Untitled Texas Attorney General Opinion

-. . EATTORNEYGENERAL, PRICE DANIEL ATTORNEYGENERAL May 28, 1947 Honorable Charles H. Theobald County Attorney Galveston County Galveston, Texas Opinion No. V-220 Dear Sir: Re: Qualifications of peti- tioners and voter3 in an election to be held the latter part of July, 1947, in Galveston County to au- thorize the issuance of' bonds to establish a coun- ty hospital. Your request of May 1, 1947 submits the follow- ing: "1 respectfully request that you give me an opinion defining the qualification3 of petitioners ana voter3 in a bona elec- tion to establish a County Hospital to be held in Galveston County during the latter partof July, 1947, asking particularly for your construction of the Supreme Court's opinion in the case of Gus A, Markowsky, et al vs. J. T. Newman, et al, 136 S. W. 26, 808. Your attention is directed~ to Opinion .No. O-2126 rendered May Zlst, 1940, by the Hon. Gerald C. Mann, Attorney GeneTal of Texas." Article 4478, Revised Civil Statutes of Texas provides in part: "At intervals of not less than twelve months, ten per cent of the qualified prop- erty tax paying voters of a county may peti- tion such court to provide for the estab- - Hon. Charles H. Theobald - Page 2’ (V-220) lishing or enlarging of a county~ hospital . . .” Section ,3a of Articles VI of the Constitution reads: “When an election is held by any coun- ty, or any number of counties, or any poll- tics1 sub-alvision of the State, or any pol- itical sub-division of a county, or any ae- fined district now or hereafter to be de- scribed and defined within the Sta~t3 and which may or may not include towns, villages or municipal corporations, or any city, town or village, for the purpose of Issuing bonds or otherwlse lending credit, or expending money or assuminP any debt, only qualified electors who own taxable ‘property in the State, county, political, sub-division, district, city, town or village where such election is held, and ‘... who have, duly rendered the same for tax- ation, shall be qualified to vote and all electors shall vote in the election precinct of their residence. Art. 6, adopted election Nov. LS”k3? jw Article 2955a of Vernon’s Civil Statutes is substantlnlly the same as Section 3a of Article VI of the Constltutlon. We are of the opinion that persons who are not dlsquallfled to vote by Section 1 of Article VI of the Constltutlon and who have paid their poll tax before the first day of February precedinrt such election, or are ex- empt from such payment, and who are over 21 years of age, are citizens of the United States and have resided In Texas one year next precedlnc an election and the last 31x months wlthln the county In which they offer to vote and own taxable property in such district or county, which has been assessed for taxes, before they sign a petition for an election to Issue bonds or offer to vote at such election, are quallfled signers of such a petl- tlon and quallfled voters at such election. We respectfully refer you to Sections 1 ana 2 of Article VI of the State Constitution; Articles 2955 and 2959-2968a of Vernon’s Civil Statutes pertainlng to exemp- tions from poll tax ,requlrements. Hon. Charles H. Theobald - Page 3 (V-220) We note your request ~for an opinion construing the case of Markowsky vs. Newman, 136 S. W.'ZcI, 808. That case involved the ~questl,oo of ellglbllity of voters at an election held on November 29, 1938, who, as stated by the ‘court, had not rendered thelr property four taxes until long, after June 30, 1938. The Court of Clvll Appeals cer- tlfled three questions to the Supreme Court ~:for answers. Question Non. 2 was not properly certlf,led and lt was nob ‘,answered: Question Nosy. 1 and 3 where answered. They are a3 r011’0w3: “1; Dld the court err in sustalnlng the exception aforesaid, and thereby hold- lng’ In effect what the Honorable Fo~rt Worth ,’ ” ,oourt hel,a, namely, that assessment of prop- arty for taxation by the assessor will sat- lsfy the legal requlrement for ~~qua~llficatlon to vote in a bona election equally with the voluntary rendltlbn of his’ property for tax- ation by a property-owner? “3. Is R. S. Article 1043 mandatoryi or mere- .ly~ alrectory?” Preceding its .answer to auestlon No. 1, the Supreme Court makes ~plain, that the question of ellqlbll- lty ofa taxable property owner, ‘who has not rendered his property for taxes, but’ whose oroperty has been as- sessed by the assessor, is not in that case. In .that. regard, the Court said: “A, consideration of the pleadings, to which the trlal court sustained a special c exoeptlon, demonstrates that cant e&ants challenged the votes of electors because suoh electors had not rendered their prop- erty for taxes to. the ‘City ‘of Cuero within the time prescribed by Article 1043, Vemoh.‘s:.‘~. Annotated Clvl,l Statutes, 1925, It was a- verred that such electors had not 'duff rend- ered’ thelr property for’taxatloh to the City of Cuero, but that allegation 1s only a dog- matic conclusion. However, In the same p.lead- lng lt 13 speclflcellf alleged that sald elect- ‘or8 ‘rendered hls or their property for taxa- ti.on to the city of Cuero until long arter June 30’. 1938’. When the trial court acted. upon the special exception he Was. required ‘to determlhe the legality of a renaltlon. of . t-Ion. Charles H. Theobald - Page 4 (V-220) property for taxation to the Cltv of Cuero grounded upon the fact that-the property own- er did not ‘duly render’ his or her property for taxation to the City of Ouero on or be- fore April 1, 1938, and in the event the City of Cuero had changed its fiscal year to com- mence April 1, 1938, that such renditions were not made within the three months’ period beginning April 1, 1938, and that actually none of said 353 voters rendered his or their property fork taxation to the sald city of Cuero until lono: after June 30, 1938’.tq(Em- phasls added) After a full discussion of the history of the constltutiohal and statutory provisions relative to the rendition of property for taxes,ena mentioning the fact that the pleading in then case merely challenged the ellgl- blllty of property owning voters on the ground that they had not rendered their property until lonl2: after June 30, 1938, the Court held such belatedrenditions sufflclent to slfy such property owners to vote in a bond election held on November 29, 1938, if otherwise eligible. In regard to the term “duly rendered” in the Oonstltution and Statute, the Court said: “It might be further safely said that the good sought to be accomplished by thls amend- ment was to induce owners of pr,operty to place it upon the tax rolls and become liable for its pro rata share of the taxes levied and assessed by the municlpallty. Applying this construction to the constltutlonal amendment and the construo- tion placed upon our taxation statutes, It can- not be sald that the electors described inthe~*~’ Hon., Charles H. Theobald, Page 5 (V-220) pleadings c,uoted were not qualified ,electors, ,,within the purview of the amendment.” Em- phasis added) Questions Nos. 1 and 3 were answe~red as follows: “The first question, af,ter omittins the immaterial portion certified by then ourt 0 ;:;;:11”,p;gals, is ‘Did the court .ercin I ,susi e exception aforesa~id?‘~ .toLwhich we ,* answer’ in, ,the neqativei /‘With refere,nce to the third question, ‘. “Is, R. S ., A~rticle 1043, mandatory, or merely directory?’ we answer in accordance with our conclusions above expressed that the Article 1043 with reference to time ,of, ren- dition of property is directory. It must be understood that our answ’er to the third aues- tion is ~limited to the time element of tde statute, because the facts of this certif~i- cate have only placed’that question before us.‘” ~(Empha~sis added:.) ~Reduced~ to final analysis, the Supreme Court decided in the Ma,rkowskg case :that’L&icle~ lo&, Revlsed Statutes, is ‘directory and that property owner8 whose prop- erty was rend~ered after April 30, 1938, were eligible to vote, in a bond election held November 29, 1938, if other- tiise eligible. ‘~The Court of ~ivil~kppeals grounded. its opinion, in that case on the answers of the Supreme court to ,said certified questions. (138 S. W. 2d, 896.) We note your reference to Opinion No. O-2126, rendered May 21, 1940, by Honorable Gerald, C. Mann,~‘Attor- ney Oeneral.~ That opinion is to the effect that if ren- dition of property for taxesis made by an agent of the owner, or if ‘such~ property is assessed by the tax assessor, the requirements of Section 3a of ,A~rticle VI of the Consti- tution and Article, 2955a of Ve~rnon’s Civil Statutes are met. The cakes of Campbell v. Wright95 S.W.2d, 149, and Texas Public Utilities Corporation vs. Holland,, 123 S.W.2d, 1028, are cited in support of that opinion,. Those cases decide that ,assessments’ made by the tax assessor are sufficient to meet the requirement of Section 3a of Article VI of the Constitution, that, property be “duly rendered” in order for its owner to be’ elip;lble to vote in a ,bond election. Thr case of Dubose vs.. Alnsworth, 139 S.W.2cl, 307, is to ,the same effect, ~The Supreme Court dismissed applications for Writ of Error in the Public Dtility aria Dubose cases. . . . Hon. Charles Ii. Theobald, Page 6 (V-220 1 We are of the opini.on that if nroperty is placed on the tax lists or rolls, regardless of whether the sam is so plaoed by its owner, agent, or by the tax assessor, before the owner of it signs a petition for or offers to vote in a bond election, such owner is a qualified petition- er for and voter at such election, if otherwise qualified. The owner of taxable property which has been rendered by himself or his agent, or by the tax ’ assessor, before such owner signs a peti~tion for, or offers to vote at a bond election, is a quall- fled petitioner and voter at such election, if ,’ ” otherwise qualifled. Markowsky vs. Newman, 135 S.W.2d, 808, Hanson vs. Jordan, 198 8.W.2d,262; Texas Public Utilities Corporation vs. Holland, 123 S.W.2d, 1028; Tex. Const. Sect. 3a, Art. VI, V.C~.S. Art. 2955a. Very truly youry, ATTORNEYGEN&AL OF T&AS W. T. Williams Assistant WTW:jrb