Untitled Texas Attorney General Opinion

-E I?bTR=-T=OR~T GEmRAL
Overruled by Carrington v. R~I
OF 7flFExAs U.S.- 85 S. Ct. 7-b (1965
November 6,.1963
Honorable Jack N. Pant
County Attorney
El Paso-County Re: Conatruotlonand
El Paso, Texas constitutionality
of Artlole 5.02,
Texas Election Code,
relative to voting
by members.of'the~
Armed Fcrces lihlle
pear Sir: onaotlve du'y.
You have requested an o&&on on the oonstruoti~n
and c6natltutlonalltyof the fol,louing'provLalons in’ Artl-
cle 5.02, Vernon's Texas Election Code; whloh'*ere.added
by~an amendment enactedby 'the58th Legislature (Acts 58th
Leg.,~1963, oh. 424,.sec. 13):
5
"Nottilthst&ndlngany other'provialon .’ .
ofthis'seotion, any member of the Anned
Forces of'the'UnltedStates or components
branches therebf.who is on'actlve'dutyIii
the mllitary'servlceofthe United States
may vote only In the county'in,whihh~he or
she~resldedat-the time 'of entering'suoh
service so'long as he or she la 'amember-"
6f the Armed Forces. Thla restriction ap-
pliesonly
whd' ,are. to'members^of
oh atiesv& 'the
acf;y*-.andArmed'FMoea
the phrase. -.
1tijae-of'&jt'@+~ng‘
suoh a@fizc&8"',j,e&&
the
time of commenolng the ourrent atM.vi 'duty.
A re-enlistmentafter a temporaryseparation
from service upon termlnatlon of a prior en-
listment shall not be oonstrued to be the
commencementof a new period of service,and
in such case the oounty in whioh the peraon
resided at the time of oommenolngaotive
servloe under the prior enlistment shall be
construed to be the aounty of resldenoe at
the time of entering eervlce."
You have alao aaked for an opinionon oorreepondlng
provisions In Artlole 02 of the Eleotlon Code ae'amended
th Legislature,whloh will take
by Chapter 430, Aots 5ii*
-835-
Hon. Jack N. Fant, Page 2 (C-173)
effeot tiuiq'supersede
the above-quotedptivleldns if'the pro-
$titMdconeZitutrahirP``enaaeti~.abollehliog
p8jrmeht"of..the"'..'
...
poll t&x tie'hpr&eqMiiite'for votlhg i#Xiioijt~d&t'the'&Iec-
tloh-'tobe'held on NoVembiti9, 1963. These provisions are
quoted at a later.point,lnthe opinion.
You have asked the following questions:
"1. What aonstruatlonor lnterpre-
tatlon does your Departmentmake of the
first sentenoe In paragraph two'of Artlole
5.02, Texas Election Code, as amended,
which reads: 'Notwithstandingany other
provision of thla section, any member of
the-Armed FoSces'of the United States or
cotiiionent
branches thereof wh6 Ition a&
tlve'duty Iiithe~mlllta?y~tiervloe'~of-then'
Urilttid
‘States'm&yv&e 6iily”in’khe aotity
In Wiich lie’or-‘slit3
I;esidedtitthe Umei of
eiiterlh&buoh setilc’e‘a6lorig-(rb
he or she
is a member of the Armed Forcesifi?
"2. What construct’lonor lnterpre-
tatidn doe8’your Departmentmake of th6 .
remainiti~g’tw6 sentences in paragraph two
of &tlcle 5.021
"3. 'What Is meant by the tWi.'tetipo-
rary separatloti'itithe'third sentence of
paragraph two of Article 5.02?
"4. In the event the poll tax emend-
meat Is adopted at the .elebtionto be held
on November 9, 1963,.then what construotion
do you make of the emended portion of Article
5.02, Texas Election Code, effective February
1, 1964, which read@: I* * * provided that any
member of the bed Foroes of the United States
or oomponent branches thereof, or in the mill-
tary servioe o? the United,Statea, may vote
only in the oounty in whioh such pereon re-
sit+edat the time of enter$ng suoh eervlce.83
“5. Are the provisions contained in Artti-
cle',VI,Section 2 of the Texas Constitution
and amended Artlc’lXc&Q2 ‘Bf.th&X&xas.EMc’c-:
:..
tlon Code, a8 pertains to the right of member8
of the Armed Foroes to vote In Texas,‘vlolative
of or repugnant to Se&Ion 1 of the 14th’hmetid-
meat to the United States Constitution?"
-836
Ron. Jack N. Fant, Page 3 (C-173)
Section 1 of Article VI of the Texas Constitution
enumerates the classed of persons who are not allowed to'~
vote In this State. Seotloh 2 of~Artlcle‘VIsets 'Oue'the
quallfi~atlonsand PequXrements~forvoting. The general
qualificationsare stated as follows:
~"Every person subject to none of the
foregoing dlsqiiallflcatlonswho shall'have
attained the age of'twenty-one (21) years
and who shall-be a 3itiien of the United'
States.atidwho shall'~haveresided In this
State one (1) year next receding an elec-
tion atidthe last six (6B months within the
district or cdunty in which such person
offers to vote, shall be deemed a qualified
elector;.and provided further, that any voter
who is subject tb pay a pbll tax under the
laws of the State of Texas shall have Paid'
said tax before.offering to vote &t'any eleo-
tlon In this State &nd hold a receipt showing
that said poll tax was Paid b&f&i the.flr&t
d,ai$ FebNary next preceding such election.
;:'
irIo+ to 1954, a provision in Section 1 of Artlale VI
dls@allfied members of the regular military establlshrhents
from Voting in this State. The hi~torlo~l b;ickgr6uidof
this provision IKdesdPibed In a cotientary.ptibllshed In
Vernon's Annotated Texas Statutes, Volume 9, page XVII, In
the year 1952:
"The Second Congressfif the Republic of
Texas in 1837 enacted the first election law
**d '.'
Thls.first act contained a novel sec-
tion irovialng 'that regular enlisted soldiers,
and volunteers for during the war, shall not
be eligible to vote for civil officers.' This
provision was no doubt Inspired by the mutlnoua
conduct of the nonresident.volunteers who had
been recNited In the United State8 after the
Battle of San Jaclnto. They had defied the
provisional government and on one occasion in
July, 1836, had sent an officer to arrest weal-
dent David Q. Burnett and his aablnet to bring
them to trial before the army. They had con-
tinued their rebellious conduot after Sam
Houston became the first president under the
Constitutionof 1036. It nas not until May,
1837, that Houston was able to dissolve the
-83-i-
Hon. Jack N. Fant, Page 4 (C-173)
any and ellmln&te this threat to clvll
tiuthority.This 'provisiondlsfranchlelng
soldiers in the``regulararmy was placed
in 'the1845 Con~tititutlon
of the~Stat6 of'
Texas and has remained-ineach succeeding
&ihatltutlon. It was modified in 1932 to
&iempt'the'Natlonal``GuBrdand reaerki and
retired officers and men."
In 1954, Section 1 of Article VI was amendedto delete
the alsquallflcatlonagainst persons ltimilitary servlbe,
and Section 2 was amended to add the following provision:
'1 * * Any member of'thi Armed Force6
of the United States or component branches
thereof, or In the military service of the
United Statea, may vote only In the county
In which he or she reelded at the time of
entering Buch servicti80 longsas he or she
Is a member of the Armed Forces."
Two former opinions of this office, CpinionS-148 dated
December 18, 1954, and Opinion WW-157 dated July 8, '1957,
hav@~'dealtwith aevetialquestions of consttictlonarising
uziderthe 1954 amendment of the Constitution. The following
quotation is from Opinion s-148:
"Formerly,National Guardsmen,reser-
vists and draftees In active service oould
vote at the place of their legal resldeno,e
at the time of voting (providedthey had re-
s'idedwithin the State for one year and with-
in the county for six months) without regard l
to the place of residence at the time they
entered service. Active members of the
regular establishmentcould not vote at all.
Now, all these groups'are qualified eleotors
if they meet other requirements,but none of
them may vote anywhere in Texas except In
the county where they resided when they enter-
ed service. If a person In military service
changes his legal reeldence to some Place
other than the county In Texas in which he
resided at the time he entered service, he
cannot vote In this State.
'Throughoutthis opinion the term 'real-
dence' means legal residenoe as distinguished
from aatual reeidence.
-838-
,
Hon. Jack N. Pant, page 5 (C-173)
"The constitutionalamendment does
not change the'rules'fordeterminingwhat'
place'18 the legal resldende of the voter,
nor-does It mean that in all tilrcumstances
a person In military servl&e will 'been-
titled to claim a voting residence In the
county of whfah he was B resident at then
time he entered semiice~; Flace.~ofresidence
Is still to be determined In the same-way
that It has always been. Abaence'fromthe
aounty or State for the purpose of perform-
ing military service does'not of Itself
cause a loss of residence, but It la posal-
ble for a person to abandon his old resl-
dence and acquire a new residence during
time of service. Tex.Conat. Art. XVI, Sec.
9; Clark v. Stubba, 131 S.W.28 663 (Tex.
Clv.App. 1939) Struble v. StNble, 177 S.W.
26 279 (~e~.ciS.App. i
1.77S.W.2d~2
fiSti&%,. Robinson,
3UJ 15 Tax. Jur. 715, Domicile,
SePO:2:' If he'does so, and thereby changes
his residence to some other county4 he loees
his right to vote In this State while he
continues In service, unless he re-establishes
his residence In the county in which he're-
sided when he entered~servlce. Further, no
person who entered service as,a resident of
another State may acquire a voting residence
In Texas while he la in service.
"It Is our opinion that the restrlc-
tlon to voting In the county of residence at
the time of entering service applies only
to persons who are on extended aatlve duty.
Members of the.NatlonalGuard and reservists
who are'not on'extended aatlve aervlce and
retired mllltary~'peraonnelare not subject
to this restriction. Further, 'county of
residence atthe;.time'ofentering such serv-
ice' means the.county In whloh the person
resided at the time he began his current
active service. To Illustrate: A person,
while residing In County A, ,jolna one of
the reserve component,8but does not go Into
aotlve service. He later moves to County
B. After he has fulfilled the length of
-83%
Hon. Jack N. Fant, Page 6 (C-173)
residence requirement,he may vote In '
County B; In fact, he could vote nowhere'
else, While living In'CountyB, he la
called Into 'adtlveaervlce. During this
tiine'hlaplace'of.votlngIs In County B,
the county In which he.reslded when he'
went Into active service. After his re-
lease from that tour of duty, he~changes
his residence to County C. Hls'place'of
voting la In County C so long as he con-
tlnuea to live there. If he Is again call-
ed Into active service whlle'llvingIn
County C, that Is the place where he will
vote.
The question In Opinion WW-157 waa whether a person
who had been stationed at an air base In Victoria County,
who after discharge had subsequentlyre-enlisted,with some
period of time Interveningbetween the discharge and re-
enlistment,was quallfled to establish a domicile for voting
purposes In Victoria County. In answer, the opinion said:
"What Is meant by 'the time of enter-
ing such service' within the meaning of the
Constltutlon? Is It the time of the aubse-
quent enlistment or the time of the original
entry Into service? If the subsequentperiod
of service Is a mere continuationof the prior
period, the time of re-enlistmentIs not the
time of entering such service within the mean-
ing of the Constitution,for the restriction
lasts 'so long as he or she la a member of the
Armed Forces.'
"No doubt, In some instances an airman may
be completely separated from the service In a
very real sense by discharge and later re-enlist.
In such cases It cannot be said that his re-
enlistmentor decision to re-enlist constituted
the second period of service a continuationof
the prior period of service, and the time of
entering such service within the meaning of the
ConstitutionIs the time of hle re-enlistment.
The mere fact that there has been a dlsoharge
and a time lapse between the date of discharge
and the date of re-enlistmentIs not, however,
controllingon this question. The law looks to
the substance and not to the mere form of the
transaction. It can be judiciallynoted that
-840-
' Hon. Jack N. Fant, page 7 (C-173)
frequently re-enlistmentpapers are actu-.
ally signed prlor..todischarge and post-
dated at some later date to the discharge
date. Or.some oacaslons the service man
retains 'thesame privileges,.rank,and
status as weIl,as the same organization
i%~slgnmentand Job assignment Snthe'sub-
sequent enlistment as In the prior period
Of'seNlce. In ~such'oase's the discharge
and re-enlistmentare mere legal~flctlons
and the subsequent period of service Is
merely a tiontlnuatlonof the prior period.
The date of re-enllstment'isnot the 'time
of'entry Into such servloe' within the mean-
ing of the Constitution. Residence in
Victoria; Texas; at that time alone cannot
be ubed'as~a basis of claiming voting resl-
denue In Texas during the subsequentperiod
of service.
*Therefore,we hold that an airman
stationed at ah aitibase looated In Vldtorla
County who'recelves a bona fide discharge and
who completely"severihis active duty'relatlon
tilththe'~AirForce'andsubsequently re-enlists
tiithstimeperlod~of timesintervening between
discharge and're-enlistmentIs qualified to
establish a residence In Victoria County for
voting purposes If the discharge and re-
enlistment are not mere legal fictions 80
as to constitute a continuationof the prior_.
period of service."
Articles 5.01 and 5.02 of the Election Code are the
statutory counterpartsof Sections 1 and 2 of Article VI
of the Constitution. Following the amendment of the Conatl-
tutlon In 1954, no correepondlngchange'waa made In the
statutes until this year, ,whena series of amendyenta to the
Election Code were enacted In Senate Bill 61, Chapter 424,
Acts of'the 58th Leglelature, 1963.
Senate Bill 61 was drafted by an Interim Election Law
Study Committee created by the 57th Legislature (S.C.R. 30,
57th Leg., R.S. 196x). The files and reports of the Com-
mittee reveal that the amendment to Article 5.02 undertook
to express In statutory form the constltutlonalprovision
as Interpretedin the opinions of the Attorney General. The
second sentence of the new aragraph In Article 5.02 states
the holding of Opinion S-148 which construed the,restriction
-84i-
Hon. Jack N. Fant, page 8 (c-173)
on place of voting as'applylngonly to periods of sctlve
- .,
servlbe..'The 'thirdeentence~undertakesto summarize In .'
&"'brlefstatemint'theholding ~f'Opinlon"UW-159oh'the.ef-
Sect bf.a temporary break In service between enlistment
periods.
We are in agreement with the constructiongiven to
the 6onsfitutSonaSprovision In'Oplnlonss-148.anaAW:157.
And we are further of the opinion thiit the construdtlon
of the constitutionalprovision Is applicable to Article
5.02. We therefore~beXlevethat those opinions sufficiently
answer your first two queetlona.
In answer to your third question, as"to the meaning
of "temporarysep~ratlon"‘ln~Artlcle5.02, we thlnk~the term.
was Intended to mean a separatlon'undercltidumstances de-
scribed In Opinion W-157 which would not preventthe:sub-
sequent period of aervloe from'belng ln~essence'merelya '-
continuationof the prior period. It Is not possible to.la9
down-a blanket rule setting out the clrcumataricesin detail;
as each case must be determined on Its own particular set of
facts as to the acts and Intention of the Individual.
Two examples ~111 Illustratehow these provisions
operate. Suppose a aoldler, while atationed at Fort Bliss ::.~
In El'Paso County, has establishedhis legal residence there
(but without voting rights, beaauee he did not reside In that
county at the time of entering service) and Intends to live
there'aftereventual retirement-frommilitary service. He
completesan enlistment and Is discharged,but at all times
his Intention for the present Is to re-enlist and aontlnue In
military service. Even though some period of time may elapae
between his discharge and his re-enlistment,the two enllat-
meritsw0uia ordinarily oonstltute one continuousperiod of
servloe within the meaning of these provisions. Suppose, how-
ever, that at the time of his dlsohargehe has no Intention of
re-enteringmilitary service. After seeking employment he
finds nothing to his liking and he thereupon decide8 to go back
Into military service. Ordinarilythis would be the beginning
of a new period of service, and he aould vote In El Paso County
If otherwise qualified.
&e Constitutionprovides that a person In military
service may vote only In the county In which he resided at the
time of entering servloe. (It should be noted that the place.
of voting Is the aounty of residence, not the county In which
the enlistment occurred,nhlch might be In some other place
than the place of legal residence.) In a brief submitted to
this office by an Interested organization,the contention Is
made that this provision of the Constitutionattempts to,
-842-
Hon. Jack N. Fant, page 9 (C-X73)
remulate
regulate v&Inn
voting rights outside Texas as well aa within the
statf3.
State. "1%
"1% g6ei
goes without saylng.thBtthenTexas Cons'tltutlon
oannot ,replate voting rights.of'.pereonsat &nj place other
than rlthln the State of Texas; 'andcannot affeot,'the.'vot-
lng 'rightsof-residentsof 'otherStates 'whilestationed-in
Texas; This provision relates only"t``'r&?iidentsof 'this' '.
State;'but'lt does relate'both"to"personsriho ~eiWres1debt.a
of Texasbefore entering service'ahdto persons who'becarhe"
residents of'Texas after entering.service. .If~the only place
at uhlch a person-may vote In this State Is the aounty In
which he resided at the time of'enterlng service,'and'if"at
that time he did not reside In any dOi.ukyIn 'Texas,It fol-
lows that'he cannot vote In thIs'Stat%; Acoordlngly,'lt '~
was .saldIn Opinion S-148 that no person 'whoentered servlce~'
as a resident of another State may acquire a voting residence
IKTexas Uhlle he:ls,in service.
It has been suggested In the brief that the provisions
under considerationdo not preclude a nonresident of Texas
from establishinga legal residence and becoming a qualiflea
elector having the privilege to vote In Texas; that a resl?
dent of Texas who enters military service oa>not ohange his
voting residence while on .aotive,duty,and that a former non-
resident, after having aoqulred a voting residence while on '
., active duty In this State, aannot thereafter change It to
some other county; but that.a resident of~another State can
acquire an original voting residence In Texas while In mill-
tary service.
We are unable to find support for this suggestion,
either In the language used or In the reason for the restrlc-
tlon. As we view 1t;the purpose of the restriction Is to
prevent a concentrationof military voting strength In lo-
calities where military lnstallatlpleare situated, which
"might well lead to complete domination and control of lo-
cal politics by the overwhelmingnumber of military men to
the prejudice of the olvlllan citizen8 of the.communlty."
Interpretivecommentary under Art. VI, Seo. 1, Vernon's Ann.
5 Tex. Const., ~1. 2, P. 336. me conoentratlonsought to
be prevented oould cOme about from voting by former residents
of other States as readily 811from voting by former residents.
-.of other oauntles In this Stat.e. Ue fall to see the rationale
for allorlng a resident of so106other State who Is stationed'
at Fort Bliss to ~acqulrea voting residenoe In El Paso County,
while denying that privilege to a resident of Texas; nor do
ue see any rationale for freezing hia voting residence in El
Paso County If he Is transferredto ~,milltary Installation
In sOme other oounty or State.
,:
-843-
, .
Hon. Jack N. Fant, page 10 (C-173)
We are not impressed by the suggested explanation
that the person who resided In Texae at the time of'enteti-
lng servloe does have a place to vote In Texas (I.e., the
county of his residence st the time of entering service),
but the person ~who.resldedIn some.otherState at the time
of entering service would have no place to vote In Texas If
he Could not acquire a voting residence at the plaoe where
he was stationed. me 1954 amendment evince8 an Intention
to remove the dl8franchl8ementof active members of the regu-
lar military establishments,but subject to the llmltatlon-,
that they will not be allowed to acquire a new votlng,real-
dence In this State while In military service. It does not
chow an Intention to enfranchlse'any'peraon'orclass of per-
sons In military service on any other terms. It'should be
kept In mind that a person who enter8 military service as a
resident of some other State gives up his voting realden'ce
In that State only by his own volition. So far as we are'
able to find, there Is not a State in the Union whose laws
cat&e a resident to lose his reeldence'andoonaanltantvat-~
lng~rlghtsagainst his will by reason of absence'in military
service. If he loses his residence and voting prlvlleges at
the plaoe where he resided when he entered service, It 18 by
his own desire to acquire a new residence at a different
place. You have stated that many of the military personnel
tell you that.when they write to the State and county where
they entered the service, so as to vote absentee there, that
State takes the position that they have nor lost their reel-
dence there. In these cases, It wouldseem that the lndlvldu-
al by hi8 own voluntary acts has relinquishedhis former'resl-
dence or that the administrativeofficers of his home State
.havemlalnterpretedthe law of that State.
It has also been suggested that the law dlscrlmlnatea
against-resident8of other States and la therefore repugnant
to the 14th Amendment of the United States Constitution. We
do not agree that It dlscrlmlnatesagalnst'nonresldents. A
Texas resident la under the same limitation as a nonresident.
No matter how much a soldier at Fort Bliss might prefer El
Paso County to his home aounty In East Texas, or North Texas,
or South Texas, and might want to make El Paso his county of
leEa residence,he has to choose betueen acquiring a domicile
In El Rrso County and losing his right to vote, for If he
does change his realdenoe to El Paso County he also Is left
without a voting plaoe.
It Is true that military men who have been many years
away from their place of resldenoe at the tlme of entering
servicemay lose Interest In the affairs of that locality, but
may be keenly interested In the affairs of the locality where
-844-
Hon. Jack N, Fant, Page 11 (C-173) .
they '&re'statloned;and the privilege of retaining their -
voting residence at.the former place may be to them'an empty
one. It Is also tnie‘thtitt,e Texas realiiehtstationedin
Texas~'could ‘on state-wide
stlll'votefor ~t'aE~"offlbes"..bdd
lssues.of Interest to hLm;'whereas"theresident of sbmm8 other
State would"flhd no.'drea'bf~interestIn'the 'tile&Ionsof'hls
home,State except for President and Vice-Presidentof the .
Unlted'States.‘These are considerationsgoing to the poll&y,
wisdom; and equlty~of the ~onstltutlonal'reatrlotlon,~rathsr~
than to Its interpretatlon.~We‘hastento state that‘our funb;
tlon-la merely to construe the provisions as they are written.
In yourrourth question you ask for a constructSonof
the provision on military votlng'ln the amendment of Article
5.02 of the Election Code which wlll'take effect If the'pro-
pos'edconstitutionalamendment abolishing payment'of the poll
tax as a prerequlalte'forvoting Is ado ted at the'electlon
to be'held'on November 9, 1963. Aota.58th'Leg., 1963, ML.
43o;seo. 1, p.~1103. The``pertlnent portion of the proposed
amendment of Article VI, Section 2 of the Constitutionreads:
'Section 2. 'Everyperson subject to
node of the foregoing dlsquaIlflOatlonswho
shall have'attalnedthe age of"tuenty-one
years and who shall be``a~citlienof"the
~UnlteilStates and'who~'shall-.~have
resided In
thle state one year next preceding an elec-
tion and the lastsix months within the,dls-
trl6t or county In which such peraontiffera
to-vote, shall be deemed a quallfled elector; .”
provided that any member of the Aped Foraes,
of the United States or component branches
thereof, or In the military servloe of the
United States, may vote.only In the oounty
ln%hlch he or she resided at the time of
entering such service so long as he or she
la a member of the Armed Forces; and provided
further, that before offering to vote at an
eleatlon a voter shall have reglatered If re-
quired by law:.todo so.* * *"
Insofar as It ooncerns place of voting by persons In
military aervlce, there la no ohsnge In the meaning of the
seation although the language has been rearranged. me text
of Article 5.02 of the Eleqtlon Code, as amended to take ef-
fect in event of adoption of the.constltutlonalamendment,
18 aB follows:
!’
-845-
Hon. Jack N. Fant, Page 12 (C-173)
"Ev&i-ypeiv3iM'eubjedttd imiieof
the-‘foregoingdlsqii&SlflaaEionsWho shall
hatieattaln’edthe age-ol-twehty-bneye&es
aiidwho shall be ti‘dltlzen6i the Unlted’~
St&it& andMid slitillhave reiildei&
Siithlti
atiitetine$i?ati
iiextpriectidlng’an
blictldn
aridthe last
``’bounty i3ix’mohths
in wh.ch irithiniirrere’..ta
.aubli tIj&diet+lct
,pgjriaoii
__..,.~
vote,’and ‘*hoMid11 ‘have”regiate’red’
a8 a
Voter If tiqiiired
‘t6 dd ‘80,‘~
ehall‘be deemed
a qualified electbr; ptiovldbdthat any
member of the ArinedFdticeaijfthe United
States or component branches thereof, or
In the’mill,taryservice of the United
Statea, may vote only in the oounty in
nhlch auoh person resided at the time of
entering such service. * * *”
Thla’provieiontraake the proposed conetitutional‘amehdtient,
except for omlealon of the words “80 long aa he.or’sHe-‘la a
member o$ ~theArmed Forces;” Since the ptiovfsloti ‘dealswith
the voting place 6i’memberb:;notform& tiemberedr TtituM -’
memb&s--of the Atied Forbee, ‘the~omlsalonof thi quallfylng,.~
dlause does liot.changeltismeaning. ‘Unllk6 the iimi%ndBenten-
adtea by Chapt& 424,‘.thla V&i~loti’
of’the stM-.utedoea hot-
aoiitain’thti
provlalontilncqz$oratlrigthe Interpretationsdi ,
the Attorney ffenerallsopinions. But the.addltlon’M those
provlelonadid not alter eliletlnglaw; It merely verbalized
the exietlng law into atatutory lonn. Acocfrdingly, the~lirr
as It will exist If Chapter 430 takes effect will be the same
aa It is now.
Your fifth queatlon la whether the constitutionaland
atatutor provlelope under aonelderatlonviolate Section 1
of the 1%th Amenduientto the United Statea Constitution,
which reads as followa:
“All persons born or naturalized in the
United Statee, and eubjeot to the jurladlation
thereof, are oltlzens of the United States and
of the State wherein they reside. No State
shall make orenfome uny law whloh ahall ak
bridge the privileges or lmmunltlea of oltlzens
ot the United States; nor rhall any State de-
prive any person of life, liberty, or property,
without due pr~ceaa~.@f;
lnu# mar;denydp ,vy;.:pqrson
within It6 jurledlctlonthe equal protection
OS the lam.*
-846-
. .
Hon. Jack N. Fant, Page 13 (C-173)
We have seen that the law of thla State complettily
disfrahchlsedall pertions.ln’~inllltar~ hervice for almMt’.a
hundred jlearaand disfranchisedm&fibersof'the-regular&a-
tabliMvaeht8for twenty more years: If those provlslona did
nbt offend th&'Federal ConstltutlorY, It 16 e'Viident that the..
less drastic provisions of the,preaent'lbwale6 are notsub-
ject to that‘lnflrmlty.'~The‘lbthAmen&&t was ratified Sn
1868. During the lntetienlngyeatis.'before Section 1.0 Artl-
tileVI of the Texas Constitutionwas amende$.ln 1954,~&here
was no case dlreotly raisk;lgthe validity of the Texas law,
but the implication In two cases Bebided by the T+xas'coutits
seems to be that the State had the poker’to withhold suffrage
from persons-In military service. h Savage v. Umphrlea, -
i18.S.W. 893, 8% (Tex.Clv.App.1909), the court. said:
';~
"Who shall exercise suffrage Is a
f'undamentalquestion, which the body politic
must deolde upon a just view of the true
relation between the power of the auffragana
and the rights of the whole people. Hence the
exerclae of the elective franchise Is not a
natural or God-given right, but Is, as the
word lfranchlae*implies, a right conferred by
the state or body politic.' In other wordd8,as
la aald by an eminent authority bn constltutlon-
al law, the'.questldns whether one Is fitted by
lntelllgen6eto perform the function of an elec- ..,
tor, or has such IMerest In the matters con-
trolled through hla suffrage as to check t:he
misuse of power which self-Interestprompts;
or has euch oommunlty of Interest In the lawa
which are to govern the community,uhlch
should fit him for the dlecharge of the.dutlee
of a auffragan,must be determinedby the body
p011t1c."
One of the holdings In that case was that under Artlole VI,
Section 1 of the l!ex&aConstitution,a person In the service
of the army of the Ublted States was not entitled to vote
at all. Ii8 s.W.2dat page 908. In'McBethv. Strelb,96 S.W.
26 992, 995 (!Pex.Clv.App.
1936),the court said:
"Our qrganlo and statutory laws, In plain
terms, deny the right of franchise to citizen8
In the military service. The reasons for euch
denial were properly determined by the adopters
of the Constitutionand members of our lawmaking
bodlea.".
-847-
. .
Hon. Jack N. Fant, Page 14 (C-173)
Solon v:State, 54 Teic;Ci+in.261, 114 S.WiY349, 352
(1908) aeacnbea the naturp
. 0s suffrage
_, -, aa r0110rta:
.
"'.* * l The ttib'tile lb that the right
to vote-Sa^not'a.neceaaaFy or-fixed Incident
of cltl,zenahlp; or lnh&i?ehtia ea&h and every
lndlvldual,butthat voting IS the'exercise
61 political poweF, and no on& la entitled to
vote, unless the people In their aover6lgn
cbpadlty, have conferred on him the right to
do io. It map-be laid down aa a general
propoaltlon that the right of suffrage may
be regulated and modified or withdrawn by the
authority which conferred It.,*-+ * In the case
of State v. Dillon,'32 Fla. 545, 14 SO. 383,
22 L.R.A. 124, In treating thla general aubJeot,
the court say: "The right to vote ia not ai,
Inherent or absolute rlght~found among those
generally reaerved In bllla of rights, but Its
poaaeaalon la'dependentupon o6natltutlontil
or statutory grant. Subject-to the limlt~tlona~
contained In thenSeder&l CQaafltutlon,the elec-
tive .f&chiae la undhr~the bontro1 of'the
aoverelgnpower of the states, expressed In
zoiazM);utiona or atatutaa properly enacted.
. _ . ?
The United Staten Constitutiondoes not confer on or
guarantee to cltlzena the right to vote, Wit It doea llmlt
the.pwer of a State to abridge or.denv to some citizens a
right of suffrage which the St&be has granted to others.
10 Am.Sur.. Elections, 88 '16,47; f@C..S.S., Electlonb, gII
5-8. 'Ihe15th and 19th Amendments prohibit denlal~of the-.
eight to'vote because of race, color, previous condition of
servitude,or sex. 'The14th'Amendmentprohibits a State'
from abridging the privileges ,orlmmunltlea of cltlzena of
the'Unlted States or SrorPdenying-the equal protection of the
lawa to any person within Its jurladlctloa;but these prohl-
bltlona do not preclude a State fraa making reasonable claaal-
flcatlona of persona or things forthe purpose of leglalatlon
If all within the same olaaa are treated allke. .The general
principlea on the validity of olaaalflcatlonaare stated In
the following quotatlons'froh16~ C.J.S. 240 et seq., Conatl-
tutlow UW, I 489:
"Class leglalatlom la invclld where the
claaalflcatlonla arbltrarv and unreaeonable.
The provision of the Fourtbenth Amendment to
the federal.Constitutiondeclaring that no
1
-048-
Hon. Jack N. Fant; page 15 (Gl73)
btdte shall make oti'enforce'enylaw which
shall abriilg6'the~prIvIlCgea
_-. -or'ImiininItIea
of.6'Itlzenaoi'the hltbd States, or deng
to any'pert3onWithin Its jiirIsdlctlbnthe
i?Qual.'pivtectlon
of th6 lawa,‘aiiWell 'as -
pr6vialdliacomziolily
~ioiind
In-'stateooir~tltu-
tlona ptihlbltlngthe e'n&dtmeht'bf~l'aria
grantIng'~&ny'dpedIal05~i$xolualve.prIvilegea,
Iizmuhltlea;or fri%n6hIilea,'~*
l ~*rend&r‘~Vold
all state statuteswhich make-&y unreaaotiable
6r arbitrarydlacrImlnatl6n betweendifferent
personaor olaaaeaof persona.l * *
"Therela no generalrule by which to
dlatlnguIaha reasonableand lawful froa,un-
i%Aaonable'and apbltraryolaaaIfIc~tlon, the
questionbeing a praotIc&lone, deliendent ?n
tizperleribe,
and.vtiJIIagwlth'thefacts In
eaoh.~aaae.In order...to~'be
valid'&atatilfoe
olaaaIfIoatIon mubt reaabirabljprdloteaaae'
proper object,of public welfareor Interest,,
mat rest on real and"subat&ntlal differenuea,
having a natural,.reaaonable;andaubatantIa1
relationto the aubj&otof the legldlation;
and must affect alike all person6or'thlhga
within a particularclass, or 8laWaiQy aitu-
ated;.but;If the legislaturehas power~to
deal with thf2aubjeot’matterof the claaaIflca-
tlon and,therela a reaaohablegSound-Sor.the
~olaai3lfloatlo~
and the law operatiesequallyon
all'tilthlnthe aAme olaaa, It la valid, even
th6Ugh the act confers dlfierentrlghtaor-l&--
poses differentburdens on the aeveral'clabsea,
dr rails to pmvlde Sor future contlngencI~a,
or %hos&m partlaularpersonafind lt-':dlffi:~
cult or even ImpoaaIbleto complywith condl-
tlona preoedenton whIah the enjoymentof the.
privilegeIs made te depend.l * l
"In detetialag wh&hqr or not a basis of
olaaalfIoatIon is reasonable, It must be look@
at fra the rtandpoi.nt o? the leglrlatureenaot-
lng It, and with refezmme to the oondltlona
existingwhen the atattrte.waa enaated,not when
the constitution was adopted. Aa discussed
aupra 8 151 (4), the question OS olaaaIfloa-
tioa Is one priaarllv for the legislature,and
In the exerciseof this power the le,glalature
poaaeaaeaa wide diearetion. A rtatutrwill
Hon. Jack Fant, page 16 (C-173)
be auatalnddwhere the basl8’Toti bliSsI-
flo’&tli5n iaadeby- It ‘ootild
h&e be&med
tiebaonabl6 twthe legIblatru%‘;even’ thoq@
duMi b&sib seems tii‘thecourtd”tobe tin-
reaaolialjle. .‘U’``ile\r”of
the“p``aumptlotia~
iiiTaior“bf’a’l~glalatlve olaaalflaatIon;
aa’dIbcuaa&dSup&i U 100; t&e leglaliitlie
jiaaepPent’-se to clasaltl6afloii will”be’up:
h@ld.‘If’ a.nystate Of facts.can reasonably
be dondeivedto auatain.~It, dnd can be
ovePthPown ‘brthe courts only when It Is,
clearlyerroneous. y...
The Texas Constitutionolaaalfle~pe~aonaIn military
servicefor specialtreatmentIn conferringthe right to
votd,“‘and
accords’the same trektmbntto all wlthlh that‘ala&a.
We“Ue unable to ‘a&ythat‘ther6’.is
no’r&Son&l b&ala for the
6SAlaZficatloti, is”our. opinionthat fihb
bnd’a6niieQuently~lt
p~vlblti does not violatethe 14th Amendmentto the Vnited
States~onatltutIon.
Ihe prcvI6lonaor ArtloSe3i02,
Vernon’s!l!uxaa
ElectionCode, as amend-
ed’by Chapter424, Aeta o? the 58th Imgla-
lature,1963, which Wrtaln to voting by
persona’lmmllltary service,do nothing ;
more than restatethe law aa containedIn
the 1954 amendaentto &ticle.VI, Section ,4;
2 o? the’Texas~Conatltution;Attorneg
deneralguOpinionaS-1118 end UU-157, ln-
kerpretlngthe oonatItutl6nal provGiona.,
aru ruaiflned.
ltlelaw on votingby personaIn mill-
tary service,aa containedIn the amendment
to ArticleVI, Section2 of the Constitution
which la proposedby S.S.R.NC. 1, 58th Legla-
lature to be submittedto a vote on Noveslber ’
9, 1963f and In,Article5.02 of the Election
Cod&, aa umendedbx Chapter430, Acts of the
58th Legislature,which will-take effect It ,’
the proposed coaatltutlonalaaendnent Is
adopted,Is the saute88 the presentlaw.
me provIslonaof ArticleVI, Section
2 of the !kixaaCcnatltutlon, and OS Article
5.02 of,the Texas Nleotlon Code, whloh pro-
vide that membersof the Armed Forces of the
-8SO-
.’
.
Bon. Jack N. Fant, Pee 17 (C-173)
,
United Statesmay vote only In the
county In which they residedat the
time of entering service.does not
vlolistethe 14th Amendmexit'to
the
United States Constitution.
Yours very truly,
WAGGONERCARR
AttqrneyQenefal
.i' I
By r, a4
-Y
Maw . Wall
Aaalafant
MKW:aj:ma
APPROVED:
OPINIONCOMMITTEE
W.'V."Oeppert,Chairman
Howard Fender
MalcolmL. Quick
Ernest Forteriberrv
Paul Robertson
APPROVEDFOR THE ATTORNEY GENERAL
By: StintonStone
-851-
!
I