S.W. (2d) 757 that the election      laws will be liberally     con-
strued so as not to disfranchise     citizens,   otherwise qualified    to
vote, because of harmless irregularities       in the manner of obtain-
ing poll tax receipts,   etc.   But Articles    2961, 2962 and 2963,
R.C.S.   prescribe the rules whereby the Tax Assessors-Collectors
shall ge guided in issuing poll tax receipts        and these officials
are duty bound to abide thereby.      Article   199 of the Penal Code
subjects a Tax Collector    to penalty for failure     to do so:
             "Art. 199. - Any tax collector      who delivers a poll
       tax receipt  or certificate     of exemption to any one ex-
       cept the one~entitled     thereto and at the time when the
       tax is paid or the certificate       of exemption is applied
       for, except as specially      permitted by law shall be fined
Hon. John R. Shook, page 5


     not less than one hundred nor more than one thou-
     sand dollars, and shall be removed from office.”
           I.    In answer to your first    question,  you are there-
fore respectfully    advised that a duly    qualified  elector,    living
in a citv of ten thousand inhabitants       or more mav onlv secure
a poll tax receipt in oersop and not       by an agent- upon’ af f ida-
vits except that --
          (1)    a husband may pay the poll      tax for   Ns wife
     or a wife   for her husband and -
           (2)   if the taxpayer    intends to be out of the
     precinct   of his residence    from October 1st to Febru-
     ary 1st he may obtain his      poll tax receipt  or exemp-
     tion certificate   “through    an agent authorized by him
     in wrltlr@.
           II. In answer to your second question,  you are advised
that the same requirements apply to exemption certificates   as
apply to poll tax receipts.   It was so, held by the Austin Court
of Civil Appeals in Texas Power and Light Co. v. Brownwood Pub-
lic Service Co., 111 S.W. (2d) 1225 (writ of error refused) where-
in the court said at page 1227:
            “It is clear, we think, that if the Legislature
     has the power to require a poll tax receipt       of all the
     citizens   of the state as a qualification     for voting,
     and for reasons sufficient    to itself,   sees fit to ex-
     empt certain classes from the payment of such tax, it
     has equal power to prescribe,    as a qualification     for
     voting    equal or similar requirements for those grat-
     uitous i y exempted from poll tax payments, as It does
     for those who are required to pay the tax, ***
            “Vernon’s Annotated Civil Statutes,        Article    2968,
     expressly requires,    in cities    of more than 10 000 in-
     habitants    those who are exempted from paymenc of a
     poll tax co procure an exemption certificate          before
     February 1st of the year in which they offer to vote.
     This statute prescribes    these requirements with the
     same particularity    and exactness as do the statutes re-
     lating to payment of poll taxes.        .And Article   3004 R-S.,
     relating   to voting   makes the same requirements wi 4h
     reference   to exempt ion certificates,     as essential     to the
     right to vote, as it does with reference         to poll tax
     receipts On
Hon. John R Shook, page 6


            III.   Replying to your third question we will say that
if a duly qualified     elector pays his tax in person before Febru-
ary 1st he is entitled      to receive a poll tax receipt upon giving
the requisite    information   as to his residence,  etc. under oath
to the collector      so that the delivery   of his own affidavit at
such time would i e Immaterial.
            IV. In answer to your fourth question,       it Is our opln-
ion that since Section 2 of Article      VI of the Constitution   of
Texas authorizes a husband to pay the poll tax for his wife, and
since under the doctrine announced by Texas Power & Light Co. v.
Brownwood Public Service Co., supra the same rules apply to ex-
emption certificates    as apply to po i 1 tax receipts,   it would seem
reasonable to construe Article     2968, R.C.S.,  which prescribes   the
issuance of exemption certificates      so as to permit either a hus-
band or wife to act as agent for the other, without written au-
thorization   in obtaining exemption certifi~cates.
           v.  In order to answer the question submitted in your
letter  of December 26th, whether the Tax Assessor-Collector     of
Bexar County may establish    substations  outside of the courthouse
for the purpose of collecting    ad valorem and poll taxes, it will
be necessary to consider the several applicable     statutes.
          Article  2971 expressly   directs  the collector to estab-
lish such a substation in cities    of 10,000 or more other than
the county seat.
            Article    7255, as amended in 1939, provides that the tax
collector,   “when so ordered by the Commissioners’ Court? “may
post up notices - not less than three (3) - at public places in
each voting or justice      precinct in his county, at least twenty
(20) days previous to the day said taxpayers are required to meet
him for the purpose of paying their taxes, stating In said notice
the times and places the same are required to be paid ***I’ This
statute clearly     authorizes the establishment   of “substations” upon
the conditions     stated.
            Article  7256, as amended in 1937, directs the Assessor
and Collector    to “keep his office at the county seat of his coun-
      As said by Murray, Judge in Oliver v. Lindsay, 125 S.W. (2d)
Zi;;:
          “It will be kept in mind that the collector  is
     not required to keep his office in the courthouse of
     the county, but only at the county seat.”
           The Austin Court of Civil   Ap eals, by way of dicta in
1913 in the case of Davis v. Riley,    1 R S.W. 314, declared that
Hon. John R. Shook, page 7


“The payment by a citizen   of his poll tax at any other place
than the office  of the tax collector   does not constitute    in law
a payment of said tax . . .” The statutes have been repeatedly
amended since the decision of that case, and we believe that
the dictum above quoted, has In effect      been subsequently over-
ruled by Oliver v. Lindsay    supra and by the Texas Court of
Criminal Appeals In Hlbbetts v. SCat e, I23 S.W. @cl.) 898 where-
in the court sustained a conviction    for misapplication    01 public
funds by a deputy tax collector    who accepted money in payment of
taxes in a corridor  of the courthouse.     The court distinguished
the case of Davis v. Riley by saying:
            “It is obvious that Grim (the      deputy in the Davis
     case) was acting for the taxpayers        and not for the
     collector    . . .n
             There being no express statutory prohibition    against
the establishment     of substat%ons for the collection   of taxes,
we believe that poll taxes paid at such a substation to the col-
lector    or a properly authorized deputy would be a valid payment.
In this connection,     it .must be borne In mind, however, that the
statutes prescribing      the form of poll tax receipts and exemption
certificates    require separate books for each precinct.     Article
2970 requires that:
            “Each Commissioners’ Court, before the first  day
     of October levery year shall furnish to the County Tax
     Collector   blank books for each                 , which
     shall be marked with the name and number of the pre-
     cinct for which they are intended. . .w (Underscoring
     ours.)
            Similarly,   Article   2968 requires   that:
          “Certificates  of exemption for u     precinct shall
     be numbered consecutively  . . .‘l  (Underscoring ours.)
            We call attention  to these statutes merely to indicate
that -they may effect   to some extent the practical operation of
substations   for payment of poll taxes*
APPROVED DEC.29, 1939                      Yours very truly
/s/ Gerald C. Mann                         ATTORNEY  GENEXUL OF TEXAS
ATTORREY  GERFRALOF TEKAS                  By /s/ Walter Il. Koch
                                           Walter R. Koch, Assistant
WRK:ob:wb
This opinion   considered    and approved in limited       conference.
