                                                           Overruled       by Carrington    v.
                          OF    TE2lCAdS                                        :, s.ct.   775

                        ‘%..umrllx
                                 12. .lJkxAM      ,,


                                July    8, 1957,~


Hon. ‘W. W. Kilgore             Opinion No q ,W-157,.
County Attorney
Viotoria  County                Be:     Whether a member of the Air
Victoria, ,Texas                        Force is eligible   to vote;
                                        upon reJenlistment,   in Victoria
Dear MTm Kllgore:                       county.

           You have requested         the opinion      of this   department
on the following  questiona
             “Whether OT not a person, who has been
      stationed at an air base in Victoria       County,
      after being discharged from the service and
      subsequently reenlisted,     with some period of
      time intervening   between the discharge, and
      reenlistment,   is qualified   to establish   a
      domicile for voting purposes in Victoria       County?”
                                                                       .
            In your letter     you state:
              YWhenwe have airmen here in Victoria
       County who are transferred        by the AIT Force;
       they purchase a home here, leave their .fami-
       lies here, and claim Victoria        as their residence,
       and they stay here sometimes two or three years
       and longer, they get a discharge from the Air
       Force and Te-enlist       the next day and desireto
       vote in this County.tl
            ,
              The first   l1mitatioh    on the WsoldieT vote” was a dis-
qualification     of all service men that appeared in the Constitu-
tion of 1876, ,Brticle VI, Section 1. In 1932 the disqualifica-
tion was libergl1sed        to, allow Texas Hational Guard members,
reservists,     and retired     service men to vote.       Finally,  in 1954,
the constitutional      limitation     was further liberalized      by provid-
ing 10 Section 2 of ATticle VI:
            ‘1. 0 . Any member ‘of. the Armed Forces of the
      United States-or    component branqhes thereor;    oT in
     the Military    Service of the United’States.,    may vote
      only iri the county in which he or she resided at
     the time of,enteTing,such     service so long as he or
      she is a member of ‘the Armed Force’s.   . a, .)I
             Hon. W, W. Kilgore,     page 2    (WW-17)


             and deleting     the ~disqualification     from Section 1. There are
             two reasons, for the limitation        as set forth in the interpre-
             tive commentary to Article VI,. Section 1, Vernon’s Annotated
             Constitution--i.e.     ,.-Texas ia.not necessarily     the-residence   of
             free choice of men in the service and, allowing the military
             to vote in localities       where military     camps were situated might
             well lead to complete domination of local politics             by the over-
             whelming number of military         men to the prejudice    of the civil-
             ian oitizens     of the community.        i,
                        Section 2, Article VI does not enfranchise   non-resi-
             dents 62 Texas., The quoted language ~merely preserves the
             rranchise of a’,Texas resident who .enters service,  but limits
             his voting to the County in ‘which he was a resident when he
             entered service,   “so long as he or she is a member of the Armed
             Forces.‘J
,,:
                         What is meant by “the tlma of entering such servicee
             within the meaning of the 6onetitutionP     Is it the time of the.
             subsequent enlistment or the tims of the original    entry into
             service?    If the subsequent period of service is a mere continu-
             ation of the PTIOT period, the time of re-enlistment     is not the
             time of entering such service within the meaning of the Consti-
             tution,  for the restriction   lasts “so long as he or she is 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 ra-enlist.      In such cases it cannot be said that his re-
             enlistment or decision      to re-enlist    Constituted the second period
             of servica a continuation      of ,the prior period of service       and the
             time of entering such service within the meaning of the ionstitu-
             tion is, the time of his re-enlibtment.         The mere ract that there
             has been a discharge and a ,time lapse between the date of dis-
      ~,.~
             charge and the date of re-enlistments is not, however, control-
             ling on thfs~ question.      The law ~looks to the substance and not
             to the mere form of the transaction.          It can be judicially    noted
             that frequently    re-enlistment    papers are actually     signed prior
             i;tFsCharge     and postdated at some later date to the discharge
                      On some occasions the servics man retains the same privi-
             lege;,   Tank, and status as well as the same organization          assign-
             ment and job assignment in the subsequent enlistment as in the
             prior period of service.       In such cases the discharge and re-
             enlistaent   are mere legal fictions       and the subsequent period of
             seTViCe is ilerely a continuation        of the prior period.     The date
             of Te-enlistment     is not the “time or entry into such service”
             within the meaning of the Constitution,           Residence in Victoria,
             Texas, at that time alone cannot be usqd as a basis of claiming
             voting residence in Texas during the subsequent period of serv-
             ice.
    Hon. W. W. Kilgore,    page 3 (W-157)

                  Therefore,  we hold that an airman stationed at an
     air base located in Victoria      County who receives   a bona fide
     discharge and who completely      severs his active duty relation
     wlth the Air Force and subsequently re-enlists        with. some
     period of time Intervening      between discharge and re-enlistment
     is qualified    to establish  a residence In Vlctorla     County for
     voting purposes if the discharge and re-enlistment         are not
     mere legal fictions     so as td constitute   the subsequent period
    ~of service a continuation     of the prior period of service.
                You have also asked when the statutory       requirement
    of one year’s residence      In the State and nix months’ residence
    in the county in which one desires to vote would begin to run.
    Section 2, Article     VI, does not In anywise prohlblt       the estab-
    lishment of a residence by a service man during the perlod of
    his tenure ofservice,      but merely states that he will vote In
    the county In which he ‘was a resident at the time of his entry
    into service,    so long as he shall remain. ln~servlce.       Accord-
    ingly, an airman may establish       residence In Victoria     County
    during his tenure of service,       but may not actually    vote In Vlc-
    torla County until after hisdischarge         and separation    ln the
    manner described above. If, as set out above> he Is authorized
    to vote in Victoria     County subsequent to his discharge,       then
    the statutory period of time set forth In Article          5.02 of the
    Election Code will begin to run from the date he actually            es-
    tablished   residence,   regardless   of whether that date was during
    the prior period of service or subseqaent thereto,          so long as
    residence was established      prior to the time of the subsequent
    enlistment.


                 A non-resident   of Vlctorla County who has been
          stationed   In Vlctorfa   County in connection with mlll-
          tary service arid who subsequently establishes      resl-
          dence therein and is thereafter     discharged aad re-
          enlists   Is eligible   to vote In Vlctorla   County during
          his subsequent period of servloe,      only ln the event
          that the discharge and re-enlistment       were no4 contln-
          uous D In such elrentthe statutory      residence  requlre-
          ment begins to run from the perlod of time of the
.
Hon. W. W. Kilgore,    page 4 (W-157)

     establishment    of actual   residence   within   Victoria
     County.
                                                   Yours    very   truly,
                                                   WILL WILSON
                                                   Attorney ffeneral        of Texas


                                                   By s/ Wallace P. Flnfrock
                                                     Jallace P. Flnfrock
                                                     Assistant
WPF:wb:bh
APPROVED:
OPINIONCOMMITTEE
H. Grady Chandler,    Chairman
LOMY Zwiener
Houghton Brownlee,    Jr.
REVIEWED
       FOR THE ATTORNEY  GENERAL
BY:
         Geo. P. Blackburn
