-.      .




                             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