Attorney General Opinion JM-0574

Nmember 10, 1986 Honorable Larkin C. Eakin, .Jr. Opinion No. m-574 Wailer County Attorney 836 Austin Street Re: Sufficiency of rollback petition Hempstead, Texas 77445 under section 26.07 of the Tax Code Dear Mr. Eakin: You have provided us u:Lth the following information: By way of factual background, the commissioners court of Wailer County approved a tax rate for Wailer County that: exceeded the rate calculated as provided by sectj.m 26.04 of the Texas Property Tax Code by more 1:han eight percent (8%). A peti- tion was circulated and presented to conmissioners court calling fol, a 'rollback' election in con- .formity with section 26.07 of the Texas Property Tax Code. The petition was examined and signa- tures verified by the county election adminis- trator, Mr. A. S. Wier. After disallowing a number of signatures as mt listed on the voter rolls or as duplicates of (other signatures, the petition was found, by the commissioners court, to be some 200 signatures short of the required number. Thereafter, wi:hin the time limits provided by section 26.07, the citizens conducting the petition campaign presented the commissioners court with a new petition which the petition organizers labellf:d as petition 'B'. Petition 'B' consisted of a photostatic copy of the first petition presentelI to the commissioners together with sufficient Driginal signatures that, when taken together, apparently exceeded the required number of signatwes to call a 'rollback' election under section 26.C7. It was made clear during the presentation that petition 'B' was a new petition and that the new, original signatures were not to be considered aa mpplementary to the first peti- tion. The commis:;ioners court once again refused to order a 'rolLback' election, rejecting the petition as insufficient. p. 2559 Honorable Larkin C. Eakin, Jr. - Page 2 (JM-574) You ask whether the present;ltion of the petition, consisting of photo- static copies of signatures that comprised the first petition coupled with new lists of actual signatures that were less in number than the required amount, is sufficie~nt to authorize the calling of a tax rate rollback election under sec,::ion 26.07 of the Tax Code. We answer your question in the negative. Section 26.07 of the T.m Code sets forth the following: (a) If the governing body of a taxing unit other than a s&o01 district adopts a tax rate that exceeds the rate calculated as provided by Section 26.04 of this code by more than eight percent, the qualified voters of the taxing unit by petition may require that an election be held to determine whet'xer or not to reduce the tax rate adopted for the current year to a rate that exceeds the rate calculated as provided by Section 26.04 of this code by only eight percent. (b) A petition is valid only if: (1) it states that it is intended to require an eltztion in the taxing unit on the guestion of Isducing the tax rate for the current year; (2) it is c;igned by a number of qualified voters of the Taxing unit equal to at least 10 percent of th#i number of qualified voters of the taxing unit according to the most recent official list of qualified voters not counting the signatures-of voters gathered by a person who received $mpensation for circulating the petition; and (3) it is submitted to the governing body -- on or before the 90th day after the date on which the govt!r:ning body adopted the tax rate for the current year. (c) Not later than the 20th day after the day a petition is sulmlitted, the governing body shall determine whether-or not the petition is valid and pass a resoluticz stating its finding. If the governing body Fails to act within the time allowed, the petition is treated as if it had been found valid. (d) If the gcverning body finds that the peti- tion is valid (or fails to act within the time p. 2560 Honorable Larkin C. Eakin, Jr. - Page 3 ~(JM-574) allowed), it shall order that an election be held in the taxing unit on a date not less than 30 or more than 90 days after the last day on which it could have acted to approve or disapprove the petition. A state law requiring local elections to be held on a llpecified date does not apply to the election unless a specified date falls within the time permitwd by this section. At the election, the balLots shall be prepared to permit voting for or against the proposition: 'Reducing the tax rate in '(name of taxing unit) for the current year from (the rate adopted) to (the rate that is only eigt,t percent greater than the rate calculated as provided by Section 26.04 of this code). . . .' (Emphasis added). Essentially, you wish to klow whether a petition which consists, in part. of a photostatic cop:? of signatures already obtained complies with subsection 26.07(b)(2) requirement that the petition be "signed by a number of qualified vol:ers. . . ." We conclude that it does not. In Attorney General Ol#inion JM-501 (1986). we concluded that a voter registrar acted properly when rejecting a petition circulated for the purpose of determir.ing whether the sale of certain alcoholic beverages would be authorixd within the county. The voter registrar disallowed an undisclosed number of voters' signatures when there appeared minor variations b?r:ween the signatures and the names of the voters as they appeared on the official copy of the current list of registered voters. The s:atute at issue, section 251.10 of the Alcoholic Beverage Code, specifically provided that the signature could not be counted in an :.nstance in which the name of the va-ter is not signed exactly as it appears on the official copy of the current list of registered votrrs for the voting year in which the petition is irwued. Alto. Bev. Code 5251.10(b)(,S). Admittedly, the requirements for a petition set forth in section 26.07 of the Tax Code are less rigorous than those set forth in section 251.10 of the Alcoholic Beverage Code, but the rationale by which we concluded in Attorney General Opinion JM-501 that the petition requ:irements should be strictly construed are equally applicable to both provisions. We noted in Attorney General Opinion JM-501 that, in construing election laws. it is necessary to determine whether the provisions under scrutiny are mandatory or directory in nature. Branaum v. Patrick, 643 S.W.2d 745, 74!) (Tex. App. - San Antonio 1982, no writ). In general, election laws are to be construed as directory in the absence of fraud or of ~~rovisions which are clearly mandatory. Statler v. Petzer, 630 S.W.:2d 782 (Tex. App. - Houston [lst Dist.] p. 2561 Honorable Larkin C. Eakin, Zr. - Page 4 (JM-574) 1982, writ dism'd); Attorney General Opinion JM-467 (1986). Because the right to vote is fundamental, election law provisions relating to qualifications of voters art! usually construed to be directory. Leach v. Fischer, 669 S.W.2d 844 (Tex. App. - Fort Worth 1984, no writ); Branaum v. Patrick, supra. Irregularities in the election process which do not act to disenfx,anchise voters or affect the result of an election are generally treated as inconsequential. See Branaum v. Patrick, supra, at 750. However, election law provisions regarding candidates and their qualifications for office are usually construed as being mandatory, because the right to hold office is considered a privilege. Leach v. Fischer,, supra; Sparks v. Busby, 639 S.W.2d 713 (Tex. App. - Tyler 1982. writ dism'd); Geiger V. DeBusk, 534 S.W.2d 437 (Tex. Civ. App. - Dt.llas 1976, no writ). Moreover, in the instance of a special election, the exercise of a grant of authority to call an election must bl! in strict conformity with the provisions of the legislative grant. West End Rural High School District of Austin County v. Columbus Consolidated Independent School District of Colorado County, 221 S.W.:z 777 (Tex. 1949); Mesquite Independent School District v. Gross, (17 S.W.2d 242 (Tex. 1934). As the Supreme Court has declared: "Whe1 a statute which authorizes a special election . . . prescribes :he form in which the question shall be submitted to the popular vote, we are of the opinion that the statute should be strictiye complied with." Reynolds-Land & Cattle Co. v. McCabe, 12 S.W. 165 (Tex. 38,881; Coffee v. Lieb, 107 S.W.2d 406, 411 (Tex. Civ. App. - Eastland 'L937, no writ). In West End, the speciill. election at issue was one to consolidate school districts; the issue was whether the petition to call the election was defective. The petition failed to specify correctiy the school districts involved. In discussina the conditions precedent necessary to call the election, the court declared the following: Article 2806 [gowrning school district consolida- tion elections] does not purport to confer unlimited power, or jurisdiction, upon a county judge to call spe<::ial elections for the purpose of effecting consolidation of school districts. The - statute expressly limits his jurisdiction to the instances in whicl;he is presented with a petition complying with tKz above-noted requirements; in other words, with~1 proper petition. The require- ments pointed 0l.t are conditions precedent to invoke the jurisdiction of a county judge to call an election for creating a district or districts by consolidation; and consequently the require- ments limit his p',tential jurisdiction. (Emphasis added). 221 S.W.2d at 779. p. 2562 Honorable Larkin C. Eakin, .Jr. - Page 5 (JM-574) In this instance, as xLth the provisions addressed in Attorney General Opinion .JM-501, we construe the requirements of section 26.07 of the Tax Code to be mandatory. Admittedly, it does not deal with the qualifications of a candidate. It does, however, concern whether an election issue, rather than a candidate's name, will be placed on the ballot. Cf. Leach v- Fischer, supra. Moreover, because we believe subsection (b) is c:lear and unambiguous, it must be enforced according to its express language. Call v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983). Subsection (b)(2) of section 26.07 of the Tar Code requires that a conforming petition be "signed" by a requisite number of voters. One ordinarily "signs" a docxunent when he writes or marks something on it in token of his intentit,n to be bound by its contents. Delespine v. State, 396 S.W.2d 133, 136 (Tex. Grim. App. 1965), cert. denied, 384 U.S. 1019 (1966). In Attornev General Opinion JM-501, however, we construed the 'signature requirements to be mandatory and concluded that a voter registrar acted properly in striking non-conforming signatures, as provided by the applicable section of the Acloholic Beverage Code. In this instance, part of the petition presented consisted, not of actual signatures, but of copies of signatures of a petition previously submitted to and rejected by the commissioners court. We have found no statute which permits copies of signatures, as opposed to actual signatures, to be sufficient to qualify as a conforming petition. , e.g., V.T.C.S. arts. See 179d (Bingo Enabling Act); 6702-l (County Road and Bridge Act). In each instance, a peti- tion must be "signed." Accordingly we conclude that a petition that consists in part of *s, of signatures comprising a previously submitted and rejected petition does not comport with the requirement of section 26.07 of the Tax Code that such petition be signed by a requisite number of voters. SUMMARY A petition fo.r a tax rollback election that consists in part of copies of signatures com- prising a previously submitted and rejected petition does not comport with the requirement of section 26.07 of the Tax Code that such petition be signed by a rec,uisite number of voters. V-7 ruly yours s MiiJt & JIM MATTOX Attorney General of Texas JACK HIGHTOWER First Assistant Attorney Ger.eral p. 2563 Honorable Larkin C. Eakin. Jr. - Page 6 (JM-574) MARY KELLER Executive Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Jim Moellinger Assistant Attorney General p. 2564