Untitled Texas Attorney General Opinion ( 1954 )

Modified and overruled
December18.1954 in part by.Carrington v: Ra
85 s.Ct; 775
Non. Robert s. cahmrt opinion No. s-Ma
Comptroller of Riblie Accounta
Audia. Texas Re: Conatr~uction of coadtitutional
amand,mnt kdopted November
2. 1954, ~coiIcerniqll votlly by
Dew Mr. Calvert; member* of the aimed forcom.
You have requested an opinion relating to the constructIon
ard effect of the cmstitutional amendment adopted November 2. 1954.~
amending Sections 1 and 2 and repealing Section Za-d Article VI, Con&f-
tutfon of Texas, concerning voting by members of the armed forcei.
Your questions ars am follows:
‘1. What i8 the affective date of tbe Constitutional
Amendment voted upon a? th General Election on Novem-
ber 2, 1954, which repeala Section 2a d Arttch VI and a-
meads Sectioru 1 ad 2 of Article VI of tba Texas Conati-
tution 7
“2. Doaa this amendment make any distinction be-
tween morbbers bf tbe regular military establishment of
the United Statea and officers or enlisted men of the Na-
ttonal Guard of Texas, the National Guard Reserve, the
Officers Reserve Corps of the United States. or draftees7
‘3. If your answer to the se$ond question is in the
negative, will it be necessary for any member of the Armed
Forces of the United States pr..component branches thereof,
or in the military service of the United States, to pay his
or her poll tax in the county in which he or she resided at
the time of entering such service, so long as ha or she is
a member of tha Armed Forces?
“4. Do you construe Section 2 to mean that a poll
tan is lo&d only on persons batxveen the ages of 21 and
60; ani that the State poll tan levy will .still be $1.50, but
.that members of the National Guard will still pay the State
poll,tax of $1.00, as referred to in Articles 5840 end
58417.
A constitutional amendment becomes a part of the Constitu-
tion oh the date of t&e official caxwaea shorting that the amendment re-
~d*sd a majority vote. Wilson V. state, 15 Tu. ct. App. 150 (1883); Ati’y.
L
4 . .:
:: ;’ :‘,
T h
Hon. Robert S. Calve&, page 2 (S-145)
Gan. Op. s-146 (1954). The votes of the elactlon held on November 2,1954,
were canvaaaad on November 19, 1954, and the official canvas, ahowed that
tha ame+mant had been adopted. It therefore became effective on Novem-
bet 19. By ita express terms, Section 2 of Article VI is aelf-executing.
The provisions amending Sectton 1 apd repaaling.Section 2a are likewi~
lelf-exeCuting.and become operative without further legislation. Att’y.
ckn. Op. S-146, lupra. All statutes In conflict with these constitu~hal
provisions are, mowsuperseded.
In answer to your mecopd question, the amendment doeN not
make any dirtinction betaeen membera of the regular military establirh-
meat of the United States and members of the National Guard, renervbtb.
or drafteea. Revioualy, the members Ot the regular military establiah-
mont were diafraacbiaed. while the othei groups tidre’not. Under the new
lwndmo +t, tb pkvlslon in Secticm,l d’~ArticJe VI disqualifying memborm
d tb regular military establishment ban bean omitted, and no peraw’ia .,
now dlaqualifled aa, am elactor by reason cd hia military atatua. 2io~ever,~ .~
l p r q vla io n,h beon
a a a+ded to Section 2 of Article VI which raadn:
. . . . Any mamber of the Armed Fooicw of the
United Statea or component broachs tired, or in the
military service of the United Statea, may vote only in
the county in which he or she resided at the time of an-
*to r iw lo lon(r aa he or ahe ia a member
much ler vtc e
of tha Armed Forcee.” ,,
B’ornwrly, National Guardsmen; roservlats, end dr&fteu la active lervicr
could vote at the place of their legal residence at the timq of voting (pro-
vidod they had realdUd within the State for one year and vi&in the county
for ain montha) without regard to the place of residence at the tima’they
-rod service. ~Activkmember~ of ti re lar eatebliahmant could not
vote at all. Now, all these group= aro qua1r iod alactors It,they meet o&er
roquirenunts, but no&a of them may vote anywhere in Texan ucept in the
county whore they, resided when .they entered service. If a person in mlliy
tary.service changes bia legal reaidenca to~some place other than U+cou#ity
in Taua in which he resided :at.the time be ,enterad aorvico, he cannot vote
ILthia state.
Throughout this opinion t&e term “rcaidenco’ meana legal
reaidenco aa distinguished from actual residence.
The constitutional amendment does not change tha ruler f6r
dekrrnintry wbat pkco ii the legal roaidanco, of the voter, nor doaa it
rnaau that in all circumghncab a parson in military service Will ba eati-
tlod td .&im a voting roaidence in the county of which he waa a roeideat
at the tluia he entered aorvica. Place of rksidance ia still to be deter-
- in the /ame way that it has always baen. Absence from the county
or #tata for tha plrpoao of performing military servlee doea not of itself
‘oatrae a loaa’ob reridonce, but it ia possible for a person to abandon hia
Hon. Robert 8. Calvwt, pege 3 (S-148)
old reaidence and acquire a aevj rorideace duriq time d service. Tar.
Cwat. Art. XVI. Stc.c); Clark v. Stubba, 131S.W. Ld 663 (Tax. Civ. App.
1939); Struble v, Strublem W Ld 279 (Tax. Civ. App. 1943)7 Rtta-
, 177 S W 2d 2k’(Tex. Civ. App. 1943); RobinsoiXXob-
2d 22g’(T;x. Civ. App. 1950); 15 Tax. Jpr. 715 II i iie
a lo, uad thereby changta hia realdeuce to s&t?& ’
county, ho loses hia right to vote in this &ate while he continues in atrv-
ice, .unleas ho re-•atabliahoa hia residence in the ctxmty in which he
roaided when he enterod urvice. Furthor. 110ptrson who ontertd itrv-
ice as a resident of another Star may acquire a voting resides8 in Toxaa
whilt ht ia in rorvico.
It is our opinion that the restriction to voting in the county
of residence at the time of entering service applies only to persons who
art on extended active duty. timbers of the National Guards and restr-
vtsts who art not on extended lctlvt strvict and retired military ptrson-
nel art not l ubjoct to thim restriction. Further, “county of residence at
the time of entering such serviet’ means the county in which tim person
residod at the time he began his current active l orvice. To illustrate:
A ptraon, while rtsiding in County A. joins one of the reserve components
but dws not go into active service. He later moves to County B. After
he has fulfilled the ltngth of residcnco requiremsnt. he may vote in Coun-
ty B7 in fact, ho could vote nowhere tlat. Whtle living in County B. he is
called into active service. During this time his place of voting is in Coun-
ty B. the county in which he resided when he went into active service. Af-
ttr his release from that tour of duty. he changes his residence to County
C. His place of voting is in County C so long.as he continws to live thert.
If he is again called into ective service while living in County C, that is the
place where he will vote.
Your third qucstlon concorns the payment of the poll tax by
persons in military service. They aro subject to paymant of a poll tan to
the same extent and in tho samt axanne* as all other residoats of the State.
Horotofore. by virtue of Sectian 28 of Article VI, qualifiad obetori in mil-
itary service were not required to pay the poll tax as a coaditfbn precedent
to voting during time of war ami for e certain period after its termination,
but the recent amendment repealed this section of the Constitution. Hero-
after, all persons in military service must pay a poll tax before February
1 in order to vote, unless they come within one of the exemptions. If they.
are exempt under the general law. they must comply with the requirements
relating to obtaining exemption certificates.
If a person is subject to the poll tan, he wee8 it in the county
of his legal residence on the first day of January preceding its ltvy. L&n-
v. B&our. 149 S.W. 795, SO5 (Ttx. Civ. App. 1912); McCbarea vI Maad. ,f 7s,-Aa,
ci App. 1925). It should be noted that liability to the poll tan 1a not
2 qualified tlectors. It is levied against* residents bttw?ta.the
I
Hon. Robert S. Calvert, page 4 (S-148)
agos of 21 and 60 y0ars.l regardltas of whether thoy art qualified elec-
tors. Ordinarily, a parson in military sorvico oontinuts to maintain
his legal residence at the place whore ho resided when he enterad! norv-
ice. In that case, he is subject to payment of the poll tax in that county,
end he may vote in tbat county if ho is otherwise quallfiod. Howtvor, if
he should happen tochange his residence tu some other countyduring
military service, ho would be subject to payment of tho tax in tho county
of his now residenco;~ but payment d the tax would not entitlo him to vote
in %t county of his former residence, nor could ho vote in the county of
his ntw residence. And. of course. voluntary payment of the tax in tho
county d his former residence would not tntitlo him to vote .in that
county.
This brings up tho question of tho form of tho poll tax ro-
ceipt to be issued to parsons in military aervico. Thoy should bo ,iaruod
the regular rtcoipt form and should be placed on the poll tax rolls in tht
*am0 manner as othor poll tax payer*. In the few instancts whoro poi-
‘sons cpango their rosidonce during military service, 6s regular receipt
form will still be used, even though the holder cannot vote on it unless he
is rtloasod from activeservice. As already pointed out, thore aro other
instances in which poll tax holders aro not ontitlod to vote, yet tho stat-
utomakes, no provision for issuance of a special form of receipt except
where the taxpayer is,an alien or where the tax is paid after January 31.
Arts. 5.12 and 5.14, Vernon’s’ Texas Election Code.
In answer to your fourth question, you are advisod that tho
recent amendment dues not make zany change in the poll tax laws. . The
tax is levied only on residents between the sges of 21 and ~60 years. Art.
5.09, Vernon’s Texas Election Code. The stato poll tax is still $1.50, and
countios may levy a tax not to exceed 25 Cents. ‘