-. .
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