Untitled Texas Attorney General Opinion

,~.’ tion certificates b~ecause : . . fex collector failed~ to is- Dear Sir:‘- : sue .them. ?

Youfreijyest for an opizi+onreads in part-as folloivs: , :I:~;. . : ‘Can a.person who has reached the. age of hRU& :.I’.-da16yeah on or since January 1, 1952; who is. not .sub-, i. .Ject to tbe’disqualifications setout.id,Section 33 of the -CC .ZIee%on.Code, and who is ‘entitled td.Ln~exi&@ohfrom ‘z”e^@bWt&xvote in ‘tie primary election ‘on July 26,1952, ‘.%%&bstanding his or her failure to haves obtained from ,_”thi?‘,~‘as’sessor-collectbr cif the couutyof his re’sidence --a certificate of exemption within 30”days prior to said ~‘.‘Rrimaryelection? . “As a subquestion to the one propounded above, a -‘-‘number of ‘per’sons’in this county in due time called at ~‘“,the off& of the tax collector and requested exemption ‘, - certificate and were advised that such was not needed. No eliemption certificates;have ,beep provided’tbe tax “i!oUector for issue. Would the fact tbat such person ~.as des&ibed ‘above failed to obtain his exemption cer- tificate through po fault or lack of diligence on his ‘part alter your answer, or affect your answer to the main question above propounded? Stated differently, would tl+ failure of such person as described above to obtain his~e+emption certificate within the prescribed time deprive him of his right to vote in any election in which ‘.be could votk bad he obtained the exemption certificate, where such failure toobtain such certificate is attribut- able to failure’of the county authorities to provide and to issue such exemption certificates 7’

‘A person who has reached the age of 21 years on tbe~day of an election and who meets other necessaryqualifications and re- quirements is entitled to vote at that election. Sets. 1 and 2, Art. VI, Tex. Const.; Sets. 33. 34, 41. and 42, Texas Election Code.

Hon. Joe Tunnell. page 2 (V-14g5)

One of these requirements for parsons who attain the age of 21 years after January 1 of the preceding year (i.e., after January 1, 1951. with respect to voting during the current year) is that they obtain an exemption certificate. Section 49 of the Election Code reads in part: : .~

‘Every citizen not subject to the disqualifications set out in Section 3.3 and who is exempt from the pay- ment of a poll tax by,reason of the fact that he or she hag not yet, rea.ched the age of. twenty-one years on the first day,@ January preceding its levy . . . shall not : later than thirty (30),days before any election at which he v&.hes tovote obtain from the Assessor and Col- elector of .TaxeS for the county of his or her residence a ce~rtificate of exemption from the payment of a poll tax, and no such person who has’failed or refused to obtainsucb ,certificate of exemption from ~the payment of a poll tax shall be allowed to vote. . . .”

This secti,&is based on the former A&&e 2’9&. V.C& but two important changes b&e ~beeh made ~$nits wording. The first is the. omission ~of.the knguage “[every ++en] ‘who does not reside in a c&of .&n thousand inhabitants 01:’more,” The ,~second change which shouldI<be:,not.edhere is ,the .subitituti?n’of.the,:~~~o- vision *t .tae.p+if@*.k &all be ol+&n&l “not ,Later,than thirty (30) days before any election at whichkhe~~&shes to v.ote” forkthe former provision which tread ‘%n or before the thirty-first- day of January of the year in which he or she offers to vote.“’

‘Prior to the .eff$rtiye da,+ of tae. Election’Code’~on~ January I, 1952! the applicable statuteregulating, the p&&.&ment ofexemp-. tion certificat&.,based.,on nonage depended on whether the voters re-’ sided within oreoutsidk~of’a city of~~lO~,OOO.inhabitants orimore. Ar- ticle 2968, V;C.S;, applied to persons. living with+ a city: of 10.000 or more ,inhabitants,, and Article 2968a applied to ersons~ living outside ~of such~a city.. Section 48 of the Election 8 ode, based on the former Artitile.2968; still provides that “every person who is exempted by law.from the~payment of a.poll tax. and who is,in other respects a qualified:.voter,,who residers in a city of ten thou- sand (1O;OOO). inhabitants or1‘more, * shall’obtain an exemption cer- tificate before February 1. However. it is our opinioti that SeCtiOn. 49 of the Election Code now governs the issuance of exemption cer- tificates~ based on nonage’both within and without cities of 10,000 or more inhabitants,,and Section, 48 applies only where certificates are issued for some reason other than those specifically covered by Section 49. ., I,

Hon. Joe Tunnell, page 3 (V-1485) 571 Section 34 of the Election Code, setting out the qualifica- tions and requirements for voting at all elections, including “gen- eral, special and primary elections.” contains this provision: “if said voter is exempt from paying a poll tax he or she must pro- cure a certificate showing his or her exemptions, as required by this Code? Section 49, quoted above. states that “no such per- son who has failed or refused to obtain such certificate or exemp- tion from the payment of a poll tax shall be allowed to vote.* These provisions clearly require every voter in the State who is exempt from the poll tax requirement because of nonage to apply for an exemption certificate at least 30 days before the election at which he wishes to vote. It is also clear that the tax a,ssessor- collector is under a duty to issue an exemption certificate to every applicant who is entitled to~receive one.

In answer to your first question, a voter who is exempt from the payment of a poll tax because of nonage but who has neg- lected to obtain a certificate of exemution at least 30 davs arior to the date of an election is not entitlid to vote at that eiec&a. See Clark v. Stubbs. 131 S.W.2d 663 (Tex. Civ. App. 1939); Rogers v. Smrth, 119 S.W.Ld 678 (Tex. Civ. App. 1938).

Section 4.9 does not put a limitation on the time during which a certificate based on nonage may be issued, but it does require that the certificate be obtained at ieast~30 days before the election in or- der for the holder to vote at that election. We might state here that in our opinion the attainment of 21 years of age may be anticipated and the certificate issued before the applicant actually reaches that age. in order that persons becoming 21 years old within the 30-day period may comply with this requirement. See AttOy Cen. Op. V~- 136 (1950).

In your second question you ask whether a person who has ‘made timely application for an exemption certificate, but who has failed to obtain one because of the failure of the county authorities to provide and to issue such certificates, is deprived of his ,right to vote.

Section 50 of the Election Code requires the commissioners* court of each county to furnish to the county tax collector, before thenfirst day of October every year. a sufficient number of blankpoll tax receipt books and blank exemption certificate books for the coui~- ty. The statutes contemplate that the commissioners’ Court will furnish these forms and that the tax collector will issue certificates to all persons applying therefor who are entitled to receive them. Since Van Zandt County does not contain a city of 10,000 inhabitants ‘or more, there was no necessity for the commissioners* court of that county to furnish certificate blanks as prescrrbed in Section 48

Hon. Joe TunnelI. page 4 (V-1485) 572:

of the Election Code, but it should have furnished an adequate sup- ply of~iz.ertificat& as prescribed in Section 49.

We have no doubt that the failure of the tax collector to is- sue exemption cert.&mates, as well as tbe failure of thencommis- sioners’ court to provide the blanks, resulted from an innocent mis- apprehension of the legal requirements. Nevertheless, the tax col- Iector’s action was tantamount to a refusal to’issue the certificates. and perfoimance, could~have been compelled by mandamus. See Parker vi Busby, 170 SW. 1842 (Tex. Civ; App. 1914). That case hi& that where a persorihad done everything that was required of him in paying a poll tax within the prescr,ibed time, he was entitled to a r’e- ceipt permitting him to vote, even though the tax collector did not ac- tually issue the receipt until a later date. The ~court held that the re-~ ceipt should be issued as of the date of the voter’s compliance. Ap- plying the reasoning of this holding to the present situation. it is our opinion that upon request the tax collector should issue a certificate. ‘. bearing the date on which application was ~originally made; to those persons who, had be,en refused certificates when they applied for them.

Is the voter required to resort to the remedy of mandamus, or may he vote without having actually obtained the certificate when he has attempted to, comply with the provision for ~obtainiag one 7 None of the Texas cases holding that a certificate was necessaryhave made any reference to a failure of the voter to obtain a certificate under these circums ces, and we do not deem them to be determi- native of the question.t”r

The exemption certificate statutes are in substance registra;. tion laws. See Texas Power & Light Co.. v. Brownwood Public-Serv- ice Co.. ill S.W.2d 1225 (Tex. Civ. App. 1937, error ref.). Section 2 Article VI of the Constitution does not make the hold& of an’exemi- tion certificate a necessary qualification for voting. Ai pointed out in Texas Power & Light Co. v. Texas Public, Service Co., Section 4 of Article VI authorizes the Legislature to provide for the registra- tion of all voters in all cities &taining a population of 10.005 inhab-’ itante or more: but there is no express authorization or requirement in the Constitution for registration of voters who reside outside cities of that population. While the Legislature has the power to require exemption certificates of voters residing outside of cities of 10,000 inhabitants, the.requirement does not have the status of an additional

l/ In ‘Ihomas v. Groebl. 147 Tex. 70, 212 S.W.2d 625 (1948). which heM that, under Article 2968 as it then read, certificates issued to per- sons over 60 years of age ~didnot have to be renewed annually, the court observed that some of tbe tax collectors had probably failed to is- sue certificates in reliance on an Attorney General’s opinion that annual renewal was not necessary. The effect of the collector’s failure to is- sue certificates where he was required to do so was not discussed.

Hon. Joe Tunnell. page 5 (y-1485) 573

qualification. In other words, the person’s status as a ,qualified elector does not hinne on uossession of the certificate. .!iava~e ,mphries. 118 S.W. 893; 900, 909 (Tex. Civ. App. 1909=& State 54Tex. C&m. 261, ll4 S.W. 349, 354 (1908). SincCthe %i&ure has-made the same provisions applicable to ail, per- 5’~s exempt bec~ause of nonage, re~gardless %whether they reside in a city of 10.000 inhabitants or ~more. it must be concluded that the registration requirements of Section 49 weremot enacted under the constitutional authorization in Section,4 uf Article Vi for regis- tration of voters, but under the general power to make regulations d for the conduct of elections. The use of terms in Clark~~v.’Stubbs 1 and Rogers V. Smith, supra. might suggest that the court was treat- ing the exemption certificate requirement in Article 2968a as an element of the voter’s qualification, but we think a reading of the entire opinion in each case shows that the court was not so holding. We also think that the holding that tbe’requirement was ‘“mandatory* must be interpreted in the light of the facts before the court.

:m. The courts of this State have announced many times that the election laws should be construed liberally so as to preserve the right of’suffrage to those who, qualify as electors . under the Constitu- tion and statutes. The tenor of these holdmgs is that a person should a not be disfranchised where his failure to comply with the election we laws is not occasioned by his own fault or neglect. in Tondre v. Hen- sley. 223 S.W;2d 671 (Tex. Civ. App. 1949). the court held that a voter .md not be deprived of the.right to vote in the election precinct of his r~esidence by reason of the fact that his poll tax receipt bore an incorrect voting precinct number. where the error was caused by an .a- innocent mistake as to the location of the precinct lines. / Ramsay v. Wilhelm. 52 S.W.2d 757 (Tex. Civ. App. 1932. error ref.), held that E ‘failure of an elector to furnish a poll tax receipt to the county clerk when obtaining an absentee ballot, where the clerk made no demand oP- for it.~did not render the ballot illegal. Wallis v. Williams. 110 SW. 1t 4 785 ( ~Tex. Civ. App. 1908), held that the mmtake of the tax collector a- and the voter in the manner of-making payment of the poll tax and ob- ab- taining the receipt did,not deprive the voter of his constitutional.right eni of suffrage. Also see Stratton v. Hall, 90 S.W.2d 865 (Tex. Civ. App. itieS 1936,. error dism.); Lee v. Whitehead, 182 S.W.2d 744 (Tex. Civ. App. L 1944); Thomas v. Groebl. supra Note 1. 10 As already observed, the cases we have cited which held that >ld a person who had not obtained an exemption certificate was’not en- titled to vote did not raise the point here involved. and we~have been bich unable to find a parallel case in the opinions of the Texas courts. toper- However, the point has been ruled upon in a number of other juris- e dictions. There is a line of cases. of which Molero v. Rowley, 194 d to is. La. 527, I94 So. 7 (1940). is illustrative, holding that registratgon re- ; annUa quirements are not dispensed with because compliance has been MS- to is- dered or prevented by the wrongful acts of registration officials. See td.

Hon. Joe Tunnell. page 6 (V&1485) ,’

29. C. J.S.. Elections, 5.38, p. 61. On the other hand, there are cases:illustrated by Earl v. Lewis, 28 Utah 116. 77 Pac. 235 (1904). holding that the voters is not required to resort to manda- mus to compel the registration official to act and is entitled to vote +thout being registered. In ,the .Lewis case the court said:

“Counsel for contestees also contend that the pro- visions of the statute as to registration are mandatory, and that &hefailure to revise the list and register those ,entitled ‘to register was fatal, and rendered the election void. It is clear that the provisions of the statute as to the register are mandatory in the sense that, if he re- fuses or neglects, to perform his duties, he may be com- pelled by mandamus to do .so; but it does not follow that his refusal or failure to act defeats the ensuing election, or deprives the qualified voter who has made proper ap- plication for registration from exercising his constitu- tional ,right to vote thereat. Section 2, art. 4. of the Con- stitution,,is as follows: ‘Every citieen of the United estates. of the age of twenty-one years and upwards;- who ’ shall have been a citizen for ninety days. and shall have resided in the state or territory one year, in the county four months, and in ‘the precinct sixty days next preced- ing any election, shallbe entitled to vote at such election. except as herein otherwise provided.’ The Constitution is silent on the subject of registration. It is fundamental that a right of a citizen guarantied by the Constitution can- not be abridged, impaired, or taken away, even by an act of the Legislature. Notwithstanding our Constitution has -fixed the qualification of voters, the Legislature may right- fully enact a registration law which merely regulates the exercise of the elective franchise. and does not amount to ~a denial of the right itself,~ and does not abridge or impair ‘the, same. Section 821, Rev. St. 1898, provides that: ‘No person shall hereafter be per’mitted~to vote at any general, special, municipal, or school election, without having been first registered within the time and’in the manner and form required by the provisions of this chapter.’ . . : In passing section 821. it is evident that the Legislature did not anticipate a case so extreme and improbabIe as the refusal of a sworn register to act; ‘on the contrary, the section was passed in contemplation that the register would perform his duty, and that legal voters, properly ap- plying for registration, would not be denied the right. ~There is no provision of the registration act athich warrants the conclusion that it was the intention that the legal voter who has properly applied for registration, but who has beende- ~prived of the right by the failure of the register to act,

575 Hon. Joe Tunnell, page 7 (V-1485)

should, .by reason .of such.failure+ .be~also deprived of ’ his constitutional. right to vote at the polls.- .We are ’ therefore of the opinion that ,a failure of a register to ..“~. a&neither vitiates the registration law, nor deprive:s the legal.voter. who has ,properly applied-for ,registra- ” ,: tion in the manner required by sections %00, ,of his con- stitutional right. In other words, when the legal voter has done all that the law,requires at,his.,hands, and his ‘failure to be registered was the fault of the registra- tion officer; ‘upon the well-settled principle ‘,of law that the offer to ‘perform an’act which depends for its ~,‘. performance ~uponthe’action of another person, who :. wrongfully refuses to act, is equivalent to its perform- anceT.(McCrary on Elections. g 137). his act~s in at-, tempting to register should be taken as equivalent to : registration, and upon tendering his ballot at the polls, .and showing that he possesses the ‘qualifications pre- scribed by thenConstitution, and also the cause of his failure to. register, he should .be permitted to vote. The claim that the remedy of the voter in such cases is either by mandamus to compel the register to act, or by an ac.tion against the register for damages;. is note :. tenable, because to require the.voter to resort to the ‘~..remedy.of mandamus would be to add onerous condi-. tions not required by the Constitution, and a resort to’ X: an. action for ~damages would not:prevent registration of- : ;.ficers from corruptly defeating’the will of the ‘majority. ~ofqualified voters by intentionally failing toact? ‘.~

~.‘We think:the holding in Earl-v. ~Lewis comports with the’ spirit of the election laws .of this State, as set out in case’s cited above and in numerous other decisions. It is our opinionthat the Legislature did not intend to disfranchise a person where his fail- ureto. obtain the exemption certificate required by Section 49 was brought about by the improper act of the tax collectorin refusing to issue the certificate., The wording of Section 49. stating that “PO such 'perscin who has failed or refused to ,obtain such certif- icate of exemption from the payment of a poll tax shall be allowed to vote ,,” is significant. Certainly a person who has not obtained a certificate because of the tax collector’s refusal to issue it has notrefused to obtain one. Did the Legislature mean that a failure to obtain a certificate should in every instance prevent the person from voting? It appears that the’Legi@ture, by adding the word “refused, * intended to impart to the word “failed’” the meaning of failure through the voter’s neglect; otherwise, the addition of the word “refused’ would have been unnecessary, since the one word

576 Hon. Joe Tunnell, page 8 (V-1485).

Failed” could have meant that a, voter.lacking the certificate for any reason whatever ,should not be allowed ~tovote. : ,:. ~. ~’ One further provision of the,E~lection Code should, be noted. Section 89 providescthat “no citizen shall be permitted. to vote, ex- cept as provided in the Constitution of Texas m$ess he first pre- sents to the judge of election his eoll tax receipt or certificate un- less the same has been ,lost or mislaid; or left at ~home.” Ramsay v. Wilhelm. supra. held that Article 3004, V.C;S,, on which- 89 is ~based,TEZZor the guidance of election judges in testing qual- ifications of a,voter and did not purport to define ~qualifications of voters. See Thomas vi Groebl, supra. It is sufficient to say, with- .out going .into an extended ,discussionof this section, ,that it~cannot be taken as imposing any greater requirement for ~the possession of an exemption certificate than that which is imposed under the statutes providing for their issuance. Since it is our opinion that Section 4.9 does not make .the poss~essionof a certificate a necessary ,requirement to voting where the tax collector has refused .toissue a. certificate to the voter, it is our further opinion that Section 89 does not enlarge the requirement. .~ ~.~ L,

.Accordingly, our answer. to your second question is that a qualified voter who has ,made timely application for’s certificate under Section 49 of the. Election-Code should be permitted tovote upon proof that his failure .to possess a certificate ,resulted.from ule tax collector% refusal to issue it-~, The election judges .are authorized to administer oaths for the -purpose of obtaining such pr~oof,:and they have authority to require proof of the voter’s qualifications. as an elector before furnishing him a ballot. Sets. 87; 91. 92, Election Code. Itwould be advisable for .the~election judge to preserve.in affidaVft form .&e,.voter’s statement of the’reason for his failure~to.have ~the certificate. ,~..~.’ ,~. .’ . . We ~might add that ‘if the tax collector of yo~~do&ty~Oi&ns Be-necessary blanks and begins issuing certificates to qualified ap- plicants, persons heretofore refused cdtificates, upon .learning these facts. should obtain their certificates for us~eat-future election%”

: ,,

As a,general rule; .every person’who is exempt .. &om payment’of a poll-taxbecause ofnonage must obtain an exemption ~certificate at least 30 days before

,Hon. J+ mll. page 9 (V-L?85)

election day in order to vote at the election. Sec. 49, Election Code-~ @nv&er. ivhere a person ma&g time- Iy appIicaf,ion for a ce&ific&te ha& failed to obtain one because of &e tax colkctor’s iefusal to issue it, he is entitled to vote upon s+isfactory proof of ,his qualifica- ~.tionsas an elector and,bf the reason for his failure to possess a certificate.

Your&-very truly,

PRICE DANIEL APPROVED: Attorney General

.J. C. Davis. Jr. Couuty Affairs Divitiion

E.~ Jacobson Reviewing Assistant Assistant

Charl+s D. Mathews First .Assistant