THE ATJYORNEY GENERAL.
OF TEXAS
June 5, 1972
Honorable Bevlngton Reed Opinion No. ~-1139
Commissioner :CoordlnatlnaBoard
Texas College and University System Re: Several questions
2. 0. mx~127aa, Capitol Station relating to creation
Austin. Texas 78711 of a Junior College
District oursuant-to
Sec. 130.b33, Texas
Dear Mr. Reed: Education Code.
You have requested the opinion of this office ,concernlng
the following questions which have been paraphrased:
What does the phrase "qualified taxpaying
electks" mean as used in Section 130.033 of the
Texas Education Code?
Does a variance exist In the code with
referznce to voter classification when Sec;~l30.033
of the Code refers to a certain class as "qualified
taxpaying electors" whi-leSection 130.038 refers to
those able to pass on the~questlon of Issuing bonds
and levying .taxesas mere "electors"?
3. Does the phrase "after the order is issued"
as used in Section 130.037 of the Texas Education
Code have reference to an "order" of the Commissioners
Court or courts or does It refer to an order of the
Coordinating Board, Texas College and University
System?
These questions will be answered in the o'rderset out above.
The general term "'qualifiedtaxpaying elector" as used in
Section 130.033 of the Texas Education Code has reference to
those electors who are qualified under Sections 2 and 3a,
Article VI of the Texas ConstFtutlon.:
Article VI, Se&ion 2 of the Constitution required that
a person be,twenty-one years of age, be a citizen of the United
States, reside in the State one year next preceding the election,
and reside within the~dlstrict or county inwhich he wishes to
vote six months. Having met the four above qualifications, and
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Honorable Bevlngton Reed, page 2, (M- 1139)
being not otherwise disqualified, one was deemed a "qualified
elector."
Section 1 of the XXVI Amendment to the United States
Constitution, ratified July 5, lqyl,,reduced the voting age
to "eighteen years of age or older. The recent United States
Supreme Court decision, Dunn v. Blumstein, 92 S.Ct. 995 (1972)
also materially altered the Texas "durational residence" re-
quirements, which are similar yet more demanding than those
of the State of Tennessee's which were In question.
The Court in footnote 17,on page 1005 of the opinion,
made the following observations:
I,
...lt could not be argued that the three-month
waiting period Isnecessary to confirm residence in
the county, and the one-year period necessary to
confirm residence in the State. Quite apart from
the total implausibility of any suggestion that one
task should take~four times as long as the other, It
is sufficient to note that If a person is found to
be a bona fide resident of a county within the State,
he is by definition a bona fide resident of the State
as well."
It would appear from a reading of the Court's opinion that
if one is a bona fide resident of a county or district for 30
days prior to any election conducted therein, no further "dura-
tional residence" requirements may be imposed. The Dunn case
further held:
,I...Flxing a constitutionally acceptable period
is surely a matter of degree. It Is sufficient to
note here that 30 days appears to be an ample period
of time for the State to complete whatever adminlstra-
tlve tasks are necessary to prevent fraud - and a year,
or three months too much..." (Emphasis added.) (at
p. 1006)
It would now appear that Article VI Section 2 of the
Constitution of Texas should be interpreted as defining a
"qualified elector" as (a) a person who has attained the age
of eighteen 18) years, and (b) Is a citizen of the United
States and Ic) who has resided In the district or county In
which Such person offers to vote thirty (30)days next preceding
an election, and (d) who Is not otherwise disqualified.
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Honorable Bevington Reed, page 3, (M- 1139) '
Having met the constitutional definition of a "qualified
elector" It would of course also be necessary that a perqon
shall have duly registered as a voter. Texas Election Code,
Article 5.02.
Article VI, Section 3a of the Texas Constitution also
sets out requirements for qualification as 'a "qualified tax-
paying elector" who may vote on any proposition "...for the
purpose of issuing bonds or otherwise~lending credit, or expending
money or assuming any debt,..." as follows:
ualifled electors who own taxable
gr+@%h: ...county....district, city, town,
age where such election Is held and who
have duly rendered the same for taxat& shar
be qualified to vote and all electors shill vote
in the election recinct of their residence."
(Emphasis ,added.
Therefore In answer to your first question a "qualified
taxpaying elector" is one who has satisfied the $equlrements of
Sections 2 and 3a of Article VI of the Texas Constitution, as
modified by the 26th Ame~ndmentto the United States Constitution
and the Dunn case, supra. Sweeny Hospital District v. Carr, 378
S.W.2d 4nTex.Su 1964). Martin v. Richter, 161 Tex. 323,
342 S.W.2d 1 (1960;.
P'
Your second inquiry has to do with the term "electors" as
used in that portion of~sectlon 130.038 of the Texas Education
Code, which reads:
I!
-_.If the order also submits auestions of
issuing bonds and levying taxes, a majority of the
electors voting in such election shall determine
such question submitted in the order..." (Emphasis
added.) ,'
Article VII, Section 3 of the Texas Constitution limits
the levying of taxes within school districts to "qualified
property taxpaying voters"; its relevant~portion reads:
11...the Legislature may authorize an additional
ad valorem tax to be levied and collected within all
school districts...for the further maintenance of-
public free schools, and for the erection and equlp-
ment of school buildings therein; provided that a
-5545-
Honorable Bevington Reed, page 4, (M- 1139)
majority of the qualified property taxpaying voters
of the district voting at an election to be held f
that purpose shall vote such tax..." (Emphasis ad%d.)
This provision applies to all bonds to be paid by these taxes.
These provisons within Article VII of the Texas Constitution
dealing with the support and maintenance of public free schools
have been specifically held to include junior college districts.
Shepherd v. San Jacinto Junior College District, 363 S.W.2d 742
lTex.Sup. 1962).
It would therefore follow that any reference within the
Education Code to those eligible to vote within a junior college
district on the question of issuing bonds and levying taxes
would of course have to meet the standards set out in Section 3
of Article VII as well as Sections 2 and 3a of Article VI of
our Texas Constitution. Montgomery Independent School District
v. Martin, 464 S.W.2d 638, (Tex.Sup. 1971).
The legislature in using the term "electors" In that portion
of Sec. 130.038 of the Education Code, hereinabove quoted?,was
by necessity, referring to "qualified taxpaying electors being
that same~class of voter referred to in Sec. 130.033 of &he Code.
Your third Inquiry concerns the timing for calling an
election to confirm the creation of a junior college district.
There is no statutory time requirement as to when the
Commissioners Court must call such an election following the
approval of the proposed District by the Coordinating Board,
though it is their duty to issue an order calling an election.
The Education Code, Sec. 130.037, in its relevant portion,
reads:
"If the coordinating board approves the estab-
lishment of the junior college district, it shall
then be the duty of the commissioners court...to
enter an order for an election to be held in the
proposed territory..."
The duty of the court to call the election is not dlscre-
tionary but an action that must be performed within a reasonable
time after the duty Is imposed. Atty. Gen. Opin. No. R-1892
(1949).
The requirement in Section 130.037 of the Education Code
-5546-
Honorable Bevington Reed, page 5, (M- 1139)
referring to the calling of the election,
It
...it shall then be the duty of the commissioners
court or courts to enter an order for an election to be
held in,the proposed territory within a period of not
less than 20 days and not more than 30 days after the
order Is issued,..."
makes clear that the election must be held not less than 20 days
and not more than 30 days from the date of the Commissioners
Court's order calling the election.
SUMMARY
A "qualified taxpaying elector" Is one who
has satisfied the requirements of Sections 2 and
3a of Article VI of the Texas Constitution as
modified by the 26th Amendment of the United
States Constltu+lon and the decision In Dunn
v. Blumstein, 92 s.ct. 995 (1972). -
The term "elector" as used In that portion
of Section 130.038 of the Texas Education Code
referring to those eligible to vote In a junior
college district on the question of Issuing
bonds and levying taxes refers to those who met
the standards set out in Section 3 of Article
VII as well as Sections 2 and 3a of Article VI
of the Texas Constitution.
The phrase "after the order is issued" in
Section 130.037 of the Texas Education Code has
reference to the "order" of the Commissioners
Court or Courts.
ey General of Texas
Prepared by Robert B. Davis
Assistant Attorney General
APPROVED:
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Honorable Bevington Reed, page,6, (M- 1139)
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Z. T. Fortescue III
Arthur Sandlln
John Banks
J. C. Davis
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKgR
Executive Assistant
NOLA WRITE
First Assistant
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