               r   .




                       E                   Y     GENERAL



                             AUSTIN   m.   TEXAS
GROVER SELLERS
*TrcBRNEYGENERAL
                                           Affirmed by: Tondre vs. Hensley
                                           T;T& ;;;,6;y. 1949 223 S .W..

    Honorable Coke R. Stevenson            Opinion NO. 0-6236
    Governor oftTexas
    Austin, Texas                          Re:     Whether disabled veterans
                                                   can vote 1n the November
    Dear Governor Stevenson:                       election, and related
                                                   questions.

             Your request for our opinion on the hereinabove cap-
    tioned matter has been received by this department. We quote
                        _ _-
    from your letter as rollows:
               “I am receiving many inquiries from soldiers
          and these interested in members of the armed ser-
          vices as to what the status of a soldier is who
          has returned from foreign service with reference
          to his right to vote in the ensuing general elec-
          tion. Article 2959, as amended, reads as follows:
                “‘A poll tax shall be collected from every
          person between the ages of twenty-one (21) and
          sixty (60) years who resided in this State on the
          first day of January preceding its levy, Indians
          not taxed , persons Insane, blind, deaf or dumb,
          those who have lost a hand OP foot, those permanently
          disabled, and all disabled veterans, of foreign
          wars,  where such disability is forty (40%) per cent
          or more,  exceptedD It shall be paid at any time
          between the first day~of October and,the first day
          of February following; and the person when he pays
          it, shall be entitled to his poll tax receipt,
          even if his other taxes are unpaid. t
               “Other provisions of the statutes provide
          that those who fall within the classification
          exempted from the payment of poll tax shall pro-
          cure an exemption certificate from the County
          Tax Collector when same is required by such pro-
          vision. Many soldiers have suffered the loss of
          a hand or a foot or become disabled to the extent
          of 40% or more, since the date when such certifl-
          cate of exemption could be obtained.
               “Question: Can such disabled veterans vote
          in the November election? If they can vote, what
Hon. Coke R. Stevenson, page 2        O-6236



    certificate of disability Is necessary, if any,
    in order to entitle such person to vote?"
         Your  first questlon asks in effect whether or not dls-
abled veterans who have suffered a 404%disability within the
meaning of Article 2959, Vernon's Annotated Civil Statutes, are
legally quallfled to vote without the payment of a poll tax.
This inquiry, due to the manner in which it is phrased, requires
an examination not only of Texas statutes but also of the pro-
visions of the Texas Constitution relating to the payment of a
poll tax as a qualification for voting. The constltutional
questlon Involved Is one of serious concern to the people of this
State. It is one which, as all constitutional lawyers know,
has been consistently passed over or around by the appellate
courts of this State and on which we do not have an authoritative
decision by OUT Supreme Court. My own inclination as a cltlzen
would be to follow the same practice but as a public official
holding the high office of Attorney General of this State, I have
certain statutory and constitutional duties to perform. Article
4399,~Vernon's Annotated Statutes, provides that "The Attorney
General at the request of the Governor D . 0 shall give . , . .
written advice upon any questIon touching the public interest."
Article 4, Sect.22 of the Texas Constitution provides that "The
Attorney General shall o 0 give legal advlce in writing to the
Governor and other executive officers, when requested by.them,
and perform such other duties as may be required by law." There-
fore, since the Constitution, which I have as Attorney General
sworn to uphold gives me no latltude in the matter under the
question as posed by you, I shall discuss both the Cons'citution-
al and statutory provlsions involved in your Inquiry.
         The poll tax as we know it in Texas finds its course In
both the Constitution and statutes of Texas. The poll tax of
one dollar was first Imposed by Article 7 Section 3 of our pre-
sent Constitution, which was adopted In ~$76.  That Constitution
also provides in Article 8, Section 1 that "The.Legislature may
Impose a poll tax." That Constitution also,provided in Article
6, Section 3 that cities or corporate towns might levy a poll tax
as a requisite for voting in city elections "to determine expend-
iture of money or assumption of money." These provisions are
still in the Constltutlon. It was notuntil 1902, however, that
the people of Texas by amendment of Article 6, Section 2 of the
Constitution tied the poll tax to the rfght to vote. The con-
stitutional amendment adopted December 26, 1902, provides "that
any voter who is subject to pay a poll tax under the laws of the
State of Texas shall have paid said tax before he offers to vote
at any election in this State and hold a receipt showing his poll
tax paid before the first day of February next preceding such
election D D y this provision of the Constitution shall be self-
enacting without the necessity of further legislation." This
amendment is still a part of our Constitution.
Hon. Coke R. Stevenson, page 3          o-6236



         The Legislature of Texas has levied not only the one
dollar constitutional tax but also a poll tax of fifty cents I'for
general revenue purposes" and It has authorized the counties to
levy a poll tax of not more than twenty five cents for "county
purposes". Article 7046, Vernon's Annotated Civil Statutes. So
far as the taxpayer is concerned, this $1-50 or $1.75 tax, as
the case may be, is the poll tax but from a legal view point
there is a distinction between the dollar constitutional tax and
the balance of the tax due to the fact that one dollar of this
tax is required by the Constitution and the balance of the tax
is required only by levy of the Legislature,
         We shall first consider that part of the poll tax which
is required only by levy of the legislature. The legislature has
the inherent power to levy all taxes and this includes poll taxes
as well as other taxes. There is no provision in the constitu-
tion which limits the amount of the poll tax which the Legisla-
ture in its wisdom may decide to levy. And when the Legislature
does levy a poll tax, this tax must, under Article 6,,Section 2
of the Constitution, be paid "before the first day of February
next preceding such election" in order for the person taxed to be
eligible to vote. Pursuant to this inherent power of taxation
the Legislature has enacted ArtFcle 2959, Vernon's Annotated
Statutes, which is quoted In your opinion request above. In this
statute the Legislature has exempted from the payment of this
leglslatlve poll tax (that is the fifty cent tax for general
revenue purposes and twenty five cents for county purposes)
"Indians not taxed, persons insane, blind, deaf or dumb,~those
who have lost a hand OP foot, those permanently disabled, and all
disabled veterans of foreign wars, where such disability Is
forty (40%) per cent or more-' The only constitutional tests
applicable to these exemptlons In so far as they apply to the
legislative poll tax as dlstinguished from the constitutional poll
tax, is that they be reasonable classifications and we think that
these exceptions meet that test. Solon v. State, 54 Tex. Cr. OR.
261, 114 S.W. 349. Texas Power & Light Co. v, Brownwood PubIlc
Service Co. 111 S.W. (2) 1225, writ refused. 40 Tex. Jur. 78,
79.

         We turn, therefore, to find what the Legislature has in
Its wisdom provided with reference to the timesfor payment of this
legislative poll tax and when the disability must have occurred
for those who seek to come under ,thispart of the exemption in
Article 2959.
          Article 2960, Vernon's Annotated Civil Statutes, pro-
vides:
           "Every person who is more than sixty (60)
      yearsold, OP who is blind or deaf or dumb, or is
Hon. Coke R, Stevenson, page 4             o-6236



    permanently disabled, OP has lost a hand or foot,
    or who is a disabled veteran of a foreign war,
    where such disability is forty (40%) per cent or
    more, shall be entitled to vote without being re-
    quired to pay a poll tax If he has obtained his
    certificate of exemption from the County j&$xCol-
    lector when same is required by the provisions of
    this title. As amended, Acts 1941, 47th Leg. p.
    1336, ch, 604, 8 1.”
         Part of Section 4 of Article 6,     Texas Constitution,
provides:
                the Legtslature may provide by law
    for the registration of all voters in all cities
    containing a population of ten thousand inhabltants
    or more a D .
         Article 2968,  Vernon’s Annotated Civil Statutes, pro-
vides, in part, as follows 9
         “Every person, who Ls exempted by law from
    the payment of a poll tax, and who is in other
    respects a quellfled voter, who resides in a city
    of ten thousand (10,000) inhabitants or more, shall
    before the 1st day of February of the year when
    such voter shall have become entitled to such ex-
    emption obtain from the Tax Collector of the county
    of his or her residence,,a certificate showing his
    or her exemption from theepayment of a poll tax.
         “Such exempt person shall on oath state his
    name, age, race, county or residence, occupation,
    the length of tFme he has resided in sald county,
    and the length of time in the city, and the number
    of the ward or voting precinct in which he restdes,
    and shall also state his street address by name
    and numbers if numbered, and the grounds u,ponwhich
    he claims,,exemptionfrom the payment of a poll tax
    . D 0 a e
         Article 2955, Vernon’3 Annotated Civil Statutes of
Texas, provides:
        “Every person subject to none of the fore-
   going .dFsqualifFcations who shall have a.ttalned
   the age of twenty-one (21) years and who shall be
   a citizen of the United,States, and who shall have
   resided in this State on,eyear next preceding an
   election, and the last 3i.x(6) months wlthin the
         .        ,




Ron. Coke R. Stevenson, page 5


   district or county in which he or she offers to
   vote, shall be deemed a qualified elector. The
   electors living in an unorganized county may vote
   at an election precinct in the county to which such
   county is attached for judicial purposes; provided
   that any voter who Is su.bjectto pay a poll tax
   under the laws of this State, shall have paid said
   tax before offering to vote at any election In this
   State and holds a receipt showing that said poll
   tax was paid before the first day of February next
   preceeding such election; and, if said voter is
   exempt from paying a poll tax and resides In a city
   of ten thousand (10,000) Inhabitants or more, he or
   she must procure a certiflcatlon showing his or her
   exemptions, as required by this title. If such
   voter shall have lost or misplaced said tax receipt,
   he OP she shall be entitled to vote upon making and
   leaving with the judge of the election an affidavit
   that such tax was paid by him OP her, or by his
   wife or by her husband before said first day of
   February next preceding such electlon at which he
   or she offers to vote, and that said receipt has
   been lost or misplaced. In any election held only
   in a subdlvision of a county for the purpose of
   determlning any local question or proposition af-
   fecting only such subdlvlsion of the county, then
   in addition to the foregoing quallficat1on8, the
   voters must have resided in said county for six
   (6) months next preceding such election. The pro-
   visions of this article as to casting ballots shall
   apply to all election8 including general, special,
   and primary elections; provlded that a city poll
   tax shall not be required to vote in anJ election
   In this State except in city elections.
             Article 7046,   Vernon’s   Annotated Civil Statutes, pro-
vides:
         “There shall be levied and collected from
    every.person between the ages of twenty-one and
    sixty years p resident within this State on the
    first day of January of each year (Indians not taxed,
    and persons insane, blind, deaf or dumb, or those
    who have lost one hand OP foot, OP are permenently
    disabled, excepted), an annual poll tax of one
    dollar and fifty cents, one dollar for the benefit
    of the free schools and fifty cents for general
    revenue purposes Q Said tax shall be collected and
    accounted for by the tax collector each year and
    appropriated as herein required. No county shall
Hon. Coke R, Stevenson, page 6        o-6236


    levy more than twenty-five cents poll tax for
    county purposes, The poll tax due from cltlzens
    of unorganized eountles shall be paid in the
    county to which the unorganized county 1s attached
    for judicial purposes."
         Based on these statutes you are advised In reference
to the legislative poll tax (that is, the fifty cents tax for
general revenue purpose3 and twenty-five cents for county pur-
poses) that:
         1. A disabled veteran of a foreign war (where such dls-
ability Is forty (40%) per cent or more) residing in a city of
10,000 inhabitants or more, shall be entitled to vote in the
November election without being required to pay a poll tax, pro-
viding that he sustained said disability on or prior to January
1, 1943, and has secured an exemption certificate on or prior to
January 31, 1944, from the County Tax Assessor-Collector of the
county of his legal residence on January 1, 1943.

         2. A disabled veteran of a forei n war (where such
disability is forty (40%) per cent or morek residing elsewhere
than in a city of LO,000 inhabitants OP ma-e, shall be entitled
to vote In the General Election without being required to pay a
poll tax or secure an exemptlon certificate, providing said
disability occurred on or prior to January 1, 1943.
         The forego1   answers would also apply if the entire
poll tax of $1.50 OP7 1*75 (In case a county tax has been levied)
were considered only as a leglslatlve tax. The poll tax for
which voters now hold a receipt is the tax which was levied as of
January 1, 1943. We, therefore, see that the Legislature has not
by Its enactments extended the exemption from the 1943 poll tax
to those veterans who have sustalned a forty (40%) per cent dls-
ability since January 1, 1943.
         The poll tax of one dollar "on every inhabitant of this
State between the age3 of 21 and 60" as levied by Article 7, Set-
tion 3 of the Texas Conutitution cannot, in our opinion, be con-
sidered as strictly a legislative levy. Article 7, Sectlon 3 of
the Texas Constltu,tionIn so far as applicable here reads as
follows:
         "One fourth of the revenue derived from the
    State,occupatlon taxes and a poll tax of one dol-
    lar on every Inhabitant of the State, between the
    ages of twenty one and sixty years shall be set
    apart annually for the benefit of the public free
    schools".
Hon. Coke R. Stevenson, page 7              Q-6236


         Our Texas Court of Criminal Appeals in Solon vs. State
(1908) 114 S.W. 349, at page 359, in speaking of this provision
of the Constitution said:
              "Under this provision of Sectlon 3, Art. 7
         of the Constltutlon above quoted there is, in ex-
         press terms levied in this state a poll tax on
         every male inhabitant thereof between the ages
         named therein; and if this section of the Constitution
         is to control such poll tax is fixed without the
         necessity of legislative action. The provision
         standing alone, is definite, flxed, and as certain
         as any legislative action can make it, We think
         the law, if we shall hold this section controls,
         could be sustained on the ground that this pro-
         vision of the Constitution Is self-executing and
         in terms levies a poll tax on all persons between
         the ages named, and that the exceptions of the
         persons, and classes of persons, named in Article
         5048 of our Revised Statutes could be held to be
         invalid and unavailing, so that the law and tax
         could stand and the attempted exceptions fail."
              OUP   Supreme Court of Texas in Powell v. City of Baird
$9~3;,WW;;,            WA : ~3 S .W.  (26) 786, at page 787 In speaking

              "Section 3 of Article VII of our Constitution,
         supra, so far as applicable here, has effect to
         levy annually a one dollar poll tax for the bene-
         fit of the public free schools of this State.'
         The holding that the portion of Article 7, Section 3,
relating to the levy of one dollar poll tax is self executing
is in'llne with decisions of our Supreme Court holding other
sections of our Constitution to be self-executing. 9 Tex. Jur.
423.
         The exemptions from the payment of a poll tax as pro-
vided for by the Legislature in Article 2959, 2960 and 7046,
supra, are no where to be found in the Constitution. Article 6,
Section 1 of the Texas Consi;u;;on prohibits certain classes of
persons from voting, viz:           persons under twenty-one (21)
years of age, Second: Idiots and'lunatics. Third: All paupers
supported by any county, Fourth: All persons convicted of any
felony, subject to such exceptions as the Legislature may make.
Fifth: All soldiers, mrlnes   and seamen, employed in the service
of the army or navy of the United States." This last provision
relating to soldiers, marines and seamen was,amended in 1932 so
as to permit all members of the armed forces in the service of
Honorable Coke R. Stevenson, page 8         Q-6236


the United States Government, except members of the Regular Army
and Regular Navy, to vote provided they are otherwise qualified
to vote. See our opinion No. O-5779, addressed to you as of
January 15, 1944. Carpenter v. Sheppard, 135 Tex. 413, ~1.45S.W.
(2d) 562. The prohibitions of Article 6, Section 1 relate to
voting and not to the payment of a poll tax. The persons who
are thus prohibited could not vote even though,they paid a poll
tax. There are many people subject to the payment of a poll
tax who nevertheless do not have a right to vote. This is due
to the fact, as previously noted, that the payment of a poll tax
was not made a qualification for voting until 1902, whereas the
provision levying the poll tax has been in the Constitution since
Its adoption in 1876.
         Since the exemptions from the payment of the poll tax
which the Legislature has provided in Article 2959, 2960 and
7046 are not to be found in our Constitution, we come to the
narrow question of whether these exemptions can relieve a tax-
payer of his obligation to pay the one dollar constitutlonal
poll tax. This part of the poll tax is, as we have seen, levied
by the Constitution itself. Article 3, Section 55 of the Con-
stitution provides:
         "The Legislature shall have no power to re-
    lease OP extinguish, OP to authorize the releas-
    ing or extinguishing, in whole or in part, the
    indebtedness, liability OP obligation of any COP-
    poration or individual, to this State or to any
    county or defined subdivision thereof, or other
    rrmnicipalcorporation therein, except dellnquent
    taxes'which have been due for a period of at
    least ten years."
         Article 6, Section 2 of the Constitution provides, as
we have noted,,that in order to be qualified to vote "any voter
who is subject to pay a poll tax under the laws of the State of
Texas shall have paid said tax before offering to vote at any
election in this State and hold a receipt showing that said poll
tax was paid before the first day of February next preceding such
election." It is well settled, of course, that the Constitution
of Texas which is our fundamental law is part of the law included
in the phrase "under the laws of the State of Texas" as used in
Article 6, Section 2, supra. In this connection the Supreme
Court in the recent case of Powell v. City of Baird, 128 S.W. (2)
789, 790, said:
          “As used in the above constitutional provi-
    sion the word 'under' is certainly used as a pre-
    position, indicating subjection, guidance, OP
    control, It is used in a sense of 'by authority
    of' a"
Honorable Coke R, Stevenson, page 9         Q-6236


         There is no principle of constitutional law more firmly
entrenched in our jurisprudence than the proposition announced
by OUP Supreme Court in Cameron v. Connally, 117 Tex. 159, 299
S.W. 221. The Court at page 223 in that opinion said:
         "The Constitutionhaving prescribed the quali-
    fications of those entitled to vote in this elec-
    tion, no charter provision prescribing qualifica-
    tions was necessary, and none could be made other
    than as provided by fundamental law. The following
    language of the court In the case of Koy v. Schneider,
    110 Tex. at pages 377 and 378, 218 S.W. 480, is apt
    and controlling to wit:
        fj
         I0 0 L1v All the authorities seem In accord
   with the statement that 'where the right of suffrage
   is fixed in the constitution of a state, as Is the
   case in most states, it can be restricted OP changed
   by an amendment to the constitution or by an ainend-
   ment to the federal Constitution,which, of'course,
   is binding upon the states. But it cannot be re-
   stricted or changed in any other way. The legisla-
   ture can pass no law directly OP indirectly either
   restricting OP extending the right of suffrage as
   fixed by the Constitution.   10 A. & E. Encyclopedia
   of law, 573, 576; 15 Cyc. 282, 8 R.C.L. Sec. 41.
         "In Cooley's Constitutional Limitations, In
    section 599, it is said: 'Whenever the Constitu-
    tion has prescribed the qualifications of electors,
    they cannot be changed or added to by the Legisla-
    ture or otherwise than by an amendment to the Con-
    stitution.'
        "IThe rule stated was approved in the opinion
   of Justice Ramsey in Solon v. State, 4 Tex. Cr.
   (54,Tex. Cr. R.) 261, 114 S.W. 349, where it is
   said: 'Where a Constitution has conferred the right
   and prescribed the qualifications of electors, it,
   of course, is paramount until amended, and the
   Legislature cannot change or add to them in any way;
   but, where the Constitution does not fix the right
   of suffrage OP prescribe the qualifications of voters,
   it is competent for the Legislature, as the repre-
   sentative of the lawmaking power of the State, to
   do so."'
         See, also, Wendover v.Tobln, 261 S.W. 434, 438; McCutcheon
v. Wozercraft, 116 Tex. 440, 294 S,W. 1105, Ramsey v. Wilhelm 52
S.W. (2) 757, writ refused and Powell v. City of Baird, 133 Tex.
                                                          .




Honorable Coke R. Stevenson, page 10            o-6236


489, 128 S.W. (2) 786. The Constltutlon having by Article 7,
Section 3, levied a poll,tax of one dollar I'onevery inhabitant
of this State between the ages of,.21and 60 years" and havihg
by amendment to Article 6, Section 2 provided since 1902 that
the payment of this tax shall be a qualification for voting "at
any election in this State", the Legislature is without power
to exempt classes of persons between the ages of 21 and 60 from
the payment of this poll tax or to authorize such persons to
vote without payment of such tax, as it has attempted to do in
Articles 2959 and 2960.
         This distinction between the portion of the poll tax
which may be forgiven and the portion which may not, is recog-
nized by the Legislature In Article 5840, Vernon's Annotated
Civil Statutes, which provides in part, that:
               "All officers and enlisted men of the active
    militia of this State, who comply with their mlli-
    tary duties as prescribed by this chapter, shall
    be entltled to exemption from the payment of all
    poll taxes, except the poll tax prescribed by the
    Constitution       for the support of the public schools;
     . e . 6 D
In this connection see our opinion No. 0-5808 issued January 26,
1944, wherein this distinction is further pointed out.
         This identical constitutional question was presented to
and passed upon by the late Chief Justice Cureton of the Supreme
Court of Texas, while he was Attorney General of Texas. In
Attorney General's opinion No. 1972 that distinguished jurist in
a conference opinion signed by himself and by Federal District
Judge W. A. Keeling, who then was First Assistant Attorney Gen-
eral, held that:
         "It is, therefore, apparent that since the
    Constitution, In express terms, levies a poll tax
    the Legislature is powerless to now ingraft excep-
    tions to the constitutional amendment as it was
    enacted by the people."
         You are, therefore, advlsed that it is the considered
opinion of this department that Articles 2959, 2960 and 7046,
Vernon's Annotated Civil statutes are unconstitutional in so
far as they purport to exempt the classes of persons therein
named from the payment of the one dollar constitutional poll
tax or to make those classes of persons qualified voters without
the payment of any poll tax, We, therefore, answer your first
question in the negative.
Honorable Coke R. Stevenson, page 11        O-6236


         This disposes, also, of your second question which is
conditioned on an affirmative answer to your first question.
         Respectfully submitted

                                Grover Sellers
                            ATTORNEY GENERAL OF TEXAS
                                  By s/Fagan Dlckson
                                       Fagan Dickson
                                       Assistant
                                  By s/J.C. Davis, Jr.
                                       J.C. Davis, Jr.
                                       Assistant
FD/JCD/bt/ff/wc

APPROVED NOV 4, 1944
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
This Opinion Considered and Approved in Limited Conference
