Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GROVERSELLERS
ATTORNEY GENERAL
Honorable Coke ‘3. Stevchson
Governor of Texas
Austin, Texas
Deax Governor: Opi:lion X0. O-5779
iie : Portion of ariaed forces now in
servict of United States Govern-
-Tent entitled to vote in coming
Texas pri:mry elections, and a
> related question.
We ore in receipt of your letter of December 29,
1943, in lvhich you ask our advice in anslVer to the follov*ing
questions:
i’l . Yhat portion of the arned forces now in
the service of the United Ltctes goverment is
entitled to vote in our cof?inp, pri!:lary elections?
0'2, In the event that any portion of such
forces is entitled to vote, then >>.I11 you also ad-
vise i3e as to the i)rocedure to be followed in order
to vote absentee?”
In answer to 1our first question we direet atten-
tion.to Sections 1 and 2 of Article 6 of the Texas Constitu-
tion; as well as to Section 40 of Article 16 of the Constitu-
tion, an& Articles 2954 and 7046 of the :?evised Civil Statutes
of Texas.
Section 1 of Article 6 of the Constitution reads as
follows :
“The follovilng classes of persons shall not be
allcmed to vote in this State, towit:
“First: Persons under twenty-one years of age.
,
Bonorable Coke 3. Stevenson, poge 2
*lSccond: Idiots :jnd lumtica.
“Third : All paupers supported by any county.
“Fourth: ill persons convicted of ony felony,
subject to such exceptions as the Legislature nay make.
“Fifth: 1:ll soldiers, iaarines and seamen,
employed in the service of the Ariv or Navy of the
United States. Provided that this restriction shall,
not apply to officers .of the 1:ational Guard of Texas,
the h’ational Guard Zeserve, the Officers Zeserve Corps
of the United States, nor to enlisted men of the
National Guard, the Kational Guard ;ieserve, and the
Organized ;ot ih ori;er to vote ii1 the coming
primary elections of this ;Ztc;te, the voter i,xmt ileL;t the fol-
lowing, conditions:
a. He nust have attained the age of t-:.xty-one
years.
b. Ife mst be a citizen of the United states.
ci. He must have resided in this Stat? me year
next srecedinf. the election and the last six r?o?tns in the
district or county in which he offers to vote...
cl6 iIc uust hove paid his poll tax, to :;hich he
beca;ne subject on January 1, 191+3, and which rrust be paid
before February 1, 1944..
e. Ile must be subje~ct to none of the disquali-
fications set out in Section 1 of Article 6 of the Gonstitu-
tion.
No::, the disquolificutions naned in joction 1 of
Article 6 of the Constitution, ac pointed out above, include:
“All soldiers,. zmines and semen, employed in
the service of the Arrx or Lavy of the Unite,“, States.
Provided that this restriction shall not apply to of-
ficers of the Xational Guard of Texas,, the i;.lt,ional
Guard Xeserve, the Officers Xeserve Corps of the United
States, nor to retired officers of the United States
Amy, Navy,. and Marine Corps, and retired xaxant of-
ficers and retired enlisted nen of the Unit::d States
Army, Navy and Marine Corps 2’
And Section l+O of Article 16 of the Constitution
provides that “nothing in this Constitution shall be construed
to prohibit11 any of the officers or inen excepted in the proviso
of Section 1 of Article 6 llfrom voting at any Election; General,
Special or Primary, in this State when otherwise qualifiefJW
i3ach of the above-quoted poptions of Articles 6 and
16 of our Constitution were added by menbent in 1932; at
that time the Amy of the United States was conposed of the
Regular Amy, .the Kational Guard while in the service of the
United States, and the Organized. Reserves including the
Uonorable Coke R. Stevemon, poge 6
“The Arflny of the United states shall ccnsist
of the ;le&ular Amy, the Idotional Guard of t:.le United
States, the Officers’ iteserve Corps, the- Or+izized
Reserves, and the Enlisted &serve ,Corps, GF! shall
include persons iilcucted into th;;: land forcce ci’ the
‘Jnited States Uido? sections 301-31s of a::-eaii:: to
Title 50.” U. S. C. 1;. , Title 10, Ch. 1, Se-. 2.
The ;:egular Amy was then and is no:; defined as
follows:
“The Regular ;mcr~ is the permnent military
establishilent, which is maintained both in peace,and
in war according to l%~.~* U. S. C. L., Title 10,
Ch. 1, Sec. 3.
c
While we find no statutory definition of tke
Regular Navy, by a parity of reasoning it consista of the
permanent naval establishizent, :vhich is nailltainsd both in
peace and war according to law. It is clear thst e.either
the Regular L;rmyll nor the “Regular Xavyl’ comprezerds the
various reserve forces i.iho go to mke up, either rhe Arq
or the Navy of the United States. It is equall)- clear that
neither such reserve fozces nor lemons inducteZ! ?.nto the
land and naval forces under the provisions of th3 Selective
Service Act of 1940, when called to active duty, are members
of the Llegular Arrqjl or of the ;iagular Navy. Craner v. Shep-
pard, 167 3. W. (2d) 147.
In the Cramer case the Supreme Court of this State
had before it the question of whether an officer appointed
under the provisions of Section 513, Title 10, U. S. C. A.
as amended, June 15, 1933, c. 87, Sec. 20, 48 Stat. 161;~ Sept.
9, 1940, 9. 717, Title I, Sec. 101, ‘54 Stat. 875, could continue
to hold civil office in this State under the provisions of
Section 40 of Article 16 of our Constitution. In holding that
he could continue to’hold such,civil office the Supreme Court,
speaking through Justice Sharp, after statiug that the terms
used in the constitutional aiJendment iaust be understood as
defined by the then existing federal statutes, stated:
Honorable Coke 2. Stevenson, page 7
‘IAt that ti1n.e the ‘Officers &serve COT>S’,
as mpressed In Section 351, 10 7. S. C. A., -'~xl~~.e?
all officers assignerl ts ‘sectims corresp;ol:iirx; to
the various branch6.s of the Re;;uiar Army, h?.? of such
additional sections as th6 Fresident may zLi.i$=,:t, . , ,‘I.
and, as express61 in Section 513, ‘in tim CC xr d!~!
OffiCbf OS the degslar Amy nay DE eppoinz:=,? :.: :!:gher
temporary rank wit:,:>rit vacating h1.s ,;36,rruene::1:,sovmi.s--
sion. such aanointments in gral6s below that ,>;; br;M!:iei
general btini,’ :na16 by the Tr6sLdect alone, )Jf~-~~_l!=-<-t~~~~
wointn6nts 31’ oi’ficers in time orwar shall he 1:: t::e
0 f f iGX~ZZG~56T~ ”.- - - ‘---(-~&iEcs o~-xT yt;aEz--‘-
above.?%ctlon15i3 hes b66n actn.d6;1 since Sections 3j
an* 46 were a?opted. It is seen, therefore, that all
officers in the Arnly of th6 :Jnited States appointed
in time of war, exc6pt Regular .%my Officers, w6re ap-
pointsd in the Officers1 Reserve Corps. Vjhen the words
of the amendments were chosen, it was intende:: to in-
clude all classes named--that is, ‘National Guard,
the National Guard Reserve, and the Cfficers Reserve
Corps of the tJnit.6d States . . . * as those te:*ms were
imderstood at that tiae. It clearly apnesrr; that the
people, by adopting these ainen-lmsnts, inteni%l to re-
lieve the classes named therein from the inCl:bitions
container1 in the th6n existing Constituti.cn, end as
construed by the decisions of our court aI::“:> cited.
Any other holding woul.3 destroy the very o)J$ect sought
to be obtained by the adoption of the amendne.nts.
*Judge 3ixon was under 45 years of age on August
14, 1942. Fie is not in the Regular Army for th6 fol-
lowing reasons: (1) Regular Army commissions are in
the psrmanent organization as dsfined in Section 3
above, and ar6 for a definite period of time or for
life. (2) Section 513 proviles ‘that an appointment,
other than that of th6 Regular Amy made in time of
war, shall continue until six months after its termina-
tion. ) He was not a memb6.r of the National Guard because
he was not in any ,did not se6 fit to so limit ths constitu-
tional provisions; and as written, th6 wording is broad enough
to include all of the various rbservb officbrs corps bblOngi!Ig
to the TJnitcd States and all of thb orqaniz6-1 resbrves belong-
ing to the Unitbd States.
So construed, th6 terms Wfficers RbS6rV6 C0rp.S
of th6 United States" and "Organized REserVes of the 7Jnited
Statesn embraoe all offiobrs and all bnlisted men, whether
enlisted by draft or otherwisa, who are m6mbera of the land
and naval fOrO6S of the United States, 6XCEpt those officers
and m6n who are a part of the Regular Army or of th6 Regular
Navy, that is, membcra of the permanent military or naval
mtabliahment of the United States.
Honorable Coke R. Stevenson, page 5
You are, therefore, advise4 that it is the
opinion of this department that ~11 of the armed forces
of the United Stat&s, except those who are members of the
permanent military or naval estsblishment?~thst 15, rzembers
of the Regular Army or the Regular Navy, who are :,theiwise
qualified, are entitlea to vote at the coming p?iiX,:y elec-
tions in this State. Any other construction of stiei pro-
visions would convict the people of Texas of liscrloination
against all those men of this State who, in the y~erfor.msnce
of their patriotic duty, are giving their time aid their lives
to branches of the armed services other than the Army. This
we are certein the people of Texas $13. not inten. to do, ~i.3.
this, we are certain, the people of Texas have not dgne ~by t!ie
passage of the constitutional amen:lments under consideration.
In answer to your sec0n.i question you are advised
that the qualifierf voter who is in the arm63 forces, in or?ei‘
to vote absentee, must pursue the saple course as any other
voter. Absentee voting in this State is governed by Article
2956, V. A. C. S. That article rea5s, in part, as follows:
%ubdivision 1. Any q,ualifie.l elector of
this State who is absent from the county of his
residence, or because of sickness OCRphysical 3is-
ability can not appear at the poll place in the
election precinct of his residence, on the 3ay of
hoMing any general, speciel, or primary election,
may, nevertheless,‘cause his vote to be cast at such
an election in the precinct of his resiience by com-
pliance with one or other of the methods hereinaftsr
provMe3 for absentee voting.
Y3ubdivision 2.~ Such elector shall make applioa-
tion for an official ballot to the county clerk in writ-
ing signed by the elector, or by a witness at the lirec-
tion of sai3. elector in case of latter’s inability to
make.such written application because of physical dis-
ability. Such application shall be accompanied by the
poll tax receipt or exemption certificate of the elector,
or, in lieu thereof, his affi,iavit in writing that same
has been lost or mislaid. If the ground of application
be sickness or physical disability by reason of whioh
the elector cannot appear at the polling place on
election day,. a certificate of a Wly licensed physician
Honorable Coke R. Stev&nson, page 10
certifying as to siuch sickness or lisability shall
accompany the application.
'1. . . .
%ubdivision 4. At any time not more cii:~:i
twenty (20) dsys, nor less than three (3) .'.s;r.- prior
to the late of such an election, such elector v?ho
makes written application for a bsllot as provided
for in Subdivision 2 hereof, shall be entitle,? to
have his ballot cast at such an election on com.@li-.
ante with the following provisions:
"The application, including fifteen cents
(154,)to cover postage, shall be mailed to the County
Clerk of the electorls resi:Ience whose -luty it shall
be forthwith to -mail to such elector a blank officiai
ballot and ballot envelope as provided in Subdivision
3, which ballot shall be mar&cl by elector, or by wit-
ness at the direction of sail elector in case of lat-
ter's inability to mark such ballot because of physical
disabiiity, in the presence of a Notary Public or other
persons qualified unrler the law to take acknowledgments,
and in the presence of no other person except said
witness and/or such officer, and in such manner that
such officer cannot know how the ballot is .marked, and
such ballot shall then in the presence of such officer
be folded by the elector 0,7 by said witness in case of
physical disability of sai3 elector, deposited in said
envelope, the envelope securely sealed, the endorsement
filled out, signs3 an3 sworn to by the elector, orin
case of physical Aisebility, then by the sail witness
for an3 in behalf of sail elector, and certified by
such officer an3 then mailed by such officer, postage
prepaid, to the County Clerk."
Subdivision 3 provides that any qualified voter,
who expects to be absent from the county of his residence on
election day, may vote absentee, in person, st anv time not
more than twenty days nor less than three days prior to the
date of such election, an9 provi3es the manner of suoh ab-
sentee voting.
Other provisions of the statute have reference to
the duties of the election officials as to the casting of
absentee ballots and other inci3ents of absentee voting.
Honorable Coke R. Stevenson, paze 11
With these we are not here concerned.
It should be pointed out that while an ap$icetion
for a ballot must be male ir. writing un:ler the pr.c71,:.:.:ns of
Subdivisions 2 and 4, there is no restriction as t- :.;,d time
of making such application, except that it must, o: :,surse,
be made in time that the ballot may be received an:1 returned
so as to reach’ the clerk at least three lays prier ?o the
election; there being no such restriction upon the rlailing
of the application as exists as to voting absentee i 2 2erso.n)
which can only be done d,lring a period not more than twenty
3ays and not less than three lays prior to the election date.
However, despite the fact that the application
may ba earlier, the ballot may not be cast, and the clerk is
not authorized to mail a ballot to an absent&a voter sooner
than twenty days prior to the date of the election, under the
provisions of Sub’iivision 4.
In connection with the foregoing discussion of
the qualifications of voters in this State it should be notel
that Section 3 of Article 7 of the Constitution of this State
imposes a poll tax of one dollar upon every inhabitant of this
State between the ages of twenty-one and sixty years, for the
benefit of the public free schools. It should be further
noted that Section 1 of Article 8 of the Constitution author-
izes the Legislature to impose a poll tax and that pursuant
to that article the Legislature has provided for the levy of
a poll tax, in the total amount of one dollar and fifty cents,
one dollar of such tax being for the benefit of the public
free schools an3 fifty cents thereof being for &eneral revenue
purposes. Art. 7046, R. C. S., Article 2956, V. A. C. S. pro-
vides that such poll tax shall be collected-from ev&ry person
with certain exceptions, who resided in this State on the
first day of January preceding its levy, and that same shall
be paid between .the first lay of October an.1 the first lay of
February following its levy.
It’will be seen that the poll
taxes imposed by the
foregoing constitutional an1 statutory provisions for the
year 1943 are now due ani payable if they have not already
been paid. The Constitution provides that such taxes owing
by the ihdividuals subject thereto cannot now be released.~
Const., Sec. 55, Art. 3, as amended Nov. g, 1932. Neither
can the individuals~subject to such taxes be permitted to
9onorable Coke R. Stevenson, ~BFWJ12
person, with certain exceptions, who resided in this
3tate on the first ,day o f January preceding its levy, and
that sane shall be maid between the first day of October
snd the first day of Bebrusry following its levy.
It will he seen that the poll taxe& imposed
by the foregoing constitutional and statutory provisions
for the year 1943 are now due snd rsyable if they have not
already been paid. The Constitution provides that sl>ch
taxes owing by the i-dividuals subject thereto cann,A now
be released. Const., Sec. 55, Art. 3, as amended 1:~. 8,
1932. ITeither can the individuals subject to such taxes
be nermitted to vote at th e coming elections un?.ci3 s::ch
individuals have paid such taxes and have a receipt syil.:r!c-
ing such payinent prior to February 1, 19&J+. See Const.,
Sec. 2 of art. 6, supra.
Summarizing, you are advised,
First: that all members of the armed forces
in the service of the United States Government, except ::lembers
of the Regll.lar Army and the Regular :Tavy, are entitled to
vote in: the coming, prinsry~elections of this State, provided
that they are otherwise qualified to vote in such elections.
Second: Such voters may vote absentee in
exactly the same manner as provided for absentee voting by
other voters, That is, they may, (a) vote absentee, in
person, at the office of the County Clerk of the county
of their residence at any time net more than twenty days
prior to election day and not less than three days prior
thereto. (b) They may vote absentee by mail by making
written application for a bqllot in the statutory manner.
Such.applicetion may be made at any time prior to the elec-
tion, and upon such application ballot may be mailed to
the voter by the county clerk at any time not more than
twenty deys prior to.the date of election; The absentee
ballot must be cast during a period not more than twenty
days end not less than three days prior to election day.
: ,.
: . ., ~.
Eonorsble Coke R. Stevenson, p3ge 13
Trusting that the foregoing fully answers
your inquiry, we 3rd
Very truly yours
AT'XR1EY GWERAL GF T?ZXAS
/S/
Ar3ell Wiliiams
Assisbant
/S/
Fowler Roberts
Assistant