                        F    EXAS
                      AKn3TxN11.TExaS        Superseded by Art. l.Ola
                                             Vernon's Texas Election Code
                      December 11, 1962      added in lg3 u
                                             &-a/z/

Mr. Jack H. Holland                 Opinion No. WW-1491
County Attorney
Henderson County                    Re:   May the City Council
Athens, Texas                             of the City of Athens,
                                          Texas, a home-rule city,
                                          determine that Its popu-
                                          lation is more than 10,000
                                          people and thereby make
                                          effective Art. 5.16 of
                                          the Texas Election Code
                                          relative to poll tax
                                          exemptions as to voters
Dear Mr. Holland:                         in that City.
        You ask the Attorney Gsneral to advise you whether a
resolution of the City Council of the'city of Athens, Texas,
is legally sufficient to determine that the population of that
city on October 1,'1962, was more than 10,000 inhabitants within
contemplation of Art. 5.16 of Vernon's Texas Election Code which
requires certain persons to secure certificates of exemption from
poll taxes.
        Athens is a home-rule city. You state that the City
Council passed a resolution on October 1, 1962, in which It
found that the city on that date had a population in excess of
10,000 persons. You further state that this finding was
           11
            . . . predicated on the average number
           of occupants in a dwelling, based upon
           the national average for water, electri-
           cal, and gas service connections, veri-
           fied by random surveys to dwellings
           situated within the corporate limits
           of the City of Athens, . . .'
You then ask:
              "Is a,resident of the City of Athens,
           who is over 60 years of age and who is
           in other respects a qualified voter,
           required to secure a certificate from
           the County Tax Col1ecto.rbefore Febru-
           ary 1, 1963, showing his or her exemption
 Mr. Jack H. Holland, Page 2 (Opinion No. WW-1491)


          'from the payment of a poll tax, in order
           to be entitled to vote at any election
           In which the voters in the city vote from
           February 1, 1963'to January 31, 1964?"
        Our answer is that a resident of the City of Athens
who is over 60 years of age and who is in other respects a
qualified voter is required to secure an exemption certifl-
cate prior to February,l, 1963, in order to vote at any elec-
tion In the City of Athens held between the dates of February 1,
1963, and January 31, 1964, and which election is held pursuant
to the Texas Election Code.
        Article 5.16 of that Code, In its pertinent portions,
reads as follows:
             "Every person who Is exempted by law
          from the payment of a poll tax, and who
          Is In other respects a qualified voter,
          who resides in a city of ten thousand
          (10,000) inhabltants.or more, shall,
          before the first day of February of
          the year when such voter shall have
          become entitled to such exemption,
          obtain from the Tax Collector of the
          county of his or her residence, a
          certificate showing his or her exemp-
          tion from the payment of a poll tax.
          Such certificate shall entitle such
          voter to vote at any election held
          between the date of Its issuance and
          a period of one (1) year from the 31st
          day of January following its issuance.
          . . .
              "Although entitled to an exemption
           certificate, no one shall vote who does
           not possess a current exemption certlfi-
           cate. . . .'
        We find no provision in our constitution or statutes
which prescribes how the population of a city is to be deter-
mined for the purpose of making the provisions of Article 5.16
of the Election Code applicable to voters who reside In the city.
In the early case of City of Tyler v. Tyler Building & Loan AssIn.,
98 Tex. 69, 81 S.W. 2 (1904), the Court said:
           I!     There is no method prescribed by
           the'statute for determining when a city
Mr. Jack H. Holland,,Page 3(Opinlon   No. WW-1491)


           has more than 1O;OOO Inhabitants, but,
           the Legislature,having conferred upon
           the city council power to levy and col-
           lect a given rate of tax, conditioned
           upon the fact that the city has the
           requisite population, there is in the
           grant of power, based upon the limlta-
           tlon of population, an implied grant
           of authority to ascertain the facts
           upon which the right to levy the tax
                     Riggins v. Richards 77 S.W
           $g??Tex.    Ct. Rep'.908. A& reasonable
           and suitable method by which a city
           should ascertain the facts and make a
           record thereof would be supported by
           the ifplied power expressly conferred.
           . . .
The mode of procedure for determining such population must be
reasonable. City of Tyler v. Tyler Building & Loan Ass'n
Brooke v. Dulaney, 100 Tex. 86    3 S.W. 997 (1906)
Castleman, 112 Tex. 193, '247 S:W? 263 (1922)
procedure used by the City Council of Athens-was reasonable.
(Authoritiescited In this paragraph.) Of course, the pro-
ceedings incident to the resolution must conform to the city
charter; we assume they do.
        The reservoir of power in home-rule cities is well
established.
              "It was the purpose of the Home-Rule
           Amendment, Art. XI, Sec. 5, and the
           enabling statutes, supra, to bestow
           upon accepting cities and towns of more
           than 5000 population full power of self-
           government, that is, full authority to
           do anything the legislature could 'there-
           tofore have authorized them to do. The
           result is that now it is necessary to
           look to the :acts of the legislature not
           for grants of power to such cities but
           only for limitations on their powers.
           Yellow Cab Transit Co. v. Tuck. Tex.Clv.
           APP., 115 S.W.2d 455, er. ref.' ~I~. it
           Forwood v. City of Taylor, 147 Tex. i61,
           214 S.W.2d 282 (1948).
City of Houston v. State, 142 Tex. 190, 176 S.W.2d 928, 929
11943); City of Farmersville v. Texas-Louisiana Power Co.,
Mr. Jack H. Holland, Page 4 (Opinion,No. WW-1491)


33 S.W.2d 272 (Clv,App.,1930); 30 Tex. Jur. 104-107, Munlclpal
Corporations, Sec. 49; Articles 1175 and 1176, V.C.S.
        Cities of more than 10,000 Inhabitants have a con-
stltutionally-vested interest in the qualifications of per-
sons who vote in their city elections. Texas Constitution,
Article VI, Sections 3 and.3a.~ Texas Power & Light Co. v.
Brownwood Public Service Co., 111 S.W.28 1225 (Clv.App. 1938,
error ref.). City of Houston v. City of Magnolia Park, 115
Tex. 101, 276 S.W. btJ5 (1925). Williams v. Castleman (supra).
        The purpose of requiring exemption certificates In
cities of more than 10,000 inhabitants is to preserve the
purity of the ballot pursuant to Section 4 of Article VI of
our State Constitution. Texas Power & Light Co. v. Brownwood
Public Service Co., supra. Thomas v. Groebl, 208 S.W.2d 412
 Civ.App. 1948   reversed on other grounds, 147 Tex. 70, 212
s.W.2d 625 (19 6,.
         The time when the number of Inhabitants of a city may
 be determined is the time the city asserts a right given It
under the Constitution. In City of Houston v. City of Magnolia
 Park (supra) the Court expressly repudiated the contention that
 the last Federal census must control with reference to cities
 eligible to adopt home-rule charters under Section 5 of Arti-
 cle XI of our State Constitution. The.Court said that It.was
 the desire of the people of this State
           ' . . that cities enjoy these rights at
           the earliest possible moment and not have
           to wait the pleasure of the United States
           Government in taking a census, which has
           been done only every 10 years. . . .'
           (at P. 689)
The Court held that a delay upon the next Federal census was
an infringement of the Constitutional rights of a city,:: ;;;zt
home rule when it attained the requisite population.
Town of Freeport v. Sellers, 144 Tex. 389, 190 S.W.2d 813 (1945);
City of Farmersville v. Texas-Louisiana Power Co. (supra, at
p. 276); and Williams v. Castleman (supra).
        The determination by the City Council on October 1 that
the population of the city was in excess of 10,000 Inhabitants
was effective from the time of the effective date of the pro-
ceedings making such determination.
I      .




    Mr. Jack H. Holland, Page 5 (Opinion No. WW-1491)


                               SUMMARY
                  The City Council of the City of Athens, a
             home-rule city, may determine that the popula-
             tion of the city is more than 10,000 inhabitants
             and thereby make effective the provisions of
             Art. 5.16 of Vernon's Texas Election Code to
             voters residing in that city.
                  Such determination was effective from the
             time of the effective date of the proceedings
             making such determination.
                  The mode of procedure for determining
             such population was reasonable.
                  The proceedings incident to the resolution
             must conform to the city charter.
                                  Very truly yours,
                                  WILL WILSON
                                  Attorney General of Texas


                                  By:
                                         Assistant Attorney General
    WEA:pw
    APPROVED:
    OPINION COMMITTEE
    W. V. Geppert, Chairman
    Charles Llnd
    Frank Booth
    ,Vernon Teofan
    Robert Lewis
    REVIEWED FOR THE ATTORNEY GENERAL
    By: Leonard Passmore
