Honorable Marvin II.Brown, Jr.
Criminal District Attorney
Fort Worth, Texas          Attentiori:Mr. Stewart W. Hellman
                                      Assistant Criminal
                                      District Attorney
Dear Sir:                  Ovinion No. O-1009
                           Re: (a) Ellgibllltg of tubercular
                               inmates of Elmwood Sanitarium
                               to vote..
                               (b) If eligible, question    Of
                               whether exempt on grounds    Of
                               permanent disability.
          Thank you for your letter of January 6, 1940,
requesting an opinion from this department based upon the
following facts:~ We quote:
          ‘There Is operated in Tarrant County, Texas,
     an institution known as the~Elmwood Sanitarium.
     This institution is for Indigents who are tubercu-
     lar, and the same la jolntly'operated,by the city
     of Fort Worth and'countg of Tarrant. By that, 'I
     mean that‘the~cos~tof 'maintaining said inst,itution
     is borne equally betweenthe city of Fort Worth and
     the countyof Tarrant.,,*,* t
          "The only requirement made covering. admission
     of patients to the'sanitarium, Is that the lndivldual
     must have been a resident of FortWorth and/or Tarrant
     County for two years Immediately preceding the time
     of making his appl&c,atlonfor admission, and, of
     course, be a tubercular.


          The questions you-des,ireto,have answered have
been restated as follows:
          (a),Whether or not the inmates of Elmwood
     Sanitarium are'"pauperssupported by the'county"'
     within the meaning of Section 1 of Article VI of
     the Constitutionof .Texas and Article 29% of the
     Revised Civil Statutes, 1925, s&a% to dldqualifs
     them as electors.
Hon. Marvin H. Brown, Jr., page 2



         (b) If the residents of Elmwood Sanitarium, or
    any of them, are not disqualified as electors., is
  . their tubercular condition sufficient to constltiute
    "pertinent disability' within the meaning of Article
    2959 and 2960 of the Revised Civil Statutes, 1925.
     Section 1 of Article VI of the Constitutioh of Texas,
reads In part as follows:
          'Section 1. The following classes or persons
     shall not be allowed to vote In this state; to.wit:
          cCl*'

          'Third: All paupers supported by any county.
          n* l   *I


          Article 2954 of the Revised Civil Statutes, 1925,
reads In part as.-follows:
          "The following classes of persons f3hd.i not
     be allowed to vote in this State;
          '3. All paup&&   supported.by.the county."
          A pauper Is one who'is Indigent or very poor, and
the term Is usually understood~to Imply one so +ndlgent as
to be dependent,on the public for support. 32 Tex. Juris.
p. 611, Kirk vs. Brazes County,.~73 Tex. 56, 11 S.W. 143;
3 Bouvler's Law Dictionary 2539; fin re Barnes, l&l Atl. 718,
119 Pa. Super. 533; Spokane County vs. Arvln, 13 Pac.2d 1089,
1090, 169 Wash., 349; Town of Ellingtqn v?. Industrial Com-
mission, 273 lF.W. 530, 225 Wis. 169;!Risner~vs.'State ex rel
Martin, 9 N.E. '(26) 151,'153, 55 Ohio~App.'151; CLoyd vs.
Vermillion Co., 196 N~.E. 802, 360'~Ill. 610.
          As stated In 32 &:   &-is. up. 811: "The term
certainly cannot be applied to a person who has always been
able to support himself and those dependent ppon..blm."
Moreover, there Is a substantial doubt under the authorities
as to whether one falls within'the deflnitloq~of,a pauper
when he receives aid from private as.distirig~lshedfrom
public sources - relatives and Priendfi.~    "
          Article 2351, Revised Civil Statutes, 1925, reads
in part as follows;
          'Each'coni+ssione~s court shall:
          *+ + +
Hon. Marvin H. Brown, Jr., page.3


          *ll. Provide for.the support ofpaupers l l *,
     residents of their county, who~are unable t,osupport
     themselves. By the term resldent.as used herein,
     is meant a person who has been a bona fide inhabitant
     of the county not less,than,six months and of the
     State notless than:~.one,.year..
          '12. I%0vlde for the ourlal of,paupers.?
          Article 4438 of.the Revised Civil Statutes, 1925,
which wasfirst enacted~ln 1876, the yesr of our present
Constitution',reads as follow,s:
          "If there Is .a'r,egularestablisned public hospi-
     tal In the'countg,'the commissioners court shall pro-
     vige for sending the indige~ntsick of the county to
     such hospital. If more than one such hospital exists
     in the c,ounty.,
                    ..the$ndige,ntpatient shall have the
     right to'selectwhich done of.them he shall be sent to."
          A concise statement of the duties and responsi-
bilities of'the county'wlth'respect to paupers was given
by the court in Wlllacy CountJ v.~Valley Baptist Hospital,
(C.C.A. 1930), 29 S.W. /2).~456;
           "The powers and dut;iesof theecounty commis-
     sloner.s~!.
               courts.,:and~Xhe~ob.llgatlbns
                                           of the counties
     to paupers,.are fixed ,bg,statute,and cannot be en-
     larged upon by unnecessary.lmpllc~ation. These powers
     and duties, In so far as ~appllcablehere, are defined
     in and restricted by the provisions of articles 2351
     and 4438, Rev..St.1925. In,~artlcle2351.it is pro-
     vided that each commlssloners'.court shall (subdivision
     11) 'provide for.,the~support of.paupersi l *residents
     of their county,.who are unable to support 'themselves,'
     and (subdivision 12) !for"tbe~burial of paupers.' In
     article 4438 it ls.prQvided-that 'If there is a regular
     established.publlc hospital in the.county,the comrnis-
     sloners coins%shall prbvidb'for ~send,ingthe indigent
     site’  * l to such-hotinital;''In the latter provision
     the duty and authority of the commissioners’ court to
     send the Indigent slck,to .hoSpitalS is limited to 'pub-
     lic' hospitals wlthinthe'county; which provision, by
     necessary impllcatlon,,excludes any duty or authority
     to send'such personsto pr~va~e,~.hospitals, or to public
     hospitals wlthoutthe~county.
                                        JUr. at p0612:
          Moreovef, as~,.st~ted'in"32'Tex.
                                                               .


Hon. Marvin   Ii.Brown, Jr., page 4


           "The term 'support', as here used, means more
      than supplying food, clothing and llving.quarters;
      it means all that is necessary to bodily health and
      comfort, Including proper care and treatment during
      sickness. This, It hasbeen said, 'is a supreme
      obligation of humanity, independent of any statutory
      mandate.'" See also Monghon vs. Van Zandt County,
      3 App.C.C. i 198.

          Consequently, we find that it is the duty and
responsibility of the county to care for paupers or lndl-
gents whether they be sick or well, and the question of
whether or qot patients In the Hlmwood Sanitarium are
entitled to vote depends upon whether or not they are
"paupers supported by the county" within the meaning of
the Constitution and statutes.
          In this connection we take the liberty to quote
from your letter as follows:
           "It is, of course, true that all of these
      patients are Indigents, but they are not inmates
      of the County Home. There is such a County Home In
      Tarrant County, the inmates of which, we believe,
      come within classification number three of Article
      2954, and, in addition, the Inmates of Elmwood
      Sanitarium are technically not 'supported by the
      county', inasmuch as said Institution Is ~operated
      jointly by the county and city, as heretofore
      pointed out."
          Since it is the duty and responsibility of the
county to care for its paupers whether they are sick or
well and since it is the further duty of the commissioners'
court to send the Indigent sick to a public hospital in
the county, we do not believe that the mere fact that these
paupers are In the Hlmwood Sanitarium, a public hospital,
rather than the Tsrrant County Home is material to the
question of whether or not they are "paupers supported by
the county.*
          Nor do we believe the mere fact that the Elmwood
Sanitarium is an institution operated jointly by the @ity
and county, sufficient to take the inmates thereof'out.of
the classification of "paupers~supported by the county."
Whatever may have been the policy of the framers of our
Constitution and the Legislature in placing this qualifl-
cation upon the right to vote, that policy is just as
effectively undermined so long'as these paupers are wholly
objects of the public charity whether the county must pay
entirely for their upkeep or only partially as in the case
at hand. In ang,event the ends to be subserved are the same.
As we understand the facts the indigent in the Elmwood Sani-
tarium look wholly to the government, county and municipal,
Hon. Marvin H. Brown, Jr., page 5

for their maintenance and consequently, we must hold that
such,lnmates~are supported ~by the county. In this connec-
tion the case of Kirk v. Brasos County, T3 Tex.36,11 S.W.
143,.Is of interest. Inthat case inconstruing a con-
tract between a county and a 'poorfarmsuperintendent,
the Supreme.Court sugges.tedthat-paupers may only par-
tially be aided and yet be.Wsupported by the county:"
          Oftcourse the-status:of any particular inmate as
a pauper is tq'be determined by the peculiar facts and clr-
cumstances of each case. However, fromyour statement of
facts we have assumedthatthey    are indigents; supported
wholly,by the public, and.we.hold in ansver to your first
question that such indigents are paupers supported by the
county within the meaning of.Section 1, of Article VI of
the Constitution of Texas~'andArticle 2954'61 the Revised
Civil Statutes, -1925,,-soas to disqualify them aspelectors.
          fflven the -case~of one:of such inmates who-is not
supported wholly bythe publl'c:or‘doesnot otherwise come
within the deflnitl,on.ofa pauper.set forth in'this~opinion,
your second question involves an Interpretation of'Articles
2959 and 2960 of the Revised Civil   Statutes, which reads
as follows:
                                  shall be collected from
           "Art. 2959. A pOll:~.air
     every.person between the ages of twenty-one and
     sixty years who reslded'$nthis State eon the first
     day,of January preceding ~lts levy-Indians not taxed,
     persons 'insane~,blind; deaf ordumb, and those who
     have 1os.ta .hsnd-,or,foot,-orpermanently disabled,
     excepted. It shall be.paLd at any time between the
     first day of October and the first day of February
     followin~g;and the person when he pays It, shall be
     antitled.to his poll tax receipt, even if his other
     taxes_.sre unpaid."
          "Art. 2960. Every.person who is more~than sixty
     years old.or~who is.bUnd or deaf 'ordumb, cr Is
     permanently disabled, or has lost .one
                                          . hand or foot,
                                                     _
     shall be entitled to vote without oelng required to
     pay ~a poll tax, ifshe hasobtained his certificate
     of exemption.from the county tax collector'vhen the
     same is require* by the nrovisions of this title."
          We belLeve:the-question -of whether or not any
such inmates are "permanently disabled" so as to relieve
them from the necessity of paying a poll tax is also a
question of fact. And we further believe the proper test
for an exemption on grounds of permanent disability to be
                                                              .




Hon. Marvin H. Brown, Jr., page 6

whether or not the claimant is capable, or within a reason-
able time will be capable, of earning a livelihood, capable
of engaglng in a gainful occupation. McCormick v..Jester,
115 S.W. 278; Hillert, et al. v. Schweppe 234 S.W. 152;
Huff v. Duffield, 251 S.W. 298. The word 'permanent" while
not meaning perpetual signifies "continuing" as opposed to
"temporary."
           Of course the status of each claimant must rest
upon its own facts and no rule ofthumb can be laid down
which will suffice to measure all cases. In U.S. vs.
Rentfro (C.C.A. 10th Clr.) 60 Fed.(2d) 488,489; Falbo vs.
U.S. (C.C.C&.9th Clr.)  64 Fed.(2d) 948 and U.S. vs.Blshop
 (C.C.A. 6th Cir.) 90 Fed.(2d) 65,66,67, incipient tubercu-
losis was held curable, and not of itself to constitute
 permanent disability. On the other hand in Mississippi
 and New York, tuberculosds - at least in its later
 stages-has been held to constitute a permanent disability
~within the meaning-.ofa clause in an Insurance policy.
Equitable Life Assurance Society vs. Serlo, 155 Miss.515,
 124 So.485; Oinell vs. Prudential Insurance Company of
America,  196 N.Y. Sup.337, 119 Misc.Rep. 467, 200 N.Y.
 Sup. 261,262, 205 App.Div.494.
          Consequently, in answer to your second questton,
you are respectfully advised and It Is the opinion of this
department that tuberculosis does not,per se entitle a
claimant to an exemption from the poll tax on the ground
of permanent disability. We must refrain from suggesting
any blanket exemption for residents of the Elmwood Sani-
tarium and respectfully suggest that a physician will be
better able than this department to determine the status
of any particular case.
                                Yours very truly
                            ATTORNEY OWERAL   OF TEXAS
APPROVED JAN. 16,1g40       By (Signed) .WALTEROR. KOCH
                                             .Assistant
s/ W.F.MOORE
FIRST ASSISTANT             By (Signed) JAMES D..SMULLEN
A'ITORNEYQENERAL
JDS:jm                    APPROVED OPINION COMMITTEE
AMM                       BY B.W.B. Chairman
