Untitled Texas Attorney General Opinion ( 1946 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GROVER SELLERS
Arrcmw~YocNcrr*
:.onorable Wed V, Edrridlth
3ounty Attorney, Kaufman County
dUfE811, Texas
No. Q-7022
Do the provisions of
nr5lole VI, sea. 2a,,Con-
atitution OS Texaa,,,erempt-
ing pereona named t$sti,in
from payment
as a oon~lti,m
perate a motor
the public hi&-
oonticted oi driving while in-
‘\,toxica~ed?
iiay\``~wttness
and mileage
r-. ~, \, .\,fa’as in misdemeanor orimlinal
1 \
/ ,loases be paid to .reeidents
_-. ,;, “,,(,-.l,;,ythe oounty?
‘J
D&S&: \- ’
‘\ ‘j,
‘1
~.In y& letter of January 5, 1946, you rsoueat
the opinion-/of this Irepartment on several different
questions. a‘or~oonvsnienoe in replying, ws will restate
your questi_ons and answer eaoh in turn.
1. Is a veteran who ooms !vitbin tb provisions
of seotlon 2a of ~rtiole VI of the Constitution of Texas,
Lonorable Fred V. Lierldlth - Pan0 #2
and thus ha8 the right to Yote without thr payment of a poll
tax, In any eleotion held undrr authoritjf OS the laws oi this
State, nsvarthrleer llablo for tbr payxmt oi suoh poll tax,
JO that It will beoomr a dsllnqurnt tax againat him unless it
is paid by January 3lst?
The Constitution and StatUt68 Of Texas provide for the
1OVy and OOileOtiOn Of pOii taxes. Oonatitution, Artlole VI,
30. 2; Art1010 VII, 880. 3, Artiole VIIX, 2300. 11 Vernon’s Re-
vised Civil Statutes or 1926, Artiolea 7046, 2959, 1030. Artiole
2959 provides that the poll tax shall be paid between the first
day of Ootobor and the first day of February.
hrtiolr VI, Seo. 2, of the Constitution provides that
any voter who is oubjeot to pay a poLl tax under the lawa or the
Atate or Texas ehall have paid said tax before orrering to vote
at any eleotion In this State and hold a reoelpt showing that
said poll tax was paid before the first day oi February next
prsoeding suoh eleotlon or make aifldavit that suoh reoelpt
has bean lost or mi818id.
Artlole VI, Seo. 2a of the Constitution (adopted Aug.
25, 1945,)provldee:
Vothing in this Constitution shall be eon-
atrued to require any person, who at the time of the
holding or an eleotion hereinafter rerrrred to is,
or who, within eighteen months immediately prior
to the tlnn or holding any suah eleotion warn, a mem-
ber or the amed fames or the United Statea or of
the Amed Boron Reserve of the United States, or
or any branoh or oomponent part Of auoh anned fOrOOa
or Armed Foroe Reserve, or the United Stats8 Earftlme
Servioe or the United States Li8rohant Karlno, and who
is otherwise a qualified voter under the laws and Con-
stitution af this state, to pay a poll tax or to hold
a reoeipt for any poll tax aasessed against him, as
a oondition preoedent to his right to Vote in any
eleotlon held under the authority of the laws ot this
stats, during the tine the United States Is engaged
in fighting a war, or within one year after the olO8e
of the oalendar year in whioh said war is terminated.
Iionorable Fred V. t’lerldith - Page #‘3
WProvlded, however, that the foregoing prs-
vlalons or this ssotion do not oonfar the right
to vote upoa any person who Is a smaber of ths rsg-
ular establishmsnt ot the United States Amy, Navy,
or ldarinr Csrps~ snd provided rurthar, that all psr-
sons In ths amned ioross or the United States, or
ths oomponent branohos thersof, not members or the
regular esta~blishment of ths Unlted States &my,
Navy, or Sarina Qorps, are hereby daolarsd not to
be dlatpa~lrled from voting by reason of any pro-
vision of sub-ssatlon *Fifth* Of Seotion 1, OS this
Artiole.”
In our Opinion No. O-6821, addressed to Honorable
George E. Sheppard, we saldl
this amendaant does not exempt anyone
from the a nt of the poll tax levied by other
“. ‘+oi t e Constitution
seations and by the statutes
enaotsd in pursuanoe thereof. This ansndsmnt pro-
vides onlv that the named cmrsons shall not be re-
them as a oondltlon reoedent to their right to vote
in the eleotions ape0
fn;lr;r;-;7.- --
Ii 18 thererare our opinion that those veterans ooming
within suoh ocnstitutifmal provision, although they are per-
mitted to vats without payment of a poll tax,, are-.nevsrthelsss
liable for the paymsnt thereof, and the same beoomes a delln-
quent tax against them ii not paid oa or before January 31st.
2. Does this oonstitutlonal amendment apply to a
poll tax levied by a oity?
It will be noted that the bsnsrlts of the amendment
extend to “any eleotlon held uhdsr the authority of the laws
of this state.” A oity eleotion is ah eleotion held under
the authority of the laws of this state.
AS to the levy of a poll tax by a oity, the Supreme
court of Texas said, in the case of’ Powell v. City or Baird,
133 T. 409, 128 S. I;. Zd. 7861
Eonorable Fred V. Lerldith - Paw $I4
nit is our opinion that a poll tax ia leviad
Iunder a State law, within th. lWUiiIl2 Or %QtiOn 2
or Artiioh v-x0r ourstat8 camtitution, ii aomo
stats law dirrotly authorizer ruoh l8vy. In tbl8
lastnnoo Art1ol.e 1030, R.C.S., as unended, uupra,
dirsotly authorlzrr altier to 10vy and oolleot poll
taxer, It follows that suoh poll taxes, when 80
levied, am levied by dlreot authority of a State
law, and are, therziore, levlsd under a State law.
:;'ebater*s iiew Internatlanal DiatlonaryI 65 C. J.
12021 Savage v. Umphriea, Tax. Clv. App. 118 S. W.
093; Linger v, Baliour, Ter. Clv. App., I.49 3. W.
?Qj$.Bonham v. Buohs, Ter. Civ. App., 226 S. Yi.
1112. AI used inthe above oonetltutlonal pro-
vIalon, the word *under* $.a Owtainlg used a8 a
prepositioil, iAdiO6tiAg eubjeotion, gufbaooe, or
oaltrol. It Is ueed in a semae of *by authority
Of.‘”
&d in the oaae of Texas Power and Light Co., v. BLYIWA-
wood Pub110 Sorvloe Co., the oourt said: (111 S. w. 26 1226)
*It is now settled law that the la-age 0r
the Constitution determinrs the qunllflcatlons 0r
the a1eotorat.e. Neithsr the statutee nor the pro-
visions or a oitp oharter, whloh in home rule oltler
must omrorm with the Ccnstitutlon and the general
laws of the state, QI~ impose additional quallfloa-
tions aa a~ pmJr8qUiBit8 t0 the right Of itz OitiNAs
to vote, whloh are not authorized by the Constitution.
ZoCutoheon v. ;YozenoxMt, 118 Tex. 440, 294 S. W.
l.iOSl Mndover v. Tobln, Tex. Cit. App., 261 9. X.
234; Csmronv. Connally, 117 Tex. 159, 299 S. iY.
221; Ltahl v. Xiller, Tex. Civ. App., 63 S. X. 24
578.”
It is our opinion that this zmendnmt applies to a
poll tax lrvled by a oity.
3. Xhat should the sleotion judges require of the
soldier or veteran who desires to vote, Ol8imiimin43
the benefit
of the oonstitutional amendment above set out7 dust he re-
qdre 04 afrldavit?
iionorable Fred V. Nerldlth - Page $5
In suoh oases the usual proor or right to vote
(gossession oi a poll tax reoelpt or an exsmption oertiri-
aate) iS hOking. Therefors ths follu~ing ertiOle8 from
Vernon's Oivll Statutes of 1925, relating to the oc~duot
of elsotions 1s material:
"Art. 3006. 2999 Examination of ohallenged voter
"XhOn a person OifOdAg to Vote shall be ob-
jeoted to by an eleotion judge or a supervisor or
ohslleAger, the gresiding judge shall Ox8mlne him
upon a~ oath touohhg the poiats oi suoh objection,
and, ii auoh psr8on falls to establish hie right to
vote to the SatiSraOtiOA of the majority af the
judges, he Shall AOt Vote. If his Vote be rSOeived,
the word, *sworn,* shall be written upon ths poll
list opposite the naaie of the voter."
"Art. 3007. 7904000 Vote ohalleoged
"IO any elsotlon, State, oounty or municipal,
being held In any oity or towA of ten thousand in-
habitants or more acoordlng to the preoeding Federal
CsnsUs, When the right OS any eleotor to vote 18
ohalleaged, the Sollanl~g prooeedings shall be had:
"1. The judges of sleation shall retuss to
aooept suoh vote of such elsotor unless Fa addition
to his own oath he proves by the oath or one well
known resident or the ward that he is a qualified
voter at suoh elsation and in suoh ward.
"2. GheA suoh vote is aooeptedthe word
*ohallmged' shall be written on the ballot, aAd
the jud&es shall oauss the clerk of eleotlon to
make a minute of the n&me oi the eleator aAd the
party tCiStiryiAg under aath as to his quallfica-
tiOAS, and suoh memoranda shall be kept by the
aounty clerk of the county ror six months after
suoh election is held, subject to order of the
dlstrlot judge."
99
Iionorabls Fred V. Gerldlth- Page j5
“Art. 3008. 3001 Delivery OS ballot
"Xhen the judges are satisiied as to the right
of the oltizen to vote, the judge shall stamp In
legible oharaoters with a stamp of wood or rubber
the poll taz reoelpt or oertitloate or exemption
with the words: 'Voted . . . . . . day OS . . . . .)
D. A. 19 . . . .' Or writs the same words in ink
tind then return said rsoslpt or oertifloate to the
voter, and shall at ths ssms time deliver to him
one ofiioial ballot OA the blaank side OS whfoh the
presiding judgs shall have prevfoualy wrlttea his
sicgnature. The voter shall then immediately replr
1;o s voting booth or a plaoe prs9arsd for voting
by the eleotlon oSflOer8, and there prspar8 his
ballot in the nanner provided by law."
UAder$hesa statutss it Is our opinion that, when
an elector 01&i&s the right ta vote under the provisions OS
-4rrtiole KS, 380. 2u, 0s the Ccmstitutlon, it is the duty or
the eleation judges to satisfy themselves OS his right to
vote before permitting him to oast his ballot. That they
s so satisiy thsmselves by szamining him uAder oath or by
his arrldavlt, as the case Roy be; but they must do so IS
the voter is OhelleAged. Clark '1. Stubbs, 1'523. W. 663.
Your fourth question is enswered by our Opinion No.
04052, a oopy of whioh is enolosed.
5.. Xre witnesses duly subpoenaed in misdemeanor
oases tried in the county OS their rssldenoe entitled to olaim
witnsss rees and milsqge for thrlr atteAdaAce upon the oourt
during the trial OS suah oases?
Xrttole 1036 OS our Code oS Criminal Proosdure pro-
videe in part:
"(1) uny witness who may havo bsen sub?oaAa2d,
or sAal1 have bean rsaognized or attaohed aAd giveA
bond Sor his appearanoe before any Court, or beioro
any grand jury, out oS~the aounty of his residsAc8,
to testify in a felony case regardless of disposition
of said aasa, and who appears in aompl:anco with the
obli~atfons 0s such reaogAizaAoe or bocd, shall be
ellowed Three (3) Cents per mile goFng to and return-
ing from the Court or grand jury, by the nearest prao-
tics1 aonveyanoe, and T;ro Lollars (22) per day for
aaon day he may neoessarlly be absent from home as a
witMa iA suah case; . . ."
Honorable y’red V. Xeridith - Page $7
&oh foes and mileage are to be paid by the State.
.atioles 1078, 1079 and 1080, C. C. P., proridrr
“Art. 1078 (1188) (ll38) Fees oi witnesses
Witnessoti In orimlnal oases shall be allowed
one dollar aud fifty ocPts a day r o r lqoh day they
are In attendanoe upon the oourt, and air oents for
eaoh mile they may travel In going to or returning
rrom the plaoe 0r trial.”
“Art. 1079. (1189) ( Xl.39 ) TaXed against defendant
Wpon oonviotion, the ooets aooruing from the
attendanoe of witnesses shall be taxed against the
defendant, upon the atiidavit or suoh ~Itneati, or or
soffie oredible pamon, stating the number of days that
such witness has attended upon the oourt In the ease,
and the number of miles he has traveled In going to
and returning from the plaoe of trial. The affidavit
shall be filed with the papers In the oaee.”
“ht. 1080. (1190) (1140) No fee8 allowed
“No tees shall be allowed to a person as witness
fees unless r~oh person has born subpoenaed, attaohed
or reoognized as a witness In the ease.”
Artiole 1055, C. 0. P ., as amended, provides:
“Art. 1655. air 00sts paid orfloors
The oounty shall not ba iiablo to thr OffIOer
and witness having costs In a misdemeanor oa8e where
defendant pays his fine and ooet6. The oounty ehall
be liable ror 0nd.e 0r the reee 0r the orrioera
0r the sourt, when the defendant rails to pay his
fine and lays his fine out In the oounty Jail or dis-
aharges the same by mans of working euoh iins out
on the oounty roads or on any oounty projeot. And
to pay suah halr or costs, the county Clerk shall
Issue his warrant on the County Treaeurer In faror
of suah oftioer to be &aid out of the Road and Bridge
Fund or other funds not otherwise appropriated. As
mended Aots 1937, 45th Lag., p. 1323, oh. 488, Sec.
1; Aots 1339, 46th Leg., p* 143, Sea. 1."
Xonorable Fred V. Xorldith - Page $8
ilo find no Texas deoielon direotly In paint on thr
question here presented. But In IAY Y* State, 83 Cr. a. 222,
202 S. ‘U. 729, the Cost of Criminal Appeals deoided a simflar
quest ion. We quote iron the opinion In that oaae:
“Appellant Inrista that, Inaamuoh as the or-
fioer was a salaried polloman, he was not entitled
to oharge witness rae~, and refer3 UB to eeotion
1137b, Vernon* o Grim Stats. 1916, an aot of the
Legi3latur3 0r 1913. Tkit rtatute applier to wit-
ness tees In felony 08883, the ooets to be paid
by the etate. rt provide8 that no witness fee
shall be paid to peaor ottioera, nor to any wit-
ness In habeas oorpua oases or sumoned on motion
to ohange VMWJ, and provides rurther that no fee
shall be approved by the oourt In any oase where
the oharge Inoludeo a nisdeaeanor oaae until the
ease is rinauy disposed or, Cnzdin ease 0r a 00110
viotion for rtiadetceanor no feee’ahall be paid by
the state; and it also provides that witnesses
attending court in more than one ease at the same
time shall reoeive tees In only one oase; and pro-
vided further that In no event the state shall pay
per diem In eny one oaae prore than $5 to any witness
in any an3 0888 at any c&o term 6r oourt. It will
be notiosd that these fees are to be paid by the
atate, not ~by the defendant. The aam rule does
not apply in ordinary niadevsanor oases. It Is
understood to be the rule with reference to ohmg-
ihg rees that none will be permitted exoept where
authariz3d by statutei t&it Ia, It i6 a prerequieite
before fees may bo ohargad that the L3gIslature pass
suitable legielation authorizing the oharging and
paying of suoh reer, whether by the etats or the
defendant. r;Ith reference to misdemeanors, there
IS no Interdiotion of the ohargihg or witneslr fees
so tar as offioers are oonoerned. They meem to
oome within the general olase of Hbtneasea, and
are entitled to the dam fess as other witneeses
In ruisdemeaanor oases. A witness in a aisden;oanor
oaae can be paid no fees other than those provided,
but Is ehtltled to oharge suoh fees as the statute
enaot 8. There being no dirferenoe with referenoe
102
1Xonorable Fred V. Xeridith - Page #Q
to misdemeanor oases as to the oharaoter of wit-
nesses, whether ofrioera or not, the ofrioer would
oome within the general oategory, as we understand
the law, as witness. His o~fioial charaoter, so
far as that proposition Is oonoerned, would nake
no dirrerenoa. There are no traveling expenses
In the oaae to oomplioats~ therefor we have the
question as to whether or not an officer in mis-
demeanor oases can oharge fees as a witness for
hi3 attendahoe upon the oourt. ?ie are ol the
opinion that he oan, and that the oourt did not
err In allowing the Sees charged by the offloer.”
i:ie are therefore of the opinion that suoh witness
fees and mileage are payable to In-oounty witnesses, duly
subpoenaed, in misdemeanor oases, But neither the State nor
the oounty are liable therefor, and they can be paid to the
~if&133~ only when charged as oosts and oolleoted Iron the
defendant, upon oonviotion.
?:a are enolosing oopies of our Opinions Nos. O-6521,
O-6828, O-6052, O-6456 and 0-6955.
Yours very truly
ATTORNZYGENERALOF TEXAS
VJ. R. Allen
Assistant
XU: zd