            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 thou-
                                sand (10,000) inhabitants or
                                more.
                                (2) When, and under what cir-
                                cumstances, 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 re-
cent date in which you request the opinion of this depart-
ment 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 be-
     tween October lst and February lst?"
            Article 2962, Revised Civil Statutes of Texas,
provides;
          "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 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 possessing all other legal qualifica-
        tions, by paying his poll tax or obtaining his
        certificate of exemption through an agent author-
        ized 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 enact-
ing    this      is described in the following observation
               statute
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 in-
        cludes everybody, and then, by proviso or subse-
        quent articles, to name those who are intended
        to be exempted. , . .I'
          The effect of such a proviso or exception is des-
cribed 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 restrict-
        ed and applied to the preceding enacting clause
        of the statute and its effect is to limit the
        scope ,ofthat 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,,onInterpretation of Law, p, 270; 36 Cyc.

          "Exceptions and provisos are, as a rule, strict-
ly 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 MISSOURI-
UNSAS-TFXAS R. CO. V. THOMSON, 280 S. W. 325, 327:
          1,     The proviso is in the nature of a
     specific'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. HRIS-
COE, 193 S. W. 156, the opinion, in part, reading as follows:
          "The statute which engrafts an exception
     on the general statute must be strictly con-
     stured 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



               . _ of Article 2962,
          A reading              .   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 author-
ization must have been executed prior to October 1st; other-
wise, 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.
          The "pa-yent by agent" provision of this statute
is clearly a proviso or exception to the general law enact-
ed 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 lan-
guage sim ly says that if a taxparer intends to leave (pres-
ent tenseP 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 col-
lector to fill in the blan'-sin 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,verleaves 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 author-
ization provided for in Article 2962, supra, ap lying to a
taxpayer who resides in a city of ten thousand ?lO,COO), in-
habitants or more, must have been executed prior to October
1st; if it is executed, and the agent thereby appointed, sub-
sequent to October lst, the tax collector is without author-
ity to accept payment of the taxpayers poll tax from such
agent and issue to the taxpayer a valid voting poll tax re-
ceipt.
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, Attor-
ney General, and written bv Honorable C. A. sweeton, Assist-
ant Attorney General, addressed to Honorable George R. Gillette,
San Antonio, Texas, wherein it was held on the identical ques-
tion 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." (Attorney General's Opin-
     ions, Vol. 27, p. 304)
          The 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 Gen-
eral 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 pur-
     pose of Article 2963 to create such third excep-
     tion so as to permit the payment of poll taxes
     by mail, although accompanied by payment of prop-
     erty 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. 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 voting poll tax receipt may not be validly issued by
a tax collector when pa.vmenttherefor, and the necessary in-
formation 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 inten-
tion 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 -mailingto 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 intend-
ed to authorize such a method of pay.nent,a serious question
of its constitutionality would arise because of the insuffi-
ciency 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:
          "'Alltax 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 col-
lector 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. There-
fore, if the taxpayer, who has undertaken to pay his poll tax
by mail, either with or without a property tax payment; per-
sonally 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 Feb-
ruary lst, the tax collector is compelled, under the above-
quoted 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 under-
takes to pay his poll tax by mail, either with or without a
property payment, with all the necessary information there-
with, the tax ccllector may ?ot, upon these facts alcne, is-
sue a voting poll tax receipt to such taxpayer; (2) if, be-
fore February lst, the taxpayer personally aor>liestherefor,
the tax collector may issue and deliver to him a voting
poll tax receipt; and (3) if there is no personal applica-
tion 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". In any case, of course, the
tax collector may issue, and the taxpayer is entitled to re-
ceive, either by personal delivery or b!vmail, his tax re-
ceipt 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 .giveforce
to the laws of our State, as we are doing in this opinion.
Viemay not, in the discharge of our responsibilities, be
guided by expediency, convenience or personal desires. Ye
conceive it to be our dustyto give effect to the will of
the Legislature of Texas as expressed in its statutory en-
actments, 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 nec-
essary and proper, modify those laws whioh it believes to
be oppressive, burdensome, or too stringent.

                                        Very truly yours
                                 ATTORREY %EE.'RALOF TEXAS

                                      (Signed) Zollie C.Steakley
ZCS:LM                           BY
                                           Zollie C. Steakley
APPROVED: JAN. 1S 1940
(Signed) Gerald 6. Mann
ATTORNEY GENCERALOF TEXAS
