-E I?bTR=-T=OR~T GEmRAL 

OF 7flFExAs Overruled by Carrington v. R~I 

U.S.- 85 S.Ct. 7-b (1965

November 6,. 1963 

Honorable Jack N. Pant 

County Attorney 

El Paso-County Re: Conatruotlon and 

El Paso, Texas constitutionality 

of Artlole 5.02, 

Texas Election Code, 

relative to voting 

by members. of'the~ 

Armed Fcrces lihlle 

pear Sir: onaotlve du'y. 

You have requested an o&&on on the oonstruoti~n 

and c6natltutlonallty of the fol,louing'provLalons in’ Artlcle 5.02, Vernon's Texas Election Code; whloh'*ere.added 

by~an amendment enactedby 'the 58th Legislature (Acts 58th 

Leg. ,~ 1963, oh. 424,. sec. 13): 

"Nottilthst&ndlng any other'provialon 

ofthis'seotion, any member of the Anned 

Forces of'the'Unlted States or components 

branches therebf.who is on'actlve'duty Iii 

the mllitary'servlce ofthe United States 

may vote only In the county' in, whihh~he or 

she~reslded at-the time 'of entering' suoh 

service so'long as he or she la 'amember-" 

6f the Armed Forces. Thla restriction appliesonly to'members^of 'the Armed'FMoea whd' ,are. oh atiesv& acf;y*-.and the phrase. -. 

1 tijae -of '&jt'@+~ng‘ suoh a@fizc& 8 "',j,e&& the 

time of commenolng the ourrent atM.vi 'duty. 

A re-enlistment after a temporary separation 

from service upon termlnatlon of a prior enlistment shall not be oonstrued to be the 

commencement of a new period of service, and 

in such case the oounty in whioh the peraon 

resided at the time of oommenolng aotive 

servloe under the prior enlistment shall be 

construed to be the aounty of resldenoe at 

the time of entering eervlce." 

5 

.’ . 

You have alao aaked for an opinion on oorreepondlng 

provisions In Artlole 

ii* 

02 of the Eleotlon Code ae'amended 

by Chapter 430, Aots 5 th Legislature, whloh will take 

-835- 
Hon. Jack N. Fant, Page 2 (C-173) 

effeot tiuiq'supersede the above-quoted ptivleldns if'the pro- 

$titMd coneZitutrahirP~~enaaeti~.abollehliog p8jrmeht"of..the"'..' .. 

poll t&x tie 'h pr&eqMiiite'for votlhg i#Xiioijt~d &t'the'&Iectloh-'to be'held on NoVembiti 9, 1963. These provisions are 

quoted at a later.point ,ln the opinion. 

You have asked the following questions: 

"1. What aonstruatlon or lnterpretatlon does your Department make of the 

first sentenoe In paragraph two'of Artlole 

5.02, Texas Election Code, as amended, 

which reads: 'Notwithstanding any other 

provision of thla section, any member of 

the-Armed FoSces'of the United States or 

cotiiionent branches thereof wh6 Iti on a& 

tlve'duty Iii the~mlllta?y ~tiervloe'~of-then' 

Urilttid ‘States 'm&y v&e 6iily”in’khe aotity 

In Wiich lie ’ or-‘slit3 I;esided tit the Umei of 

eiiterlh& buoh setilc’e ‘a6 lorig-(rb he or she 

is a member of the Armed Forcesifi? 

"2. What construct’lon or lnterpretatidn doe8’your Department make of th6 

remainiti~g’tw6 sentences in paragraph two 

of &tlcle 5.021 

"3. 'What Is meant by the tWi.'tetiporary separatloti' iti the'third sentence of 

paragraph two of Article 5.02? 

"4. In the event the poll tax emendmeat Is adopted at the .elebtion to be held 

on November 9, 1963,. then what construotion 

do you make of the emended portion of Article 

5.02, Texas Election Code, effective February 

1, 1964, which read@: I* * * provided that any 

member of the bed Foroes of the United States 

or oomponent branches thereof, or in the milltary servioe o? the United, Statea, may vote 

only in the oounty in whioh such pereon resit+ed at the time of enter$ng suoh eervlce.83 

“5. Are the provisions contained in Artticle',VI, Section 2 of the Texas Constitution 

and amended Artlc’lXc&Q2 ‘Bf .th&X&xas. EMc’c-: : .. 

tlon Code, a8 pertains to the right of member8 

of the Armed Foroes to vote In Texas,‘vlolative 

of or repugnant to Se&Ion 1 of the 14th’hmetidmeat to the United States Constitution?" 

-836 

. 
Ron. Jack N. Fant, Page 3 (C-173) 

Section 1 of Article VI of the Texas Constitution 

enumerates the classed of persons who are not allowed to'~ 

vote In this State. Seotloh 2 of~Artlcle‘VI sets 'Oue 'the 

quallfi~atlons and PequXrements ~for voting. The general 

qualifications are stated as follows: 

~"Every person subject to none of the 

foregoing dlsqiiallflcatlons who shall'have 

attained the age of'twenty-one (21) years 

and who shall-be a 3itiien of the United' 

States.atid who shall'~have resided In this 

State one (1) year next 

tion atid the last six (6 B 

receding an elecmonths within the 

district or cdunty in which such person 

offers to vote, shall be deemed a qualified 

elector;. and provided further, that any voter 

who is subject tb pay a pbll tax under the 

laws of the State of Texas shall have Paid' 

said tax before. offering to vote &t'any eleotlon In this State &nd hold a receipt showing 

that said poll tax was Paid b&f&i the.flr&t 

d,ai $ FebNary next preceding such election. 

irIo+ to 1954, a provision in Section 1 of Artlale VI 

; :' 

dls@allfied members of the regular military establlshrhents 

from Voting in this State. The hi~torlo~l b;ickgr6uid of 

this provision IKdesdPibed In a cotientary.ptibllshed In 

Vernon's Annotated Texas Statutes, Volume 9, page XVII, In 

the year 1952: 

"The Second Congress fif the Republic of 

**d 

Texas in 1837 enacted the first election law 

Thls.first '.' act contained a novel section irovialng 'that regular enlisted soldiers, 

and volunteers for during the war, shall not 

be eligible to vote for civil officers.' This 

provision was no doubt Inspired by the mutlnoua 

conduct of the nonresident. volunteers who had 

been recNited In the United State8 after the 

Battle of San Jaclnto. They had defied the 

provisional government and on one occasion in 

July, 1836, had sent an officer to arrest wealdent David Q. Burnett and his aablnet to bring 

them to trial before the army. They had continued their rebellious conduot after Sam 

Houston became the first president under the 

Constitution of 1036. It nas not until May, 

1837, that Houston was able to dissolve the 

-83-i- 
Hon. Jack N. Fant, Page 4 (C-173) 

any and ellmln&te this threat to clvll 

tiuthority. This 'provision dlsfranchlelng 

soldiers in the~~regular army was placed 

in 'the 1845 Con~tititutlonf the~Stat6 of' 

Texas and has remained-in each succeeding 

&ihatltutlon. It was modified in 1932 to 

&iempt'the'Natlonal~~GuBrd and 

retired officers and men." 

reaerki and 

In 1954, Section 1 of Article VI was amended to delete 

the alsquallflcatlon against persons lti military servlbe, 

and Section 2 was amended to add the following provision: 

'1 * * Any member of'thi Armed Force6 

of the United States or component branches 

thereof, or In the military service of the 

United Statea, may vote only In the county 

In which he or she reelded at the time of 

entering Buch servicti 80 longs as he or she 

Is a member of the Armed Forces." 

Two former opinions of this office, CpinionS-148 dated 

December 18, 1954, and Opinion WW-157 dated July 8, '1957, 

hav@~'dealt with aevetial questions of consttictlon arising 

uzider the 1954 amendment of the Constitution. 

quotation is from Opinion s-148: 

The following 

"Formerly, National Guardsmen, reservists and draftees In active service oould 

vote at the place of their legal resldeno,e 

at the time of voting (provided they had res'ided within the State for one year and within the county for six months) without regard 

to the place of residence at the time they 

entered service. Active members of the 

regular establishment could not vote at all. 

Now, all these groups'are qualified eleotors 

if they meet other requirements, but none of 

them may vote anywhere in Texas except In 

the county where they resided when they entered service. If a person In military service 

changes his legal reeldence to some Place 

other than the county In Texas in which he 

resided at the time he entered service, he 

cannot vote In this State. 

l 

'Throughout this opinion the term 'realdence' means legal residenoe as distinguished 

from aatual reeidence. 

-838- 

, 
Hon. Jack N. Pant, page 5 (C-173) 

"The constitutional amendment does 

not change the'rules 'for determining what' 

place'18 the legal resldende of the voter, 

nor-does It mean that in all tilrcumstances 

a person In military servl&e will 'be entitled to claim a voting residence In the 

county of whfah he was B resident at then 

time he entered semiice~; Flace.~of residence 

Is still to be determined In the same-way 

that It has always been. Abaence'from the 

aounty or State for the purpose of performing military service does'not of Itself 

cause a loss of residence, but It la posalble for a person to abandon his old resldence and acquire a new residence during 

time of service. Tex.Conat. Art. XVI, Sec. 

9; Clark v. Stubba, 131 S.W.28 663 (Tex. 

Clv.App. 1939) Struble v. StNble, 177 S.W. 

26 279 (~e~.ciS.App. i 

fiSti&%,. 

1.77 S.W.2d~2 

Robinson, 

SePO: 2:' 

3UJ 15 Tax. Jur. 715, Domicile, 

If he'does so, and thereby changes 

his residence to some other county4 he loees 

his right to vote In this State while he 

continues In service, unless he re-establishes 

his residence In the county in which he'resided when he entered~servlce. Further, no 

person who entered service as,a resident of 

another State may acquire a voting residence 

In Texas while he la in service. 

"It Is our opinion that the restrlctlon to voting In the county of residence at 

the time of entering service applies only 

to persons who are on extended aatlve duty. 

Members of the.Natlonal Guard and reservists 

who are' not on' extended aatlve aervlce and 

retired mllltary~'peraonnel are not subject 

to this restriction. Further, 'county of 

residence atthe;.time 'of entering such service' means the. county In whloh the person 

resided at the time he began his current 

active service. To Illustrate: A person, 

while residing In County A, ,jolna one of 

the reserve component,8 but does not go Into 

aotlve service. He later moves to County 

B. After he has fulfilled the length of 

-83% 
Hon. Jack N. Fant, Page 6 (C-173) 

residence requirement, he may vote In ' 

County B; In fact, he could vote nowhere' 

else, While living In'County B, he la 

called Into 'adtlve aervlce. During this 

tiine'hla place'of.votlng Is In County B, 

the county In which he.reslded when he' 

went Into active service. After his release from that tour of duty, he~changes 

his residence to County C. Hls'place'of 

voting la In County C so long as he contlnuea to live there. If he Is again called Into active service whlle'llving In 

County C, that Is the place where he will 

vote. 

The question In Opinion WW-157 waa whether a person 

who had been stationed at an air base In Victoria County, 

who after discharge had subsequently re-enlisted, with some 

period of time Intervening between the discharge and reenlistment, was quallfled to establish a domicile for voting 

purposes In Victoria County. In answer, the opinion said: 

"What Is meant by 'the time of entering such service' within the meaning of the 

Constltutlon? Is It the time of the aubsequent enlistment or the time of the original 

entry Into service? If the subsequent period 

of service Is a mere continuation of the prior 

period, the time of re-enlistment Is not the 

time of entering such service within the meaning of the Constitution, for the restriction 

lasts 'so long as he or she la a member of the 

Armed Forces.' 

"No doubt, In some instances an airman may 

be completely separated from the service In a 

very real sense by discharge and later re-enlist. 

In such cases It cannot be said that his reenlistment or decision to re-enlist constituted 

the second period of service a continuation of 

the prior period of service, and the time of 

entering such service within the meaning of the 

Constitution Is the time of hle re-enlistment. 

The mere fact that there has been a dlsoharge 

and a time lapse between the date of discharge 

and the date of re-enlistment Is not, however, 

controlling on this question. The law looks to 

the substance and not to the mere form of the 

transaction. It can be judicially noted that 

-840- 
' Hon. Jack N. Fant, page 7 (C-173) 

frequently re-enlistment papers are actu-. 

ally signed prlor..to discharge and postdated at some later date to the discharge 

date. Or. some oacaslons the service man 

retains 'the same privileges, .rank, and 

status as weIl,as the same organization 

i%~slgnment and Job assignment Snthe'subsequent enlistment as In the prior period 

Of'seNlce. In ~such'oase's the discharge 

and re-enlistment are mere legal~flctlons 

and the subsequent period of service Is 

merely a tiontlnuatlon of the prior period. 

The date of re-enllstment'is not the 'time 

of'entry Into such servloe' within the meaning of the Constitution. Residence in 

Victoria; Texas; at that time alone cannot 

be ubed'as~a basis of claiming voting resldenue In Texas during the subsequent period 

of service. 

*Therefore, we hold that an airman 

stationed at ah aiti base looated In Vldtorla 

County who'recelves a bona fide discharge and 

who completely"severi his active duty'relatlon 

tilth the'~Air Force'and subsequently re-enlists 

tiith stime perlod~of times intervening between 

discharge and' re-enlistment Is qualified to 

establish a residence In Victoria County for 

voting purposes If the discharge and reenlistment are not mere legal fictions 80 

as to constitute a continuation of the prior 

period of service." _. 

Articles 5.01 and 5.02 of the Election Code are the 

statutory counterparts of Sections 1 and 2 of Article VI 

of the Constitution. Following the amendment of the Conatltutlon In 1954, no correepondlng change'waa made In the 

statutes until this year, ,when a series of amendyenta to the 

Election Code were enacted In Senate Bill 61, Chapter 424, 

Acts of'the 58th Leglelature, 1963. 

Senate Bill 61 was drafted by an Interim Election Law 

Study Committee created by the 57th Legislature (S.C.R. 30, 

57th Leg., R.S. 196x). The files and reports of the Committee reveal that the amendment to Article 5.02 undertook 

to express In statutory form the constltutlonal provision 

as Interpreted in the opinions of the Attorney General. The 

second sentence of the new 

the holding of Opinion S-14 

aragraph In Article 5.02 states 

8 which construed the, restriction 

-84i- 
Hon. Jack N. Fant, page 8 (c-173) 

on place of voting as'applylng only to periods of sctlve - ., servlbe..' The 'third eentence~undertakes to summarize In .' 

&"'brlef statemint'the holding ~f'Opinlon"UW-159 oh'the.efSect bf.a temporary break In service between enlistment 

periods. 

We are in agreement with the construction given to 

the 6onsfitutSonaS provision In'Oplnlons s-148.anaAW:157. 

And we are further of the opinion thiit the construdtlon 

of the constitutional provision Is applicable to Article 

5.02. We therefore~beXleve that those opinions sufficiently 

answer your first two queetlona. 

In answer to your third question, as"to the meaning 

of "temporary sep~ratlon"‘ln ~Artlcle 5.02, we thlnk~ the term. 

was Intended to mean a separatlon'under cltidumstances described In Opinion W-157 which would not preventthe:subsequent period of aervloe from'belng ln~ essence'merely a '- 

continuation of the prior period. It Is not possible to.la9 

down-a blanket rule setting out the clrcumatarices in detail; 

as each case must be determined on Its own particular set of 

facts as to the acts and Intention of the Individual. 

Two examples ~111 Illustrate how these provisions 

operate. Suppose a aoldler, while atationed at Fort Bliss ::.~ 

In El' Paso County, has established his legal residence there 

(but without voting rights, beaauee he did not reside In that 

county at the time of entering service) and Intends to live 

there'after eventual retirement-from military service. He 

completes an enlistment and Is discharged, but at all times 

his Intention for the present Is to re-enlist and aontlnue In 

military service. Even though some period of time may elapae 

between his discharge and his re-enlistment, the two enllatmerits w0uia ordinarily oonstltute one continuous period of 

servloe within the meaning of these provisions. Suppose, however, that at the time of his dlsoharge he has no Intention of 

re-entering military service. After seeking employment he 

finds nothing to his liking and he thereupon decide8 to go back 

Into military service. Ordinarily this would be the beginning 

of a new period of service, and he aould vote In El Paso County 

If otherwise qualified. 

&e Constitution provides that a person In military 

service may vote only In the county In which he resided at the 

time of entering servloe. (It should be noted that the place. 

of voting Is the aounty of residence, not the county In which 

the enlistment occurred, nhlch might be In some other place 

than the place of legal residence.) In a brief submitted to 

this office by an Interested organization, the contention Is 

made that this provision of the Constitution attempts to, 

-842- 
Hon. Jack N. Fant, page 9 (C-X73) 

regulate remulate voting&In 

statf3. 

rights outside Texas as well aa within the 

State. "1%% g6eioes without saylng.thBt then Texas Cons'tltutlon 

oannot ,replate voting rights. of'.pereons at &nj place other 

than rlthln the State of Texas; 'and cannot affeot,'the.'votlng 'rights of-residents of 'other States 'while stationed-in 

Texas; This provision relates only"t~~'r&?iidents of 'this' '. 

State;' but'lt does relate'both"to"personsriho ~eiWres1debt.a 

of Texasbefore entering service'ahd to persons who'becarhe" 

residents of'Texas after entering. service. .If~the only place 

at uhlch a person-may vote In this State Is the aounty In 

which he resided at the time of'enterlng service,'and'if"at 

that time he did not reside In any dOi.uky In 'Texas, It follows that'he cannot vote In thIs'Stat%; Acoordlngly,'lt '~ 

was .sald In Opinion S-148 that no person 'who entered servlce~' 

as a resident of another State may acquire a voting residence 

IKTexas Uhlle he:ls,in service. 

., 

It has been suggested In the brief that the provisions 

under consideration do not preclude a nonresident of Texas 

from establishing a legal residence and becoming a qualiflea 

elector having the privilege to vote In Texas; that a resl? 

dent of Texas who enters military service oa>not ohange his 

voting residence while on .aotive,duty, and that a former nonresident, after having aoqulred a voting residence while on ' 

active duty In this State, aannot thereafter change It to 

some other county; but that.a resident of~another State can 

acquire an original voting residence In Texas while In milltary service. 

We are unable to find support for this suggestion, 

either In the language used or In the reason for the restrlctlon. As we view 1t;the purpose of the restriction Is to 

prevent a concentration of military voting strength In localities where military lnstallatlple are situated, which 

"might well lead to complete domination and control of local politics by the overwhelming number of military men to 

the prejudice of the olvlllan citizen8 of the.communlty." 

Interpretive commentary under Art. VI, Seo. 1, Vernon's Ann. 

5 Tex. Const., ~1. 2, P. 336. me conoentratlon sought to 

be prevented oould cOme about from voting by former residents 

of other States as readily 811 from voting by former residents. 

-. of other oauntles In this Stat.e. Ue fall to see the rationale 

for allorlng a resident of so106 other State who Is stationed' 

at Fort Bliss to ~acqulre a voting residenoe In El Paso County, 

while denying that privilege to a resident of Texas; nor do 

ue see any rationale for freezing hia voting residence in El 

Paso County If he Is transferred to ~,milltary Installation 

In sOme other oounty or State. 

,: 

-843- 
, . 

Hon. Jack N. Fant, page 10 (C-173) 

We are not impressed by the suggested explanation 

that the person who resided In Texae at the time of'entetilng servloe does have a place to vote In Texas (I.e., the 

county of his residence st the time of entering service), 

but the person ~who.reslded In some.other State at the time 

of entering service would have no place to vote In Texas If 

he Could not acquire a voting residence at the plaoe where 

he was stationed. me 1954 amendment evince8 an Intention 

to remove the dl8franchl8ement of active members of the regular military establishments, but subject to the llmltatlon-, 

that they will not be allowed to acquire a new votlng,realdence In this State while In military service. It does not 

chow an Intention to enfranchlse'any 'peraon'or class of persons In military service on any other terms. It' should be 

kept In mind that a person who enter8 military service as a 

resident of some other State gives up his voting realden'ce 

In that State only by his own volition. So far as we are' 

able to find, there Is not a State in the Union whose laws 

cat&e a resident to lose his reeldence'and oonaanltant vat-~ 

lng~rlghts against his will by reason of absence'in military 

service. If he loses his residence and voting prlvlleges at 

the plaoe where he resided when he entered service, It 18 by 

his own desire to acquire a new residence at a different 

place. You have stated that many of the military personnel 

tell you that.when they write to the State and county where 

they entered the service, so as to vote absentee there, that 

State takes the position that they have nor lost their reeldence there. In these cases, It wouldseem that the lndlvldual by hi8 own voluntary acts has relinquished his former'resldence or that the administrative officers of his home State 

.have mlalnterpreted the law of that State. 

It has also been suggested that the law dlscrlmlnatea 

against-resident8 of other States and la therefore repugnant 

to the 14th Amendment of the United States Constitution. We 

do not agree that It dlscrlmlnates agalnst'nonresldents. A 

Texas resident la under the same limitation as a nonresident. 

No matter how much a soldier at Fort Bliss might prefer El 

Paso County to his home aounty In East Texas, or North Texas, 

or South Texas, and might want to make El Paso his county of 

leEa residence, he has to choose betueen acquiring a domicile 

In El Rrso County and losing his right to vote, for If he 

does change his realdenoe to El Paso County he also Is left 

without a voting plaoe. 

It Is true that military men who have been many years 

away from their place of resldenoe at the tlme of entering 

service may lose Interest In the affairs of that locality, but 

may be keenly interested In the affairs of the locality where 

-844- 
Hon. Jack N, Fant, Page 11 (C-173) . 

they '&re'statloned; and the privilege of retaining their - 

voting residence at. the former place may be to them'an empty 

one. It Is also tnie‘thtit t,e Texas realiiehtstationed in 

Texas~'could stlll'vote for ~t'aE~"offlbes"..bdd ‘on state-wide 

lssues.of Interest to hLm;'whereas"the resident of sbmm8 other 

State would"flhd no.'drea 'bf~interest In' the 'tile&Ions of'hls 

home,State except for President and Vice-President of the . 

Unlted'States.‘ These are considerations going to the poll&y, 

wisdom; and equlty~ of the ~onstltutlonal'reatrlotlon,~rathsr~ 

than to Its interpretatlon.~ We‘hastento state that‘ our funb; 

tlon-la merely to construe the provisions as they are written. 

In yourrourth question you ask for a constructSon of 

the provision on military votlng'ln the amendment of Article 

5.02 of the Election Code which wlll'take effect If the'propos'ed constitutional amendment abolishing payment' of the poll 

tax as a prerequlalte'for voting Is ado ted at the'electlon 

to be'held'on November 9, 1963. Aota.5 8 th'Leg., 1963, ML. 

43o;seo. 1, p.~ 1103. The~~pertlnent portion of the proposed 

amendment of Article VI, Section 2 of the Constitution reads: 

'Section 2. 'Every person subject to 

node of the foregoing dlsquaIlflOatlons who 

shall have'attalned the age of"tuenty-one 

years and who shall be~~a~citlien of"the 

~Unlteil States and'who~'shall-.~have resided In 

thle state one year next preceding an election and the lastsix months within the,dlstrl6t or county In which such peraontiffera 

to-vote, shall be deemed a quallfled elector; 

provided that any member of the Aped Foraes, 

of the United States or component branches 

thereof, or In the military servloe of the 

United States, may vote.only In the oounty 

ln%hlch he or she resided at the time of 

entering such service so long as he or she 

la a member of the Armed Forces; and provided 

further, that before offering to vote at an 

eleatlon a voter shall have reglatered If required by law:.to do so.* * *" 

.” 

Insofar as It ooncerns place of voting by persons In 

military aervlce, there la no ohsnge In the meaning of the 

seation although the language has been rearranged. me text 

of Article 5.02 of the Eleqtlon Code, as amended to take effect in event of adoption of the.constltutlonal amendment, 

18 aB follows: 

!’ 

-845- 
Hon. Jack N. Fant, Page 12 (C-173) 

"Ev&i-y peiv3iM'eubjedt td imiie of 

the-‘foregoing dlsqii&SlflaaEions Who shall 

hatie attaln’ed the age-ol-twehty-bne ye&es 

aiid who shall be ti ‘dltlzen 6i the Unlted’~ 

St&it& andMid slitill have reiildei& Sii thlti 

atiite tine $i?ati iiext priectidlng’an blictldn 

arid the last i3ix’mohths irithin tIj& diet+lct ~~’ bounty in wh.ch .aubli ,pgjriaoii iirrere’..ta 

__. .,.~ 

vote,’ and ‘*ho Mid11 ‘have”regiate’red’ a8 a 

Voter If tiqiiired ‘t6 dd ‘80,‘~ ehall‘ be deemed 

a qualified electbr; ptiovldbd that any 

member of the Arined Fdticea ijf the United 

States or component branches thereof, or 

In the’mill,tary service of the United 

Statea, may vote only in the oounty in 

nhlch auoh person resided at the time of 

entering such service. * * *” 

Thla’provieion traake the proposed conetitutional ‘amehdtient, 

except for omlealon of the words “80 long aa he.or’sHe-‘la 

member o$ ~the Armed Forces; ” Since the ptiovfsloti ‘deals with 

the voting place 6i’memberb:;not form& tiembere dr TtituM -’ 

memb&s--of the Atied Forbee, ‘the~omlsalon of thi quallfylng,.~ 

dlause does liot .change ltis meaning. ‘Unllk6 the iimi%ndBent enadtea by Chapt& 424,‘.thla V&i~loti’ of’ the stM-.ute doea hotaoiitain’thti provlalonti lncqz$oratlrig the Interpretations di , 

the Attorney ffeneralls opinions. But the.addltlon’M those 

provlelona did not alter eliletlng law; It merely verbalized 

the exietlng law into atatutory lonn. Acocfrdingly, the~lirr 

as It will exist If Chapter 430 takes effect will be the same 

aa It is now. 

Your fifth queatlon la whether the constitutional and 

atatutor 

of the 1 % 

provlelope under aonelderatlon violate Section 1 

th Amenduient to the United Statea Constitution, 

which reads as followa: 

“All persons born or naturalized in the 

United Statee, and eubjeot to the jurladlation 

thereof, are oltlzens of the United States and 

of the State wherein they reside. No State 

shall make orenfome uny law whloh ahall ak 

bridge the privileges or lmmunltlea of oltlzens 

ot the United States; nor rhall any State deprive any person of life, liberty, or property, 

without due pr~ceaa~.@f; lnu# mar; denydp ,vy;.: pqrson 

within It6 jurledlctlon the equal protection 

OS the lam.* 

-846- 
. . 

Hon. Jack N. Fant, Page 13 (C-173) 

We have seen that the law of thla State complettily 

disfrahchlsed all pertions. ln’~inllltar~ hervice for almMt’.a 

hundred jleara and disfranchised m&fibers of'the-regular &atabliMvaeht8 for twenty more years: If those provlslona did 

nbt offend th&'Federal ConstltutlorY, It 16 e'Viident that the.. 

less drastic provisions of the,preaent'lbw ale6 are notsubject to that‘lnflrmlty. '~The‘lbth Amen&&t was ratified Sn 

1868. During the lntetienlng yeatis.'before Sction 1.0 

& 

Artltile VI of the Texas Constitution was amende$.ln 1954,~ here 

was no case dlreotly raisk;lg the validity of the Texas law, 

but the implication In two cases Bebided by the T+xas'coutits 

seems to be that the State had the poker’to withhold suffrage 

from persons-In military service. h Savage v. Umphrlea, - 

i18.S.W. 893, 8% (Tex.Clv.App. 1909), the court. said: ';~ 

"Who shall exercise suffrage Is a 

f'undamental question, which the body politic 

must deolde upon a just view of the true 

relation between the power of the auffragana 

and the rights of the whole people. Hence the 

exerclae of the elective franchise Is not a 

natural or God-given right, but Is, as the 

word lfranchlae* implies, a right conferred by 

the state or body politic.' In other wordd8, as 

la aald by an eminent authority bn constltutlonal law, the'.questldns whether one Is fitted by 

lntelllgen6e to perform the function of an elector, or has such IMerest In the matters controlled through hla suffrage as to check t:he 

misuse of power which self-Interest prompts; 

or has euch oommunlty of Interest In the lawa 

which are to govern the community, uhlch 

should fit him for the dlecharge of the.dutlee 

of a auffragan, must be determined by the body 

p011t1c." 

.., 

One of the holdings In that case was that under Artlole VI, 

Section 1 of the l!ex&a Constitution, a person In the service 

of the army of the Ublted States was not entitled to vote 

at all. Ii8 s.W.2d at page 908. In'McBeth v. Strelb, 96 S.W. 

26 992, 995 (!Pex.Clv.App. 1936), the court said: 

"Our qrganlo and statutory laws, In plain 

terms, deny the right of franchise to citizen8 

In the military service. The reasons for euch 

denial were properly determined by the adopters 

of the Constitution and members of our lawmaking 

bodlea.". 

-847- 
. . 

Hon. Jack N. Fant, Page 14 (C-173) 

(1908) 

Solon v:State, 54 Teic;Ci+in. 261, 114 S.WiY349, 352 

aeacnbea the naturp 0s suffrage aa r0110rta: . _, -, . 

"'.* * l The ttib' tile lb that the right 

to vote-Sa^not'a.neceaaaFy or-fixed Incident 

of cltl,zenahlp; or lnh&i?eht ia ea&h and every 

lndlvldual, butthat voting IS the' exercise 

61 political poweF, and no on& la entitled to 

vote, unless the people In their aover6lgn 

cbpadlty, have conferred on him the right to 

do io. It map-be laid down aa a general 

propoaltlon that the right of suffrage may 

be regulated and modified or withdrawn by the 

authority which conferred It.,*-+ * In the case 

of State v. Dillon,'32 Fla. 545, 14 SO. 383, 

22 L.R.A. 124, In treating thla general aubJeot, 

the court say: "The right to vote ia not ai, 

Inherent or absolute rlght~ found among those 

generally reaerved In bllla of rights, but Its 

poaaeaalon la'dependent upon o6natltutlontil 

or statutory grant. Subject-to the limlt~tlona~ 

contained In then Seder&l CQaafltutlon, the elective .f&chiae la undhr~the bontro1 of'the 

aoverelgn power of the states, expressed In 

zoiazM);utiona or atatutaa properly enacted. 

? . _ . 

The United Staten Constitution does not confer on or 

guarantee to cltlzena the right to vote, Wit It doea llmlt 

the.pwer of a State to abridge or.denv to some citizens a 

right of suffrage which the St&be has granted to others. 

10 Am.Sur.. Elections, 88 '16, 47; f@C..S.S., Electlonb, gII 

5-8. 'Ihe 15th and 19th Amendments prohibit denlal~ of the-. 

eight to'vote because of race, color, previous condition of 

servitude, or sex. 'The 14th'Amendment prohibits a State' 

from abridging the privileges ,or lmmunltlea of cltlzena of 

the'Unlted States or SrorP denying-the equal protection of the 

lawa to any person within Its jurladlctloa; but these prohlbltlona do not preclude a State fraa making reasonable claaalflcatlona of persona or things forthe purpose of leglalatlon 

If all within the same olaaa are treated allke. .The general 

principlea on the validity of olaaalflcatlona are stated In 

the following quotatlons'froh 16~ C.J.S. 240 et seq., Conatltutlow UW, I 489: 

"Class leglalatlom la invclld where the 

claaalflcatlon la arbltrarv and unreaeonable. 

The provision of the Fourtbenth Amendment to 

the federal. Constitution declaring that no 1 

-048- 
Hon. Jack N. Fant; page 15 (Gl73) 

btdte shall make oti'enforce'eny law which 

shall abriilg6'the~prIvIlCgea -or'ImiininItIea _ -. of. 6'Itlzena oi'the hltbd States, or deng 

to any'pert3on Within Its jiirIsdlctlbn the 

i?Qual.'pivtectlon of th6 lawa,‘aii Well 'as - 

pr6vialdlia comziolily ~ioiind In-'state ooir~tltutlona ptihlbltlng the e'n&dtmeht'bf~l'aria 

grantIng'~&ny'dpedIal 05~ i$xolualve .prIvilegea, 

Iizmuhltlea; or fri%n6hIilea,'~* l ~* rend&r‘~Vold 

all state statutes which make-&y unreaaotiable 

6r arbitrary dlacrImlnatl6n between different 

persona or olaaaea of persona. l * * 

"There la no general rule by which to 

dlatlnguIah a reasonable and lawful froa,uni%Aaonable'and apbltrary olaaaIfIc~tlon, the 

question being a praotIc&l one, deliendent ?n 

tizperleribe, and.vtiJIIag wlth'the facts In 

eaoh.~aaae. In order...to~'be valid'& atatilfoe 

olaaaIfIoatIon mubt reaabirablj prdlote aaae' 

proper object, of public welfare or Interest,, 

mat rest on real and"subat&ntlal differenuea, 

having a natural,. reaaonable;and aubatantIa1 

relation to the aubj&ot of the legldlation; 

and must affect alike all person6 or'thlhga 

within a particular class, or 8laWaiQy aituated;.but; If the legislature has power~to 

deal with thf2 aubjeot’matter of the claaaIflcatlon and,there la a reaaohable gSound -Sor.the 

~olaai3lfloatlo~ andthe law operaties equally on 

all'tilthln the aAme olaaa, It la valid, even 

th6Ugh the act confers dlfierent rlghta or-l&-- 

poses different burdens on the aeveral'clabsea, 

dr rails to pmvlde Sor future contlngencI~a, 

or %hos&m partlaular persona find lt-':dlffi:~ 

cult or even ImpoaaIble to comply with condltlona preoedent on whIah the enjoyment of the. 

privilege Is made te depend. l * l 

"In detetialag wh&hqr or not a basis of 

olaaalfIoatIon is reasonable, It must be look@ 

at fra the rtandpoi.nt o? the leglrlature enaotlng It, and with refezmme to the oondltlona 

existing when the atattrte.waa enaated, not when 

the constitution was adopted. Aa discussed 

aupra 8 151 (4), the question OS olaaaIfloatioa Is one priaarllv for the legislature, and 

In the exercise of this power the le,glalature 

poaaeaaea a wide diearetion. A rtatutr will 
Hon. Jack Fant, page 16 (C-173) 

be auatalndd where the basl8’Toti bliSsIflo’&tli5n iaade by- It ‘ootild h&e be&med 

tiebaonabl6 twthe legIblatru%‘; even’ thoq@ 

duMi b&sib seems tii ‘the courtd”to be tinreaaolialjle. .‘U’~~ile\r”of the “p~~aumptlotia~ 

iii Taior“bf’a’l~glalatlve olaaalflaatIon; 

aa’dIbcuaa&d Sup&i U 100; t&e leglaliitlie 

jiaaepPent’-se to clasaltl6afloii wll” be’up: 

h@ld.‘If’ a.ny state Of facts. can reasonably 

be dondeived to auatain.~It, dnd can be 

ovePthPown ‘br the courts only when It Is, 

clearly erroneous. y... 

The Texas Constitution olaaalfle~ pe~aona In military 

service for special treatment In conferring the right to 

votd,“‘and accords’ the same trektmbnt to all wlthlh that ‘ala&a. 

We“Ue unable to ‘a&y that ‘ther6’.is no’ r&Son&l b&ala for the 

6SAlaZficatloti, bnd’a6niieQuently~lt is”our. opinion that fihb 

p~vlblti does not violate the 14th Amendment to the Vnited 

States ~onatltutIon. 

Ihe prcvI6lona or ArtloSe 3i02, 

Vernon’s !l!uxaa Election Code, as amended’by Chapter 424, Aeta o? the 58th Imglalature, 1963, which Wrtaln to voting by 

persona’ lmmllltary service, do nothing ; 

more than restate the law aa contained In 

the 1954 amendaent to &ticle.VI, Section , 4; 

2 o? the’ Texas ~Conatltution; Attorneg 

deneralgu Opiniona S-1118 end UU-157, lnkerpretlng the oonatItutl6nal provGiona., 

aru ruaiflned. 

ltle law on voting by persona In milltary service, aa contained In the amendment 

to Article VI, Section 2 of the Constitution 

which la proposed by S.S.R. NC. 1, 58th Leglalature to be submitted to a vote on Noveslber ’ 

9, 1963 f and In, Article 5.02 of the Election 

Cod&, aa umended bx Chapter 430, Acts of the 

58th Legislature, which will-take effect It ,’ 

the proposed coaatltutlonal aaendnent Is 

adopted, Is the saute 88 the present law. 

me provIslona of Article VI, Section 

2 of the !kixaa Ccnatltutlon, and OS Article 

5.02 of,the Texas Nleotlon Code, whloh provide that members of the Armed Forces of the 

-8SO- 

.’ 

. 
Bon. Jack N. Fant, Pee 17 (C-173) 

, 

United States may vote only In the 

county In which they resided at the 

time of entering service. does not 

vloliste the 14th Amendmexit'to the 

United States Constitution. 

Yours very truly, 

WAGGONER CARR 

Attqrney Qenefal 

.i' I 

By -Y r, a4 Maw . Wall 

Aaalafant 

MKW:aj:ma 

APPROVED: 

OPINION COMMITTEE 

W.'V."Oeppert, Chairman 

Howard Fender 

Malcolm L. Quick 

Ernest Forteriberrv 

Paul Robertson 

APPROVED FOR THE ATTORNEY GENERAL 

By: Stinton Stone 

-851- 

! 

I