              C




Honorable John R. Shook
Criminal District Attorney
San Antonio, Texas
Dear Slr:              Opinion No. o-3281
                       Re: 1. Right of aliens, under conal-
                            tions stated to vote upon becom-
                            lng naturalized. 2. Does the
                            Tax Assessor and Collector have
                            authority to change a naturallzed
                            alien's name from the aliens poll
                            list to that of the regular quali-
                            fied electors poll list? 3.
                            Should the election judges allow
                            a naturallzed alien to vote, under
                            the facts submitted?
        Your written request asking for an opinion from this
department has been received and considered. We quote from
your letter a8 follows:
       "1. Is an alien who resided in the State of
   Ttixas,County of Bexar, and City of San Antonio, on
   January lst, 1940, and who has since been a resident
   of Texas and the County of Bexar and who paid his
   poll tax as provided by law before February lst, 1941,
   and who became a citizen of the United States of
   America after February lst, 1941, and before the date
   of the election entitled to vote at such election ln
   Bexar County, Texas, if otherwise qualUied?
       "2 . Is an alien who resided in the State of
   TBxas, County of Bexar and City of San Antonio, on
   January lst, 1941, and who has resided in the State
   of Texas for one year and in Bexar County, Texas,
   for more than six months preceding the Election at
   which he desires to vote, and who has paid his poll
   tax as provided by law before February lst, 1941,
   and who became a citizen of the United States of
   America after February lst, 1941, and before the
   date of the eleCtion, entitled to vote at such
   election In Bexar County, Texas, if otherwise
   quallfled?
Honorable John R. Shook, page 2         o-3281


        “3. If qualified to vote at such election
    in either or both of the above cases, what mode
    or procedure shall be followed by the Tax Collec-
    tor with regard to removing the name of such alien
    from the allen poll tax book and alien poll list
    of the precinct in which he resides and placing
    the name of such alien in proper poll tax book and
    precinct poll list?
        “4. If the Tax Collector under the law is un-
    able to make the corrections set out in the third
    question hereof, then, is it the duty of the elec-
     tion officials to permit the holder of such alien
    poll tax to vote upon satisfactory evidence that
    he has become a citizen of the United States after
    February lst, 1941, and prior to the date of the
    election?"
        Article 6, Section 1 of the Constitution of Texas,
which constitutional provision hapsas its counterpart Article
2954, Revised Civil Statutes, 1925, as amended, contains both
the constitutional and the statutory provisions stating the
classes of persons who are ineligible or incompetent to vote.
        Article 6, Section 2 of the same Constitution and Artl-
cle 2955, Revised Civil Statutes, 1925, as amended, glve the
qualifications of qualified electors. These qualifications
are that the voter must be a citizen of the United States and
shall have resided in this State one year next preceding an
election and the last six months within the county in which
the elector desires to vote and provided that any voter who' is
subject to pay poll tax under the laws of the State of Texas
shall have paid said tax before offering to vote at any elec-
tion in this State and hold a receipt showing that said poll
tax was paid before the first day of February next preceding
such election.
       Article 2959, Revised Civil Statutes, 1925, provides:
       "A poll tax shall be collected from every
   person between the ages of twenty-one and sixty
   years who resided in this State on the first day,
   of January preceding Its levy, Indians not taxed,
   persons Insane, blind, deaf or dumb, and those
   who have lost a hand or foot, or permanently dis-
   abled, excepted. It shall be paid at any time be-
   tween the first day of October and the first day
   of February following; and the person when he pays
   it, shall be entitled to his ~$1 tax receipt, even
   if his other taxes are unpaid.
Honorable John R. Shook, page 3          o-3281


        Article 2963,   Revised Civil Statutes, 1925, provides
in part as follows:

        "All tax receipts Issued for any year after
    January 31st shall be stamped on the face thereof:
    'Holder not entitled to vote,' and the names of
    the holders of such poll tax receipts shall not be
    included In the list of qualified voters."
        We call attention to the last paragraph of Article
2965, Revised Civil Statutes, 1925, as amended, which provides
as follows:
        "If from the information on the poll tax re-
    ceipt above required, it appears that the party
    receiving the same is an alien, he shall be given
    a receipt from a book specially prepared for alien
    taxpayers, which book is hereinafter provided in
    this Title, and the Tax Collector and the Commls-
    sioners Court or other authorities providing said
    poll tax receipt shall have printed on the face of
    said receipt the word 'alien,' which said printing
    shall not be less than two (2) inches in height,
    superimposed in outline type, and printed in red
    ink."
        We quote the last sentence of Article 2970, Revised
Civil Statutes, 1925, as amended, which reads:
        "When the tax receipt or certificate is de-
    livered to the citizen, it shall be detached from
    the book and retained 'byhim for his future use and
    identification in voting, and at the time said books
    are made, the Commissioners Court shall prepare a
    separate book for each precinct as herein provided
    which shall be marked 'Alien Poll Tax Receipt Book'
    and if the tax certificate provided for in Article
    2965 of this Chapter discloses that said applicant
    Is an alien then the Tax Collector shall issue from       '*
    the book marked 'Alien Poll Tax Receipt Book' a re-
    ceipt to said applicant which shall have printed
    on the face of said receipt the word 'alien' not
    less than two (2) inches In height, superimposed in
    outline type, printed In red ink, and in order that
    the Tax Collector may carry out this provision, it
    shall be the duty of the Commissioners Court to
    provide the separate book as herein set out and
    have the receipt prepared In s,aidbook in conform-
    ity with the above provision.
Honorable John R. Shook, page 4         o-3281


        We also call your attention to the last paragraph of
Article 2975, Revised Civil Statutes, 1925, as amended, which
reads:
       "At the time the Tax Collector-makes up his
   lists of voters as herein provided, he shall at the
   same time on a separate list make up a list of alien
   poll taxpayers and shall mark at the-top of'saM
   list the words  'Alien Poll Taxpayers,' and. such list
   shall~'bedelivered at the same time and tha same man-~
   ner, and to the same officials as hereinabove provid-
   ed for other poll tax lists, and.the lists of quali-
   fied voters in said county and the various precincts
   of said county. Such certified lists of qualified~     .
   voters and lists of alien taxpayers shall be in the
   following form:
   II
    . . . . .
   "And the same form shall be used with reference to
   the list of alien taxpayers furnished the officials
   as provided in this Article."
It will be noticed that the above Article, in the first para-
graph; not quoted, expressly provides the procedure for a Tax
Collectorto follow in making out the lists of qualified elec-
tors and.also the procedure to be followed in furnishing the
s~upplementallists not less than four days prior to any'pri-
mary or general election in instances where the qualified
electors have removed to another voting precinct of the city
or town of a certain population. It will be noticed that no-
thing in the first paragraph has to do with the furnishing
of supplemental lists to alien poll taxpayers.
        We quote from Article 3005, Revised Civil Statutes,
1925, as follows:
       "One election judge shall receive from the
   voter his poll tax receipt or certificate of exemp-
   tion, when he presents himself to vote; the voter
   shall announce his name, and the judge after com-
   paring the appearance of the party with the descrip-
   tion given in the certified list of qualified voters       '.
   of the orecinct made out by the county collector, and
   belnc satisfied that it accords therewith. shall
   pronounce in an audible voice the name of-the voter,
   and his number as given In the list of aualified
   voters. If the voter has lost, mislaid or left at
   home his receipt or certificate, and shall present
   his affidavit of that fact, and-if his appearance
Honorable John R. Shook, page 5        o-3281


    tallies with that given for the same number and
    name on the list of qualified voters, or if the
    voter presents his affidavit of removal from some
    other precinct or county, in cases where the same
    is permitted by this title, together with his re-
    celpt or certificate or affidavit of the loss there-
    of, and the judges of election shall be satisfied
    that he paid his poll tax or received his certifi-
    cate of exemption before the first day of the pre-
    ceding February, the judge shall In like manner
    pronounce in an audible voice the name and number
    of the elector on the certified list ~of qualified
    voters with the word, 'correct.'n (Emphasis ours)
        An examination of Chapter 5 of Title 50 of the Revised
Civil Statutes of Texas, 1925, dealing with "suffrage" will
clearly show that the Legislature of this State has carefully
made a separate procedure for the Tax Collector to follow in
making out the regular poll list, issuing poll tax receipts,
the type of poll tax receipts, from the regular qualified elec-
tors who are possessed with all of the constitutional require-
ments as of February first of each respective gear, and those
persons who are aliens as of the same date.
        The Constitution (Article 6, Section 2) and Article
2955, Revised Civil Statutes, 1925, as amended, clearly pro-
hibit aliens from voting. 16 Tex. Jurls., Sec. 33, page 43
and cases cited.
        Article 6, Sectlon 4 of the Constitution of Texas pro-
vides that the Legislature shall have certain powers in connec-
tion with elections, as follows:
        "In all elections by the people the vote shall
    be by ballot and the Legislature shall provide for
    the numbering of tickets and make such other regula-
    tions as may be necessary to detect and punish
    fraud and preserve the purity of the ballot box
    and the Legislature may provide by law for the reg-
    istration of all voters in all cities containing a
    population of ten thousand inhabitants or more.
        Although the Constitution provides that "all political
power is inherent in the people" it has been asserverated that
the exercise of the elective franchise is not a right that is
natural God-given, alienable, or inherent, but Is, as the word
"franchise" implies, a right conferred by the State or bodies
politic. The right of suffrage is not included among the rights
of property or person. It is conferred by the Constitution;
and, although it is not to be taken away except by a clear com-
Honorable John R. Shook, page 6         0-3281


mand of the law the elector takes the right subject to consti-
tutional limitations. 16 Tex. Juris., pages 37-39, inclusive.
        It has been held, as a general proposition, in the
dase of Campbell, Mayor, et al v.~Wright, County Attorney et
al, 95 S.W. (2a) 149, at page 152, as follows:
        "No citizen qualified to vote in this State
    should be denled that right or deprived of the
    exercise of that privilege and duty, except upon
    a very definite legal ground or upon a clear show-
    ing tQat he has not intentionally or wilfully failed
    or refused to comply with the law forming the basis
    of such rights."
        Concerning the power of the Legislature to regulate,
the right of suffrage it is said in 16 Tex. Juris., pages 40
ana 41, as follows:
        H B 31. Regulation by Leg~islature.-- Except
    as restricted by the organic law of the land -- the
    constitutions of the United States and Texas -- the
    legislature has full power and authority to deal
    with the subject of suffrage in any election which
    may be required,or authorized by law. Indeed the
    constitution contemplates that the legislature shall
    have power to exercise some control over the right
    of suffrage, for it provides among other th%ngs
    that I..... the legislature shall e n + make such
    . . . regulations as may be necessary to detect
    and punish fraud and preserve the purity of the
    ballot box. . . .I And, while the legislature may
    not deny to anyone the right of suffrage granted
    in the constitution, it may enact laws and regula-
    tions intended fDr the preservation of order in
    elections, to guard against and punish fraud and
    undue influence, and impose reasonable and proper
    limitations upon the right of suffrage. Inasmuch
    as the power has been confided to the legislature
    by the constitution without defining limits to its
    discretion, the power includes both judicial and
    executive attributes. Thus it appears that the
    elector takes the right to vote subject to such
    regulations as the legislature may properly impose."
        As indicated above, the Legislature has been given~cer-
tain powers, within its scope of lawful legislation, regulating
the right of suffrage. Clearly, the Cohstitution has given the
Legislature the power to provide the means of registering or
recording the number and,name, in voting precincts, of qualified
Honorable John R. Shook, page 7        O-3281


electors in each respective county of the State of Texas and
this can probably be said not only to be a matter of facilltat-
ing the handling of an election but also is a means to preserve
the purity of the ballot box by cutting down the chances of
fraudulent votes being cast. See Yett v. Cook, (Sup. Ct.),
281 S.W. 837.
        A careful examination of the separate statutes in Chap-
ter 5 of Title 50, dealing with suffrage, shows that exemptions
from the payment of a poll tax are provided for in certain in-
stances. In none of these instances enumerated in the statutes
do we find where an alien is entitled to an exemption from the
payment of a poll tax.
        In Article 2966, Revised Civil Statutes, 1925, provi-
sion Is made for a citizen, in a city of ten thousand inhabi-
tants, who moves to another ward.or voting precinct to have
his name put on the proper tax roll provided he appears be-
fore the Tax Collector not less than five days before such
election or primary election and obtains his corrected receipt
or certificate. In no place do we find where such provision
is made to apply to an alien or to a naturalized alien.
        We believe the Legislature has acted within the scope
of its power, as given to it by Article 6, Section 4 of the
Texas Constitution, in providlng for the existing manner of
registering, separately, qualified electors and aliens liable
for the pagment of the poll tax, in order to preserve the pur-
ity of the ballot and.prevent aliens from being placed on the-
same poll list with regular qualified electors. Yett v. Cook,
supra. We, likewise, believe that the Legislature, In the ex-
ercise of that power anfihaving failed to provide a means of
transfer of an alien who, after paying his poll tax, becomes
a naturalized citizen, to the proper list of regular qualified
electors, has not exceeded Its lawful power, by thus depriving
such persons of the right to vote.
        From all of these observations, we believe, that under
the circumstances submitted in your first proposition, that
where an alien, subsequent to February 1, 1941, becomes a na-
turalized citizen of the United States, that the Legislature
has not seen fit and that it has never been its intention to
provide that such a naturalized citizen shall be entitled to
vote at an election during that year. It is obvious that the
Legislature has made a clear and marked distinction between
regular qualified electors and an alien who has paid his poll
tax for which he would be liable under the provlslons of Arti-
cle 2959. We believe that the specific provisions, referred
to above, dealing with the transfer or regular voters from-one
voting list to another regular voting list, by implication,
clearly shows that the Legislature did not intend for such
Honorable John R. Shook, page 8         0 -3281



naturalized aliens to be transferred from the alien poll list
to that of the regular poll list and thereby place~such natur-
alized aliens on the list of regular qualified electors.
        Since we have been unable to find where the Legisla-
ture has provided for the transfer of said aliens to the regu-
lar voting list when said alien becomes a naturalized citizen
and since the Legislature by Article 3005 has expressly pro-
vided that election judges shall ascertain the voter's right
to vote by consulting the list of qualified voters furnished~
by the Tax Assessor and Collector, and for all of the fore- "~
going reasons which we have discussed and in view of the con-
stitutional and statutory provisions heretofore enumerated
and the rulings and the authorities cited, we are of the      "
opinion,,and you are so advised, in answer to your first pro-
position, that it is answered in the negative and that the
alien who has become a naturalized citizen subsequent to Feb-
ruary 1, 1941, is not entitled to vote at an election during
the year 1941.
        We can find no substantial difference in the facts
submitted in your second proposition which would change the
ruling and our opinion, as has been expressed in answer to
your first proposition, and you are therefore advised that
your second proposition is answered in the negative for all
of the reasons given In answer to your first proposition.
        In answer to your third proposition, we call your
attention to our discussion in answering your first proposi-
tion, to the effect that thenLegislature has not made any pro-
vision for the Tax Assessor and Collector to remove the per-
son from the alien poll list and place said person on the
list of regular qualified electors. The statutes dealing with
the poll list are mandatory. Yett v. Cook, supra. For the ~'~
reasons given in answer to your first proposition you are re-
spectfully advised, that it is our opinion that the Assessor
and Collector of Bexar County, Texas, under the existing laws,
does not have the power nor is it his duty to transfer a per-
son who appears on the alien poll tax roll to the regular
qualified elector poll list.
        In answer to your fourth proposition, you are advised
that election officials who are charged with the duty and res-
ponsibility of holding an election have no power except that
which is expressly given by law and that which is necessarily
implied to carry out those express powers with a view of hold-
ing a valid and lawful election in which the will of the elec-
torate shall be fairly and honestly expressed. The statutes
of this State have with great particularity, defined what the
duties of election judges shall be and have provided for
Honorable John R. Shook, page   9        O-3281


criminal prosecution of such officials if such duties are not
properly discharged. See Chapter 8 of Title 50, Revised Civil
Statutes, 1925, and Title 6 of the Penal Code of the State of
Texas, 1925. We believe that under this pattern of the elec-
tion laws and in view of what has already been said in our
discussion and since there is no such express provision given
by law that election judges would have no power and neither
would it be their duty, to allow an alien who became's natur-
alized citizen, under the facts of your first and second pro-
positions, to vote at an election if his name was not proper-
ly upon the regular election rolls in the manner heretofore
discussed and required by law.
        We trust that we have fully answered your inquiry.
                                    Yours very truly
                                ATTORNEY GENERAL OF TEXAS


                                    By s/Harold McCracken
                                         Harold McCracken
                                                Assistant

HM:db:wc

APPROVED JUN 20, 1941
s/Grover Seller9
FIRST ASSISTANT
ATTORNEY GENERAL
This opinion considered and approved in limited conference.
