            -E     I?bTR=-T=OR~T       GEmRAL
                                            Overruled by Carrington v. R~I
                         OF    7flFExAs        U.S.- 85 S.Ct. 7-b (1965


                     November 6,.1963

Honorable Jack N. Pant
County Attorney
El Paso-County                        Re: Conatruotlonand
El Paso, Texas                            constitutionality
                                          of Artlole 5.02,
                                          Texas Election Code,
                                          relative to voting
                                          by members.of'the~
                                          Armed Fcrces lihlle
pear Sir:                                 onaotlve du'y.
        You have requested an o&&on on the oonstruoti~n
and c6natltutlonalltyof the fol,louing'provLalons in’ Artl-
cle 5.02, Vernon's Texas Election  Code; whloh'*ere.added
by~an amendment enactedby 'the58th Legislature (Acts 58th
Leg.,~1963,  oh. 424,.sec. 13):
                                                         5
             "Nottilthst&ndlngany other'provialon        .’ .

      ofthis'seotion, any member of the Anned
      Forces of'the'UnltedStates or components
      branches therebf.who is on'actlve'dutyIii
      the mllitary'servlceofthe United States
      may vote only In the county'in,whihh~he or
      she~resldedat-the time 'of entering'suoh
      service so'long as he or she la 'amember-"
      6f the Armed Forces. Thla restriction ap-
      pliesonly
      whd' ,are.   to'members^of
                oh atiesv&       'the
                          acf;y*-.andArmed'FMoea
                                    the phrase. -.
       1tijae-of'&jt'@+~ng‘
                          suoh a@fizc&8"',j,e&&
                                              the
      time of commenolng the ourrent atM.vi 'duty.
      A re-enlistmentafter a temporaryseparation
      from service upon termlnatlon of a prior en-
      listment   shall not be oonstrued to be the
      commencementof a new period of service,and
       in such case the oounty in whioh the peraon
       resided at the time of oommenolngaotive
       servloe under the prior enlistment shall be
       construed to be the aounty of resldenoe at
       the time of entering eervlce."
       You have alao aaked for an opinionon oorreepondlng
provisions In Artlole 02 of the Eleotlon  Code ae'amended
                       th Legislature,whloh will take
by Chapter 430, Aots 5ii*

                              -835-
Hon. Jack N. Fant, Page 2 (C-173)


effeot tiuiq'supersede
                     the above-quotedptivleldns if'the pro-
$titMdconeZitutrahirP~~enaaeti~.abollehliog
                                         p8jrmeht"of..the"'..'
                                                          ...
poll t&x tie'hpr&eqMiiite'for votlhg i#Xiioijt~d&t'the'&Iec-
tloh-'tobe'held on NoVembiti9, 1963. These provisions are
quoted at a later.point,lnthe opinion.
      You have asked the following questions:
           "1. What aonstruatlonor lnterpre-
      tatlon does your Departmentmake of the
      first sentenoe In paragraph two'of Artlole
      5.02, Texas Election Code, as amended,
      which reads: 'Notwithstandingany other
      provision of thla section, any member of
      the-Armed FoSces'of the United States or
      cotiiionent
                branches thereof wh6 Ition a&
      tlve'duty Iiithe~mlllta?y~tiervloe'~of-then'
      Urilttid
             ‘States'm&yv&e 6iily”in’khe aotity
      In Wiich lie’or-‘slit3
                         I;esidedtitthe Umei of
      eiiterlh&buoh setilc’e‘a6lorig-(rb
                                       he or she
      is a member of the Armed Forcesifi?
                "2. What construct’lonor lnterpre-
      tatidn doe8’your Departmentmake of th6            .
      remainiti~g’tw6   sentences in paragraph two
      of &tlcle 5.021
           "3. 'What Is meant by the tWi.'tetipo-
      rary separatloti'itithe'third sentence of
      paragraph two of Article 5.02?
           "4. In the event the poll tax emend-
      meat Is adopted at the .elebtionto be held
      on November 9, 1963,.then what construotion
      do you make of the emended portion of Article
      5.02, Texas Election Code, effective February
      1, 1964, which read@: I* * * provided that any
      member of the bed Foroes of the United States
      or oomponent branches thereof, or in the mill-
      tary servioe o? the United,Statea, may vote
      only in the oounty in whioh such pereon re-
      sit+edat the time of enter$ng suoh eervlce.83
           “5. Are the provisions contained in Artti-
      cle',VI,Section 2 of the Texas Constitution
      and amended Artlc’lXc&Q2 ‘Bf.th&X&xas.EMc’c-:
                                                  :..
      tlon Code, a8 pertains to the right of member8
      of the Armed Foroes to vote In Texas,‘vlolative
      of or repugnant to Se&Ion 1 of the 14th’hmetid-
      meat to the United States Constitution?"
                           -836
Ron. Jack N. Fant, Page 3 (C-173)


       Section 1 of Article VI of the Texas Constitution
enumerates the classed of persons who are not allowed to'~
vote In this State. Seotloh 2 of~Artlcle‘VIsets 'Oue'the
quallfi~atlonsand PequXrements~forvoting. The general
qualificationsare stated as follows:
          ~"Every person subject to none of the
      foregoing dlsqiiallflcatlonswho shall'have
      attained the age of'twenty-one (21) years
      and who shall-be a 3itiien of the United'
      States.atidwho shall'~haveresided In this
      State one (1) year next  receding an elec-
      tion atidthe last six (6B months within the
      district or cdunty in which such person
      offers to vote, shall be deemed a qualified
      elector;.and provided further, that any voter
      who is subject tb pay a pbll tax under the
      laws of the State of Texas shall have Paid'
      said tax before.offering to vote &t'any eleo-
      tlon In this State &nd hold a receipt showing
      that said poll tax was Paid b&f&i the.flr&t
      d,ai$ FebNary next preceding such election.
                                                               ;:'
       irIo+ to 1954, a provision in Section 1 of Artlale VI
dls@allfied members of the regular military establlshrhents
from Voting in this State. The hi~torlo~l b;ickgr6uidof
this provision IKdesdPibed In a cotientary.ptibllshed In
Vernon's Annotated Texas Statutes, Volume 9, page XVII, In
the year 1952:
           "The Second Congressfif the Republic of
      Texas in 1837 enacted the first election law
      **d         '.'
             Thls.first act contained a novel sec-
      tion irovialng 'that regular enlisted soldiers,
      and volunteers for during the war, shall not
      be eligible to vote for civil officers.' This
      provision was no doubt Inspired by the mutlnoua
      conduct of the nonresident.volunteers who had
      been recNited In the United State8 after the
      Battle of San Jaclnto. They had defied the
      provisional government and on one occasion in
      July, 1836, had sent an officer to arrest weal-
      dent David Q. Burnett and his aablnet to bring
      them to trial before the army. They had con-
      tinued their rebellious conduot after Sam
      Houston became the first president under the
      Constitutionof 1036. It nas not until May,
      1837, that Houston was able to dissolve the

                          -83-i-
    Hon. Jack N. Fant, Page 4 (C-173)


          any and ellmln&te this threat to clvll
          tiuthority.This 'provisiondlsfranchlelng
          soldiers in the~~regulararmy was placed
          in 'the1845 Con~tititutlon
                                   of the~Stat6 of'
          Texas and has remained-ineach succeeding
          &ihatltutlon. It was modified in 1932 to
          &iempt'the'Natlonal~~GuBrdand reaerki and
          retired officers and men."
           In 1954, Section 1 of Article VI was amendedto delete
    the alsquallflcatlonagainst persons ltimilitary servlbe,
    and Section 2 was amended to add the following provision:
               '1 * * Any member of'thi Armed Force6
          of the United States or component branches
          thereof, or In the military service of the
          United Statea, may vote only In the county
          In which he or she reelded at the time of
          entering Buch servicti80 longsas he or she
          Is a member of the Armed Forces."
           Two former opinions of this office, CpinionS-148 dated
    December 18, 1954, and Opinion WW-157 dated July 8, '1957,
    hav@~'dealtwith aevetialquestions of consttictlonarising
    uziderthe 1954 amendment of the Constitution. The following
    quotation is from Opinion s-148:
                "Formerly,National Guardsmen,reser-
           vists and draftees In active service oould
           vote at the place of their legal resldeno,e
           at the time of voting (providedthey had re-
           s'idedwithin the State for one year and with-
           in the county for six months) without regard         l
           to the place of residence at the time they
           entered service. Active members of the
           regular establishmentcould not vote at all.
           Now, all these groups'are qualified eleotors
           if they meet other requirements,but none of
           them may vote anywhere in Texas except In
           the county where they resided when they enter-
           ed service. If a person In military service
           changes his legal reeldence to some Place
           other than the county In Texas in which he
           resided at the time he entered service, he
           cannot vote In this State.
                'Throughoutthis opinion the term 'real-
           dence' means legal residenoe as distinguished
           from aatual reeidence.

                              -838-



,
Hon. Jack N. Pant, page 5 (C-173)


             "The constitutionalamendment does
      not change the'rules'fordeterminingwhat'
      place'18 the legal resldende of the voter,
      nor-does It mean that in all tilrcumstances
      a person In military servl&e will 'been-
      titled to claim a voting residence In the
      county of whfah he was B resident  at then
      time he entered semiice~; Flace.~ofresidence
      Is still to be determined In the same-way
      that It has always been. Abaence'fromthe
      aounty or State for the purpose of perform-
      ing military service does'not of Itself
      cause a loss of residence, but It la posal-
      ble for a person to abandon his old resl-
      dence and acquire a new residence during
      time of service. Tex.Conat. Art. XVI, Sec.
      9; Clark v. Stubba, 131 S.W.28 663 (Tex.
      Clv.App. 1939) Struble v. StNble, 177 S.W.
      26 279 (~e~.ciS.App.  i
                  1.77S.W.2d~2
      fiSti&%,.     Robinson,
                   3UJ 15 Tax. Jur. 715, Domicile,
      SePO:2:' If he'does so, and thereby changes
      his residence to some other county4 he loees
      his right to vote In this State while he
      continues In service, unless he re-establishes
      his residence In the county in which he're-
      sided when he entered~servlce. Further, no
      person who entered service as,a resident of
      another State may acquire a voting residence
      In Texas while he la in service.
           "It Is our opinion that the restrlc-
      tlon to voting In the county of residence at
      the time of entering service applies only
      to persons who are on extended aatlve duty.
      Members of the.NatlonalGuard and reservists
      who are'not on'extended aatlve aervlce and
      retired mllltary~'peraonnelare not subject
      to this restriction. Further, 'county of
      residence atthe;.time'ofentering such serv-
      ice' means the.county In whloh the person
      resided at the time he began his current
      active service. To Illustrate: A person,
      while residing In County A, ,jolna one of
      the reserve component,8but does not go Into
      aotlve service. He later moves to County
      B. After he has fulfilled the length of


                         -83%
Hon. Jack N. Fant, Page 6 (C-173)


      residence requirement,he may vote In      '
      County B; In fact, he could vote nowhere'
      else, While living In'CountyB, he la
      called Into 'adtlveaervlce. During this
      tiine'hlaplace'of.votlngIs In County B,
      the county In which he.reslded when he'
      went Into active service. After his re-
      lease from that tour of duty, he~changes
      his residence to County C. Hls'place'of
      voting la In County C so long as he con-
      tlnuea to live there. If he Is again call-
      ed Into active service whlle'llvingIn
      County C, that Is the place where he will
      vote.
       The question In Opinion WW-157 waa whether a person
who had been stationed at an air base In Victoria County,
who after discharge had subsequentlyre-enlisted,with some
period of time Interveningbetween the discharge and re-
enlistment,was quallfled to establish a domicile for voting
purposes In Victoria County. In answer, the opinion said:
           "What Is meant by 'the time of enter-
      ing such service' within the meaning of the
      Constltutlon? Is It the time of the aubse-
      quent enlistment or the time of the original
      entry Into service? If the subsequentperiod
      of service Is a mere continuationof the prior
      period, the time of re-enlistmentIs not the
      time of entering such service within the mean-
      ing of the Constitution,for the restriction
      lasts 'so long as he or she la a member of the
      Armed Forces.'
           "No doubt, In some instances an airman may
      be completely separated from the service In a
      very real sense by discharge and later re-enlist.
      In such cases It cannot be said that his re-
      enlistmentor decision to re-enlist constituted
      the second period of service a continuationof
      the prior period of service, and the time of
      entering such service within the meaning of the
      ConstitutionIs the time of hle re-enlistment.
      The mere fact that there has been a dlsoharge
      and a time lapse between the date of discharge
      and the date of re-enlistmentIs not, however,
      controllingon this question. The law looks to
      the substance and not to the mere form of the
      transaction. It can be judiciallynoted that

                          -840-
' Hon. Jack N. Fant, page 7 (C-173)


         frequently re-enlistmentpapers are actu-.
         ally signed prlor..todischarge and post-
         dated at some later date to the discharge
         date. Or.some oacaslons the service man
         retains 'thesame privileges,.rank,and
         status as weIl,as the same organization
         i%~slgnmentand Job assignment Snthe'sub-
         sequent enlistment as In the prior period
         Of'seNlce. In ~such'oase's the discharge
         and re-enlistmentare mere legal~flctlons
         and the subsequent period of service Is
         merely a tiontlnuatlonof the prior period.
         The date of re-enllstment'isnot the 'time
         of'entry Into such servloe' within the mean-
         ing of the Constitution. Residence in
         Victoria; Texas; at that time alone cannot
         be ubed'as~a basis of claiming voting resl-
         denue In Texas during the subsequentperiod
         of service.
              *Therefore,we hold that an airman
         stationed at ah aitibase looated In Vldtorla
         County who'recelves a bona fide discharge and
         who completely"severihis active duty'relatlon
         tilththe'~AirForce'andsubsequently re-enlists
         tiithstimeperlod~of timesintervening between
         discharge and're-enlistmentIs qualified to
         establish a residence In Victoria County for
         voting purposes If the discharge and re-
         enlistment are not mere legal fictions 80
         as to constitute a continuationof the prior_.
         period of service."
         Articles 5.01 and 5.02 of the Election Code are the
  statutory counterpartsof Sections 1 and 2 of Article VI
  of the Constitution. Following the amendment of the Conatl-
  tutlon In 1954, no correepondlngchange'waa made In the
  statutes until this year, ,whena series of amendyenta to the
  Election Code were enacted In Senate Bill 61, Chapter 424,
  Acts of'the 58th Leglelature, 1963.
         Senate Bill 61 was drafted by an Interim Election Law
  Study Committee created by the 57th Legislature (S.C.R. 30,
  57th Leg., R.S. 196x). The files and reports of the Com-
  mittee reveal that the amendment to Article 5.02 undertook
  to express In statutory form the constltutlonalprovision
  as Interpretedin the opinions of the Attorney General. The
  second sentence of the new aragraph In Article 5.02 states
  the holding of Opinion S-148 which construed the,restriction


                           -84i-
Hon. Jack N. Fant, page   8   (c-173)




on place of voting as'applylngonly to periods of sctlve
                                                     - .,
servlbe..'The 'thirdeentence~undertakesto summarize In .'
&"'brlefstatemint'theholding ~f'Opinlon"UW-159oh'the.ef-
Sect bf.a temporary break In service between enlistment
periods.
       We are in agreement with the constructiongiven to
the 6onsfitutSonaSprovision In'Oplnlonss-148.anaAW:157.
And we are further of the opinion thiit the construdtlon
of the constitutionalprovision Is applicable to Article
5.02. We therefore~beXlevethat those opinions sufficiently
answer your first two queetlona.
       In answer to your third question, as"to the meaning
of "temporarysep~ratlon"‘ln~Artlcle5.02, we thlnk~the term.
was Intended to mean a separatlon'undercltidumstances de-
scribed In Opinion W-157 which would not preventthe:sub-
sequent period of aervloe from'belng ln~essence'merelya '-
continuationof the prior period. It Is not possible to.la9
down-a blanket rule setting out the clrcumataricesin detail;
as each case must be determined on Its own particular set of
facts as to the acts and Intention of the Individual.
        Two examples ~111 Illustratehow these provisions
operate. Suppose a aoldler, while atationed at Fort Bliss ::.~
In El'Paso County, has establishedhis legal residence there
(but without voting rights, beaauee he did not reside In that
county at the time of entering service) and Intends to live
there'aftereventual retirement-frommilitary service. He
completesan enlistment and Is discharged,but at all times
his Intention for the present Is to re-enlist and aontlnue In
military service. Even though some period of time may elapae
between his discharge and his re-enlistment,the two enllat-
meritsw0uia ordinarily oonstltute one continuousperiod of
servloe within the meaning of these provisions. Suppose, how-
ever, that at the time of his dlsohargehe has no Intention of
re-enteringmilitary service. After seeking employment he
finds nothing to his liking and he thereupon decide8 to go back
Into military service. Ordinarilythis would be the beginning
of a new period of service, and he aould vote In El Paso County
If otherwise qualified.
      &e Constitutionprovides that a person In military
service may vote only In the county In which he resided at the
time of entering servloe. (It should be noted that the place.
of voting Is the aounty of residence, not the county In which
the enlistment occurred,nhlch might be In some other place
than the place of legal residence.) In a brief submitted to
this office by an Interested organization,the contention Is
made that this provision of the Constitutionattempts to,
                              -842-
          Hon. Jack N. Fant, page 9 (C-X73)


          remulate
          regulate v&Inn
                   voting rights outside Texas as well aa within the
          statf3.
          State. "1%
                 "1% g6ei
                     goes without saylng.thBtthenTexas Cons'tltutlon
          oannot ,replate voting rights.of'.pereonsat &nj place other
          than rlthln the State of Texas; 'andcannot affeot,'the.'vot-
          lng 'rightsof-residentsof 'otherStates 'whilestationed-in
          Texas; This provision relates only"t~~'r&?iidentsof 'this' '.
          State;'but'lt does relate'both"to"personsriho ~eiWres1debt.a
          of Texasbefore entering service'ahdto persons who'becarhe"
          residents of'Texas after entering.service. .If~the only place
          at uhlch a person-may vote In this State Is the aounty In
          which he resided at the time of'enterlng service,'and'if"at
          that time he did not reside In any dOi.ukyIn 'Texas,It fol-
          lows that'he cannot vote In thIs'Stat%; Acoordlngly,'lt '~
          was .saldIn Opinion S-148 that no person 'whoentered servlce~'
          as a resident of another State may acquire a voting residence
          IKTexas Uhlle he:ls,in service.
                 It has been suggested In the brief that the provisions
          under considerationdo not preclude a nonresident of Texas
          from establishinga legal residence and becoming a qualiflea
          elector having the privilege to vote In Texas; that a resl?
          dent of Texas who enters military service oa>not ohange his
          voting residence while on .aotive,duty,and that a former non-
          resident, after having aoqulred a voting residence while on       '
.,        active duty In this State, aannot thereafter change It to
          some other county; but that.a resident of~another State can
          acquire an original voting residence In Texas while In mill-
          tary service.
                  We are unable to find support for this suggestion,
           either In the language used or In the reason for the restrlc-
           tlon. As we view 1t;the purpose of the restriction Is to
           prevent a concentrationof military voting strength In lo-
           calities where military lnstallatlpleare situated, which
           "might well lead to complete domination and control of lo-
           cal politics by the overwhelmingnumber of military men to
           the prejudice of the olvlllan citizen8 of the.communlty."
           Interpretivecommentary under Art. VI, Seo. 1, Vernon's Ann.
     5     Tex. Const., ~1. 2, P. 336. me conoentratlonsought to
           be prevented oould cOme about from voting by former residents
           of other States as readily 811from voting by former residents.
         -.of other oauntles In this Stat.e. Ue fall to see the rationale
           for allorlng a resident of so106other State who Is stationed'
           at Fort Bliss to ~acqulrea voting residenoe In El Paso County,
           while denying that privilege to a resident of Texas; nor do
           ue see any rationale for freezing hia voting residence in El
           Paso County If he Is transferredto ~,milltary Installation
           In sOme other oounty or State.

                                                                       ,:
                                    -843-
,   .




        Hon. Jack N. Fant, page 10 (C-173)


               We are not impressed by the suggested explanation
        that the person who resided In Texae at the time of'enteti-
        lng servloe does have a place to vote In Texas (I.e., the
        county of his residence st the time of entering service),
        but the person ~who.resldedIn some.otherState at the time
        of entering service would have no place to vote In Texas If
        he Could not acquire a voting residence at the plaoe where
        he was stationed. me 1954 amendment evince8 an Intention
        to remove the dl8franchl8ementof active members of the regu-
        lar military establishments,but subject to the llmltatlon-,
        that they will not be allowed to acquire a new votlng,real-
        dence In this State while In military service. It does not
        chow an Intention to enfranchlse'any'peraon'orclass of per-
        sons In military service on any other terms. It'should be
        kept In mind that a person who enter8 military service as a
        resident of some other State gives up his voting realden'ce
        In that State only by his own volition. So far as we are'
        able to find, there Is not a State in the Union whose laws
        cat&e a resident to lose his reeldence'andoonaanltantvat-~
        lng~rlghtsagainst his will by reason of absence'in military
        service. If he loses his residence and voting prlvlleges at
        the plaoe where he resided when he entered service, It 18 by
        his own desire to acquire a new residence at a different
        place. You have stated that many of the military personnel
        tell you that.when they write to the State and county where
        they entered the service, so as to vote absentee there, that
        State takes the position that they have nor lost their reel-
        dence there. In these cases, It wouldseem that the lndlvldu-
        al by hi8 own voluntary acts has relinquishedhis former'resl-
        dence or that the administrativeofficers of his home State
        .havemlalnterpretedthe law of that State.
               It has also been suggested that the law dlscrlmlnatea
        against-resident8of other States and la therefore repugnant
        to the 14th Amendment of the United States Constitution. We
        do not agree that It dlscrlmlnatesagalnst'nonresldents. A
        Texas resident la under the same limitation as a nonresident.
        No matter how much a soldier at Fort Bliss might prefer El
        Paso County to his home aounty In East Texas, or North Texas,
        or South Texas, and might want to make El Paso his county of
        leEa residence,he has to choose betueen acquiring a domicile
        In El Rrso County and losing his right to vote, for If he
        does change his realdenoe to El Paso County he also Is left
        without a voting plaoe.
               It Is true that military men who have been many years
        away from their place of resldenoe at the tlme of entering
        servicemay lose Interest In the affairs of that locality, but
        may be keenly interested In the affairs of the locality where

                                 -844-
Hon. Jack N, Fant, Page 11 (C-173)    .


they '&re'statloned;and the privilege of retaining their -
voting residence at.the former place may be to them'an empty
one.  It Is also tnie‘thtitt,e Texas realiiehtstationedin
Texas~'could                                 ‘on state-wide
            stlll'votefor ~t'aE~"offlbes"..bdd
lssues.of Interest to hLm;'whereas"theresident of sbmm8 other
State would"flhd no.'drea'bf~interestIn'the 'tile&Ionsof'hls
home,State except for President and Vice-Presidentof the    .
Unlted'States.‘These are considerationsgoing to the poll&y,
wisdom; and equlty~of the ~onstltutlonal'reatrlotlon,~rathsr~
than to Its interpretatlon.~We‘hastento state that‘our funb;
tlon-la merely to construe the provisions as they are written.
       In yourrourth question you ask for a constructSonof
the provision on military votlng'ln the amendment of Article
5.02 of the Election Code which wlll'take effect If the'pro-
pos'edconstitutionalamendment abolishing payment'of the poll
tax as a prerequlalte'forvoting Is ado ted at the'electlon
to be'held'on November 9, 1963. Aota.58th'Leg., 1963, ML.
43o;seo. 1, p.~1103. The~~pertlnent  portion of the proposed
amendment of Article VI, Section 2 of the Constitutionreads:
            'Section 2. 'Everyperson subject to
      node of the foregoing dlsquaIlflOatlonswho
       shall have'attalnedthe age of"tuenty-one
       years and who shall be~~a~citlienof"the
      ~UnlteilStates and'who~'shall-.~have
                                        resided In
       thle state one year next preceding an elec-
       tion and the lastsix months within the,dls-
       trl6t or county In which such peraontiffera
       to-vote, shall be deemed a quallfled elector; .”
       provided that any member of the Aped Foraes,
       of the United States or component branches
       thereof, or In the military servloe of the
       United States, may vote.only In the oounty
       ln%hlch he or she resided at the time of
       entering such service so long as he or she
       la a member of the Armed Forces; and provided
       further, that before offering to vote at an
       eleatlon a voter shall have reglatered If re-
       quired by law:.todo so.* * *"
       Insofar as It ooncerns place of voting by persons In
military aervlce, there la no ohsnge In the meaning of the
seation although the language has been rearranged. me text
of Article 5.02 of the Eleqtlon Code, as amended to take ef-
fect in event of adoption of the.constltutlonalamendment,
18 aB follows:


                !’
                         -845-
Hon. Jack N. Fant, Page 12 (C-173)


           "Ev&i-ypeiv3iM'eubjedttd imiieof
      the-‘foregoingdlsqii&SlflaaEionsWho shall
      hatieattaln’edthe age-ol-twehty-bneye&es
      aiidwho shall be ti‘dltlzen6i the Unlted’~
      St&it& andMid slitillhave reiildei&
                                        Siithlti
      atiitetine$i?ati
                     iiextpriectidlng’an
                                       blictldn
      aridthe last
      ~~’bounty    i3ix’mohths
                in wh.ch      irithiniirrere’..ta
                         .aubli      tIj&diet+lct
                              ,pgjriaoii
                                            __..,.~
      vote,’and ‘*hoMid11 ‘have”regiate’red’
                                          a8 a
      Voter If tiqiiired
                       ‘t6 dd ‘80,‘~
                                  ehall‘be deemed
      a qualified electbr; ptiovldbdthat any
      member of the ArinedFdticeaijfthe United
      States or component branches thereof, or
      In the’mill,taryservice of the United
      Statea, may vote only in the oounty in
      nhlch auoh person resided at the time of
      entering such service. * * *”
Thla’provieiontraake the proposed conetitutional‘amehdtient,
except for omlealon of the words “80 long aa he.or’sHe-‘la a
member o$ ~theArmed Forces;” Since the ptiovfsloti ‘dealswith
the voting place 6i’memberb:;notform& tiemberedr TtituM -’
memb&s--of the Atied Forbee, ‘the~omlsalonof thi quallfylng,.~
dlause does liot.changeltismeaning. ‘Unllk6 the iimi%ndBenten-
adtea by Chapt& 424,‘.thla V&i~loti’
                                   of’the stM-.utedoea hot-
aoiitain’thti
            provlalontilncqz$oratlrigthe Interpretationsdi ,
the Attorney ffenerallsopinions. But the.addltlon’M those
provlelonadid not alter eliletlnglaw; It merely verbalized
the exietlng law into atatutory lonn. Acocfrdingly, the~lirr
as It will exist If Chapter 430 takes effect will be the same
aa It is now.
       Your fifth queatlon la whether the constitutionaland
atatutor provlelope under aonelderatlonviolate Section 1
of the 1%th Amenduientto the United Statea Constitution,
which reads as followa:
           “All persons born or naturalized in the
      United Statee, and eubjeot to the jurladlation
      thereof, are oltlzens of the United States and
      of the State wherein they reside. No State
      shall make orenfome   uny law whloh ahall ak
      bridge the privileges or lmmunltlea of oltlzens
      ot the United States; nor rhall any State de-
      prive any person of life, liberty, or property,
      without due pr~ceaa~.@f;
                             lnu# mar;denydp ,vy;.:pqrson
      within It6 jurledlctlonthe equal protection
      OS the lam.*


                        -846-
.   .




        Hon. Jack N. Fant, Page 13 (C-173)


               We have seen that the law of thla State complettily
        disfrahchlsedall pertions.ln’~inllltar~  hervice  for almMt’.a
        hundred jlearaand disfranchisedm&fibersof'the-regular&a-
        tabliMvaeht8for twenty more years: If those provlslona did
        nbt offend th&'Federal ConstltutlorY,   It 16 e'Viident that the..
        less drastic provisions of the,preaent'lbwale6 are notsub-
        ject to that‘lnflrmlty.'~The‘lbthAmen&&t was ratified Sn
        1868. During the lntetienlngyeatis.'before     Section 1.0 Artl-
        tileVI of the Texas Constitutionwas amende$.ln 1954,~&here
        was no case dlreotly raisk;lgthe validity of the Texas law,
        but the implication In two cases Bebided by the T+xas'coutits
        seems to be that the State had the poker’to withhold suffrage
        from persons-In military service. h Savage v. Umphrlea, -
        i18.S.W. 893, 8% (Tex.Clv.App.1909), the court.       said:
                                                            ';~
                    "Who shall exercise suffrage Is a
               f'undamentalquestion, which the body politic
               must deolde upon a just view of the true
               relation between the power of the auffragana
               and the rights of the whole people. Hence the
               exerclae of the elective franchise Is not a
               natural or God-given right, but Is, as the
               word lfranchlae*implies, a right conferred by
               the state or body politic.' In other wordd8,as
               la aald by an eminent authority bn constltutlon-
               al law, the'.questldns whether one Is fitted by
               lntelllgen6eto perform the function of an elec-             ..,
               tor, or has such IMerest In the matters con-
               trolled through hla suffrage as to check t:he
               misuse of power which self-Interestprompts;
               or has euch oommunlty of Interest In the lawa
               which are to govern the community,uhlch
               should fit him for the dlecharge of the.dutlee
               of a auffragan,must be determinedby the body
               p011t1c."
        One of the holdings In that case was that under Artlole VI,
        Section 1 of the l!ex&aConstitution,a person In the service
        of the army of the Ublted States was not entitled to vote
        at all. Ii8 s.W.2dat page 908. In'McBethv. Strelb,96 S.W.
        26 992, 995 (!Pex.Clv.App.
                                1936),the court said:
                    "Our qrganlo and statutory laws, In plain
               terms, deny the right of franchise to citizen8
               In the military service. The reasons for euch
               denial were properly determined by the adopters
               of the Constitutionand members of our lawmaking
               bodlea.".


                                  -847-
.   .




        Hon. Jack N. Fant, Page 14 (C-173)


               Solon v:State, 54 Teic;Ci+in.261, 114 S.WiY349,   352
        (1908) aeacnbea  the naturp
                              .     0s suffrage
                                        _, -, aa r0110rta:
                                                        .
                    "'.* * l The ttib'tile lb that the right
               to vote-Sa^not'a.neceaaaFy  or-fixed Incident
               of cltl,zenahlp; or lnh&i?ehtia ea&h and every
               lndlvldual,butthat voting IS the'exercise
               61 political poweF, and no on& la entitled to
               vote, unless the people In their aover6lgn
               cbpadlty, have conferred on him the right to
               do io. It map-be laid down aa a general
               propoaltlon that the right of suffrage may
               be regulated and modified or withdrawn by the
               authority which conferred It.,*-+ * In the case
               of State v. Dillon,'32 Fla. 545, 14 SO. 383,
               22 L.R.A. 124, In treating thla general aubJeot,
               the court say: "The right to vote ia not ai,
               Inherent or absolute rlght~found among those
               generally reaerved In bllla of rights, but Its
               poaaeaalon la'dependentupon o6natltutlontil
               or statutory grant. Subject-to the limlt~tlona~
               contained In thenSeder&l CQaafltutlon,the elec-
               tive .f&chiae la undhr~the bontro1 of'the
               aoverelgnpower of the states, expressed In
               zoiazM);utiona or atatutaa properly enacted.
                . _ .                ?
               The United Staten Constitutiondoes not confer on or
        guarantee to cltlzena the right to vote, Wit It doea llmlt
        the.pwer of a State to abridge or.denv to some citizens a
        right of suffrage which the St&be has granted to others.
        10 Am.Sur.. Elections, 88 '16,47; f@C..S.S., Electlonb, gII
        5-8. 'Ihe15th and 19th Amendments prohibit denlal~of the-.
        eight to'vote because of race, color, previous condition of
        servitude,or sex. 'The14th'Amendmentprohibits a State'
        from abridging the privileges ,orlmmunltlea of cltlzena of
        the'Unlted States or SrorPdenying-the equal protection of the
        lawa to any person within Its jurladlctloa;but these prohl-
        bltlona do not preclude a State fraa making reasonable claaal-
        flcatlona of persona or things forthe purpose of leglalatlon
        If all within the same olaaa are treated allke. .The general
        principlea on the validity of olaaalflcatlonaare stated In
        the following quotatlons'froh16~ C.J.S. 240 et seq., Conatl-
        tutlow UW, I 489:
                    "Class leglalatlom la invclld where the
               claaalflcatlonla arbltrarv and unreaeonable.
               The provision of the Fourtbenth Amendment to
               the federal.Constitutiondeclaring that no
                         1

                                 -048-
Hon. Jack N. Fant; page 15 (Gl73)


      btdte shall make oti'enforce'enylaw which
      shall abriilg6'the~prIvIlCgea
             _-.                   -or'ImiininItIea
      of.6'Itlzenaoi'the hltbd States, or deng
      to any'pert3onWithin Its jiirIsdlctlbnthe
      i?Qual.'pivtectlon
                       of th6 lawa,‘aiiWell 'as -
      pr6vialdliacomziolily
                          ~ioiind
                                In-'stateooir~tltu-
      tlona ptihlbltlngthe e'n&dtmeht'bf~l'aria
      grantIng'~&ny'dpedIal05~i$xolualve.prIvilegea,
      Iizmuhltlea;or fri%n6hIilea,'~*
                                   l ~*rend&r‘~Vold
      all state statuteswhich make-&y unreaaotiable
      6r arbitrarydlacrImlnatl6n  betweendifferent
      personaor olaaaeaof persona.l * *
           "Therela no generalrule by which to
      dlatlnguIaha reasonableand lawful froa,un-
      i%Aaonable'and apbltraryolaaaIfIc~tlon,  the
      questionbeing a praotIc&lone, deliendent  ?n
      tizperleribe,
                  and.vtiJIIagwlth'thefacts In
      eaoh.~aaae.In order...to~'be
                                 valid'&atatilfoe
      olaaaIfIoatIon mubt reaabirabljprdloteaaae'
      proper object,of public welfareor Interest,,
      mat rest on real and"subat&ntlal  differenuea,
      having a natural,.reaaonable;andaubatantIa1
      relationto the aubj&otof the legldlation;
      and must affect alike all person6or'thlhga
      within a particularclass, or 8laWaiQy aitu-
      ated;.but;If the legislaturehas power~to
      deal with thf2aubjeot’matterof the claaaIflca-
      tlon and,therela a reaaohablegSound-Sor.the
      ~olaai3lfloatlo~
                     and the law operatiesequallyon
      all'tilthlnthe aAme olaaa, It la valid, even
      th6Ugh the act confers dlfierentrlghtaor-l&--
      poses differentburdens on the aeveral'clabsea,
      dr rails to pmvlde Sor future contlngencI~a,
      or %hos&m partlaularpersonafind lt-':dlffi:~
      cult or even ImpoaaIbleto complywith condl-
      tlona preoedenton whIah the enjoymentof the.
      privilegeIs made te depend.l * l
           "In detetialag wh&hqr or not a basis of
      olaaalfIoatIon   is reasonable, It must be look@
      at fra the rtandpoi.nt   o? the leglrlatureenaot-
      lng It, and with refezmme to the oondltlona
      existingwhen the atattrte.waa   enaated,not when
      the constitution   was adopted. Aa discussed
      aupra 8 151 (4), the question OS olaaaIfloa-
      tioa Is one priaarllv   for the legislature,and
      In the exerciseof this power the le,glalature
      poaaeaaeaa wide diearetion. A rtatutrwill
Hon. Jack Fant, page 16 (C-173)


      be auatalnddwhere the basl8’Toti     bliSsI-
      flo’&tli5n  iaadeby- It ‘ootild
                                    h&e be&med
      tiebaonabl6   twthe   legIblatru%‘;even’ thoq@
      duMi b&sib seems tii‘thecourtd”tobe tin-
      reaaolialjle.  .‘U’~~ile\r”of
                                  the“p~~aumptlotia~
      iiiTaior“bf’a’l~glalatlve     olaaalflaatIon;
      aa’dIbcuaa&dSup&i U 100; t&e leglaliitlie
      jiaaepPent’-se to clasaltl6afloii will”be’up:
      h@ld.‘If’ a.nystate Of facts.can reasonably
      be dondeivedto auatain.~It,     dnd can be
      ovePthPown ‘brthe courts only when It Is,
      clearlyerroneous.     y...
      The Texas Constitutionolaaalfle~pe~aonaIn military
servicefor specialtreatmentIn conferringthe right to
votd,“‘and
         accords’the same trektmbntto all wlthlh that‘ala&a.
We“Ue unable to ‘a&ythat‘ther6’.is
                                 no’r&Son&l b&ala for the
6SAlaZficatloti,                  is”our. opinionthat fihb
               bnd’a6niieQuently~lt
p~vlblti does not violatethe 14th Amendmentto the Vnited
States~onatltutIon.


           Ihe prcvI6lonaor ArtloSe3i02,
      Vernon’s!l!uxaa
                    ElectionCode, as amend-
      ed’by Chapter424, Aeta o? the 58th Imgla-
      lature,1963, which Wrtaln to voting by
      persona’lmmllltary service,do nothing ;
      more than restatethe law aa containedIn
      the 1954 amendaentto &ticle.VI, Section          ,4;
      2 o? the’Texas~Conatltution;Attorneg
      deneralguOpinionaS-1118 end UU-157, ln-
      kerpretlngthe oonatItutl6nal provGiona.,
      aru ruaiflned.
           ltlelaw on votingby personaIn mill-
      tary service,aa containedIn the amendment
      to ArticleVI, Section2 of the Constitution
      which la proposedby S.S.R.NC. 1, 58th Legla-
      lature to be submittedto a vote on Noveslber           ’
      9, 1963f and In,Article5.02 of the Election
      Cod&, aa umendedbx Chapter430, Acts of the
      58th Legislature,which will-take effect It ,’
      the proposed coaatltutlonalaaendnent Is
      adopted,Is the saute88 the presentlaw.
           me provIslonaof ArticleVI, Section
      2 of the !kixaaCcnatltutlon, and OS Article
      5.02 of,the Texas Nleotlon Code, whloh pro-
      vide that membersof the Armed Forces of the

                       -8SO-
                       .’
                        .
Bon. Jack N. Fant, Pee 17 (C-173)
                                     ,

      United Statesmay vote only In the
      county In which they residedat the
      time of entering service.does not
      vlolistethe 14th Amendmexit'to
                                   the
      United States Constitution.

                            Yours very truly,
                            WAGGONERCARR
                            AttqrneyQenefal
                               .i'      I

                            By         r,  a4
                             -Y
                              Maw   . Wall
                              Aaalafant
MKW:aj:ma
APPROVED:
OPINIONCOMMITTEE
W.'V."Oeppert,Chairman
Howard Fender
MalcolmL. Quick
Ernest Forteriberrv
Paul Robertson
APPROVEDFOR THE ATTORNEY GENERAL
By: StintonStone




                         -851-
                                     !

                                 I
