                                      June 30, 1959

Honorable Joe Resweber                              OpinUan~No.. WW-650
County Attorney
Harris County                                           Re:   Authority of county
Houston, Texas                                                tax collector     as to
                                                              Issuance of poll tax
                                                              receipts   and exemp-
                                                              tion certificates     in
                                                              affidavit   form.
Dear Mr. Resweber:
              Your   letter   requesting   an opinion     of this   office   reads
as follows:
            "On this date, May 6, 1959; at the request of
      Mr. Carl S. Smith, Tax Assessor  and Collector  of
      Harris County, we rendered our Opinion No. R-59-1169
      to the following  queatlone:
             (1)   Is It possible for the Tax Assessor and
      Collector    of Harris County, Texas, to put the poll
      tax receipt and the poll tax exemption certificate
      In affidavit    form?
             (2)   May the Tax Asseaaor and Collector of
      Harris Couhty, Texas, require any other Information
      he feels Is necessary to protect himself and his
      office    and comply with the laws of the State of
      Texas?
             "Because of the vague provlelons   of some sec-
      tions of the Texas Election Code, aii well aa some
      apparent conflicts    in lta provisions and the absence
      of Interpretation    by the Court8 of many sections    of
      the Code, we feel that an opinion of the Office of
      the Attorney General should be obtained and there-
      fore request the opinion of your office     on these ques-
      tions.    We enclose herewith a copy of our Opinion No.
      R-59-1169 which contains a discussion     of the various
      Code provision8    and other matters considered In
                                                                        --




Hon. Joe Resweber,     page 2 (~~-650)


        arriving at our conclusioni3‘ior   tihatever value   It   may
        be to your office.”
            Your Opinion No; R-59-1169 sets out the applicable
statutes and traces their history Insofar as pertinent to the
questions under consideration.      These statutes   are Sections   43,
46, 48, 49, and 53 of the Texas Election Code. For convenience,
we shall refer to these sections by their unofficial        designation
in Vernon’e Texas Election Code, a8 followa:        Article  5.11 (Sec-
tion 43), Article    5.14 (Section 46), Article    5.16 (Section 48),
Article   5.17 (Section 49), and Article   5.21 (Section 53).      You
Interpret    these statutes as fc$lowa:
           (1)  A person paying his poll tax In peraon Is required’
to make an oral sworn statement to the tax collector  or hla deputy
of the Information necessary to fill  out the blanks In the receipt
form.

           (2)  A pereon paying his poll tax through an agent or
through the United States mall 1~ required to furnlah a written,
elgned statement containing the necessary information,  but the
information does not,have to be sworn to.
            (3) A pereon applying for an exemption certificate     is
required to swear to the Informatlon~neceasaPy   to fill  out, the
certif lcate f aim.
           ,(4) The tax collector’may    require a person applying
for a poll tax receipt    or an exemption certificate     to make an
affidavit  of the necessary lnformatj,on If the tax collector      has
reaapn to,belleve   that the appllcatit has falsely    stated the ln-
formation or If the tax collector     does not, personally   know the
applicant as being a resident of the precinct which the applicant
~clalms as hle residence.
             We agree with the foregoing     conclualotie,   but we are un-
able to agree with the ultimate      conclus$on reached in your opinion
that, the tax collector   may alter the statutory form of the receipt
or cetitlflcate   80 88 to incorporate    into the receipt or certificate
the affidavit,   which he may require under Article        5.21.  This con-
clusion Is stated In your opinion as follows:
               “There 18 no general authority under the Texas
        Election Code of 1951 for the Tax Collector     to alter
        the statutory   form of the ,poll tax receipt  or the ex-
        emption certificate   80 as,to make It into an affidavit
        signed by the taxpayer.     The Election Code, as @mended,
        apparently contemplates a poll tax receipt e?o?.eaQtedby
        the Tax Collector   or his deputy certl~<yi.ng that the
Hon. Joe Resweber,    page 3 (~~-650)


     Information therein was supplied by the taxpayer in
     a signed written instrument or orally under oath by a
     taxpayer appearing in person or an exemption certlfl-
     cate executed by the Tax Collector          or his deputy cer-
     tifying    that the information      therein was supplied under
     oath by the person claiming the exemption appearing In
     person.     However, Sec. 53 of the Texas Election Code
     (V.A.T.S.    Election Code, Art. 5.21) authorlaes the Tax
     Collector    to require the taxpayer to submit proof of
     the statements necessary to complete the form for the
     poll tax receipt      or the exemption certificate       If the
     Tax Collector     has reason to believe that the lnforma-
     tion has been falsely       stated by the taxpayer; and this
     section of the Code also directs          the Tax' Collector,    If
     he does not personally       know one who applies to pay his
     poll tax or secure his certificate          of exemption from
     its payment as being a resident In the precinct             which
     such person claims as that of his residence,            to require
     proof of such residence or such other facts as may be
     necessary.     Thus It appears although there la no pro-
     vision for a universal       requirement of affidavits        or
     other proof of the truth of statements made by appll-
     cants for poll tax receipts         or exemption certificates,
     as a practical     matter the Tax Collector       could require
     such affidavits      on the basis of his lack of personal
     knowledge as to an applicant's         residence in almost
     every instance.       Whether to require such affidavits
     appears to be within the discretion          of the Tax Collec-
     tor, therefore,      the matter of deciding whether such
     affidavits,     If they are required by the Tax Collector,
     are to be separate Instruments executed by the appll-
     cants for receipts       or exemption certificates      or are to
     be incorporated      Into, or attached to, the basic receipt
     or exemption certificate        form, Is also a matter within
     the discretion      of the Tax Collector."
           In order to set out the matters fully In this opinion,
we shall retrace the statutory history of the pertinent      sections
of the Election    Code.  Our first  inquiry Is directed  to the au-
thority  of the tax collector    to require sworn Information from
the applicant   as the basis for issuing a poll tax receipt    or
exemption certificate.
           There are three modes by which a taxpayer may pay his
poll tax and obtain a receipt  therefor:  (1)   by paying the tax
in person; (2)   by paying it through an agent; and (3) by pay-
ing It through the United States mall,   Election Code, Art. 5.11.
Prior to 1957, the pertinent part of this statute had read as
follows:
Hon. Joe Resweber,   page 4 (WW-650)


           "The poll tax must either be pald.ln person or
     by someone duly authorized by the taxpayer In writing
     to pay the same, and to furnish the Collector     the in-
     formation 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. A taxpayer may pay his poll tax by a remittance
     of the amount of the tax through the United States mail
     to the County Tax Collector,    accompanying said remittance
     with a statement in writing showing all the information
     necessary to enable the Tax Collector     to fill out the
     blank form of the poll tax receipt,    which statement must
     be signed by the party who owes the poll tax under oath,
     ****"    (Emphasis supplied.)
Article 5.14 of the Election Code had set out the Information
to be shown on the poll tax receipt, and the form of the re-
ceipt as follows:
           "Received of                , * * * In payment
     of poll tax for the year A.D. 19 , the said taxpayer
     being duly sworn by me, says thaThe (she) Is * * *.)t
It may be noted that this receipt form, strictly     speaking, was
appropriate   only where payment was In person--where   the tax col-
lector  or his deputy had personally  sworn the taxpayer,
            From these two statutes,   It is seen that the law as It
existed prior to 1957 had plainly required the taxpayer to sub-
mit the information    in writing and under oath where payment was
through the mail.     The clear Inference,  from the form of the re-
ceipt,   was that the taxpayer was required to make a verbal dec-
laration   of the information   under oath where payment was in per-
son.    It was also clear that the Information submitted through
an agent had to be in writing and signed by the taxpayer, but
the only language from which it might be Inferred that the in-
formation had to be sworn to was the recitation      In the receipt
form, "the said taxpayer being duly sworn by me."       On the basis
of various changes made In pre-existing     statutes when they were
Incorporated   into Article   5.11 of the Rlectlon  Code, Attorney
General's Opinion No. V-1330 (1951) held that the state;;zih;ed
not be under oath where payment was through an agent.
that opinion was correct     or not has now become a moot question,
as this now unquestionably     is the law by virtue of an amend-
ment to Article    5.11 in 1957.
            In 1957 the Legislature amended Article   5.11 for the
declared   purpose of removing the oath requirement   where the poll
                                     ,




Hon. Joe Resweber,   Page 5 (~~-650)


tax Is paid by mail, the change being accomplished by deleting
            "under oath."    Acts 55th Leg., Reg. Seas., 1957,ch.
        The
EFi . words purpose  of this  change la made manifest by the caption
and emergency clause of the amendatory act, which read respec-
tively   as follows:
             "An Act amending Section 43 of the Texas Election
      Code (Article   5.11, Vernon's Texas Election   Code), so
      as to remove the requirement that Information supplied
      to the tax collector   by a taxpayer applying for his
      poll tax receipt by mail must be under oath; repealing
      conflicting   laws; and declaring  an emergency."
             nSec. 3. The fact that the law does not require
      that information   necessary for filling   out the poll tax
      receipt   which is supplied to the tax collector     through
      an agent be sworn to, and there Is no reason for making
      a distinction   between payment through an agent and pay-
      ment by mall, and the further fact that the present oath
      requirement causes a considerable     amount of difficulty
      in payment of poll taxes by mail, create an emergency
      * * **'I

While Article     5.14, setting out the form of the receipt,       was
not amended to change the provision      reciting    that the taxpayer
had stated the Information on oath, the repeal of conflicting
laws In the 1957 amandatory act repealed this provision           of
Article   5.14 Insofar as it conflicted     with the legislative
intent expressed In Article      5.11. The 1957 amendment was
clearly   effective   to remove the oath requirement on statements
submitted by mail.      Further, the Legislature     enacting the
amendment interpreted     the statute as not requiring      sworn
Information when submitted through an agent, and the legls-
latlve   intent in amending and re-enacting      Article   5.11
evidently    was that It should have this meaning.       This Intent
controls   the meaning of the statute    from the effective      date
of the amendment, regardless      of what the law may have been
before that date.
           As to information  furnished by the taxpayer when
paying the tax in person, it Is our opinion that the law was
unchanged by the 1957 amendment. In your Opinion No. R-59-1169
you have offered an explanation     of the reason for requiring
sworn Information in that case and not requiring     it In the
other two.   Regardless of whether there Is a rational     ex-
planation for the difference,    this is the state of the law
as we find it.
            From the foregoing,  we conclude    that the tax collec-
tor   has no authority to require a written     affidavit in
Hon. Joe Resweber,    page 6 (~~-650)

connection with payment of the tax by either of          the three modes
unless this authority    Is found elsewhere In the       statutes.   Arti-
cle   5.21 of the Election    Code does provide this      authority  in
certain Instances,  which, as your opinion points         out, would as
a practical  matter embrace almost every Instance.           Article 5.21
provides:
             "If the county collector     has reason to believe
     that one who applies to pay his poll tax or secure
     his certificate       of exemption from its payment, has
     falsely     stated his age, occupation,     precinct   of his
     residence,      or length of his residence    in the State,
     county and city,       or any other matter touching his
     qualifications       to vote, he shall require proof of
     such statement; and, if on inquiry,         he Is satisfied
     that said person has sworn falsely,         he shall make
     a memorandumof the words used in such statement,
     and present the same to the foreman of the next
     grand jury or If the County Collector         does not per-
     sonally know one who applies to pay his poll tax
     or secure his certificate        of exemption from its
     payment as being a resident In the precinct          which
     such person claims as that of his residence,           it
     shall be the duty of such collector         to require
     proof of such residence or of such other facts as
     may be necessary."
            Parker v. Busby, 170 S.W. 1042 (Tex.Civ.App.       1914),
held that similar provisions      of a former statute gave the tax
collector   the authority   to require an affidavit     of the taxpayer
If the collector    was in doubt as to the truth of the information
furnished.    However, the affidavit     is by way of satisfying    the
tax collector    of the truth of the statements or by way of fur-
nishing an additional     basis for submitting the matter to the
grand jury if he is not satisfied       as to their truth.    He has
no discretion    to refuse to issue a receipt      on the ground that
the taxpayer has made false statements.         After quoting the stat-
utes authorizing    payment of a poll tax through an agent and pro-
viding for delivery     of the receipt,    the court in Parker v. Busby
said:
            "From these provisions  it will be seen that
     the taxpayer, when he tenders through his agent
     duly authorized in writing to the tax collector      an
     amount sufficient    to pay the tax, Is then entitled
     to a receipt,    and has done all that the law re-
     quires of him in order to obtain it.     The collector
     does not seem to have authority to exercise     any
     discretion    in the matter, but Is bound to receive
     the amount tendered and issue a receipt    therefor,
     although if he is in doubt as to the right of the
 .    ’




Hon. Joe Resweber,    Page 7 (~~-650)

     payer to vote In the county it is his duty to make due
     examination of the payer or his agent in that regard,
     and to this end has the authority to exact of the
     payer or his agent an affidavit  showing the citizen-
     ship, etc.,  in the county where the tax is paid; this
     being done, he must Issue the receipt for the tax,
     and report the matter to the grand jury."
             It Is seen from the foregoing     quotation that Article
5.21 does not give the tax collector       any discretion    in the ls-
suance of the receipt.      We are of the opinion that Article        5.21
also does not give him any discretion        to vary the form of the
receipt    so as to embody the affidavit    therein.    The purpose of
the affidavit    is not to determine whether the receipt is to be
issued, or in what form, but to enable the tax collector           to
decide whether he should call the matter to the attention           of
the grand jury.      His authority to prescribe     the form and con-
tents of the receipt is limited by Article        5.14, and upon
compliance with statutory      requirements the applicant has the
right to demand issuance of a receipt substantially          in statutory
form.     Any additional  requirement for embodiment of a signed
affidavit    in the receipt must come from the Legislature.         While
issuance of the receipt     in affidavit   form, accepted by the tax-
payer, would probably not invalidate       the receipt,    the tax col-
lector would be exceeding his authority        in adopting that form.
             With respect to information      appearing on an exemption
certificate,    Articles    5.16 and 5.17 of the Election Code pro-
vide that "such exempt person shall on oath state" the required
information.     These statutes require that the certificate         be in
substantially    the form prescribed     in Article    5.16. The statutory
form is not in the form of an affidavit          by the applicant,   but of
a certificate    by the tax collector     certifying    that the applicant,
being duly sworn, declared the information           to be as stated therein.
Article    5.21 gives the tax collector     the same authority to require
written affidavits       in the issuance of exemption certificates      as
in the issuance of poll tax receipts;         but the affidavits    are for
the same purpose, and the tax collector's          lack of authority to
vary the certificate       form proceeds upon the same reasoning as
stated for poll tax receipts.
             In your opinion you reached the conclusion      that the
tax collector     could attach the affidavit   to the receipt     or
certificate.      We do not think the statute contemplates any use
of the affidavit      for purposes other than retention   in the tax
collector's     records or submission to a grand jury.     If the tax
collector    did attach the affidavit    to the receipt  or certifi-
cate, he could not thereby make it a necessary part of the
instrument,    and the holder could remove and discard the affi-
davit at will without invalidating      the receipt   or certificate.
Hon. Joe Resweber,     page 8 (~~-650)

             Direct answers to the two questions      submitted   are
given    in the summary to this opinion.
                                     SUMMARY
              The tax collector has no authority to put the
        poll tax receipt and the exemption certificate  into
        affidavit  form, to be signed by the applicant.
               The tax collector    may require affidavits   from
        applicants    for poll tax receipts    and exemption cer-
        tificates   under the circumstances      set out in Article
        5.21 of the Election Code. When he has done so, and
        has reported to the grand jury all cases in which he
        is not satisfied      as to the truth of the statements,
        he has fully protected      himself even though receipts
        and certificates      issued by him may .contain false
        information     furnished by applicants.
                                          Yours very truly,
                                          WILL WILSON
                                          Attorney General of Texas


                                          BY


APPROVED:
OPINIONCOMMITTEE
C. K. Richards,     Chairman
Charles D. Cabaniss
Tom I. McFarling
W. Ray Scruggs
REVIEWEDFOR THE ATTORNEYGENERAL
BY:
    W. V. Geppert
