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

city nith,respect'to.‘I'~~di~

ment for..obtalnlng exeaiptl6n 

certiflca$es,,under..the pr'ovisions of the Election Ride 

baa amended 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 population3ias more' 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 :Leglslaturei 2 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 

~'for the 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 appreciate your 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 requirement that a resident of 

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 provisions of Article 5.16 of Vernonls'Texas 

Electlon'Code, every voter exempt from payment of the poll tax. 

bn theground of overage who resides in a city of 10,000 or more 

lfihabltants Is required to obtain an annual exemption certificate 

by the 31st day of January In order to vote at elections held 

dufirig the ensuing year. At the time Opinion No. WW-1491 was 

'weltten (December 11, 1962), neither Article 5.16 of the Election 

'Code'nor any other statute or constitutional provision prescribed 

'the'~:method by which the population of 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 

touching upon this requirement Is found in Article VI, Section 4, 

which authorizes the Legislature to make such regulations as may 

be necessary to detect and punish fraud and preserve the purity 

of the ballot box, and states that "the Legislature may provide 

by law for the registration of all.voters In all cities containing 

a population of ten thousand Inhabitants or 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 

cities of more than 10,000 Inhabitants have a constltutlonallyvested Interest In the qualifications of persons who vote In their 

city elections, and that where the City Council of the City of 

Athens, a home-rule city, had determined by use of a reasonable 

mode of procedure that the city's population was In excess of 

10,000 Inhabitants, the provisions of Article 5.16 of the Election 

Code were applicable to voters residing in that city. Cases cited 

In support of 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'Houston v. 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-Louisiana Power Co., 33 S.W.2d ,.,x.clv. 

APP. 19301. 

In 1963 the Legislature amended the Election Code 

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

tij iidd Article l.Ola, containing the following provision as 

paragraph (c) thereof: 

"(.c).The United States decennial census of 

date Immediately precedlng,the action -1n:questlon 

shall be the~'basls for determining population 

under-any rovlaloh of this Code." 

lg63,, ch. E 24, 

Acts 58th:%eg:, 

sec. 2;~. 1017. 

!Rila act.took effect on August.23, .1963. In this c&nedtlon;it 

;may be Mted.;that the 58th Legislature also passed.a.lar'<Acts 

.' '.58th Leg;, 1963, ch; 447, p. 1151, codified as 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 recognize and act upon the population counts - 

as determined by the census. If the Legislature had 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,evldenthat these statutory provisions are non controlling and~that.Oplnlon No. WW-1491 has become 

obsolete by 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,.Coaetltutionr by statate,',.cbndltloned 

upon Its having a ~speclfled.populatlon but with,no method prescribed by which the population was 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.number of 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'4 which authorizes the Legislature to provide 

for registration of 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. ~If the 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 determining population 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 Constitution does not Impose 

any population requirements as an Incident to this power. 

Since the Legislature has now designated the basis 

upon which population Is to be ascertained for the purpose of 

determining whether exemption certificates are required under 

the provisions of Article 5.16, we are of the opinion-that 

ascertainment of population by any other method can no longer 

be.used for this purpose. Consequently, we hold that Oplnioti' 

Nij.IW-l&l has now become obsolete as.8 result of this change 

lri- th&..law. According to the 1960 federal census, the City'of- .' 

Athens ha8 a population of less than 10,000. Therefore; overage 

exempt voters residing In the City of Athens are not required to 

obtain exemption certificates a&a condition for voting. 

.With the, enactment of 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 population of a 

city for the purpose of determining 

whether the exemption certificate 

.-requirements of Article'5.16 of the 

.Code apply to its exempt overage voters 

*:must be..determlned by that method. 

The population count as ascertained 

by the .clt~~s governing body .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~FOR THE A!lTORNEY GENERAL 

BY: Stanton Stone 

-1025-