                          January 30, 1964


KotioMble'JackIi.Holland              ~OplalonNo. C-212
Cijtirity
      Attorney.
%iiti&+30n~-~C0hnty                   He:      Whether thePedera1 C&sire
Athens ,Texas
          .                                    Is the exclusl*e-,Iialilti
                                                                      for"
                                             ..determlning.licipulaeion"‘of
                                               city nith,respect'to.‘I'~~di~
                                               ment for..obtalnlngexeaiptl6n
                                               certiflca$es,,under..thepr'o-
                                              visions of the Election Ride
                                              baa amended by the 9th Legls-
Dear-Sir:                                     'lature.
       :
            Your request fbr an opinion of thie office reads as
follous:
         ..;On'Decemberxl;--1962,    by your ~pitiida
     ~o:~.~-14~1,~~you~adtriaed   me that a resident
     ~6f"theeCityof.At+en.s,,T+as.nhois over 60
     years.of,age Iq.;pquiFd;.$oobtain"iTPoll,
     Tax-bxemption'aertlflcate    '~
                                   in order to be.
     entitled to vote. This opinion was based
     on the fact that the City Council of the
    .'6r~.~of':dthenB,~-had;'by,~soLutioa,deter-
     hiined:tha%ltspopulation3iasmore'than-
     1~,~00'.~peopl~~?the~by   maklng'effeotive
     ~Artlbl~e-'~il6~~~.:~the~Sexas
                                  ;BlectlonCode,
    ,desplte'ths'.'rac%that   .the:lastSederal
     oenaus.placed~2;h&.populatlon.of,&heCity
     ofAthens at lk.m’4&an 1O;OOO persons.
          ‘"I.note;that:~Artlcle
                               5.16:~ the :Texas
     Electlon:Codp~~haebeen 'amendedand a new
     Article &Old-has been added, both by the
     58th :Leglslaturei2 iiotefurther that the
     new Article .l;Ola(~c)~
                          provides 'thatthe
     Federal oenaus shall~.be;thebasis for deter-
     mining population under the provisions of
     the Election Code. The population figtires
    ~'forthe Clty.of Athens are the same as they
     were when my original opinion was requested.

                                  -1021-
Hon. Jack H. Holland, page 2 (C-212 )


          "I would appreciateyour opinion as to
     whether the new Article l.Ola of the Election
     Code now applies to the facts upon which the
     orlginal.oplnlonwas based, thereby doing
     away wlth'the requirement that a resident of
                 Athens .iMer60 years of age
     the'.City..of
     obt&ln a Poll Tax exemption certificate
     before he will be qualified to vote."
           By the provisions of Article 5.16 of Vernonls'Texas
 Electlon'Code,every voter exempt from payment of the poll tax.
 bn thegroundof overage who resides in a city of 10,000 or more
 lfihabltantsIs required to obtain an annual exemption certificate
 by the 31st day of January In order to vote at elections held
 dufirigthe ensuing year. At the time Opinion No. WW-1491 was
'weltten(December 11, 1962), neither Article 5.16 of the Election
'Code'norany other statute or constitutionalprovision prescribed
'the'~:method
            by which the population of a city was to be ascertained
 ftirthe purpose of determiningwhether Article 5.16 was applicable
 to the voters residing therein. The only constltutlonalprovlalon
 touchingupon this requirementIs found in Article VI, Section 4,
 which authorizesthe Legislature to make such regulationsas may
 be necessaryto detect and punish fraud and preserve the purity
 of the ballot box, and states that "the Legislaturemay provide
 by law for the registrationof all.voters In all cities containing
 a populationof ten thousand Inhabitants or more." Texas Power'&
                                             111 S.W.2d 1225 (Tex.
                                                208 S.W.2d 412
                                                 147 Tex. 70;212 S.W.2d

           In this state of the law, Opln&on No. WW-1491 held that
cities of more than 10,000 Inhabitants have a constltutlonally-
vested Interest In the qualificationsof persons who vote In their
city elections,and that where the City Council of the City of
Athens, a home-rule city, had determined by use of a reasonable
mode of procedure that the city's population was In excess of
10,000 Inhabitants,the provisions of Article 5.16 of the Election
Code were applicable to voters residing in that city. Cases cited
In supportof the holding Include City of Tyler v. Tyler Building
& Loan AssIn, 98 Tex. 69, 81 S.W. 2 (1904) Wllllams v. Castleman,
   12 T   193 247 S.W. 263 (1922); city of'Houston v. City f
Magna% Park 115 Tex. 101 276 S W btQ ( 925) Town of Freeport
V.   Sellers, 144 Tex. 389, 140 S.W.Gd.813 (1i45);;and
Farmersvlllev. Texas-LouisianaPower Co., 33 S.W.2d ,.,x.clv.
APP. 19301.
          In   1963 the Legislatureamended the Election Code

                                 -1022-
  Hon. Jack H. Holland, page 3 (C-212)


   tijiiddArticle l.Ola, containing the following provision as
   paragraph (c) thereof:
            "(.c).TheUnited States decennial census of
       date Immediately precedlng,theaction -1n:questlon
       shall be the~'baslsfor determiningpopulation
       under-any rovlaloh of this Code." Acts 58th:%eg:,
       lg63,,ch. E24, sec. 2;~. 1017.
   !Rilaact.took effect on August.23,.1963. In this c&nedtlon;it
  ;may be Mted.;that the 58th Legislaturealso passed.a.lar'<Acts
.''.58thLeg;, 1963, ch; 447, p. 1151, codified as Art:29d; ViC.S;)
   providlng~that-the~flrstday of January of the year ImmedlatelJi
   following'ther~calendar year during which a federa.Fenstia%s tak&n'
   shall be the date on which the State and its political subdlCldlons
   and agencies shall recognize and act upon the population counts -
   as determined by the census. If the Legislaturehad the authority
   I% lPakethe federal-decennialcensus the basis for determining
   @opul&lon under Article 5;16 of the Election Code, to the exclusion
   of,ariyother method;:%t .becomee,evldent that these statutory pro-
   visions are non controllingand~that.OplnlonNo. WW-1491 has become
   obsolete by vlrtue,of this change.
                                 -,
             The cases cited in Opinion No; WW-1491,:listed above,
   involved the right oP a city or's county to exercise some power
   granted to-~t,by.the,.Coaetltution or by statate,',.cbndltloned
   upon Its having a ~speclfled.populatlon but with,no method pre-
   scribed by which the populationwas to be.aacertalned. The cases
   held that there was In the grant.of'poweran Implied grant of
   authority to ascertain’ the facts ~(i.e..,-
                                            the.number of Inhabitants)
   upon which the rlght:dependcd. If.the power la granted by the
   Constitution,the .%egislature  ;canndtrcurtall~rthe~lmplled
                                                             power so
   as to reqialre~%a+populatlon.bede$ermltied   ,bythe federal census.
   City of Houatou~~.~C%tyof,Map;nollaPark, supra.
             Here, the constitutionalgrant of power under which
  Article 5.16.-of<the .Electloti
                                Code was enacted Is conferred on the
  Legislature,and not on the cities affected thereby. If the power
  of the Leglslatuz%to:~enactArticle 5.16 springs from the provision
  In Article VI,:Section'4 which authorizes the Legislature to provide
  for registration of voters in cities of 10,000 or more Inhabitants,
   then w+are..of *theopinion that this express power also carries with
  'ft the implied authority to designate the method by which population
   Is to be ascertained. ~If the power to enact Article 5.16 springs
   from the general constitutionaldirection to make regulations for
   preserving the purity of the ballot box, then clearly the provision
   making the federal census the basis for determining population does
   not Infringe any Implied constitutionalpower of cities affected by
   the statute, not only because the express power Is granted to the

                                   -1023-
Hon. Jack H. ‘Holland,-
                      page 4,(-C-212)


Legislaturebut also because the Constitutiondoes not Impose
any populationrequirementsas an Incident to this power.
          Since the Legislaturehas now designated the basis
upon which populationIs to be ascertained for the purpose of
determiningwhether exemption certificatesare required under
the provisionsof Article 5.16, we are of the opinion-that
ascertainmentof populationby any other method can no longer
be.used for this purpose. Consequently,we hold that Oplnioti'
Nij.IW-l&l has now become obsolete as.8 result of this change
lri-
   th&..law.According to the 1960 federal census, the City'of-.'
Athens ha8 a populationof less than 10,000. Therefore;overage
exempt voters residing In the City of Athens are not required to
obtain exemptioncertificatesa&a condition for voting.


          .Withthe,enactment of Artlole 1.01a of
           the.ElectlonXode In 1963, making the
         .precedlngfederal census the basis for
         ~determlnlng.populatlonunder any pro-
          vision of the Code,~the population of a
           city for the purpose of determining
          whether the exemption certificate
         .-requirements of Article'5.16 of the
          .Codeapply to its exempt overage voters
         *:mustbe..determlned by that method.
          The population count as ascertained
          by the .clt~~sgoverning body .under
          some.other. procedure can no longer
          .be.uaed:aathe basis of-determining
          iappllcablll~of.thls requirement.
          Attorney-GenerallsOpinion No..WW-1491
          has..been.supereeded by.this -statutory
           change.
                              : Youra,,verytruly,
                               WAGGONER CAM
                               Attorney General

                               By
                                .tiwa+
                                     =
                                    Assistant
MKw:sj



                                -1024-
Hon. Jack H. Holland, page 5 (C- 212)


APPROVED:
OPINION COMMI!C!I'EE
Wi VI Geppert, Chairman
C; Li Snow
Vi F. Taylor
Rdbert Stiith
W. 0. Shultz
APPROVED~FOR THE A!lTORNEYGENERAL
BY: Stanton Stone




                                 -1025-
