Untitled Texas Attorney General Opinion ( 1942 )

Honorable Sam L. Harrison
Criminal District Attorney
Franklin, Texas
Dear Sir8 Opinion No. O-4486
Re, Whether an alien who has applied
for naturalization papers may serv* as
a school trustee.
We have rscbived your letter of recent date requesting the opinion
of this depal-hnentupon the &JV~ captioned question, The individual in ques-
tion ha8 been in the United States approximately forty years, and he did not
apply for his naturalization papers until the present emergency.
Article 2745, Vernon's Annotated Civil Statutes, sets forth the
qualifications of trustees of common school distriats* Said article $ro-
vides in part as follmvsr
* 0 0 e Providing no person shall be qualified
1s trustee unless he is a property taxpayer in the
district to which he is elected and otherwiw a qual-
fies (qualified) voter in said district."
We see that for a person to be qualified as a ccmncn school dis-
trict trustee he must be a qualified voter.
Section 2 of Article VI, Constitution of Texas, reads in part
b BS fCllOWS8
"Sec. 2. B~ery person subject to none of the fore-
going disqualifications, who shall have attained the age
of twenty-one years and who shall be a citizen of the
United States and who shall have resided in this Stats
cne year next preceding an election and the last six
months within the district or county in which such per-
son offers to vote, shall be deemed a qualified elec-
tor. . * *n (See Article 2955, Revised Civil Statutes,
1925, containing a similar provision.)
Honorable Sam L. Rarriscn, Page 2 (O-4486)
It is significant to note in this connection that this se&ion
originally contained the following olauser ". . . and @very ~1819 person
of foreign birth subject to none of the foregoing disqualifioaticns, who,
not less than six months before any eleaticn at whioh he offers to vote,
shall have declared his intentionto become a citizen of the United States
in accordance with the Federal naturalization laws, and shall have resid-
ed in this state one year next preceding such bleation and the last six
months in the county in which he offers to vote, shall also be deemed P
qualified electors 0 0 ." This section was amended in 1921, and the
above quoted clause was eliminated.
Under Section 2 of Article VI as amended the alien in question
would not be a qualified elector unless the fact that he has applied for
his aitisenship pape-s remeves him frcm alien classification and makes
him a citizen withsn the purview of this constitutional provision, in
spite of the fad that the above quoted olause is no longer in the Ccn-
stituticn.
In the ease of Coward v. Williams, (Civ, App., 1928), 4 S.H. (2d)
249, in determining whether a person born in Mexioc was a qualified elector,
the court had the following to say*
A . He wps born in Mexico, and took cut his
first ~&ralizaticn papers 36 years ago and never pro-
ceeded any farther, and did not have final papers. On-
der article 2955, Rev. Stats. 1925, among other quali-
fications of a voter, ha must be a oitizen of the United
States, and by the tanns of section 3750, Barnes' Fed.
Cods (U. Se Camp. St. 8 4352), a foreigner beocmes a
citizen when he obtains his final papers. The second
section of the par&graph cited requires the alien, in
not less than 2 years nor more than 7 years after daclar-
aticn of intention to apply for final papers. Santca
had never applied for final papers* The evidenoa MS
quite unsatisfaotory even as to first papers having been
obtained. Of course, repeated voting did not make him
a oitizen. Santcs could not identify the officer before
whom he filed his declaration ever 30 years ago. No
Sanchez appears among the list of voters as claimed by
appellants. The assignment is overruled."
See also the case of Ramsay v. Wilhelm (Civ. App., 1932, W.E. Ref.),
52 S.?f*(2d) 757) wherein it was heldr
"The general rule anncunaed in 2 C.H. 1045, is
that: 'Foreigners by birth are presumed to be aliens.
~The status of a person as to alienage, when once es-
tablished, is presumed to continue until the ocntrary
is proved.9 The proof made, therefore, was suffici-
ent to establish, prima facie, that these voters were
aliens, and no attempt was made to prove the ocntrary.
Honorable Sam L. Harrison, Page 3 (O-4486)
All of these votes should have been excluded. Huff V.
Duffield (Tex. Civ. App.) 251 S.N. 298; MoCharen v.
Mead (Tax, Civ. App.) 275 S.W, 117, 123.
"One Mexican voter, who was also an alien, was
shown to be a minor at the time of the election.
"One voter, born in Greece of alien parentage,
had not been naturalized.
"Another Mexican, in addition to being an alien,
could not speak English, and an election judge made
cut histicket for him under instructions obtained through
an interpreter. This ugs in contravention of artiole
3010, R.S., which expressly forbids that such vote be
counted. In addition, his vote should be excluded
because he was shown to have been an alien."
See also Huff V. Duffield, 251 S.W. 298; McCharen V. Mead, 275
S.W. 117, Article 200a-3, Vernon's Penal Code; 16 Tex. Jur. 43.
Inoiew of the foregoing you are respectfully advised that as an
alien is not a qualified elector, such alien may not serve astrustee of a
common school district even though he has applied for naturalization papers.
There is no statute specifically setting forth the qualifications
of trustees of independent school districts. bmver, Article 2927, Revised
Civil Statutes, deals with the qualifications of all State; county, precinot,
and municipal officers, and would, therefore, cover school trustees, Article
2927 provides as follows:
11 No person shall be eligible to aqy State, county,
precinct or municipal office in this State unless he shall
be eligible to hold office under the Constitution of this
St&e, and unless he shall have resided in this State for
the period of twelve months and six months in the county,
precinct, or municipality, in which he offers himself as
a candid&s, next preceding any general or special election,
and shall have been a bona fide citizen of said county, prs-
oinct, or municipality for more than six months. NC person
ineligible to hold office shall ever have his name placed
upon the ballot at any general or special election, or at
any primary election where candidates are selected under
election laws of this Stats; and no such ineligible candi-
date shall ever be voted upon, nor have votes counted for
him, at any such general, special, or primary election*
Acts 1895, p. 811 G. L., Vol. 10, p. 811; Acts 1919, pe 17."
(Bnphasis supplied)
Honorable Sm Le BBrrison, Page 4 (O-4486)
As the individuarlis not a citizen, he ia not qualified under
Artiole 2927 to hold office.
It is, thsre#ors, the opinion of this department that,ra alien
is not qualified to ss~a (~8trustee of either I common or an lhdependent
school district, even though suoh alien has applied for naturalization
papers.
very truly yours
ATTORNEY GENERAL OF TEXAS
George Ire Sparks
Assistant
LPPROYED MAR 14, 1942
s/Grover Sellers
FIRST ASSISTANT ATTORNEY GENEUL
Gllsnmp: egw
Approved Opinion Committee
By BWB Chairman