        THE     ATTOEWEY          GENERAL

                    OF   =XAS




Honorable Jules Damiani, Jr.      Opinion No. C-369
Criminal District Attorney
Galveston County                  Re: Qualificationsfor voting
Galveston, Texas                      in an election held
                                      under Article 1243, R.C.S.,
                                      for abolition of cor-
                                      porate existence of a
Dear Mr. Damiani:                     city.
          You have requested an opinion on whether, In an
election for abolition of a city's corporateexistence under
Article 1243, Revised Civil Statutes of Texas, a person must
be listed on the tax assessment roll of the city as a pre-
requisite for voting. You further ask whether, because of
the effect of,the community property laws of the State of
Texas, a man or a woman not listed on the city tax assessment
roll who is married to a person listed on the roll as the
owner of community property would be entitled to vote in the
election.
          Article 1243 reads as follows:
          "All persons who are legally qualifiedvoters
     of the State and county in which such an election
     is ordered, and are resident property taxpayers in
     the city or town where such election is to be held,
     as shown by the last assessment roll of such city
     or town, shall be entitled to vote at such election.
     If a majority of such voters voting at such election
     shall vote to abolish such corporation,the county
     judge shall declare such corporationabolished, and
     enter an order to that effect upon the minutes of the
     commissionerscourt, and from the date f such order,
                                            P
     said corporation shall cease to exist."-/


   J   Abolition of cities and towns incorporatedunder Chapter
1 0: Title 28 R.C s    must follow Arts. 1241, 1242 and 1243,
R.C.S., where& aboliiion of towns and villages incorporated
under Chapter 11 of Title 28 must follow Art. 1261. Richardson
v. State, 199 S.W.2d 239 (Tex.Civ.App.1947, error ref. n.r.e.1.



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Bon. Jules Damiani, Jr., page 2 (C-369)


          We have concluded that the provision in Article 1243
which limits voting at the election to property taxpayers is
unconstitutional,in the light of recent decisions by the Rxas
courts, and we are so advising you. finview of this holding,
we do not answer the questions you have asked.
          Article VI, Section 2 of the Texas Constitution
prescribes the requirementsfor being a "qualifiedelector."
Property ownership is not one of the enumerated requirements.
The residence requirementsare that the person "shall have
resided in this State one year next preceding an election
and the last six months within the district or county in which
such person off&s to vote."
          Article VI, Section 3 of the Constitution,which has
been a part of the present Constitutionwithout change since
its adoption in 1876, reads:
          "All qualified electors of the State, as
     herein described,who shall have resided for six
     months immediatelypreceding an election,within
     the limits of any city or corporatetown, shall
     have the right to vote for Mayor and all other
     elective officers;but in all elections to
     determine expenditure of money or assumption
     of debt, only those shall be qualified to vote
     who pay taxes on property in said city or in-
     corporated town; provided, that no poll tax
     for the payment of debts thus incurred, shall
     be levied upon the persons debarred from voting
     in relation thereto."
          Section 3a of Article VI, added to the Constitution
in 1932, reads:
          "When an election is held by any county, or
     any number of counties, or any political subdivision
     of the State, or any political subdivisionof a
     county, or any defined district now or hereafter
     to be described and defined within the State and
     which may or may not include towns, villages or
     municipal corporations,or any city, town or
     village, for the purpose of issuing bonds or other-
     wise lending credit, or expending money or assuming
     any debt, only qualified electors who own taxable
     property in the State, county, political subdivision,
     district, city, town or village where such election
     is held, and who have duly rendered the same for
     taxation, shall be qualified to vote and all electors

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Bon. Jules Damlani, Jr., page 3 (C-369)


     shall vote--lnthe election precinct of their
     residence."
          These three sections of the Constitutionare the
only ones prescribing the quallflcatlonsof voters generally.
There 1s no provision in the Constitutionrelating specifically
to qualificationsfor voting in this particular type of elec-
tlon.
          It Is a general principle of law that where the
Constitutionhas prescribed the quallflcatlonsfor voting
at an election, the legislaturecan neither add to nor take
from those quallflcatlons. Koy v. Schnelder,~llOTex. 369,
218 S.W. 479, 221 S.W. 880 (1920). Texas Power & Light Co.
v. Brownwood Public Serv. Co., lli S.W.2d 1224 (Tex.Civ.App.
1936, error ref.).
          An election on abolition of the corporate existence
of a city is not an election to determine expenditureof money
or assumption of debt, under the provisions of Section 3 of
Article VI, nor is it an election for any of the other purposes
enumerated in Section 38. The crucial question, then, as
bpplied to the present situation, is whether Section 2 of Arti-
cle VI prescribes the qualificationsfor..votlng~,Xnh'el&&ion
nf'thls nature.
          In Bonham v. Fuchs, 228 S.W. 1112 (Tex.Civ.App.1921,
error ref.), the majority of the court held that the provision
in Article 1248 limiting voting to property taxpayerswas not
ln conflict with Sections 2 and 3 of Article VI, saying that
Section 3 "shows upon Its face that the makers of the Conetitu-
tlon did not intend by the provision of section 2 of this artl-
cle to confer and regulate the right of suffrage ln munlclpal
elections ln cities and towns," and that Section 2 "was only
intended to confer and regulate the right of suffrage ln general
elections affecting the state as a whole." In a vigorous
dissent, one member of the court pointed out that this holding
seemed to him to be at variance with the direct former
pronouncement of the same court in Warrener v. Lambrecht,
146 S.W. 633 (Tex.Clv.App.,1912), involving an lnterprefatlon
of the.same statute. We quote from the dissent'inthe Bonham
case :

           " * l * The validity of the statute as against
     the constitutionalobjection sustained in the trial
     court in this suit wbs not involved, but as one of
     the grounds upon which Its judgment was rested n
     Warrener v. Lambrecht7 this court expressly he1c
     &at the qualificationsof a voter prescribed in

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Hon. Jules     Dadaal,    Jr.   page 4 (C-369)

         rectlon 2 did apply to an election under this
         brticle to abolish the corporate existence of a
         town, ita language being bB follows:
              “‘Section 2 of the Constitution,as amended
         ln 1902, prescribing the qubllflcatlonsof ‘8 voter,
         in addition to the requirementthat he shall have
         resided ln the state one yesr and in the county
         six months, provided that he must have attained the
         age of 21 years, be a citizen of the United States
         * * * and must have paid his poll tbX and hold a
         receipt therefor, showing the same to have been
         paid before the 1st day of February next preceding
         the election. We think the proof offered at the
         trial falls short of showing that the 19 persons
         poseessed all these prescribed quallflcatlons.* * *I”
           The Supreme Court refused an application for writ of
error In the Bonham case. Although the notation of “error
refused” did m       that tlme have the connotationof bpprovlng
the principles of law declared in the Court of Civil Appeals’
opinion, It did connote approval of.the result reached. See
“~OtbtiOIM  on Applications for Writs of Error,” by Gordon
Simpson, 12 Texas Bar Journal 547, 574.
            In 1951 this nrovlelon in Article  1243 amin  came
 before the bppeilate cobts ln two election conte8; cbsee.
 Franklin  v. ‘Wilson,242 S.W.2d 820, decided by the Eaetland
Court of Civil Appeals, held that the tax assessment roll
 provided for ln Article 1243’\1s  merely directory and provided
 to bid the county judge and election judges in determining
 who owns property within the ‘area, and are thereby eligible
 to Vote bt the~~electlon, bd",thbt votes were not rendered
 illsgbl  bec&ih”‘thenames of ,thevoters did not bp ear on the
 roll.: In :Polk*. Vance, 150?l!ex.  586, 243 S.W.2d 129, :
 ansuerlng certlfled,questionsto which the Dallas Court o?
Zlvll Appeals conformed its opinion ln 244 S.W.2d 869, the
 Supreme Court held that the citizens of b city could not be
 deprived of their right to vote at the abolition election by
 the fact that the city had not compiled an assessment roll.
 The constftatlonblltyof the provision ln Article 1243
 rertrlctlng voting to property taxpayers was not rblsed ln
either     of these   c&wee.
          Felther the Vblldlty nor the constructionof Article
I243 has comebefore an appellate court since 1951. However,
there ha8 been b series of cr#es decided since that date Which,
in our opinion, have lmplledly.overruled the holding lnBonham
v. Fuchs. .,Butbefore.discuss$.ng~~those
                                       cases we wish to mention
two ether’decisions rendered after 1921, the date of the Bonham
CbBe; which blso bear on the question.
              It has already been noted that Warrener v. Lambrecht,

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Hon. Jules Damlaml, Jr., page 5 (C-369)


146 S.W. 633, decided by the Galveston Court of Civil Appeals
in 1912, held that Section 2 of Article VI applied to city
elections other than those expressly mentioned in Article VI,
Section 3 of the Constitution. Other cases holding to the
same effect have also been decided since Bonham v. Fuchs.
In Texas Power & Light Co. v. Brownwood Public Service co.,
111 S.W.2d 1224 (Tex.Civ.App.1938, error ref.), involving
qualificationsof voters at a referendum election on the
granting of a city franchise,the court said:
          "It is now settled law that the language of the
     Constitution determines the qualificationsof the
     electorate. Neither the statutes nor the provisions
     of a city charter, which in home rule cities must
     conform with the Constitutionand the general laws
     of the state, can impose additional qualifications
     as a prerequisite to the right of its citizens to
     vote, which are not authorizedby the Constitution."
          In Powell v. Cite of Baird, 133 Tex. 489, 128 S.W.2d
                                .,Tnd election, the Supreme
786 (1939); which involved a citv
Court said that Section 2 of PLrticleVI disqualifiesas a voter,
at all elections, every person who is subject to payment of a
--
~011 tax under the laws of the State unless such nerson has
paid the tax by a certain named date. This case -?Ieffect
holds that by force of its own terms Section 2 applies to
all elections.
-
          We come now to the cases decided since 1951. In
Snelson v. Murray, 252 S.W.2d 720 (Tex.Civ.App.1952, error
ref., n.r.e.), the Court of Civil Appeals held that Article VI,
Section 2 of-the Constitutiongoverns qualificationsof voters
for election of officers of a conservationdistrict created
under authority of Article XVI, Section 59 of the Constitution,
and that a statute restrictingvoting at the election to
qualified voters of the county "who own taxable real property
within the district" was unconstitutional. As observed in a
concurring opinion, the officers of the district are officers
of the State in a broad general sense, but the election would
hardly seem to come within the descriptionof a general election
"affectingthe state as a whole," to which it was said in
Bonham v. Fuchs that Section 2 of Article VI was only intended
to apply.
          In King v. Carlton IndependentSchool District, 156 Tex.
365, 295 S.W.2d 408 (1956) the question for determinationwas
the validity of a statute limiting voting at an election on
adoption of a school maintenance tax and bond law to qualified
voters of the school district "who own property which has been

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                                                                   ..




Hon. Jules Damiani, Jr., page 6 (C-369)


duly rendered for taxation on the tax rolls of the county."
The Supreme Court held that the adoption election was not of
a nature to make it subject to the requirementsof Article VI,
Section 3a of the Constitution. After quoting the definition
of a qualified elector in Section 2 of Article VI, the Court
further held:
         "Any qualified elector, as defined by that Article,
    is entitled to vote in any election other then one
    for which additional qualificationsare prescribed
    by some other provision of the Constitution. The
    Legislaturewas not authorized to prescribe any
    other standard for voters at the adoption election
    than that of qualified electors as defined by
    Article VI, Section 2. Koy v. Schneider, 110 Tex.
    369, 218 S.W. 479, 221 S.W. 880; Texas Power &
    Light Co. v. Brownwood Public Service Co., Tex.
    Civ.App.,111 S.W.2d 1225, er. ref .; Snelson v.
    Murray, Tex.Civ.App.,252 s.w.2d 720, er. ref.
    n.r.e. More specificallystated, the Legislature
    was not authorized to limit the voters at the
    adoption election to 'qualifiedvoters of such
    district who own property which has been duly
    rendered for taxation on the tax rolls of the
    county for that purpose.' All of the language
    just quoted following the words 'qualified
    voters of such district' is in conflict with
    the provisions of Article VI, Section 2, of the
    Constitution,and should therefore be stricken
    from the Act."
          Richter v. Martin, 337 S.W.2d 134 (Tex.Civ.App.1960),
involved the constitutionalityof a provision in the Urban
Renewal Law limiting voting at an election on the adoption of
the law to "qualifiedvoters residing in said city, owning
taxable property within the boundaries thereof,who have duly
rendered the same for taxation." The Court of Civil Appeals
concluded that the election did not come within the terms of
Sections 3 and 3a of Article VI, end that the provision in
question was therefore invalid under Article VI, Section 2 of
the Constitution. In reaching this result the Court of Civil
Appeals necessarily rejected the holding in Bonham v. Fuchs.
The Supreme Court disagreedwith the Court of Civil Appeals on
the question of whether the election involved expenditureof
money, and held that Sections 3 and 3a of Article VI did apply
and that the limitationwas valid. Martin v. Richter, 342
S.W.2d 1 (Tex.Sup. 1960). However, there is nothing in the
Supreme Court's opinion which would cast doubt on the correctness
of the Court of Civil AppealsI holding for any city election

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    .       -                                         I   .




                Bon. Jules wani,   Jr., page 7 (C- 369)


                which did not come within Sections 3 end 3a of Article VI.
                     Finally, the following language in the opinion of the
                Supreme Court in Sweeny Hosnital District v. Carr, 378 S.W.2d
                40 (Tex.Sup.lg64‘),raises a question as to the continuing
                force of the holding in Bonham v. Fuchs:
                          "We are concernedwith the meaning of'the
                             'qualifiedproperty tax paying electors
                    Fo~:$~     when it is used in the Constitution
                    and in statutes to define a class of voters, and
                    we recognize that our interpretationof the phrase
                    as applied to the facts of this case may qause
                    some confusion in ordering other elections. We
                    have not sought to ferret out the many statutes
                    which use the expression. To avoid, as much as
                    possible, confusion that may result from our
                    holding in this case, end with due deference to
                    the Court of Civil Appeals' decisions heretofore
                    noted, we will interpret the phrase in varying
                    situationsas follows: (1) when the phrase is
                    used in the Constitutionto define a class of
                    voters in any kind or type of election, it will
                    be interpretedto mean those electors who are
                    qualified under Sets. 2 and 3a, Article 6 of the
                    Constitution; (2) when used in a statute to
                    define a class of voters in an election for any of
                    the purposes set out in Sec. 3a, Article 6, it
                    will be interpreted to mean those electors who
                    are qualified under Sets. 2 and 3a, Article 6
                    of the Constitution,unless the Constitution
                     itself specifies a different class of voters
                     in the particular election; (3) when used in
                    a statute to define a class of voters in elec-
                     tions for purposes other than those set out in
                     Sec. 3a, Article 6, the words, 'propertytax
                    paying,' will, unless otherwise required by
                     ~S~~stitution, be disregarded as violative
                             2, Article 6 (see King. v. Carlton
                     IndepeAdentSchool District, 156 Tex. 365, 295
                     S.W.2d 408), and the phrase will be interpreted
                     to mean those electors who are qualifiedunder
                     Sec. 2, Article 6 of the Constitution. In
                     elections of the type mentioned in (3) orders
                     and notices of elections should omit the words,
                     'propertytax paying.'"
                          In the light of these recent decisions, it IS our
                opinion that the provision limiting the voting to property
                taxpayers is invalid. We therefore advise you that all
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    Bon. Jules Damiani, Jr., page 8 (C-369)


    electors who are qualified under Article VI, Section 2 of the
    Constitutionshould be permitted to vote at the election,
    end that the election orders and notices should omit any
    reference to property taxpayers.
                            SUMMARY
              The provision in Article 1243, Texas Revised
         Civil Statutes, which limits voting at an election
         for abolition of the corporate existence of a
         city or town to property taxpayers is in violation
         of Article VI, Section 2 of the Texas Constitution
         and is void. All persons qualified under Section
         2 of Article VI are eliaible to vote at the elec-
         tion. King v. Carlton.-Independent School District,
         156 Tex. 365, 295 s.w.2d 40
         District v. Carr, 378 S.W.2: dig@iCv
                                  Yours very truly,
                                  WAGGONER CARR
                                  Attorney General


                                  By Z$YZaZ?          mdcLc
                                        Assistant
    MKw:sj
    APPROVED:
    OPINION COMMITTEE
    J. C. Davis, Chairman
    John Reeves
    Pat Bailey
    Milton Richardson
    W. 0. Shultz
    APPROVED FOR TRE ATTORNEY GENERAL
    BY: Stanton Stone




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