## December18.1954 Modified and overruled in part by.Carringtonv: Ra

85 s.Ct; 775

Non. Robert s. cahmrt opinion No. s-Ma Comptroller of Riblie Accounta Audia. Texas Re: Conatr~uction of coadtitutional amand,mnt kdopted November **2. 1954,** **~coiIcerniqll votlly**  **by** Dew Mr. Calvert; **member*** **of the**  **aimed** forcom.

You have requested an opinion relating to the constructIon ard effect of thecmstitutional amendment adopted November 2. 1954.~ amending Sections 1and 2and repealing Section Za-d Article VI, Con&ftutfon of Texas, concerning voting by members ofthe armed forcei. Your questions ars amfollows:

‘1. What i8 the affective **date** oftbe Constitutional Amendment voted upon a?th General Election onNovember 2, 1954,which repeala Section 2a d Arttch VI and

### ameads Sectioru 1

### ad 2 of**Article VI**  oftba Texas Conatitution7 “2. Doaa this amendment make any distinction between morbbers bf tbe regular military establishment of the United Statea and officers or enlisted men of the Nattonal Guard of Texas, the National Guard Reserve, the Officers Reserve Corps ofthe United States. or draftees7

‘3. If your answer to the se$ond **question** is in the negative, will it be necessary for any member of the**Armed** Forces of the United States pr..component branches thereof, **or** in the military service of the United States, to pay his or her poll tax in the county inwhich he or she resided at the time of entering such service, so long as ha or she is a **member** of thaArmed Forces? “4. Do you construe Section 2 to mean that a poll tan is lo&d only on **persons** batxveenthe ages of 21and 60; **ani** that the State poll tan levy will .still be $1.50,but .thatmembers of the National Guard will still pay the State poll,tax of $1.00, as referred to in Articles 5840 end 58417. A constitutional amendment becomes a part of the Constitu**tion oh**  **the date**  **of t&e**  official caxwaea shorting that the amendment re- ~d*sd a majority **vote.** Wilson **V.** state, 15Tu. ct. App. 150(1883);**Ati ’** **y.**

L 4 :: ;’ . .: :‘,T h

**Hon.** Robert S. Calve&, page 2 (S-145)

Gan. Op. s-146 (1954). The votes ofthe elactlon held on **November** 2,1954, were canvaaaad on November 19, 1954,and the official canvas, ahowed that tha ame+mant had been adopted. Ittherefore became effective onNovembet 19. By ita express terms, Section 2 ofArticle VI is aelf-executing. The provisions amending Sectton 1apd repaaling.Section 2a are likewi~ 

### l elf-exeCuting.and become **operative** without further legislation. **Att ’** **y.** ckn. Op. S-146, l

upra. All statutes In conflict with these **constitu~hal** provisions **are,** mow superseded. Inanswer to your mecopdquestion, the amendment doeN not make any dirtinction betaeen membera ofthe regular military establirhmeat ofthe United States and members ofthe National **Guard, renervbtb.**  or drafteea. Revioualy, the members Otthe regular military establiahmont were diafraacbiaed. while the othei groups tidre’not. Under the new 

# l wndmo+t,

tb pkvlslon in Secticm,l **d ’** **~ArticJe** VI disqualifying **memborm** d tb regular military establishment ban bean omitted, and no peraw’ia ., now 

### dlaqualifled aa,amelactor by reason cdhia military atatua. 2io~ever,~ .~ l prqvlaion,haa

beon a+ded to Section 2 ofArticle VIwhich raadn:

.
. . . Any mamber ofthe Armed Fooicw ofthe United Statea or component broachs tired, or in the military service ofthe United Statea, may vote only in the county inwhich he or she resided at the time ofan- *to riw

much lervtce

lo lon(raa he or ahe ia a member of tha **Armed Forcee.** **”** ,, B’ornwrly, National Guardsmen; **roservlats,** end dr&fteu la active 

### l ervicr could vote at the place oftheir legal residence at the timq of voting (providod they **had** realdUd within the State for one **year** andvi&in the county for ain montha) without regard to the **place** of residence at the tima’they -rod service. ~Activkmember~ of ti re r lar eatebliahmant could not vote at all. Now, all these group= aro qua1 iod alactors It,they meet o&er roquirenunts, but no&aofthem may vote anywhere in Texan ucept in the countywhore they,resided when.theyentered service. If a person in mlliy tary.service changes bia legal reaidenca to~some place other thanU+cou#ity in Taua inwhich he resided :at.thetime be ,enterad aorvico, he cannot vote ILthia state. Throughout this opinion t&e**term** “rcaidenco’ meana legal reaidenco aa distinguished from actual residence.

The constitutional amendment does not change tha ruler f6r dekrrnintry wbat **pkco** ii the legal roaidanco, ofthevoter, nor doaa it rnaau that in all circumghncab a parson in military service Will ba eatitlod td.&im a voting roaidence in the county ofwhich hewaa a roeideat at the tluia he entered aorvica. Place of rksidance ia still to be deter-

- in the /ame **way** that it has always baen. Absence **from** the county or #tata for tha plrpoao ofperforming military servlee doeanot of itself

‘oatraea loaa’ob reridonce, but it ia possible for a person to abandon hia

### Hon.Robert8. Calvwt, pege3 (S-148)

old reaidence and acquire a aevj rorideace duriq time d service. Tar. Cwat. Art. **XVI.** Stc.c); **Clark** v. Stubba, 131 S.W. Ld 663 (Tax. Civ. App. 1939);Struble v, Strublem W Ld279 (Tax. Civ. App. 1943)7Rtta-

, 177S

### W 2d2k’(Tex. Civ. App. 1943);RobinsoiXXob2d 22g’(T;x. Civ. App. 1950); 15Tax. Jpr. 715 II i iie al o, uad thereby 

### changta hia realdeuce to s&t?& ’ 

### county,ho loses hia right to vote in this &ate while he continues in **atrv** ice, .unleas ho re-•atabliahoa 

### hia residence in the ctxmtyinwhich he roaided when 

### heenterodurvice. **Furthor.** 

### 110 ptrson who **ontertd itrv**  ice as a resident of another Star may acquire a voting resides8 in Toxaa 

### whilt ht ia in 

### rorvico.

It is **our** opinion that the restriction tovoting in the county of residence atthe time of entering service applies only to persons who **art** onextended active **duty. timbers**  **of the**  National Guardsand restrvtsts who **art** not on extended l ctlvt **strvict** and retired military 

### ptrsonnel 

### art not

## l

ubjoct 

### tothimrestriction. Further, “county of residence at the time 

### ofentering such **serviet ’**  means the county in which timperson residod at the time he began his current active 

## l orvice. To illustrate: A ptraon, while **rtsiding** in County **A.** joins one ofthe reserve components but dws not go into **active** service. **He** later moves to County B. After he has fulfilled the **ltngth** of residcnco requiremsnt. he may vote in County B7in fact, ho could vote 

### nowheretlat. Whtle living in County B. he is called into active service. During this time his place ofvoting is in County B. the county in which he resided when hewent into active service. Afttr his release from that tour ofduty. he changes his residence to County C. His **place** ofvoting is in County C so long.as he continws to live thert. Ifhe is again called into ective service while living in County C, that is the 

### place where hewill vote.

Your third qucstlon concorns the payment of the poll tax by persons in military service. They aro subject to paymant of a poll tanto the same extent and in tho

### samt axanne* as all 

### otherresidoats of theState. Horotofore. by virtue of

### Sectian28 ofArticle VI, qualifiad obetori in military service were not required to pay the poll tax as 

### a coaditfbn precedent to voting during 

### time of**war** 

### amifor 

### e certain period 

### after its termination, but the recent amendment repealed this section of the Constitution. Heroafter, all persons in military service must pay a poll tax before February 1in order tovote, unless they come within one of theexemptions. Ifthey. are exempt under the general law. they must comply with the requirements relating to obtaining exemption certificates.

Ifa person is subject to the poll tan, he wee8 it in the county of his legal residence onthe first day of January preceding its ltvy. L&nv. B&our. 149S.W. 795, SO5(Ttx. Civ. App. 1912);McCbarea vI Maad. ,f 7s,-Aa, ci App. 1925). Itshould **be** noted that liability to the poll tan 1 2 qualified tlectors. a not Itis levied against* residents bttw?ta.the IHon. Robert S. Calvert, page 4 (S-148)

agos of 21and 60 y0ars.l regardltas of whether thoy art qualified electors. Ordinarily, a parson in military sorvico oontinuts to maintain his legal residence at the place whore ho resided when he enterad! norvice. In that case, he is subject to payment of the poll tax in that county, end he may vote in tbat county if ho is otherwise quallfiod. Howtvor, if he should happen tochange his residence tu some other countyduring military service, ho would be subject to payment of tho tax in tho county of his now residenco;~ but payment d the tax would not entitlo him **to vote**  in %t county of his former residence, nor could ho vote in the county **of** his ntw residence. And. of course. voluntary payment of the tax in tho county d his former residence would not tntitlo him to vote .inthat county. This brings up tho question of tho form of tho poll tax roceipt to be issued to parsons in military aervico. Thoy should bo ,iaruod the **regular** rtcoipt **form** and should be placed on the poll tax rolls in tht *am0 manner as othor poll tax payer*. In the few instancts whoro poi-

‘sons cpango their rosidonce during military service, 6s regular receipt form will still be used, even though the holder cannot vote on it unless he is rtloasod from activeservice. As already pointed out, **thore** aro other instances in which poll tax holders aro not ontitlod to vote, yet tho statutomakes, no provision for issuance of a special form of receipt except **where** the taxpayer is,an alien or where the tax is paid after January 31. Arts. 5.12 and 5.14, Vernon’s’ Texas Election Code.

In answer to your fourth question, you are advisod that tho recent amendment dues not make zanychange in the poll tax laws.

.The tax is levied only on residents between the sges of 21and ~60years. **Art.** 5.09, Vernon’s Texas Election Code. The stato poll tax is still $1.50, and countios may levy a tax not to exceed 25 Cents. ‘<Art. 7046, V.C.S. 5&mbers of the National Guard will still pay the constitutional state ta%of

‘$1.00 but will be entitled to exemption-from the balance uf tbo tax **upon** compliance with Article 5841,V.C.S.

SUMMARY The constitutional amendment relating to voting by persons ,inmilitary service,; adopted ,on~November 2. 1954, became effective on November 19, 1954.. The amondmont is **self-enacting and**  **suptrstdts** all conflicting **statute!.** The ~amendment rtmoves the voting disqualificatiop against .mombers uf the regular military establishment.

l Certain classes within &em ago limits at0 exempt from tho 56- cent statutory part of the state ta+ end from county and city poll texos. but all persons between 21end 60 ere liable fur the constitutional $1.00 tax. Tundrt v. Hen*ltzZ;eZ23 S.W. 2d 671(Tex. Civ. App. 1949); Art. 5.09. Vtraon'a Ttxas EleCticm c
.. -

Hon. Robert S. Calvert, page 5 (S-148)

All persons in military servicg are now qualified electors if they meet ‘other constitutional requirements. However, a person in military service may vote only in the county in which he resided at the timeihe entered service. This restriction applies onlyto per- ~,: sons on extended active duty; it does not apply to members of,the National Guard and reservists who are not on extended, active duty.

.., While absence from one’s place’ of residence during military service does not ,ofitself cause a loss of residence, it is possible for a person to abandon his old residence and acquire a new one while he is in service. If he does so, and thereby changes the county of his residence, he cannot vote so long as he continues in service, ~; unless he re-establishes his legal residence in the court- ’ ty in which he resided when he entered service. The amendment repealed Section 2a of Article VI of the Constitution of Texas, which waived payment of the poll tax by military personnel as a condition precedent to voting in time of war and for a certain period after its termination. ; Voters in military service must now comply with the laws relating to payment of poll tax and to obtaining, .~ exemption certificates to the same extent and in the sap manner as civilian voters. The regular receipt form ::,, should be used for their poll tax receipts. ,.,f

,, Yours very truly,

APPROVED:
John Atchison Reviewer
Robert S. Trotti First Assistant JOHN BEN SHEPPERD Attorney General