Attorney General Opinion WW-1298

Honorable Alfred H. Flanagan - . . . Opinion Superseded by Art. 5.14a Election Code enacted in 1965 NO. ww-1298 District Attorney 76th Judicial District P. o. BOX 986 Mt. Pleasant, Texas Re: Whether a Tax Asaessor- Colleotor eihould leaue a voting poll tax receipt to a person who mailed a proper application therefor, post- marked January glat,but Dear Mr. Flanagan: In your letter you state: received by the Tax Assessor- Collector on February 2nd. “A lady mailed a requeet for a Poll Tax Receipt from Au&in, Texas, on January 3&t, 1962, to the Tax Aseeeeor-Collector of Titus County, Texas, at -Mr. Pleaeant, Ttxas. This written request contained all of the requlred InSormatlon, including the remittance, but was not received in the office of aaid Tax Assessor- Collector until February 2, 1962, but the enve- lope containing the ap mark of January 31, g llcation bore the port 19 2. The Tax Aesessor- Collector refused to lsrrue a voting poll tax receipt because said application wan not received In his office by January 31, 1962." Art. 5.09, Texas Sleotion Code, provides In part PB follows : “A poll tax ahall be oollected Srom every person between the ages of twenty-one (21) anb sixty (60) yeers who resided in thla state on the first day of January preceding It8 levy . . . It shall be paid at any time between the Slret day of October and the first day of February Sollowing; *. . ” Art. 5.11, Texas Election Code, provides In part a8 sollows: m.. A taxpayer may pay hl# poll tax by a rem,ittance of the amount of the tax through the United States mail to the County Tax Collector, accompanying: said remittance with a statement in writing ehowlng all the lnSOI?ULatlOn Honorable Alfred H. Flanagan Page 2 Opinion No. W-1298 necessary to enable the Tax Collector to Sill II out the blank form of the poll tax receipt, Sec. 2 of Art. 6, Texas Constitution, reads sollows : . * .~- In part as If . . . any voter who Is subject to pay a poll tax under the laws of the State of Texas shall have paid said tax before offering to vote at any election In this State and hold a receipt showing that said poll tax was paid before the first day on February next preceding such election . . .” In Davis v. Riley, 154 SW 314 (Civ. App. 1913), Riley and 70 others had delivered $1.75 each to one Holloway, and at the same time had signed a statement authorizing one Grim to deliver the money to the tax collector, Davis, In payment Sor’their poll taxes. Holloway forwarded the money by mail on January 30, 1912, to Grim, who In turn delivered It to the tax collector on the 1st and 2nd days of February, 1912. The Court stated at pages 316 and 317: II . . . The law further provides that all poll taxes shall be paid on or before the 1st day of February of each year, and makes it a penal offense for the collector to receive poll taxes and antedate the receipts therefor after sald time. “The Plaintiffs, under the circumstances, con- stituted Holloway and Crlm their agents to receive and deliver said money and orders to the collector, and must abide by their failure to deliver the same within due time. While the collector could have received the money and orders when tendered to him at his office, and issued the receipts and certificates as of date when In fact received by him, still he was not justified in receiving and antedating such receipts and certificates; .*. IS the plalntlffs were dlsquali- f’ied as voters for said year by reason of their failure to pay the poll taxes and procure the exemption certificates within due time, it was chargeable to the i fault and neglect of their own agents . ..’ Attorney General’s Opinion No. ~-2836 (1952) to County Attorney George M. Kelton of Ector County, held likewise, and cited Davis v. Rilex. We find no Texas cases covering ~the situation under consideration, where the taxpayer mails his remittance and application directly to the tax collector which is postmarked on January 31st, but not received through the mail by the tax collector until some time in February. While Art. 5.11, Texas Election Code, permits payment of the tax by - - Honorable Alfred H. Flanagan Page 3 Opinion No. w-1298 mall, nothing is said about accepting a tax as being paid on time where It Is postmarked In time, but delivered by mail after the deadline. Art. 13.12, Texas Election Code, on the subject of filing application to have one'8 name oh the primary ballot as a candidate, specifically makes provlslon.Sor meeting the filing deadline by mailing by registered mall within the time for filing. Prior to this provision the Supreme Court of Texas, in the case of Burroughs v. Lyle6 142 Tex. 704, 181 SW2d 570, (1944), had held th t th I &w on filing (Art. 3112, V.C.S.) did not authorize aaSili~gp~yo~ail, where postmarked within the time allowed by law, but received by the county chairman through the mail after the filing deadline. It is our opinion that the poll tax Is not paid until the remittance is In the hands of the tax assessor-collector or his authorized deputy, and any other holding would be contrary to Sec. 2, Art. 6, Texas Constitution. The United States mall Is not a deputy tax collector. In Webb v. Champion Coated Paper 940) the appellant had mailed %*ihe cl&k of the court by regisiered'mail 31 N E 2d g6 (Ohio Ct. App a motion for new trial In time to reach its destination In t&ee days, which would have met the deadline for filing the motion. For some reason the letter containing the motion was not delivered until the fourth day, or one day too late. The Court said at page 97: 'While, undoubtedly, the appellant was justified In having a firm expectation that the mail would be forwarded In the usual manner, nevertheless, it chose the postal department as Its agent and must be charged with its failure to meet lb oxpectatlorrsto the same extent that it would be charged with the failure of any other agent selected by it. The failure of the Post Office Depart- ment was the appellant's failure. . .." In Roberts v. Sims, 111 Okla. 1, 237 P. 852, the Court stated at page 853: 'When the defendantdeposited the motion for new trial In the United States mall, he thereby selected the postal department as his agency for delivery. *.." We also direct your attention to Art. 5.12 of the Election Code which specifically provides that all poll tax receipts "issued for any year after January 3lst shall be stamped on the face thereof: 'Holder not entitled to vote' and the names of the holaers of such poll tax receipts shall not be Included in the list of qualified voters." It is therefore our opinion that the Tax Assessor-Collector rightly regused to Issue a voting poll tax receipt to the tax- payer whose remittance and application was received by such Tax Assessor-Collector through the United States mall after the 3lst day of January. Honorable Alfred H. Flanagan Page 4 Opinion No. W-1298 S IiN, il A R. Y A County Tax Assessor-Collector may not issue a voting poll tax receipt to a taxpayer whose remittance and application sent to the Tax Assessor-Collector by United States mall, was received by such Tax Assessor-Collector after the 31st day of January. Yours very truly, WILL WILSON Attorney General of Texas -Y . Riley &en, Fletchek Assistant REF:bjh APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman John Reeves Arthur Sandlin Vernon Teofan .' REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr. .