                 E

                        OF   TEXAS




Honorable Jimmy Morris               Opinion No. WW-594
County Attorney
Navarro County                       Re: Whether the holder of an
COrSiCana,   TeXaB                       exemption certificate may
                                         vote upon making affidavit
                                         that the certificate has
                                         been lost, mislaid, or
Dear Mr. Morris:                         left at home,
             You have requested an opinion on the following question:
           "May a person who is exempt by law from the pay-
      ment of a poll tax and who applied for and received
      an exemption certificate from the Tax Collector vote
      at an election by making his affidavit of the fact
      that he has lost, mislaid, or left at home his
      certificate?"
          In explanation of the question, we quote the following
excerpt from your request:
           "Article 5.16 of the Election Code (the last two para-
      graphs thereof) states:
           "'Although entitled to an exemption certificate,
      no one shall vote who does not possess a current
      exemption certificate.
           "'In the event of loss of certificate of exemp-
      tion, the voter may secure a reissue under his old
      number by making affidavit of such loss before the
      County Tax Collector.' (Italics mine.)
           "Article 8.08 of the Election Code states I+ l *
      if the voter has lost, mislaid, or left at home his
      receipt or certificate, and shall present his affl-
      davit of that fact, * l *I then the person is allowed
      to vote.
Honorable Jimmy Morris, page 2 (W-594)


          "Some of our election judges have taken the
     position that Article 5.16 is the controlling stat-
     ute and that it is mandatory that once an exemption
     certificate is issued, the voter must possess'said
     certificate (or secure a reissue of his old number)
     before he Is allowed to vote" Other election judges
     have taken the position that Article 8.08 is the
     con,trollingstatute when an exemption certificate
     is lost, mislaid, or left at home."
          You then state that in your opinion Article 8.08   is the
controlling statute. We agree with this conclusion. We do not
interpret Article 5.16 as being in conflict with Article 8.08.
There is no apparent reason why the law should permit voters sub-
ject to payment of the poll tax to make an affidavit of loss of
the poll tax receipt without allowing the same privilege to the
holders of exemption certificates, and it Is our opinion that the
law does not make a distinction between these two classes of voters.
          A review of the legislative history of Article 5.16 of
Vernon's Election Code will be helpful in understanding the pur-
pose and intended meaning of the two paragraphs quoted above.
Prior to 1930, all exemption certificates had to be obtained
annually. By an amendment in that year to Article 29bo, Revised
Civil Statutes of 1925 (Chapter 26, Acts of the 41st Legislature,
5th Called Session), provision was made for issuance of "perma-
nent" exemption certificates to certain exempt voters, including
those over 60 years of age. The permanent certificate continued
in force so long as the holder continued to reside in the pre-
cinct in which he resided at the time of issuance. Among other
changes in language, the following provision was added by the
1930 amendment:
          "In the event of loss of certificate of exemp-
     tion the voter may secure a reissue under his old
     number, by making affidavit of such loss before the
     County Tax Collector."
While this provision was not limited to permanent certificates,
it seems likely that the principal motivation for putting it
into the law was to permit permanent certificate holders to
obtain a reissued certificate and thereby eliminate the neces-
sity for their having to make an affidavit of loss every time
they voted. The language of the provision was permissive ("the
voter w   secure a reissue"), and there was no prohibition
against voting upon making an affidavit of loss as~provided fin
Articles 3004 and 3005, R.C.S. (now Articles 8.07 and 8.08 of
Vernon's Election Code) if the voter failed to secure a reissue
    .
c



    Honorable Jimmy Morris, Page 3 (W-594)


              In 1945 the Legislature amended Article 2968 to delete
    provisions for issuance of permanent certificates and to provide
    that "all certificates of exemution shall be renewed or TeiBSUed
    annually." Chapter 333, Acts of the 49th Legislature, In 1948
    the Texas Supreme Court held in the case of Thomas v. Groebl,
    147 Tex. 70, 212 S.W.2d 625, that the provision in the 1945 amend-
    ment stating that all certificates of exemption shall be-renewed
    or reissued annually was directory and not mandatory, and that
    holders of permanent exemption certificates obtained prior to the
    1945 amendment, or of certificates obtained after 1945 for a year
    prior to the year in which they offered to vote, could still vote
    on those certificates.
              When the Election Code was adopted in 1951, Article
    2968 was carried into the Code as Section 48 (Article 5.16, Ver-
    non's Election Code) In substantially the same form as the 1945
    amendment, but with two significant changes so far as this opin-
    ion is concerned. A sentence was added, stating that the certif-
    icate "shall entitle such voter to vote at any election held
    between the date of Its Issuance and a period of one year from
    the 31st day of January following its issuance"; and the follow-
    ing sentence was substituted for the provision that certificates
    should be renewed or reissued annually:
              "Although entitled to an exemption certificate,
         no one shall vote who does not possess a current
         exemption certificate.U
    The evident purpose of these changes was to overcome the holding
    in Thomas v. Groebl by removing the provision which had been held
    to be directory only and by adding provisions expressly stating
    the effective perlod of the certificate and prohibiting voting
    unless the voter possessed a current certificate. See Historical
    Comment under Article 5.16 of Vernon's Annotated Texas Election
    Code. The purpose of these provisions was to make it plain that
    a new certificate had to be obtained each year. We are of the
    opinion that the word "possess" was intended to mean no more than
    that the voter must have secured a current certificate, and that
    the Legislature did not intend to deprive a voter who had secured
    a current certificate of the right to vote upon making an affi-
    davit that it had been lost, mislaid, or left at home.
              In addition to Article 8.08, other provisions of the
    Election Code permitting certificate holders as well as poll tax
    receipt holders to make an affidavit of loss are found in Article
    5.05, Subdivision 2 (absentee voting),.Artlcle 5.15 (removal to
    another county or election precinct), and Article 8.07 (presenta-
    tion of receipt or'certificate at polling place). All of these
    sections were amended in some manner when the Election Code was
    adopted, and obviously came under the scrutiny of the Bame Legis-
                                                                    .,
                                                                         ‘.




Honorable Jimmy   MorriB,   page 4 (WW-594)


lature which added the provision to Article 5.16 concerning pos-
session of a current exemption certificate. It would have been
a simple matter for the Legislature to have deleted provisions
permitting affidavits of loss of exemption certificates if it had
intended any such effect by the provision in Article 5*16.

                              SUMMARY
          A voter who is exempt from the payment of a
     poll tax and who has obtained a current exemption
     certificate from the tax collector may vote at an
     election by making affidavit of the fact that the
     certificate has been lost, mislaid, or left at
     home.
                                     Yours very truly,
                                     WILL WILSON
                                     At,torneyGeneral of Texas




MKW:pjc
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Houghton Brownlee, Jr.
Tom Burrus
Jot Hodges, Jr.
Larry Jones
REVIEWED FOR THE ATTORNEY GENERAL
BY:
     W. V. Geppert
