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

OF 7flFExAs Overruledby Carringtonv. R~I U.S.- 85 S.Ct. 7-b (1965,

November 6,.

1963

HonorableJack N. Pant County Attorney El Paso-County Re: Conatruotlonand 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 'the58th Legislature (Acts 58th Leg.,~

1963, oh. 424,.

sec. 13):
"Nottilthst&ndlng

any other'provialon ofthis'seotion, any member of the Anned Forces of'the'UnltedStates or components branches therebf.whois on'actlve'dutyIii the mllitary'servlce ofthe United States may vote only In the county' 

### in, whihh~he or she~resldedat-the time 'ofentering' suoh service so'long as he or she la 'amember-" 6f the Armed Forces. Thla restrictionappliesonly 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 commenolngthe ourrent atM.vi 'duty. A re-enlistment **after** a 

### temporary

separation from service upon termlnatlonof a prior enlistment shall not be oonstrued to be the commencement

### of a new periodof service, and in such case the oounty in whioh the peraon resided at the time of **oommenolng** aotive servloeunder 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 opinionon 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

'hpr&eqMiiite'for votlhg i#Xiioijt~d&t'the'&Iectloh-'to

be'held on NoVembiti 9, 1963. These provisionsare quoted at a later.point,lnthe opinion.

You have asked the followingquestions:

"1. What aonstruatlon or lnterpretatlon does your Departmentmake 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-ArmedFoSces'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

‘a6lorig-(rb

he or she is a member of the Armed Forcesifi?

"2. What construct’lon or lnterpretatidn doe8’yourDepartmentmake 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 sentenceof 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, effectiveFebruary 1, 

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

### memberof the bed Foroes of the United States
or oomponentbranches 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 provisionscontained 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 ArticleVI of the Texas Constitution enumeratesthe classed of persons who are not allowed to'~ vote In this State. Seotloh 2 of~Artlcle‘VIsets 'Oue'the quallfi~atlons

and PequXrements

~for voting. The general qualifications

are stated as follows:

~"Everyperson 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 regularmilitary establlshrhents from Voting in this State. The hi~torlo~lb;ickgr6uid of this provision IKdesdPibed In a cotientary.ptibllshed In Vernon's AnnotatedTexas Statutes,Volume 9, page XVII, In the year 1952:

"The Second Congressfif the Republic of

**d Texas in 1837 enacted the first election law Thls.firstact containeda novel sec'.' tion irovialng 'that regular enlisted soldiers, and volunteers for during the war, shall not be eligible to vote for civil officers.'This provisionwas no doubt Inspiredby the mutlnoua conduct of the nonresident. volunteerswho had been recNited In the United State8 after the Battle of San Jaclnto. They had defied the provisionalgovernmentand 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 **con** tinued their rebelliousconduot after Sam Houston became the first presidentunder the Constitutionof 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~tititutlon

f the~Stat6of' Texas and has remained-ineach 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 followingprovision:

Armed Force6 '1 * * Any member of'thi of the United States or componentbranches 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 OpinionWW-157 dated July 8, '1957, hav@~'dealt

with aevetial

questionsof consttictlon arising uzider the 1954 amendment of the Constitution. quotationis 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 (providedthey had res'ided within the State for one year and within the county for six months) without regard to the place of residenceat the time they entered service. Active members of the regular establishment could not vote at all. Now, all these groups'arequalifiedeleotors 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 changeshis 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

'Throughoutthis opinion the term 'realdence' means legal residenoeas distinguished from aatual reeidence.

-838-

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

"The constitutional amendmentdoes not change the'rules 'for determiningwhat' place'18 the legal resldendeof the voter, nor-does It mean that in all tilrcumstances

a person In military servl&ewill 'beentitled 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 residenceduring 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 county4he 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 residenceat the time of entering service applies only to persons who are on extended aatlve duty. Members of the.NatlonalGuard and reservists who are'

not on' extended aatlve aervlce and retiredmllltary~'peraonnel are not subject to this restriction. Further, 'countyof 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)

residencerequirement, he may vote In ' County B; In fact, he could vote nowhere' else, While living In'CountyB, he la called Into 'adtlve aervlce. During this tiine'hla

place'of.votlng

Is In County B, the county In which he.resldedwhen he' went Into active service. After his release from that tour of duty, he~changes his residenceto 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 servicewhlle'llvingIn County C, that Is the place where he will vote.

The question In OpinionWW-157 waa whether a person who had been stationedat an air base In Victoria County, who after dischargehad subsequently re-enlisted,

with some period of time Intervening between the dischargeand reenlistment,

was quallfledto establisha 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 enlistmentor the time of the original entry Into service? If the subsequentperiod of service Is a mere continuationof the prior period, the time of re-enlistment Is not the time of entering such servicewithin 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 instancesan airman may be completelyseparatedfrom the service In a very real sense by dischargeand later re-enlist. In such cases It cannot be said that his reenlistmentor decision to re-enlistconstituted the second period of service a continuationof the prior period of service,and the time of entering such servicewithin the meaning of the ConstitutionIs 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-enlistmentIs not, however, controllingon this question. The law looks to the substanceand not to the mere form of the transaction. It can be judiciallynoted that

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

frequentlyre-enlistment papers are actu-. ally signed prlor..to dischargeand postdated at some later date to the discharge date. Or.

some oacaslons the serviceman retains 'thesame privileges,.rank, and status as weIl,as the same organization i%~slgnment

and Job assignment Snthe'subsequent enlistmentas In the prior period Of'seNlce. In ~such'oase's the discharge and re-enlistment

are mere legal~flctlons and the subsequentperiod 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 subsequentperiod of service.

*Therefore,

we hold that an airman stationedat ah aiti base looated In Vldtorla County who'recelvesa bona fide dischargeand who completely"severi his active duty'relatlon tilth the'~Air

Force'and

subsequently re-enlists tiith stime perlod~of times

interveningbetween dischargeand'

re-enlistmentIs qualified to establisha residence In Victoria County for voting purposes If the discharge and reenlistmentare not mere legal fictions 80
as to constitutea continuationof the prior period of service." _.

Articles 5.01 and 5.02 of the Election Code are the statutory counterpartsof Sections 1 and 2 of Article VI of the Constitution. Following the amendment of the Conatltutlon In 1954, no correepondlngchange'waamade In the statutesuntil this year, ,whena 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 Interpretedin the opinions of the Attorney General. The second sentenceof 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)

as'applylngonly to periods of sctlve
- ., on place of voting servlbe..'

The 'third

eentence~undertakes to summarize In .' &"'brlef

statemint'the

holding ~f'Opinlon"UW-159oh'the.efSect bf.a temporarybreak In servicebetween enlistment periods.

We are in agreementwith the construction given to the 6onsfitutSonaS provision In'Oplnlonss-148.anaAW:157. And we are further of the opinion thiit the construdtlon of the constitutional provision Is applicableto 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 "temporarysep~ratlon"‘ln ~Artlcle

5.02, we thlnk~

the term.
was Intended to mean a separatlon'under cltidumstances

described In OpinionW-157 which would not preventthe:subsequentperiod of aervloe from'belngln~ 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 determinedon Its own particular set of facts as to the acts and Intentionof the Individual.

Two examples~111 Illustrate how these provisions operate. Suppose a aoldler,while atationedat Fort Bliss ::.~ In El' Paso County,has established his legal residence there (butwithout voting rights,beaauee he did not reside 

### In that county at the time of entering service)and Intends to live there'aftereventual retirement-from military service. He completesan enlistmentand Is discharged,but at all times his Intention for the present Is to re-enlistand aontlnue In military service. Even though some period of time may elapae between his dischargeand his re-enlistment, the two enllatmerits

w0uia ordinarilyoonstltuteone continuousperiod of servloewithin the meaning of these provisions. Suppose,however, that at the time of his dlsohargehe has no Intentionof re-entering

military service. After seeking employmenthe finds nothing to his liking and he thereupondecide8 to go back Into military service. Ordinarilythis would be the beginning of a new period of service,and he aould vote In El Paso County If otherwisequalified.

&e Constitution

provides that a person In military servicemay 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 Interestedorganization, the contention Is made that this provisionof the Constitution attempts to,

-842-Hon. 

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

regulatevoting remulate&In 

### statf3. rights outside Texas as well aa within the State. % oes 

### "1% g6ei without saylng.thBtthen Texas Cons'tltutlon oannot ,replate voting rights. of'.pereons

at &nj place other than rlthln the State of Texas; 'andcannot affeot,'the.'votlng 'rights

of-residentsof 'other States 'whilestationed-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-mayvote In this State Is the aounty In which he resided at the time of'enterlngservice,'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 .saldIn Opinion S-148 that no person 'whoentered servlce~'

as a resident of another State may acquire a voting residence IKTexas Uhlle he:ls,in service.

., It has been suggestedIn the brief that the provisions

under consideration do not preclude a nonresidentof Texas from establishinga legal residenceand 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 residencewhile on .aotive,duty, and that a former nonresident,after having aoqulred a voting residencewhile 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 languageused or In the reason for the restrlctlon. As we view 1t;the purpose of the restriction Is to prevent a concentrationof military voting strength In localitieswhere military lnstallatlple are situated,which "mightwell lead to completedominationand control of local politics by the overwhelming number of military men to the prejudice of the olvlllan citizen8 of the.communlty." Interpretivecommentaryunder Art. VI, Seo. 1, Vernon's Ann.
5 Tex. Const., ~1. 2, P. 336. 

### me conoentratlonsought 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 freezinghia voting residence in El Paso County If he Is transferredto ~,milltary Installation In sOme other oounty or State.

,: -843-, .

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

We are not impressedby the suggestedexplanation 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.otherState at the time of entering servicewould have no place to vote In Texas If he Could not acquire a voting residenceat the plaoe where he was stationed. me 1954 amendmentevince8 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 enter8military service as a residentof 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 oonaanltantvat-~ lng~rlghtsagainst his will by reason of absence'inmilitary service. If he loses his residenceand voting prlvllegesat the plaoe where he resided when he entered service, It 18 by his own desire to acquire a new residenceat 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 voluntaryacts 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 Amendmentof the United States Constitution. We do not agree that It dlscrlmlnates agalnst'nonresldents.A Texas resident la under the same limitationas 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 withouta voting plaoe.

It Is true that militarymen who have been many years away from their place of resldenoeat the tlme of entering service

may lose Interest In the affairs of that locality,but may be keenly interested In the affairs of the localitywhere

-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'votefor ~t'aE~"offlbes"..bdd ‘on state-wide lssues.of Interest to hLm;'whereas"theresident of sbmm8 other State would"flhdno.'drea 'bf~interest

In' the 'tile&Ions

of'hls home,State except for Presidentand Vice-Presidentof 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-lamerely to construe the provisionsas they are written.

In yourrourth questionyou ask for a constructSonof 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

amendmentabolishingpayment' of the poll tax as a prerequlalte'for voting Is ado ted at the'electlon to be'held'onNovember 9, 1963. 8 Aota.5 th'Leg., 1963, ML. 43o;seo. 1, p.~1103. The~~pertlnent portion of the proposed amendment of Article VI, Section 2 of the Constitutionreads:

'Section 2. 'Everyperson subject to node of the foregoingdlsquaIlflOatlons who shall have'attalnedthe 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 precedingan 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 componentbranches 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 ooncernsplace of voting by persons In military aervlce, there la no ohsnge In the meaning of the seation although the languagehas 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

‘t6dd ‘80,‘~

ehall‘ be deemed

a qualified electbr;ptiovldbd that any member of the Arined Fdticea ijf the United States or componentbranches 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. ‘Unllk6the iimi%ndBentenadtea 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 provlelonadid not alter eliletlng law; It merely verbalized the exietlng law into atatutorylonn. 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

% provlelopeunder 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 lmmunltleaof 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 jurledlctlonthe 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&atabliMvaeht8for twenty more years: If those provlslonadid nbt offend th&'FederalConstltutlorY, It 16 e'Viident

that the.. less drastic provisionsof the,preaent'lbw ale6 are notsubject to that‘lnflrmlty.'~The‘lbth Amen&&t was ratified Sn 1868. During the lntetienlngyeatis.'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 implicationIn two cases Bebided by the T+xas'coutits

seems to be that the State had the poker’to withhold suffrage from persons-Inmilitary 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 relationbetween 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 conferredby 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 lntelllgen6eto perform the function of an elector, or has such IMerest In the matters controlled through hla suffrageas 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 dlechargeof the.dutlee of a auffragan,must be determinedby 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 Stateswas not entitled to vote 

### at all. Ii8 

### s.W.2dat 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 determinedby the adopters of the 

### Constitution and members of our lawmaking bodlea.".

-847-. .



### Hon. JackN. Fant,Page 14 (C-173)



### (1908) Solon v:State, 54 Teic;Ci+in. 261, 114 S.WiY349, 352 aeacnbea the naturp 0s suffrageaa 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 politicalpoweF, 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 propoaltlonthat the right of suffragemay be regulatedand modified or withdrawnby the authoritywhich conferred It.,*-+ * In the case of State v. Dillon,'32Fla. 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 statutorygrant. Subject-to the limlt~tlona~ contained In then

Seder&l CQaafltutlon,the elective .f&chiae la undhr~the bontro1 of'the aoverelgnpower of the states, expressed In zoiazM);utiona

or atatutaaproperly enacted.

?

. _ . The United Staten Constitutiondoes not confer on or guaranteeto cltlzena the right to vote, Wit It doea llmlt the.pwer of a State to abridge or.denv to some citizens a right of suffragewhich 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 Amendmentsprohibit denlal~ of the-. eight to'votebecause of race, color, previous conditionof servitude,or sex. 'The14th'Amendment prohibitsa State' from abridgingthe privileges ,orlmmunltleaof cltlzena of the'UnltedStates or SrorP denying-theequal protectionof the lawa to any person within Its jurladlctloa; but these prohlbltlona do not preclude a State fraa making reasonableclaaalflcatlonaof persona or things forthe purpose of leglalatlon If all within the same olaaa are treated allke. .Thegeneral principleaon the validity of olaaalflcatlona are stated In the followingquotatlons'froh 16~ C.J.S. 240 et seq., Conatltutlow UW, I 489:

"Class leglalatlomla invclld where the claaalflcatlon

la arbltrarv and unreaeonable. The provision of the FourtbenthAmendment to the federal.

Constitution

declaring that no 1



### -048-

### Hon. Jack N. Fant;page 15 (Gl73)

btdte shallmake oti'enforce'eny law which shallabriilg6'the~prIvIlCgea -or'ImiininItIea

_-. of. 6'Itlzena

oi'thehltbd 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~tltutlonaptihlbltlng

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

whichmake-&y unreaaotiable 6r arbitrary

dlacrImlnatl6n

between

different 

### personaor olaaaea

of persona.l 

### * *

"Therela no 

### generalruleby which to dlatlnguIah

a reasonable

and lawfulfroa,uni%Aaonable'and

apbltrary

olaaaIfIc~tlon,

the question

being a praotIc&l

one, deliendent

?n tizperleribe,

and.vtiJIIag

wlth'thefacts In eaoh.~aaae.

In order...to~'be

valid'&atatilfoe olaaaIfIoatIon

mubt reaabirablj

prdloteaaae' properobject,

of publicwelfareor Interest,, mat rest on real and"subat&ntlal differenuea, havinga natural,.

reaaonable;andaubatantIa1 relation

to the aubj&ot

of the legldlation; and must affectalikeall person6or'thlhga withina 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~

and the law operaties equallyon all'tilthln

the aAme olaaa,It la valid,even th6Ughthe act confers 

### dlfierent rlghtaor-l&-- 

### posesdifferent **burdens** 

### on the aeveral'clabsea, dr rails to pmvlde Sor futurecontlngencI~a,
or %hos&m 

### partlaular personafind lt-':dlffi:~ cult or 

### even ImpoaaIble to complywith condltlonapreoedent

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 willHon. Jack Fant, page 16 (C-173)



### be auatalndd

where the basl8’TotibliSsIflo’&tli5n

iaade by- 

### It ‘ootild

h&e be&med tiebaonabl6

twthe 

### legIblatru%‘; even’ 

### thoq@ duMib&sib seemstii ‘the courtd”to

be tinreaaolialjle.

.‘U’~~ile\r”of

the“p~~aumptlotia~ iii Taior“bf’a’l~glalatlve olaaalflaatIon; aa’dIbcuaa&d

Sup&iU 100; t&e leglaliitlie jiaaepPent’-se 

### to clasaltl6afloii wll” be’up: 

### h@ld.‘If’

a.ny stateOf facts.

can reasonably be dondeived

to auatain.~It,

dnd can be ovePthPown 

### ‘br

the courtsonlywhen It Is, clearlyerroneous.

y...
The TexasConstitution olaaalfle~

pe~aonaIn military servicefor special treatment

In conferring

the rightto votd,“‘and

accords’



### the same trektmbnt

to all wlthlhthat‘ala&a. We“Ue 

### unableto ‘a&y that ‘ther6’.is

no’ r&Son&l 

### b&ala for the 6SAlaZficatloti,

bnd’a6niieQuently~lt is”our. 

### opinionthat fihb 

### p~vlblti does not 

### violatethe 14th Amendment to the Vnited States~onatltutIon.

Ihe prcvI6lona

or 

### ArtloSe3i02, Vernon’s!l!uxaa

Election

Code,as amended’byChapter424, 

### Aeta o? the 58th Imglalature,1963, 

### whichWrtaln to votingby 

### persona’

lmmllltary service, do 

### nothing ; more than restatethe 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, ln

### kerpretlng

the oonatItutl6nal

provGiona.,
aru ruaiflned.

ltle law on votingby personaIn milltary service,

aa 

### contained

In the amendment to Article

VI, Section2 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,

Article5.02 of the Election Cod&,aa umended

bx Chapter430, Acts of the 58th Legislature,

whichwill-take 

### effectIt 

### ,’ the proposed 

### coaatltutlonal aaendnent Is 

### adopted,

Is the saute



### 88 the presentlaw.

me provIslona

of Article

VI, Section 2 of the !kixaa

Ccnatltutlon,

and OS Article 5.02 of,theTexasNleotlon 

### Code,whloh provide 

### thatmembersof the ArmedForcesof the

-8SO- .’

.Bon. 

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

,

UnitedStatesmay vote only 

### In the county In which they resided at the time of entering 

### service. does not vloliste

the 14th Amendmexit'to the UnitedStatesConstitution.

Yoursvery 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 MalcolmL. Quick ErnestForteriberrv 

### PaulRobertson

APPROVED

FOR THE ATTORNEY GENERAL By: 

### StintonStone

-851- !

I