               OFFICE           OF THE ATTORNEY GENERAL                  OF TEXAS
                                          AUSTIN
GROVER SELLERS
Arrcmw~YocNcrr*




:.onorable      Wed V, Edrridlth
3ounty     Attorney,            Kaufman      County
dUfE811,       Texas
                                                         No.   Q-7022

                                                           Do the provisions    of
                                                      nr5lole   VI, sea. 2a,,Con-
                                                      atitution   OS Texaa,,,erempt-
                                                      ing pereona named t$sti,in
                                                      from payment
                                                      as a oon~lti,m




                                                                         perate a motor
                                                                        the public hi&-

                                                    oonticted   oi driving      while   in-
                                                  ‘\,toxica~ed?
                                                             iiay\~~~wttness
                                                                           and mileage
               r-.               ~,       \,        .\,fa’as in misdemeanor orimlinal
                                  1        \
           /                                          ,loases be paid to .reeidents
               _-.        ,;,         “,,(,-.l,;,ythe            oounty?
                     ‘J
D&S&:                                      \- ’
  ‘\ ‘j,
                         ‘1
            ~.In y&     letter of January 5, 1946, you rsoueat
 the opinion-/of     this Irepartment on several different
 questions.      a‘or~oonvsnienoe  in replying,  ws will restate
 your questi_ons and answer eaoh in turn.

                1.      Is a veteran who ooms !vitbin tb                     provisions
 of seotlon           2a of ~rtiole  VI of the Constitution                   of Texas,
Lonorable   Fred V. Lierldlth    -   Pan0   #2

and thus ha8 the right     to Yote without thr payment of a poll
tax, In any eleotion     held undrr authoritjf OS the laws oi this
State, nsvarthrleer    llablo  for tbr payxmt oi suoh poll tax,
JO that It will beoomr a dsllnqurnt     tax againat him unless it
is paid by January 3lst?
           The Constitution  and   StatUt68 Of Texas provide for the
1OVy and OOileOtiOn Of pOii taxes.       Oonatitution,  Artlole   VI,
30.   2; Art1010 VII,  880. 3, Artiole    VIIX, 2300. 11 Vernon’s   Re-
vised Civil Statutes or 1926, Artiolea      7046, 2959, 1030.     Artiole
2959 provides that the poll tax shall be paid between the first
day of Ootobor and the first     day of February.
           hrtiolr   VI, Seo. 2, of the Constitution    provides that
any voter  who is oubjeot to pay a poLl tax under the lawa or the
Atate or Texas ehall have paid said tax before orrering to vote
at any eleotion    In this State and hold a reoelpt   showing that
said poll tax was paid before the first      day oi February   next
prsoeding suoh eleotlon    or make aifldavit   that suoh reoelpt
has bean lost or mi818id.
           Artlole    VI, Seo.   2a of      the Constitution   (adopted   Aug.
25, 1945,)provldee:
              Vothing    in this Constitution   shall be eon-
       atrued to require      any person, who at the time of the
       holding or an eleotion      hereinafter  rerrrred   to is,
       or who, within eighteen months immediately prior
       to the tlnn or holding any suah eleotion        warn, a mem-
       ber or the amed fames        or the United Statea     or of
       the Amed Boron Reserve of the United States,           or
       or any branoh or oomponent part Of auoh anned fOrOOa
       or Armed Foroe Reserve, or the United Stats8 Earftlme
       Servioe or the United States Li8rohant Karlno, and who
       is otherwise a qualified       voter under the laws and Con-
       stitution    af this state,    to pay a poll tax or to hold
       a reoeipt for any poll tax aasessed against him, as
       a oondition     preoedent to his right to Vote in any
       eleotlon    held under the authority    of the laws ot this
       stats, during the tine the United States Is engaged
       in fighting a war, or within one year after the olO8e
       of the oalendar year in whioh said war is terminated.
Iionorable   Fred V. t’lerldith   - Page #‘3

              WProvlded, however, that the foregoing    prs-
       vlalons or this ssotion     do not oonfar the right
       to vote upoa any person who Is a smaber of ths rsg-
       ular establishmsnt    ot the United States Amy, Navy,
       or ldarinr Csrps~ snd provided    rurthar,  that all psr-
       sons In ths amned ioross     or the United States,    or
       ths oomponent branohos thersof,     not members or the
       regular esta~blishment of ths Unlted States &my,
       Navy, or Sarina Qorps, are hereby daolarsd not to
       be dlatpa~lrled   from voting by reason of any pro-
       vision of sub-ssatlon     *Fifth* Of Seotion 1, OS this
       Artiole.”
          In our Opinion No. O-6821,           addressed   to Honorable
George E. Sheppard, we saldl
                     this amendaant does not exempt anyone
       from the a       nt of the poll tax levied by other
             “. ‘+oi t e Constitution
       seations                        and by the statutes
       enaotsd in pursuanoe thereof.     This ansndsmnt pro-
       vides onlv that the named cmrsons shall not be re-

       them as a oondltlon     reoedent      to their   right   to vote
       in the eleotions   ape0
                             fn;lr;r;-;7.-                      --

          Ii 18 thererare  our opinion that those veterans ooming
within suoh ocnstitutifmal  provision,   although they are per-
mitted to vats without payment of a poll tax,, are-.nevsrthelsss
liable for the paymsnt thereof,   and  the same beoomes a delln-
quent tax against them ii not paid oa or before January 31st.
            2. Does this oonstitutlonal         amendment apply     to a
poll   tax levied by a oity?
           It will be noted that the bsnsrlts      of the amendment
extend to “any eleotlon    held uhdsr the authority    of the laws
of this state.”    A  oity eleotion is ah  eleotion   held under
the authority   of the laws of this state.

          AS to the levy of a poll tax by a oity, the Supreme
court of Texas said, in the case of’ Powell v. City or Baird,
133 T. 409, 128 S. I;. Zd. 7861
Eonorable      Fred V. Lerldith   - Paw $I4


            nit is our opinion that a poll tax ia leviad
       Iunder a State law, within th. lWUiiIl2 Or %QtiOn 2
       or   Artiioh v-x0r ourstat8 camtitution, ii aomo
       stats law dirrotly       authorizer    ruoh l8vy.     In tbl8
       lastnnoo Art1ol.e 1030, R.C.S.,         as unended, uupra,
       dirsotly    authorlzrr     altier to 10vy and oolleot       poll
       taxer,     It  follows   that   suoh  poll  taxes,   when  80
       levied,    am levied by dlreot authority           of a State
       law, and are, therziore,         levlsd under a State law.
       :;'ebater*s iiew Internatlanal       DiatlonaryI    65 C. J.
       12021 Savage v. Umphriea, Tax. Clv. App. 118 S. W.
       093; Linger v, Baliour, Ter. Clv. App., I.49 3. W.
       ?Qj$.Bonham v. Buohs, Ter. Civ. App., 226 S. Yi.
       1112.     AI used inthe       above oonetltutlonal     pro-
       vIalon,    the word *under* $.a Owtainlg         used a8 a
       prepositioil,      iAdiO6tiAg eubjeotion,      gufbaooe,   or
       oaltrol.      It Is ueed in a semae of *by authority
       Of.‘”
          &d in the oaae of Texas Power and Light Co., v. BLYIWA-
wood Pub110 Sorvloe Co., the oourt said: (111 S. w. 26 1226)
             *It is now settled   law that the la-age        0r
       the Constitution   determinrs the qunllflcatlons       0r
       the a1eotorat.e.   Neithsr the statutee nor the pro-
       visions  or a oitp oharter,    whloh in home rule oltler
       must omrorm with the Ccnstitutlon       and the general
       laws of the state,    QI~ impose additional    quallfloa-
       tions aa a~ pmJr8qUiBit8   t0 the right Of itz OitiNAs
       to vote, whloh are not authorized     by the Constitution.
       ZoCutoheon v. ;YozenoxMt, 118 Tex. 440, 294 S. W.
       l.iOSl Mndover v. Tobln, Tex. Cit. App., 261 9. X.
       234; Csmronv. Connally,       117 Tex. 159, 299 S. iY.
       221; Ltahl v. Xiller,    Tex. Civ. App., 63 S. X. 24
       578.”

             It is our opinion that        this   zmendnmt applies        to a
poll   tax lrvled by a oity.
           3. Xhat should the sleotion  judges require of the
 soldier or veteran who desires to vote, Ol8imiimin43
                                                    the benefit
 of the oonstitutional amendment above set out7 dust he re-
 qdre 04 afrldavit?
iionorable     Fred V. Nerldlth       - Page $5


               In suoh oases the usual proor     or right   to vote
(gossession       oi a poll tax reoelpt  or an exsmption oertiri-
aate)    iS   hOking.    Therefors ths follu~ing    ertiOle8   from
Vernon's      Oivll Statutes of 1925, relating     to the oc~duot
of elsotions       1s material:

               "Art.   3006.   2999    Examination of   ohallenged   voter

              "XhOn a person OifOdAg to Vote shall be ob-
        jeoted to by an eleotion     judge or a supervisor    or
        ohslleAger,   the gresiding   judge shall Ox8mlne him
        upon a~ oath touohhg      the poiats oi suoh objection,
        and, ii auoh psr8on falls     to establish    hie right to
        vote to the SatiSraOtiOA of the majority af the
        judges, he Shall AOt Vote.      If his Vote be rSOeived,
        the word, *sworn,* shall be written        upon ths poll
        list opposite   the naaie of the voter."
               "Art.   3007.      7904000   Vote ohalleoged

              "IO any elsotlon,   State, oounty or municipal,
        being held In any oity or towA of ten thousand in-
        habitants   or more acoordlng to the preoeding Federal
        CsnsUs, When the right OS any eleotor    to vote 18
        ohalleaged,   the Sollanl~g prooeedings  shall be had:

              "1. The judges of sleation shall retuss to
        aooept suoh vote of such elsotor  unless Fa addition
        to his own oath he proves by the oath or one well
        known resident  or the ward that he is a qualified
        voter at suoh elsation  and in suoh ward.
               "2. GheA suoh vote is aooeptedthe    word
        *ohallmged'     shall be written on the ballot,   aAd
        the jud&es shall oauss the clerk of eleotlon      to
        make a minute of the n&me oi the eleator     aAd the
        party tCiStiryiAg under aath as to his quallfica-
        tiOAS, and suoh memoranda shall be kept by the
        aounty clerk of the county ror six months after
        suoh election     is held, subject to order of the
        dlstrlot   judge."
                                                                              99

Iionorabls    Fred V. Gerldlth-     Page j5

             “Art.   3008.   3001   Delivery   OS ballot
             "Xhen the judges are satisiied       as to the right
        of the oltizen     to vote, the judge shall stamp In
        legible   oharaoters with a stamp of wood or rubber
        the poll taz reoelpt or oertitloate         or exemption
        with the words: 'Voted . . . . . . day OS . . . . .)
        D. A. 19 . . . .'        Or writs the same words in ink
        tind then return said rsoslpt      or oertifloate     to the
        voter,   and shall at ths ssms time      deliver    to him
        one ofiioial     ballot OA the blaank side OS whfoh the
        presiding    judgs shall have prevfoualy       wrlttea his
        sicgnature.    The voter shall then immediately replr
        1;o s voting booth or a plaoe prs9arsd for voting
        by the eleotlon      oSflOer8, and there prspar8 his
        ballot   in the nanner provided by law."

             UAder$hesa statutss    it Is our opinion that, when
an elector     01&i&s the right ta vote under the provisions     OS
-4rrtiole KS, 380. 2u, 0s the Ccmstitutlon,      it is the duty or
the eleation     judges to satisfy  themselves OS his right to
vote before permitting      him to oast his ballot.    That they
s     so satisiy   thsmselves by szamining him uAder oath or by
his arrldavlt,     as the case Roy be; but they must do so IS
the voter is OhelleAged.       Clark '1. Stubbs, 1'523. W. 663.
               Your fourth question is enswered       by our Opinion No.
04052,       a oopy of whioh is enolosed.
           5.. Xre witnesses duly subpoenaed in misdemeanor
oases tried in the county OS their rssldenoe   entitled to olaim
witnsss rees and milsqge for thrlr atteAdaAce upon the oourt
during the trial   OS suah oases?
               Xrttole   1036 OS our Code oS Criminal      Proosdure   pro-
videe     in part:

              "(1) uny witness who may havo bsen sub?oaAa2d,
        or sAal1 have bean rsaognized or attaohed aAd giveA
        bond Sor his appearanoe before any Court, or beioro
        any grand jury, out oS~the aounty of his residsAc8,
        to testify    in a felony case regardless   of disposition
        of said aasa, and who appears in aompl:anco with the
        obli~atfons    0s such reaogAizaAoe or bocd, shall be
        ellowed Three (3) Cents per mile goFng to and return-
        ing from the Court or grand jury, by the nearest prao-
        tics1 aonveyanoe, and T;ro Lollars     (22) per day for
        aaon day he may neoessarlly     be absent from home as a
        witMa      iA suah case; . . ."
Honorable   y’red V. Xeridith          - Page $7

             &oh     foes and mileage are to be paid by the State.
.atioles    1078,    1079 and 1080, C. C. P., proridrr
             “Art.     1078    (1188)      (ll38)        Fees oi witnesses
            Witnessoti   In orimlnal oases shall be allowed
       one dollar aud fifty    ocPts a day r o r lqoh day they
       are In attendanoe   upon the oourt, and air oents for
       eaoh mile they may travel In going to or returning
       rrom the plaoe 0r trial.”

             “Art.     1079.     (1189)      ( Xl.39 )    TaXed against        defendant
              Wpon oonviotion,     the ooets aooruing from the
       attendanoe of witnesses shall be taxed against the
       defendant,     upon the atiidavit   or suoh ~Itneati, or or
       soffie oredible   pamon,   stating the number of days that
       such witness has attended upon the oourt In the ease,
       and the number of miles he has traveled       In going to
       and returning from the plaoe of trial.        The affidavit
       shall be filed with the papers In the oaee.”
             “ht.      1080.     (1190)      (1140)       No fee8    allowed

             “No tees shall be allowed to a person as witness
       fees unless r~oh person has born subpoenaed, attaohed
       or reoognized  as a witness In the ease.”
             Artiole     1055,    C. 0. P .,        as amended, provides:

             “Art.     1655.     air      00sts paid      orfloors

             The oounty shall not ba iiablo    to thr OffIOer
       and witness having costs In a misdemeanor oa8e where
       defendant pays his fine and ooet6.     The oounty ehall
       be liable  ror 0nd.e     0r the reee 0r the orrioera
       0r the sourt,   when the defendant rails to pay his
       fine and lays his fine out In the oounty Jail or dis-
       aharges the same by mans of working euoh iins out
       on the oounty roads or on any oounty projeot.      And
       to pay suah halr or costs, the county Clerk shall
       Issue his warrant on the County Treaeurer     In faror
       of suah oftioer   to be &aid out of the Road and Bridge
       Fund or other funds not otherwise appropriated.        As
       mended Aots 1937, 45th Lag., p. 1323, oh. 488, Sec.
       1; Aots 1339, 46th Leg., p* 143, Sea. 1."
Xonorable   Fred V. Xorldith        - Page $8


           ilo find no Texas deoielon  direotly In paint on thr
question here presented.    But In IAY Y* State, 83 Cr. a. 222,
202 S. ‘U. 729, the Cost of Criminal Appeals deoided a simflar
quest ion.   We quote iron the opinion In that oaae:
             “Appellant      Inrista      that, Inaamuoh as the or-
     fioer was a salaried           polloman,       he was not entitled
     to oharge witness rae~, and refer3 UB to eeotion
     1137b, Vernon* o Grim Stats.                1916, an aot of the
     Legi3latur3       0r 1913. Tkit rtatute              applier   to wit-
     ness tees In felony 08883, the ooets to be paid
     by the etate.          rt provide8 that no witness fee
     shall be paid to peaor ottioera,                 nor to any wit-
     ness In habeas oorpua oases or sumoned on motion
     to ohange VMWJ, and provides rurther that no fee
     shall be approved by the oourt In any oase where
     the oharge Inoludeo a nisdeaeanor                  oaae until the
     ease is rinauy          disposed or, Cnzdin ease 0r a 00110
     viotion     for rtiadetceanor no feee’ahall              be paid by
     the state;      and it also provides that witnesses
     attending      court     in  more    than   one ease at the same
     time shall reoeive tees In only one oase; and pro-
     vided further that In no event the state shall pay
     per diem In eny one oaae prore than $5 to any witness
      in any an3 0888 at any c&o term 6r oourt.                     It will
      be notiosd that these            fees are to be paid by the
      atate, not ~by the defendant.               The aam rule does
     not apply in ordinary             niadevsanor oases.          It Is
      understood to be the rule with reference                    to ohmg-
      ihg rees that none will be permitted exoept where
     authariz3d by statutei              t&it Ia, It i6 a prerequieite
      before fees may bo ohargad that the L3gIslature                      pass
      suitable     legielation       authorizing      the oharging and
      paying of suoh reer, whether by the etats or the
      defendant.       r;Ith reference         to misdemeanors,       there
      IS no Interdiotion          of the ohargihg or witneslr fees
      so tar as offioers          are oonoerned.          They meem to
      oome within the general olase of Hbtneasea,                     and
      are entitled        to the dam fess as other witneeses
      In ruisdemeaanor oases.            A witness     in  a aisden;oanor
      oaae can be paid no fees other than those provided,
      but Is ehtltled          to oharge suoh fees as the statute
      enaot 8. There being no dirferenoe                  with referenoe
                                                                          102

1Xonorable Fred V. Xeridith    - Page #Q

     to misdemeanor oases as to the oharaoter        of wit-
     nesses, whether ofrioera   or not, the ofrioer would
     oome within the general   oategory,     as we understand
     the law, as witness.    His o~fioial     charaoter,   so
     far as that proposition   Is oonoerned, would nake
     no dirrerenoa.   There are no traveling       expenses
     In the oaae to oomplioats~ therefor        we have the
     question as to whether or not an officer        in mis-
     demeanor oases can oharge fees as a witness for
     hi3 attendahoe upon the oourt.       ?ie are ol the
     opinion that he oan, and that the oourt        did not
     err  In allowing the Sees charged by the offloer.”
           i:ie are therefore       of the opinion that suoh witness
fees and mileage are payable to In-oounty witnesses,           duly
subpoenaed, in misdemeanor oases,            But neither the State nor
the oounty are liable     therefor,       and they can be paid to the
~if&133~ only when charged as oosts and oolleoted          Iron the
defendant,   upon oonviotion.
            ?:a are enolosing oopies of our Opinions Nos.       O-6521,
O-6828,   O-6052, O-6456 and 0-6955.
                                      Yours very    truly
                                  ATTORNZYGENERALOF TEXAS



                                               VJ. R. Allen
                                                 Assistant
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