                        July 15, 1948

Hon. Perry L, Jones            Opinion No. V-635
County Attorney
Travle county                  Re: Legality of personnel
Austin, Texas                      of the Regular United
                                   States Air Foroe vot-
                                   ing in Texas elec-
                                   tions
Dear Mr. Joneet
          Reference la made to your letter of recent
date wherein you request our opinion on the above cap-
tioned matter. We quote from your letter at3followa:
            “I received the enclosed letter from
       the Legal Officer out at Sergstrom Fleld.
            “You will note he 1~ asking whether
       members of the Regular Air Foroe personnel
       come under Article 5 Sections;1 and 2a of
       the Constitutionof Texas which prohibits.
       voting by Regular Army and Ravy personnel.
            ‘1 do not have the Federal statutes
       pertaining to the consolidationof the Army
       and Navy, however, it is my understanding,
       and belief, that the Regular Air Foroe par-
       sonnel Is now a part of the Regular Army and
       Navy defense set-up. However, this quea,tlon
       is one of state wide interest and I believe
       should be passed upon by your offlce rather
       than by mysrlf.*
          In 1947, the 80th Congres’s,First Session,
passed the ‘NationalSecurity Act of 1947.” W4 quote
from the pertinent portions of aaid Act found in U. S.
Code, CongressionalService, 80th Congress, page4 503-
507%

            “Sec. 201. (a) There Is hereby es-
       tabllshed the National Military Establish-
       ment, and the Secretary of Defense Shall
       be the head thereof.
Bon. Perry L. Jones, page 2   (V-635)


         l(b) The I?atlonalYlilltAry Est~bllrh-
    nmnt shall consist o fthe Dspartnumt of.tbo
    Army, the department of the Havy, snd the
    Department bf the Air Force, together tith
    all other agencies created under title II
    of this Act. . :    '.'

         %4c.  208.   (a) The United States Air
    Force Is hereby establishedundsr th4 Da-
    partment of the Air Force. ;The Army Air
    Forces, ths Air Corps, United States Army,
    and the GeneraLHeadquarters Air For04
    (Air Force Combat Comma&l), shall be trans-
    ferred to the United States Air Force.
            *(b) There shall be a Chief oi Staff,
    United States Air Force, who shall be appolnt-
    cclby the President,by and with the advice
    and consent of the Senate, for a term of
    four years from among the officers    of &en-
    era1 rank who are assigned to or commission-
    ed in the United States Air Force. JJnder
    the dlrectlon of'the Secretary of ths Air
    Forze 3 the Chief of Staff, United States Air
    Force, shall exercise    command over the United
    States Air Force and shall be charged with the
    duty of carrying into execution all lawful
    orders and directionswLM.chmy be transmlt-
    ted to him.     The functions of the Cmmanding
    General, General Headquartem Air Force (Air
    Force Combat Cc&and),     and of the Chi4f OS
    the Air Corps and of the Dcminanding   G4mmi1,
    Army Air Forcea,;shallbe traneferrddto th4
    Chief of Staff United States Air Force. When
    such transfer becomes effective, the offices
    of the Chief of the Plr Corjm, Unlted Statea
    Army, and Assistant@ to the Chief of the
    Air Corps, United States)Arm~r,,'~~ro"lded for
    by the Act of June 4, 1920, as amended (41
    Stat. 768), and CommandingGeneral: General
    HeadquartersAir Force, provided for by Seo-
    tion 5 of the Act of June 16,'1936 {49 Stat.
    1525), shall ceas4    to exist. while holding
    oifice as,Chief of Staff,,United States Air'
    Foro4, the incumbent,s'bahi   hold a grade and
    receive    allowances equivalent to those pre-
    scribed by law for the Chief of Staff, United
    States Army. Ths Chief of Staff, ZTnited
    States Army, the Chief of Ipaval Operations,
Bon. Perry L. Jones, page 3   (V-635)



    and the Chief of Staff, United States Air
    Force, shall take rank among thsmselvss ac-
    cording to their relative date@ of appolnt-
    ment as such, and shall each take rank lbot4
    all other officers on the aotlve list of the
    Army, Ravy, and Air Force: PROVIDRD, That
    nothing in this Act shall have the effect
    of changing the relative rank of the present
    Chief of Staff, United States Army, and the
    present Chief of Naval Operations.
          *(c) Ail commissioned officers, warrant
    officers, and enlisted men, commissioned,
    holding warrants, or enlisted, in the Air
    Corps, United States Army, or the Army Air
    Forces, shall be transferredin branch to the
    United States Air Forc4. All othsr cotio-
    sioned officers,warrant officers,and en-
    listed men, who are con~nission4cl, hold war-
    rants, or are enlisted, in any ccmpcmrnt of
    the Army of the Unit4d State8 and who are
    under the authority or commend of the Com-
    manding General, Army Air Forces,     sball be
    continued under th4 authority or command of
    the Chief of Staff; United States Air Force,
    and under the jurladiotlonof the Department
    of the Air Force. Personnel whose status
    is affected by 'th3.8rubsection shall retain
    their exletlng commissions,warrants, or en-
    listed status in existing componaats of the
    armbd forcea unless otherwise altered or
    terminated In accordance  with existing law;
    and they shall not be deemed to have been
    appointed to a new or different office or
    grade, or to have vacated their permanent
    or temporary appointments in an existing
    component of the annea forces,    solely  by
    virtue of any change in status under this
    subsection. No such change in status shall
    alter or prejudice the status of any lnd$vl-
    dual 80 assigned so a8 to deprive him of any
    right, benefit, or privilege to which he rpay
    be entitled under existing Law.
          y(d) Except as otherwise dirsoted by
     the Secr4targ of the Air Force, all proper-
     ty, r4cords, in4tallatlons,agsncies, acti-
     vities, projects, and civilian pereonu41
     under the jurisdiction,COntrOl, 4UthOrity,
Hon. Parry L. Jones, page 4   (V-635)



    or commnd of the CommandingGeneral, Army
    Air Forces, shall be continued to the same
    extent under,the jurisdiction,control, au-
    thority, or conunand,respectively,of the
    ChLLefOS ,Staff,United States Air Forue, in
    the Depa&nent of the Air Forcr.
          “(0) For a period of two Years from
     the date of enactment of this Aot. person-’



      he Air Force by direction of the Secretary
     of .Defense
               .” (Emphasisadded.1
          The last sentence’of section 1 of Article III
of the Texas~Constitutionof 1845 reads as follows:
     (I     and provided further, that no sol-
     diei,‘seaman,or marine in the Army or
     Navy of the United States ahall be entit-
     led to vote at any election created by thi8
     Constitution.”
          A eimllar provision was contained in all the
Constitutionsado ted by this State subsequent to the
Constltutronof 1845, and we call your particular at-
tention to a part of section 1 of Article VI of the
Constitution of 1876, which reads as follows:
          *The Pollming classes of persons
     shall not be allowed to vote in this State,
     to-wit: .   l   .




          “Fifth@ AI1 soldiers,marines an4
     seamen, employed irithe service of”tba
     Army or Navy of the United States.
          In 1932~the above provision of the Constitu-
tlon was amended by adding thereto the following%
          “Provided that this restrictionshall
     not apply to officers of the National Guard,
     of Texas, the National Guard Reserve, the
     Officers Reserve Corps of the United States,
     nor to enlisted men OS the National Ward,
     the National Guard Reserve, and the Crgan-
     ized Reserves of the United States, nor to
                            .

Hon. Perry L. Jones, page 5 (V-635)


     retired officers of the United States Army,
     ??a*~,and Marine Corps, and retired warrant
     officers and retired enlisted men of tti
     United States Army, Navy, and Marine Corps.'
          Hot only was the above provision in sootion 1
of Article VI of the Texas Conntitutionanientled80 as
to allow the above named pergnxralof the ArpraaServices
to vote, but at the atunetime seotions 33 #nd 40 of Artl-
cle XVI of ths Oonetitutloawere ala0 amnaea a0 as to
allow them to hold publio offices.
          In order to answer your quest&on, it is nec-
essarg for us to determine the meaning of the provision
contained In our various Constitutionsrelative to the
prohibitionagainst service men voting.   and particularly
the provision in our Constltution of 1676,and the amend-
ment to the same 8s adopted In 1932. In doing this, we
call your attention to the statement of the Supreme
Court in the case of Travelers Insurance Company v. Mar-
shall, 124 ‘Tex. 45, 76 S.W.(2d) 1007, which is as fol-
lows:
          “The meaning which a oonstltutional
     provision had when adopted, it had today;
     its intent does not change with time nor
     with conditions;while it operates upon
     new subjects and changed COnditiOns, it
     operates with the same meaWn& and Intent
     which It had when formulated and adopted.
     9 Texas Jur.     427; Sec. 18; 6 Ruling
     Case Law, p. t’
                   6,  Sec. 39; Cooley's Constl-
     tutlonal Limitations (8th Ed.) vol. 1, p.
     123.  As Jud?;eCooley saysr ‘A COn$tttU-
     tion is not to be made to mean one thing
     at one time, and another at some subse-
     quent time when the circumstancesmay have
     so changed a8 perhaps to make a different
     rule in the case seem desirable. ***       It
     is with special reference to the varying
     moods of public opinion, and with a view
     to putting the fundamentalsof government
     beyond their control, that these instru-
     ments ore framed . . . THE MEANING OF
     THE CONSTITUTIONIS FIXED WHEZNIT IS ADOPT-
     ED, AND XT IS NOT DIFFERENT AT m     SW%%-
     ~;W&TT;.E$ifN A COURT HAS OCCASION TO
                      Oooleg~s Const. Urn. vol.
     1, pp. 123, i24 (ItaEics  OUP~).”
Hon. Perry L. Jones, Page 6   (v-535)


            The members of tile ConstitutionalConventions
of 1845 and 1875 and the votere of Texas who adopted the
above quoted provision in 1876 which deprived ‘allysol-
diers, marines and seamen, employed ln the service of
the Army OF Navy of the United States“ from voting at
elections in thls Stat&, certainlyintended to exclude
all members employed Ifaany branch of the Armed Services
of the Unlted States’from voting at el,ectlons   In this
State. We are sustainedin this conoluslonby the.hold-
lng of the court in ‘t& case of Savage‘v. Humphri$s, 118
S.W; 893, rendered pribr to the 1932 amendment,where-
in the court held that .Bmember of the National Guard
employed in the seiVlce of the Army of the United States
was not entitled to vote under the State Constitution.
Thfs holding,is very    slgnlficantin view of ths fact
that the vords “Texas Natlonal Guard” were not used In
the constltutlonalprovision of 1876 that the oourt was
ccnstrulngin the instant case, and what is more, the
Texas National Guard was not authorlsednor organleeil
until 1903.     (See Senate BillJL.5, Aots of the 28th Leg-
islature,Regular Sessirin, 1903, p. 206, and the blen-
nial repo&s of the Adjutant General for the years 1903-
104).     Also, in the case of State v. Degress, 53 Tex,
3 z 7, the oourt held that the retired officers constitute
a part of the Army of the United Staten and a8 a oonee-
quenos are held to oooupy,anoffloe of profit or trust
under ths United States wlthln the meanin or Article
XVI, seotlon 33 of ths Oonstitutlon. (ThL aeoision
was also pendered prior to the amendment of 193?),
             From the forseolng it &an be clearly seen that
ths spirit and Intent of the provielon oontainedin the
aonstltutionof 1876 prohibitedall membeirsof the Armql
Foroes,,,of the United States Goverrlrnentfrom voting in
eleotibns in this State, regardless of whether they were
known by the name of soldiers,    marines, or seamen ln’the
service of the Army or Nary of the United States, or by
some similar or comparablename. Of course, a8 times ana
conditionshave changed, we have gone through two of the
most deVa8tRting wars in the history of the Nation, and
it has been necessary that the Armed.Forcesof the United
States be reorganizedfrom time to time so as best to
aope with the emergencies. But at the 881118   time, we
tunk it is Immaterialds to the name 0~ names by which
said branahes of the Armed Forces have been knOXn. As
stated in the case of Travelers InsuranoeCo. v. Manshall,
          “A ConstitutionIs not to be made to mean one thing
~~“~~ time and another at some subsequenttime when the
circumstancesmay have so changed as perhaps to make a
Hon. Perry L. Jones, page,7 (v-635)


 different rule in the case seem desirable.U The meaning
 of the Constitutionis tix0a when it 1s adopted, and It
 is no different at any subsequent time, and the same aan
 only be changed by a V&e of the people in a proper elec-
 tion oallea for that purpose.
          In 1932 the voters of this State adopted an
amendment to section 1, Article VI, which excludes from
the provision thereof officers of the National Guard of
Texas, Natlonal Guard Reserve, Officers Reserve Corps'
of the United States, enlisted men of the National Guard,
the National Guard Reserve, Organized Reserves of the
United States, retired offloers of the United States Army,
Navy ana Marine Corps, and retired warrant officers and
retired enlisted men of the United States Army, Navy and
Marine Corps.
          From the effective date of the amendment of
1932 it was intended that all persons above named could
partlclpate In the elections of this State provided they
possessed the other necessary qualificationsfor voting.
However, if the members of the Armed Force6 of the United
States are to come wlthln one of the above enumerated ex-
ceptions, then they muat cIearlg bring themselves there-
under. As stated by the Supreme Court ln the case of
Cramer v. Sheppard, 140 Tex. 271, 167 S.W.(2d) 147, "In
construing or interpreting the constitutionaland statu-
tory provisionswhioh define a general rule and then pro-
vide exceptions thereto, one clalmlng under,,theexcep-
tion must clearly brl* himself thereunder.
           To our minds, the rule has not been met in
'this Instance for the members of the Regular United States
 Air Force cannot clearly come under the exceptions con-
 tained in subsection 5, section 1, Article VI of our Oon-
 stltution. Also, you will observe from reading thz
 "National.Security Act'of 1947" that "no such change in
 status ahall alter or prejudice the status of any lndl-
 vldual so areigned, so as to deprive hlm of any right,
 benefit or prlvllege to which he may be entitled under
 existing law.' Certainly, the lVationa1Congress did not
 ,intendto deprive a member of ~theRegular Air Force of
 the United States of any privilege or benefit that he
 might be entitled to.upder the existing law. On the
 other hand, it did not intend'to give such individual
 any special right, benefit or privilege‘not enjoyed by
 the other members of the Regular Armed Forces of the
 united States.
          In addition to the f&gc)ing, you will observe
Hon. Perry L. Jones, page 8   (V-635)


from reading the underlined portion of the National Se-
curity Act above quOted’j,,?that
                               for a’perlod of two years
from the enaotment o? saM Act, military personnel may
be transferredbetwem the Department of the Arb and
the Department of the Regular Air Force by dlreotlon
of the Secretary of Defense. This clearly showa,that
at least for two years it is possible for the members
of the Regular Air Forces of the United States to also
be members of the Regular Army, or for the members of
the Regular Army to be members -ofthe Regular Air Force.
Further, a careful study of the entire~“Nationa1Secur-
ity Act of 1947” oonvinces qs that the personnel of the
Regular United States Air,Porte :,comevithln the prohl-
bitioa oontained in subaactlon5,>seotion 1, Article VI
of the Texas Conetitutioh, .ana it is, .therefore,our
opinion that they cannot vote at the eleotlons held in
this State.


          plembers.ofthe Regular United States
     Air Force are prohibited from voting at
     eleotlona In tNa State. Subrectlon5,
     seotlpn 1, Artiole VI, Texas Coaatltutlon.

                        .,        Yours
                                      ‘W very,,.
                                              truly,
                              ATTORNEY ‘OENERALCP’TEXAS



JCD:wbsmw                             .   C. Davla, Jr.



                              APPROVEDt                    ‘d’




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