Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 4,2004
The Honorable Rodney Ellis Opinion No. GA-0141 ’
Chair, Government Organization Comrnittee
Texas State Senate Re: Residency requirements for voting in an
P. 0. Box 12068 election in Texas (RQ-0 157-GA)
Austin, Texas 78711
Dear Senator Ellis:
You ask three questions regarding voter eligibility and residency requirements for voting in
Texas, particularly with respect to students enrolled in schools of higher education.
I. Backmound
In your letter requesting an official opinion from this office, you state that your request is
prompted by statements made by the Criminal District Attorney of Waller County, who you say has
“declared that students at Prairie View A&M University may not meet residency requirements
sufficient to vote in local elections.“’ Citing Symm v. United States, 439 U.S. 1105 (1979), you note
that the United States Supreme Court rejected an appeal by a former Waller County Tax Assessor-
Collector, who was also the voter registrar, thus affirming the decision of a three-judge panel that
enjoined the Tax Assessor-Collector from refusing to register college dormitory residents enrolled
at Prairie View A&M University. The current Tax Assessor-Collector of Waller County, who is also
the voter registrar, has publicly declared that she will seek guidance from and follow the directives
of the Office of the Secretary of State, who is the state’s chief election officer, on these matters,
rather than rely on advice from the local prosecutor. See Terry Kliewer, Prairie View Voting Issue
to be Appealed, HOUSTON CHRONICLE,Dec. 24,2003, at 19A. You ask for an opinion from this
office about eligibility for voting in Texas, residency requirements for voter registration, and the
authority of local prosecutors to prevent local voter registrars from registering voters.
‘Letter from Honorable Rodney Ellis, Chair, Government Organization Committee, Texas State Senate, to
Honorable Greg Abbott, Texas Attorney General at 1 (Dec. 30, 2003) (on file with Opinion Committee) [hereinafter
Request Letter].
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II. Analysis
A. Legal Requirements for Eligibility to Vote
You first ask: “What are the legal requirements to vote in an election in Texas?”
Request Letter, supra note 1, at 2.
The Texas Constitution provides that every person who is both a citizen of the United States
and a resident of Texas shall be deemed a qualified voter, provided, however, that the person is
registered to vote and does not fall within any of a specific set of disqualifications. See TEX. CONST.
art. VI, 5 2(a). Persons so disqualified are those under 18 years of age; those who have been
determined mentally incompetent by a court, subject to such exceptions as the legislature may enact;
and those convicted of any felony, again subject to such exceptions as the legislature may enact. See
id. art. VI, 9 l(a). Additionally, the legislature is directed to “enact laws to exclude from the right
of suffrage persons who have been convicted of bribery, perjury, forgery, or other high crimes.” Id.
art. VI, 8 l(b). The legislature expressly is directed to “make such other regulations as may be
necessary to detect and punish fraud and preserve the purity of the ballot box,” as well as to “provide
by law for the registration of all voters.” Id. art. VI, 6 4.
Statutory eligibility requirements have been codified in the Election Code, which provides
that:
Except as otherwise provided by law, to be eligible to vote in
an election in this state, a person must:
(1) be a qualified voter as defined by Section
11.002 on the day the person offers to vote;
(2) be a resident of the territory covered by the
election for the office or measure on which the person
desires to vote; and
(3) satisfy all other requirements for voting
prescribed by law for the particular election.
TEX. ELEC. CODE ANN. 8 11 .OOl (Vernon 2003). Section 11.002 defines “qualified voter”:
In this code, “qualified voter” means a person who:
(1) is 18 years of age or older;
(2) is a United States citizen;
(3) has not been determined mentally incompetent by a final
judgment of a court;
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(4) has not been finally convicted of a felony or, if so
convicted, has:
(A) fully discharged the person’s sentence,
including any term of incarceration, parole, or
supervision, or completed a period of probation
ordered by any court; or
(B) been pardoned or otherwise released from
the resulting disability to vote;
(5) is a resident of this state; and
(6) is a registered voter.
Id. 8 11.002.
In order to be a resident of the state, one must satisfy the statutory definition of “residence.”
Section 1 ,015 of the Election Code defines “residence”:
(a) In this code, “residence” means domicile, that is, one’s
home and fixed place of habitation to which one intends to return
after any temporary absence.
(b) Residence shall be determined in accordance with the
common-law rules, as enunciated by the courts of this state, except as
otherwise provided by this code.
(c) A person does not lose the person’s residence by leaving
the person’s home to go to another place for temporary purposes only.
(d) A person does not acquire a residence in a place to which
the person has come for temporary purposes only and without the
intention of making that place the person’s home.
(e) A person who is an inn-rate in a penal institution or who is
an involuntary inmate in a hospital or eleemosynary institution does
not, while an inmate, acquire residence at the place where the
institution is located.
Id. 8 1.015.
In order to register to vote, one must file an application with the voter registrar of the county
in which the applicant desires to vote. Id. 5 13.002. In order to file, one must satisfy the statutory
eligibility requirements for registration, which track the definition of “qualified voter” found in
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section 11.002 with the additional requirement that the person “be a resident of the county in which
application for registration is made.” Id. 8 13.001(a)(5). Thus, a person who complies with and
satisfies the requirements of sections 1 .015,11 .OO1,11.002,13 .OO1, and 13.002 of the Election Code
is an “eligible voter.” See id. $0 1.015, ll.OOl-.002, 13.001-.002 (Vernon 2003 & Supp. 2004).
B. Residency Requirements for Voter Registration and United States v. Texas
In your second question you ask: “What is the law with regard to residency in the
State of Texas as it relates to voter registration ?” Request Letter, supra note 1, at 2.
As noted above, in order to register to vote, one must be a “resident” of the county in which
one desires to vote. Residence for purposes both of registration and voting is defined to mean
“domicile,” i. e., “one’s home and fixed place of habitation to which one intends to return after any
temporary absence.” TEX. ELEC. CODE ANN. 8 1.015(a) (Vernon 2003). Residence must be
determined in accordance with the common-law rules, as enunciated by the courts of this state,
unless the code provides otherwise. See id. 9 1.015(b). A person does not lose residence by leaving
his home to go to another place for temporary purposes only; nor does a person acquire a residence
in a place to which he has come for temporary purposes only and without the intention of making
that place his home. See id. 9 1 .015(c)-(d).
In the leading Texas Supreme Court case ofMills v. Bartlett, 377 S.W.2d 636 (Tex. 1964),
the court declared that the meaning of the term “residence” for voting purposes
depends upon the circumstances surrounding the person involved and
largely depends upon the present intention of the individual.
Volition, intention and action are all elements to be considered in
determining where a person resides and such elements are equally
pertinent in denoting the permanent residence or domicile. . . .
Neither bodily presence alone nor intention alone will suffice to
create the residence, but when the two coincide at that moment the
residence is fixed and determined. There is no specific length of time
for the bodily presence to continue.
Id. at 637 (citations omitted). See Slusher v. Streater, 896 S.W.2d 239,243 (Tex. App.-Houston [ 1st
Dist.] 1995, no writ); Alvarez v. Espinoza, 844 S.W.2d 238,247 (Tex. App.-San Antonio 1992,writ
dism’d w.0.j.); Guerra v. Pena, 406 S.W.2d 769,776 (Tex. Civ. App.-San Antonio 1966, no writ);
McBeth v. Streib, 96 S.W.2d 992 (Tex. Civ. App.-San Antonio 1936, no writ); see also Tex. Att’y
Gen. Op. Nos. JC-0520 (2002), JM-611 (1986), JM-23 1 (1984).
Prior to Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973), students in Texas were presumed
by statute to have a domicile at the residence of their parents, not where they were enrolled at
institutions of higher education. WhatZey struck down the statutory presumption in former article
5.08(k) of the Election Code providing that “‘a student in a school, college, or university’ shall not
be considered to have acquired a voting residence at the place where he lives while attending school
‘unless he intends to remain there and to make that place his home indefinitely after he ceases to be
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a student. “’ WhatZey, 482 F.2d at 123 1 (quoting former article 5.08(k) of the Election Code, see Act
of May 19, 1967, 60th Leg., R. S., ch. 723, 8 21, sec. 40 (art. 5.08), 1967 Tex. Gen. Laws 1858,
1879-80, repeaZedbyActofMay 13,1985,69thLeg.,R. S., ch. 211,§ 1, sec. 1.015,1985 Tex. Gen.
Laws 802,807) (substantive recodification of Texas Election Code, repealing former article 5.08 and
enacting section 1,015). The court noted that the statutory presumption illegally treated student
voters differently than non-student voters:
By its terms it creates a presumption that students are not
domiciliaries of the places they live while attending school. Of
course, the presumption is rebuttable; but unless a student carries the
burden of persuading the voter registrar that he is in fact a domiciliary
of the place where he resides for the better part of each year, he is not
permitted to vote there and is consequently denied an opportunity to
participate in elections which may have considerably more impact on
his life than do those in the area where he resided before becoming a
student. Other prospective voters, on the other hand, are not subject
to this presumption of nonresidency or to the attendant burden of
overcoming it.
What& 482 F.2d at 1233 (footnotes omitted). The court declared that the presumption violated the
Equal Protection Clause of the 14th Amendment and struck down the provision.
Under current law, the determination regarding “residence” thus involves both physical
presence and current intention of the applicant; if a student, like any other applicant, satisfies the
requirements of section 1.015, that student is a “resident” of the county in which he seeks to register.
The intention of the voter registration applicant is crucial to a proper determination of residence, and
every person is strongly presumed to have “the right and privilege of fixing his residence according
to his own desires.” McBeth, 96 S.W.2d at 995. For example, let us assume that two students,
Student A and Student B, live in the same college dormitory. Student A, who is living in the
dormitory and is therefore physically present for purposes of voter registration yet intends his
residence to remain the same as that of his parents, can permissibly register to vote in the county of
his parent’s residence. See, e.g., Alvarez, 844 S.W.2d at 247 (by temporarily moving to Austin to
attend school at the University of Texas at Austin, challenged voter did not lose his Frio County
residence or acquire residence for voting purposes in Travis County). On the other hand, Student
B, who is living in the same dormitory as Student A yet who intends that the dormitory be his
residence for purposes of voter registration, can permissibly register to vote in the county where his
dormitory is located. See, e.g., Whatley, 482 F.2d 1230 (student who was physically present in
Denton County and intended to claim Denton County as his residence for purposes of voter
registration lost residence in the county where his parents resided and acquired residence in Denton
County). And the mere fact that an applicant claims a post office box as an address or that many
applicants claim the same post office box as an address is not dispositive regarding the determination
of residence. Indeed, depending upon the facts in each case, it might not even be relevant. See, e.g.,
Speights v. Willis, 88 S.W.3d 817 (Tex. App.-Beaumont 2002, no pet.) (voters who were physically
present and intended county to be residence for purposes of voter registration, yet who claimed post
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office box numbers as addresses, satisfied statutory voter registration application requirements and,
thereby, residence requirement).
Without outlining all of the various fact situations that the courts have addressed in
determining whether a voter is a “resident,” we can say that all applicants for registration, including
students, must be subject equally to whatever presumptions or restrictions are imposed by law. See
Dunn v. Blumstein, 405 U.S. 330 (1972). To illustrate the sorts of factors and practices that cannot
be employed to determine “residence,” we examine the federal three-judge panel’s injunction in
United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978), affd, Symm v. United States, 439 U.S.
1105 (1979) (hereinafter Texas), a case involving the very county that is the focus of your concern
- Waller County. Though in a brief submitted to this office the Criminal District Attorney of Waller
County seems to assert that the case only prohibited the use of a certain questionnaire in determining
“residence” for purposes of voter registration,* the injunction issued in the case makes it clear beyond
cavil that the court concluded that a variety of practices undertaken by the voter registrar violated
the United States Constitution.
In Texas, a federal three-judge panel enjoined the Waller County Tax Assessor-Collector,
who was the voter registrar, from refusing to register to vote students enrolled at Prairie View A&M
University. Specifically, the panel enjoined the registrar from engaging in a variety of practices that
the panel deemed violated the 26th Amendment to the United States Constitution, which provides
that no right of citizens who are 18 years old or older to vote shall be denied or abridged on account
of age.3 See U.S. CONST. amend. XXVI, 8 1.
The panel ordered that, inter alia, college students of Waller County must be registered and
allowed to vote on the same basis and by application of the same standards and procedures as non-
students, without reference to whether such students had dormitory addresses, whether or not they
resided in Waller County prior to attending school, and whether or not they planned to leave Waller
County upon graduation. See United States v. Texas, Civil Action No. 76-H-1681, Injunction
Decree, 7 1 (S.D. Tex. 1978) (on file with Opinion Committee). The panel acknowledged that the
registrar had the authority under the Election Code to make a factual determination as to whether
each applicant to vote was a bona fide resident of Waller County; however, in making this factual
determination, the panel declared that the registrar could not find that a person was a non-resident
of Waller County for any of the following reasons:
A. That such person resides in a dormitory at Prairie View A&M University;
B. That such person owns no property in Waller County;
C. That such person is a student at Prairie View University;
2Brief from Honorable Oliver S. Kitzman, Criminal District Attorney, Waller County, to Nancy Fuller, Chair,
Opinion Committee, Office of the Attorney General at 2-6 (Jan. 23,2004) (on file with the Opinion Committee).
3The complete text of the injunctive order of the panel is set forth in Appendix A of this opinion.
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D. That such applicant has no employment or promise of employment in
Waller County;
E. That such applicant previously lived outside Waller County, or may live
outside Waller County after his graduation;
F. That such person visits the home of his parents, or some other place during
holidays and school vacations.
Id. atT2.
The panel required that, if the registrar made a finding that a person was not a bona fide
resident of Waller County, the determination must be made on the basis of tangible evidence,
consisting of facts or factors other than the six factors listed above. See id. In addition, in the event
that the registrar made a determination that any person who claims to be a resident of Waller County,
and who had a Prairie View A&M University address, was not a bona fide resident of Waller
County, the registrar must make a written record of the precise, exact tangible evidence upon which
he relied in making his determination of non-residency. See id. All records of the type described
in the previous sentence were required to be kept in legible form and in a single file in the Waller
County Registrar’s office, where such records could be inspected by the plaintiff in the cause or any
other person having a legitimate interest in the examination of such records. Such records were
required to be maintained for a period of five years after originally made. See id.
Additionally, students of Waller County were not to be subjected to the presumption
contained in former article 5.08(k) of the Election Code or to any other presumption with regard to
their voting residence. See id. 7 3. The registrar was ordered immediately to cease using the
residence standard for students, which had been implemented by means of a questionnaire, to
terminate the use of the questionnaire, and to henceforth register students on the basis of the
information contained in the state-approved registration form, as was done elsewhere in Texas,
unless the registrar had tangible, recordable evidence (consistent with Paragraph 2 of the decree) that
such applicant was not a bona fide resident of Waller County. See id. 7 4. And the registrar was
enjoined from subjecting Prairie View A&M students to any particular or discriminatory procedure
not applied to non-students on a regular basis, such as, for example, causing students to visit his
office and submitting students orally to the questioning previously contained in the questionnaire
discussed in the court’s Memorandum Opinion. See id.
We stress that the United States Supreme Court affirmed the three-judge panel’s judgment
in Symm v. United States, 439 U.S. 1105 (1979). Thus, clearly, in light of Whatley and Texas,
students in Texas may no longer be subjected, whether by statute or by practice, to any presumption
with respect to “residence” not also applied to all other voters in Texas.
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c. Administrative Procedure Governing Applications for Registration to Vote and
the Authority of the District Attorney
With your third question, you ask about the authority of the local prosecutor to
prevent someone from registering to vote or to prevent the voter registrar from acting on that
application:
Does the [Criminal] District Attorney have the jurisdiction or
authority to prevent local election officials from refusing to allow a
person to register to vote in the county? In other words, can the
[Criminal] District Attorney preemptively prevent someone from
registering to vote in an election or must the [Criminal] District
Attorney bring an action against the individual after an election has
taken place contesting unlawful voter registration?
Request Letter, supra note 1, at 2.
1. Local Prosecutor’s Authority Regarding Voter Registration Decisions
The voter registrar is authorized by the Election Code to conduct an
administrative procedure to determine and possibly challenge the eligibility of an applicant for
registration to vote, subject to judicial review. See TEX. ELEC.CODEANN. $5 13.001-.146 (Vernon
2003 & Supp. 2004), 17.001-.008 (Vernon 2003). The Election Code also establishes an
administrative procedure cancelling, by the registrar’s initiative or that of another registered voter,
a voter registration application that already has been approved, if the voter is no longer eligible. Id.
$9 16.001-.095 (Vernon 2003 & Supp. 2004). Adverse decisions rendered under chapter 16 are also
subject to judicial review. Id. $5 17.001-.008 (Vernon 2003). These provisions grant no role to a
local prosecutor. Thus, we have found no statute granting local prosecutors the preemptive authority
to prevent a person from filing an application to register to vote or the voter registrar from acting on
that application. Local prosecutors do, however, have express authority to prosecute a person who
knowingly makes a false statement on an application for voter registration.
2. Local Prosecutor ‘s Authority to Prosecute Certain Criminal Offenses
Involving Voter Fraud
Section 13.007 of the Election Code provides:
(a) A person commits an offense if the person knowingly
makes a false statement or requests, commands, or attempts to induce
another person to make a false statement on a registration application.
(b) An offense under this section is a Class B misdemeanor.
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(c) For purposes of this code, an offense under this section is
considered to be perjury, but may be prosecuted only under this
section.
Id. 0 13.007.4 An application for voter registration must contain substantially more than just a
declaration of residence. Subsection (c) of section 13.002 sets forth the information that must be
included on an application for voter registration:
(c) A registration application must include:
(1) the applicant’s first name, middle name, if any, last name,
and former name, if any;
(2) the month, day, and year of the applicant’s birth;
(3) a statement that the applicant is a United States citizen;
(4) a statement that the applicant is a resident of the county;
(5) a statement that the applicant has not been determined
mentally incompetent by a final judgment of a court;
(6) a statement that the applicant has not been finally
convicted of a felony or that the applicant is a felon eligible for
registration under Section 13 .OO1;
(7) the applicant’s residence address or, if the residence has
no address, the address at which the applicant receives mail and a
concise description of the location of the applicant’s residence;
(8) the following information:
(A) the applicant’s Texas driver’s license
number or the number of a personal identification
card issued by the Department of Public Safety;
(B) if the applicant has not been issued a
number described by Paragraph (A), the last four
digits of the applicant’s social security number; or
4The offense of perjury is set forth in chapter 37 of the Penal Code. See TEX. PEN. CODEANN. $6 37.01-. 13
(Vernon 2003 & Supp. 2004).
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(C) a statement by the applicant that the
applicant has not been issued a number described by
Paragraph (A) or (B);
(9) if the application is made by an agent, a statement of the
agent’s relationship to the applicant; and
(10) the city and county in which the applicant formerly
resided.
Id. 8 13.002(c) (V emon Supp. 2004). Thus, knowingly providing any false information in answer
to the above ten items of information violates section 13.007 of the Election Code.
Prosecution under section 13.007, by its terms, is not limited only to those instances in which
a person already has cast a vote. Rather, the section creates an offense that may be prosecuted at any
time its elements are met, whether before or after an election, subject of course to applicable statutes
of limitations. We emphasize that it is not a criminal offense in this state if an applicant for voter
registration believes, however mistakenly, that the applicant is a resident of the county in which the
applicant seeks to vote. But see id. 8 64.012 (voting or attempting to vote in an election when voter
knows that the voter is ineligible to vote is criminal offense). However, knowingly making a false
statement on an application for voter registration is a criminal offense.
Additionally, we note that chapter 273 of the Election Code confers general authority on both
local prosecutors and the attorney general to investigate alleged criminal conduct “in connection
with,’ an election. Section 273.001 provides in pertinent part that:
If two or more registered voters of the territory covered by an
election present affidavits alleging criminal conduct in connection
with the election to the county or district attorney having jurisdiction
in that territory, the county or district attorney shall investigate the
allegations. If the election covers territory in more than one county,
the voters may present the affidavits to the attorney general, and the
attorney general shall investigate the allegations.
Id. 8 273.001 (a). Moreover, the local prosecutor and the attorney general have authority to conduct
such an investigation in the absence of affidavits:
A district or county attorney having jurisdiction or the
attorney general may conduct an investigation on the officer’s own
initiative to determine if criminal conduct occurred in connection
with an election.
Id. 8 273.001 (b). In this specific instance, the Criminal District Attorney of Waller County “has all
the powers, duties, and privileges in Waller County that are conferred by law on county and district
attorneys in the various counties and districts.” TEX. GOV’T CODE ANN. 8 44.337 (Vernon Supp.
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2004). Thus, the Criminal District Attorney of Waller County is conferred authority by Election
Code chapter 273 to investigate, on his own initiative, whether criminal conduct occurred “in
connection with an election.” TEX. ELEC. CODE ANN. 8 273.001(b) (Vernon Supp. 2004).
Therefore, in answer to your third question, we conclude that local prosecutors are conferred
no authority to prevent someone from registering to vote or to prevent voter registrars from acting
on voter registration applications. We further conclude that local prosecutors may seek to investigate
and prosecute possible offenses under section 13.007 of the Election Code any time that credible
evidence of such fraud is brought to their attention or complaints are filed with their offices; local
prosecutors are conferred general authority to investigate whether criminal conduct has occurred “in
connection with an election” under chapter 273 of the Election Code. Id.
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SUMMARY
A person who complies with and satisfies the requirements of
sections 1.015, 11.001, 11.002, 13.001, and 13.002 of the Texas
Election Code is an “eligible voter”. See TEX. ELEC.CODE ANN. $5
1.015, 11 .OOl-.002, 13.001-.002 (Vernon 2003 & Supp. 2004).
The meaning of “residence” for purposes of voting and voter
registration is governed by section 1.O15 of the Texas Election Code.
“Residence” is defined to mean “domicile,” i.e., one’s home and
fixed place of habitation to which one intends to return after any
temporary absence. Id. 8 1.015(a) (Vernon 2003). Residence must
be determined in accordance with the common-law rules, as
enunciated by the courts of this state, unless the code provides
otherwise. See id. 0 1.015(b). A person does not lose his residence
by leaving his home to go to another place for temporary purposes
only; nor does a person acquire a residence in a place to which he has
come for temporary purposes only and without the intention of
making that place his home. See id. 4 1.015(c). Both bodily presence
and current intention on the part of the applicant or voter are
necessary to establish residence.
The intention of the voter registration applicant is crucial to
a proper determination of residence, and every person is strongly
presumed to have “the right and privilege of fixing his residence
according to his own desires.” McBeth v. Streib, 96 S.W.2d 992,995
(Tex. Civ. App.-San Antonio 1936, no writ). For example, one
student who is living in a dormitory, and is therefore physically
present for purposes of voter registration, yet who intends his
residence to remain the same as that of his parents, can permissibly
register to vote in the county of his parent’s residence. On the other
hand, another student living in the same dormitory who intends that
the dormitory be his residence for purposes of voter registration, can
permissibly register to vote in the county where the dormitory is
located. And the mere fact that an applicant claims a post office box
as an address or that many applicants claim the same post office box
as an address is not dispositive regarding the determination of
residence.
Chapter 13 of the Texas Election Code sets forth a detailed
administrative procedure to be conducted by the voter registrar
governing the submission and approval of voter registration
applications. Chapter 16 of the Texas Election Code sets forth a
detailed administrative procedure to be conducted by the voter
registrar governing the cancellation, whether through the initiative of
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the registrar or any registered voter, of voter registration applications
already approved. Chapter 17 of the Texas Election Code provides
for judicial review of any administrative decision made under those
chapters. No section of any of these chapters affords an official role
to local prosecutors. Therefore, local prosecutors have no authority
to prevent any voter registrar from performing the registrar’s duties
as provided by law. However, local prosecutors are authorized to
investigate and prosecute whenever credible evidence is brought to
their attention, or a complaint is filed regarding alleged violations of
section 13.007 of the Texas Election Code, which makes it a criminal
offense to submit false or fraudulent information on a voter
registration application.
BARRY R MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Jim Moellinger
Assistant &omey General
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Appendix A
The injunction decree issued in United States v. State of Texas ordered the following:
1. College students of Waller County shall be registered and allowed to vote on the same
basis and by application of the same standards and procedures as non-students, without
reference to whether such students have dormitory addresses, whether or not they resided
in Waller County prior to attending school, and whether or not they plan to leave Waller
County upon graduation.
2. The Court recognizes that LeRoy Symm has the right under the Texas Election Code to
make a factual determination as to whether or not each applicant to vote is a bona fide
resident of Waller County; however, in making this factual determination, LeRoy Simm
shall not find that a person is a non-resident of Waller County for any of the following
reasons:
A. That such person resides in a dormitory at Prairie View A&M University;
B. That such person owns no property in Waller County;
C. That such person is a student at Prairie View University;
D. That such applicant has no employment or promise of employment in Waller
County;
E. That such applicant previously lived outside Waller County, or may live outside
Waller County after his graduation.
F. That such person visits the home of his parents, or some other place during
holidays and school vacations.
In this connection, if LeRoy Symm, in the performance of his duties, determines that he is to
make a finding that a person is a non-resident, or not a bona fide resident of Waller County, such
determination shall be made on the basis of tangible evidence, consisting of facts or factors other
than the six factors listed above. In addition, in the event LeRoy Symm makes a determination
that any person who claims to be a resident of Waller County, and who has a Prairie View
University address, is not a bona fide resident of Waller County, Mr. Symm shall make a written
record of the precise, exact tangible evidence upon which he relied in making his determination
of non-residency. All records of the type described in the previous sentence shall be kept in
legible form and in a single file in the Waller County Registrar’s office where such records can
be inspected by the plaintiff in this cause or any other person having a legitimate interest in the
examination of such records. Such records shall be maintained for a period of five (5) years after
originally made.
No additional inquiry or information shall be required solely because the application form
promulgated by the Secretary of State of Texas contains different permanent and mailing
addresses or states that the applicant is registered in another Texas county.
The Honorable Rodney Ellis - Page 15 (GA-0141)
3. Students of Waller County shall not be subjected to the presumption contained in [art.]
5.08(k) of the Texas Election Code, or to any other presumption with regard to their
voting residence.
4. The Tax Assessor, LeRoy Symm, shall immediately cease the utilization of the residence
standard for students which has been implemented by means of a questionnaire, shall
terminate the use of the questionnaire, and shall henceforth register students on the basis
of the information contained in the state-approved registration form, as is done elsewhere
in Texas, unless LeRoy Symm has tangible, recordable evidence (consistent with
Paragraph 2 above of this injunctive decree) that such applicant is not a bona fide resident
of Waller County. Defendant is enjoined from subjecting Prairie View students to any
particular or discriminatory procedure not applied to non-students on a regular basis, such
as for example, causing students to visit his office and submit students orally to the
questioning previously contained in the questionnaire discussed in this Court’s
Memorandum Opinion.
5. The defendant Tax Assessor of Waller County shall schedule registration and other
election procedures pursuant to a time table which will allow students who are bona fide
residents of Waller County to register and vote in the elections scheduled for May 6,
1978, and in subsequent elections. Adequate resources and personnel shall be employed
by the defendant Tax Assessor, so as to avoid causing student applicants any significant
or unusual inconvenience.
6. Defendant Symm may require that all applicable information requested on the application
form promulgated by the Secretary of State of Texas be supplied by the applicant, and
may refuse registration unless and until all such information is provided. In the event the
application form is incomplete and registration is denied on such basis, defendant Symm
shall promptly return such incomplete application to the applicant with notice of the
reason registration is denied.
7. The entry of this order shall not preclude the State of Texas from altering its voter
registration standards so long as said standards are applied on a uniform basis and do not
discriminate on the basis of race or age. Any such alteration of uniform standards shall
be applied in Waller County and elsewhere without further order of this Court.
8. No relief will be granted with respect to defendants, Mark White, and his successor,
Steven C. Oaks, John L. Hill, the State of Texas, and Waller County. It is further
ORDERED, ADJUDGED, and DECREED that LeRoy Symm recover nothing of or from
Steven C. Oaks, Secretary of State of the State of Texas, on his cross-claim, and that the
State of Texas, acting by and through John L. Hill, its Attorney General, have judgment
against LeRoy Symm on its cross-claim ordering that LeRoy Symrn obey Rule
004.30.05.313 of the Rules of the Secretary of State, and that he cease using the written
questionnaire with reference to the registration of voters in Waller County.