January 30, 1964

KotioMble'Jack

Ii. Holland Cijtirity Attorney. %iiti&+30n~-~C0hnty Athens ,Texas

.

Dear-Sir: : Your request fbr follous: ~Oplalon No. C-212

He: Whether thePedera1 C&sire Is the exclusl*e-,Iialilti for" ..determlning.licipulaeion"‘of-ii city nith,respect'to.‘I'~~di~ement for..obtalnlng exeaiptl6n certiflca$es,,under..thepr'ovisions of the Election Ride baaamended by the 9th Legls- 'lature.

an opinion of thie office reads as

.. ;On'December

xl;--1962, by your ~pitiida ~o:~.~-14~1,~~you~adtriaed me that a resident ~6f"theeCity

of.At+en.s,,T+as.nho is over 60 years.of,

age Iq.;pquiFd;.$o obtain"iTPoll, Tax- bxemption 'aertlflcate '~ in order to be. entitled to vote. This opinion was based
on the fact that the City Council of the.'6r~.~of':dthenB,~-had;'by,~soLutioa,deterhiined:tha%lts

population3iasmore'than1~,~00'.~peopl~~?the~by maklng'effeotive ~Artlbl~e-'~il6~~~.:~the~Sexas ;Blectlon

Code, ,desplte'ths'.'rac%that .he:last

Sederal oenaus.placed~2;h& .populatlon.of

,&he City ofAthens at lk.m ’4&an 1O;OOO persons.
‘"I.note;that:~Artlcle 5.16:~ the :Texas Electlon:Codp~~hae been 'amended

and a new Article &Old-has been added, both by the 58th :Leglslaturei2 iiote further that the
new Article .l;Ola(~c)~ provides 'thatthe Federal oenaus shall~.be;the basis for determining population under the provisions of the Election Code. The population figtires ~'forthe Clty.of Athens are the same as they
were when my original opinion was requested.

-1021-Hon. Jack H. Holland, page 2 (C-212 )

"I would appreciateyour opinion as to whether the new Article l.Ola of the Election Code now applies to the facts upon which the orlginal.oplnlon

was based, thereby doing away wlth'the requirementthat a residentof the'.City..of

Athens .iMer

60 years of age obt&ln a Poll Tax exemption certificate before he will be qualified to vote."
By the provisionsof Article 5.16 of Vernonls'Texas Electlon'Code,

every voter exempt from payment of the poll tax. bn thegroundof overagewho resides in a city of 10,000 or more lfihabltants

Is required to obtain an annual exemptioncertificate by the 31st day of January In order to vote at electionsheld dufirig the ensuingyear. At the time OpinionNo. WW-1491was 'weltten (December11, 1962), neither Article 5.16 of the Election 'Code'nor

any other statute or constitutional provisionprescribed 'the'~:method

by which the populationof a city was to be ascertained ftir the purpose of determining whether Article 5.16 was applicable to the voters residing therein. The only constltutlonal provlalon touchingupon this requirementIs found in ArticleVI, Section 4, which authorizesthe Legislatureto make such regulations as may be necessaryto detect and punish fraud and preserve the purity of the ballot box, and states that "the Legislaturemay provide by law for the registrationof all.voters In all cities containing
a population

of ten thousand Inhabitantsor more." Texas Power'& 111 S.W.2d 1225 (Tex. 208 S.W.2d 412 147 Tex. 70;212 S.W.2d

In this state of the law, Opln&on No. WW-1491 held that citiesof more than 10,000 Inhabitantshave a constltutlonallyvested Interest In the qualifications of personswho vote In their city elections,

and that where the City Council of the City of Athens,a home-rule city, had determinedby use of a reasonable mode of procedure that the city's populationwas In excess of 10,000Inhabitants,the provisionsof Article 5.16 of the Election Code were applicable to voters residing in that city. Cases cited In supportof the holding Include City of Tyler v. Tyler Building & Loan AssIn, 98 Tex. 69, 81 S.W. 2 (1904) Wllllams v. C astleman, 12 T 193 Magna% Park 247 S.W. 263 (1922); city of'Houstonv. City f

115 Tex. 101 276 S W btQ ( 925) Town of Freeport

V. Sellers, 1

44 Tex. 389, 140 S.W.Gd.813 (1i45);;and Farmersvllle

v. Texas-LouisianaPower Co., 33 S.W.2d ,.,x.clv. APP. 19301.

In 1963 the Legislatureamended the Election Code

-1022-Hon. Jack H. Holland, page 3 (C-212)

tij iidd Article l.Ola, containingthe followingprovisionas paragraph (c) thereof:

"(.c).The

United States decennial census of date Immediatelyprecedlng,the action -1n:questlon shall be the~'basls for determining

population under-any rovlaloh of this Code." lg63,, ch. E24, Acts 58th:%eg:,

sec. 2;~. 1017.

!Rila act.tookeffect on August.23, .1963. In this c&nedtlon;it ;may be Mted.;that the 58th Legislaturealso passed.a.lar'<Acts .''.58th

Leg;, 1963, ch; 447, p. 1151, codifiedas Art:29d; ViC.S;) providlng~that-the~flrst day of January of the year ImmedlatelJi following'ther~calendar year during which a federa.Fenstia%s tak&n' shall be the date on which the State and its political subdlCldlons and agencies shall recognizeand act upon the population counts - as determinedby the census. If the Legislaturehad the authority I% lPake

the federal-decennial census the basis for determining @opul&lon under Article 5;16 of the Election Code, to the exclusion of,ariy other method;:%t .becomee,evldent hat these statutoryprovisions are non controllingand~that.Oplnlon No. WW-1491 has become obsoleteby vlrtue,of this change.
-, The cases cited in Opinion No; WW-1491,: listed above, involved the right oP a city or's county to exercise some power granted to-~t,by.the,.Coaetltution r by statate,',.cbndltloned upon Its having a ~speclfled.populatlon but with,no method prescribedby which the populationwas to be.aacertalned. The cases held that there was In the grant.of'power an Implied grant of authority to ascertain’ the facts ~(i.e..,- the.numberof Inhabitants) upon which the rlght:dependcd. If.the power la granted by the Constitution,the .%egislature ;canndtrcurtall~rthe~lmplled power so as to reqialre~%a+populatlon .be de$ermltied

,bythe federal census. City of Houatou~~.~C%ty of,Map;nolla

Park, supra.
Here, the constitutional grant of power under which Article 5.16.-of<the .Electloti

Code was enacted Is conferred on the Legislature,and not on the cities affected thereby. If the power of the Leglslatuz%to:~enact Article 5.16 springs from the provision In Article VI,:

Section'4which authorizes the Legislature to provide for registrationof voters in cities of 10,000 or more Inhabitants, then w+are..of *the opinion that this express power also carries with 'ft the implied authority to designate the method by which population Is to be ascertained. ~Ifthe power to enact Article 5.16 springs from the general constitutional direction to make regulations for preserving the purity of the ballot box, then clearly the provision making the federal census the basis for determiningpopulation does not Infringe any Implied constitutional power of cities affected by the statute, not only because the express power Is granted to the

-1023-Hon. Jack H. ‘Holland,- page 4,(-C-212

)

Legislature

but also because the Constitutiondoes not Impose any populationrequirements as an Incident to this power.
Since the Legislature has now designatedthe basis upon which populationIs to be ascertainedfor the purpose of determining

whether exemptioncertificates are requiredunder the provisionsof Article 5.16, we are of the opinion-that ascertainment

of populationby any other method can no longer be.used for this purpose. Consequently, we hold that Oplnioti' Nij.IW-l&l has now become obsoleteas.8 result of this change lri- th&..law.

According to the 1960 federal census, the City'of-.' Athens ha8 a populationof less than 10,000. Therefore;overage exemptvoters residing In the City of Athens are not required to obtain exemptioncertificates a&a condition for voting.

.Withthe,

enactmentof Artlole 1.01a of the.ElectlonXode In 1963, making the .precedlng

federal census the basis for ~determlnlng

.populatlon

under any provision of the Code,~ the populationof a city for the purpose of determining whether the exemptioncertificate .-requirements

of Article'5.16of the .Codeapply to its exempt overage voters *:must be..determlned

by that method. The populationcount as ascertained by the .clt~~s

governingbody .under some.other.

procedure can no longer .be.uaed:aa

the basis of-determining iappllcablll~of.thls requirement. Attorney-Generalls Opinion No..

WW-1491 has..been.supereeded by.this -statutory change.

:Youra,,very truly,

WAGGONER CAM Attorney General 

# By .tiwa+ =

Assistant
MKw:sj

-1024-Hon. Jack H. Holland,page 5 (C- 212)

APPROVED: OPINION COMMI!C!I'EE

Wi VI Geppert, Chairman C; Li Snow Vi F. Taylor Rdbert Stiith W. 0. Shultz

APPROVED~FORTHE A!lTORNEY GENERAL BY: Stanton Stone

-1025-