C

Honorable John R. Shook CriminalDistrict Attorney San Antonio, Texas

Dear Slr: OpinionNo. o-3281 Re: 1. Right of aliens, under conalYour written request department has been received your lettera8 follows: asking for an opinion from this and considered. We quote from

"1

. Is an alienwho resided in the State of tions stated to vote upon becomlngnaturalized. 2. Does the Tax Assessor and Collectorhave authority to change a naturallzed alien's name from the aliens poll list to that of the regular qualified electorspoll list? 3. Should the election judgesallow
a naturallzedalien to vote, under the facts submitted?

Ttixas,

County of Bexar, and City of SanAntonio, on January lst, 1940, and who has sincebeen a resident of Texas and the County of Bexar and who paid his poll tax as provided by law before February lst, 1941, and who became a citizen of the United States of America after February lst, 1941, and before the date of the election entitled to vote at such election ln Bexar County, Texas, if otherwisequalUied?

"2

. Is an alienwho resided in the State of TBxas, County of Bexar and City of SanAntonio, on January lst, 1941, and who has resided in the State of Texas for one year and in Bexar County, Texas, for more than six months preceding the Electionat which he desires to vote, and who has paid his poll tax as providedby law before February lst, 1941, and who became a citizen of the United States of America after February lst, 1941, and before the date of the eleCtion, entitled to vote at such election InBexar County, Texas, if otherwise quallfled?Honorable John R. Shook, page 2 o-3281

“3. If qualified to vote at such election in either or both of the above cases,what mode
or procedure shallbe followedby the Tax Collector with regard to removing the name of such alien from the allen poll tax book and alien poll list of the precinct inwhich he resides and placing the name of such alien inproper poll tax book and precinct poll list?

“4. If the Tax Collectorunder the law isunable to make the corrections set out in the third question hereof, then, is it the duty of the election officials to permit the holder of such alien poll tax to vote upon satisfactoryevidence that he has become a citizen of the United States after February lst, 1941, and prior to the date of the election?"

Article 6, Section 1 of the Constitution of Texas, which constitutionalprovision haps as its counterpartArticle 2954,Revised Civil Statutes, 1925, as amended, contains both the constitutionaland the statutoryprovisions stating the classes of personswho are ineligibleor incompetentto vote.

Article 6, Section 2 of the same Constitutionand Artlcle 2955, Revised Civil Statutes, 1925, as amended, glve the qualifications of qualified electors. These qualifications
are that the voter must be a citizen of the United States and shall have resided in this State one year next preceding an electionand the last sixmonthswithin the county inwhich the electordesires to vote and provided that any voterwho'is subject to pay poll tax under the laws of the State of Texas shall have paid said tax before offering to vote at any election in this State and hold a receipt showing that saidpoll taxwas paid before the firstday of February next preceding such election.

Article 2959,Revised Civil Statutes, 1925, provides:

"Apoll tax shallbe collected from every person between the ages of twenty-one and sixty yearswho resided in this State on the first day, of January preceding Its levy, Indiansnot taxed, persons Insane,blind, deaf ordumb, and those who have lost a hand or foot, or permanentlydisabled, excepted. It shallbe paid at any time between the firstday of October and the first day of February following; and the personwhen he pays it, shallbe entitled to his ~$1 tax receipt, even if his other taxes are unpaid.Honorable John R. Shook, page 3 o-3281

Article 2963, Revised Civil Statutes, 1925, provides in part as follows:

"All tax receipts Issued for any year after January 31st shallbe stamped on the face thereof: 'Holdernot entitled to vote,' and the names of the holders of suchpoll tax receipts shallnot be included In the list of qualified voters."

We call attention to the last paragraph of Article 2965, Revised Civil Statutes, 1925, as amended,which provides
as follows:

"If from the informationon the poll tax receipt above required, it appears that the party receiving the same isan alien, he shallbe given
a receipt from a book speciallyprepared for alien taxpayers,which book is hereinafterprovided in this Title, and the Tax Collectorand the Commlssioners Court or other authoritiesproviding said poll tax receipt shallhave printed on the face of said receipt theword 'alien,'which said printing shall not be less than two (2) inches in height, superimposed in outline type, and printed in red ink."

We quote the last sentence of Article 2970,Revised Civil Statutes, 1925, as amended,which reads:

"When the tax receipt or certificate isdelivered to the citizen, it shallbe detached from the book and retained 'byhim for his future use and identificationin voting, and at the time 

### said books
are made, the Commissioners Court shallprepare a separatebook for each precinct as herein provided which shallbe marked 'AlienPoll Tax Receipt Book' and if the tax certificateprovided for inArticle 2965 of this Chapterdiscloses that said applicant Is an alien then the Tax Collector shall issue from '* the book marked 'AlienPoll Tax Receipt Book' a receipt to said applicantwhich shall have printed
on the face of said receipt the word 'alien'not less than two (2) inches In height, superimposed in outline type, printed In red ink,and in order that the Tax Collectormay carry out this provision, it shallbe the duty of the CommissionersCourt to provide the separatebook as herein set out and have the receipt prepared In s,aid book in conformitywith the above provision.Honorable John R. Shook, page 4 o-3281

We also call your attention to the last paragraph of Article 2975,Revised Civil Statutes, 1925, as amended,which reads:

"At the time the Tax Collector-makesup his lists of voters as hereinprovided, he shall at the
same time on a separate list make up a list of alien poll taxpayersand shallmark at the-top of'saM list the words 'AlienPoll Taxpayers,' and.such list shall~'be

delivered at the same time and tha sameman-~ ner, and to the same officialsas hereinaboveprovided for other poll tax lists, and.the lists of qualified voters in said county and the variousprecincts of said county. Such certified lists of qualified~

. voters and lists of alien taxpayers shall be in the following form:

II

. . . . . "And the same form shallbe used with reference to the list of alien taxpayers furnished the officials
as provided in thisArticle."

It will be noticed that the above Article, in the first paragraph; not quoted, expresslyprovides the procedure for a Tax Collectorto follow inmaking out the lists of qualified electors and.

also the procedure to be followed in furnishing the s~upplemental

lists not less than fourdays priorto any'primary or general election in instanceswhere the qualified electors have removed to another votingprecinct of the city
or town of a certain population. Itwill be noticed that nothing in the firstparagraph has to do with the furnishing of supplemental lists to alien poll taxpayers.

We quote fromArticle 3005,Revised Civil Statutes, 1925, as follows:

"One election judge shallreceive from the voter his poll tax receipt or certificate of exemption, when he presents himself to vote; the voter shall announce his name, and the judgeafter comparing the appearance of the partywith the description given in the certified list of qualified voters '. of the orecinctmade out by the county collector, and belnc satisfied that itaccords therewith. shall pronounce in an audible voice the name of-thevoter, and his number as given In the list of aualified voters. If the voter has lost,mislaid or left at home his receipt or certificate,and shallpresent his affidavit of that fact, and-if his appearanceHonorable John R. Shook, page 5 o-3281

tallieswith that given for the same number and
name on the list of qualified voters, or if the voter presents his affidavit of removal from some other precinct or county, in caseswhere the same is permittedby this title, togetherwith his recelpt or certificate or affidavit of the loss thereof, and the judgesof election shall be satisfied that he paid his poll tax or received his certificate of exemptionbefore the firstday of the preceding February, the judge shall In like manner pronounce in an audible voice the name and number of the elector on the certified list~ofqualified voterswith the word, 'correct.'n (Emphasisours)

An examination of Chapter 5 of Title 50 of the Revised Civil Statutes ofTexas, 1925,dealing with "suffrage"will clearly show that the Legislature of this State has carefully made a separateprocedure for the Tax Collector to follow in making out the regular poll list, issuingpoll tax receipts, the type of poll tax receipts, from the regular qualified electors who are possessedwith all of the constitutionalrequirements as of February first of each respective gear, and those personswho are aliens as of the samedate.

The Constitution (Article6, Section 2) and Article 2955, Revised Civil Statutes, 1925, as amended, clearlyprohibit aliens from voting. 16 Tex. Jurls., Sec. 33, page 43 and cases cited.

Article 6, Sectlon 4 of the Constitutionof Texas provides that the Legislature shall have certainpowers in connectionwith elections,as follows:

"Inall electionsby the people the vote shall be by ballot and the Legislature shall provide for the numbering of tickets and make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box and the Legislaturemay provide by law for the registrationof all voters in all cities containinga population of ten thousand inhabitantsor more. Although the Constitutionprovides that "allpolitical power is inherent in the people" it has been asserverated that the exercise of the elective franchise is not a right that is natural God-given, alienable, or inherent,but Is, as the word "franchise"implies,a right conferredby the State or bodies politic. The right of suffrage is not includedamong the rights of property or person. It is conferredby the Constitution; and, although it is not to be taken away exceptby a clear com-Honorable John R. Shook, page 6 0-3281

mand of the law the elector takes the right subject to constitutional limitations. 16 Tex. Juris., pages 37-39, inclusive.

It has been held, as a general proposition, in the dase of Campbell,Mayor, et al v.~Wright, CountyAttorney et al, 95 S.W. (2a) 149, at page 152, as follows:

"Nocitizen qualified to vote in this State should be denled that right or deprived of the exercise of that privilegeand duty, exceptupon a very definite legal ground or upon a clear showing tQat he has not intentionallyor wilfully failed
or refused to complywith the law forming the basis of such rights."
Concerning the power of the Legislature to regulate, the right of suffrage it is said in 16 Tex. Juris.,pages 40
ana 41, as follows:

H B 31. Regulation by Leg~islature.-- Except as restrictedby the organic law of the land -- the constitutions of the United States and Texas -- the legislature has full power and authority to deal with the subject of suffrage in any electionwhich may be required,or authorizedby law. Indeed the constitution contemplates that the legislature shall have power to exercise some control over the right of suffrage, for itprovides among other th%ngs that I.....the legislature shall e n +make such

. . .regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box.

. . .I And, while the legislaturemay not deny to anyone the right of suffragegranted in the constitution, itmay enact laws and regulations intended fDr the preservation of order in elections, to guard against and punish fraud and undue influence,and imposereasonable and proper limitationsupon the right of suffrage. Inasmuch
as the power has been confided to the legislature by the constitutionwithout defining limits to its discretion, the power includesboth judicialand executive attributes. Thus it appears that the elector takes the right to vote subject to such regulations as the legislaturemay properly impose."

As indicatedabove, the Legislature has been given~certain powers,within its scope of lawful legislation,regulating the right of suffrage. Clearly, the Cohstitutionhas given the Legislature the power to provide the means of registering or recording the number and, name, in voting precincts, of qualifiedHonorable John R. Shook, page 7 O-3281

electors in each respective county of the State of Texas and this can probablybe saidnot only to be a matter of facilltating the handling of an electionbut also isa means to preserve the purity of the ballot box by cutting down the chances of fraudulentvotes being cast. See Yett v. Cook, (Sup.Ct.), 281 S.W. 837.

A careful examination of the separate statutes in Chapter 5 of Title 50, dealing with suffrage, shows that exemptions from the payment of a poll tax are provided for in certain instances. In none of these instances enumerated in the statutes do we findwhere an alien is entitled to an exemption from the payment of a poll tax.

In Article 2966, Revised Civil Statutes, 1925, provision Ismade for a citizen, in a city of ten thousand inhabitants,who moves to anotherward.or voting precinct to have his name put on the proper tax roll provided he appears before the Tax Collector not less than fivedays before such election or primary electionand obtains his corrected receipt
or certificate. In no place do we findwhere suchprovision ismade to apply to an alien or to a naturalized alien.

We believe the Legislature has acted within the scope of itspower, as given to it by Article 6, Section 4 of the Texas Constitution, in providlng for the existingmanner of registering, separately,qualified electorsand aliens liable for the pagment of the poll tax, in order to preserve the purity of the ballot and. prevent aliens from being placed on thesamepoll list with regular qualified electors. Yett v. Cook, supra. We, likewise,believe that the Legislature, In the exercise of that power anfi having failed to provide a means of transfer of an alienwho, after paying his poll tax, becomes
a naturalized citizen, to the proper list of regular qualified electors, has not exceeded Its lawfulpower, by thus depriving such persons of the right to vote.

From all of these observations,we believe, that under the circumstances submitted inyour first proposition, that where an alien, subsequent to February 1, 1941,becomes a naturalized citizen of the United States, that the Legislature has not seen fit and that it has never been its intentionto provide that such a naturalized citizen shallbe entitled to vote at an electionduring that year. It is obvious that the Legislature has made a clear and marked distinctionbetween regular qualified electorsand an alienwho has paid his poll tax for which he would be liableunder the provlslons of Article 2959. We believe that the specificprovisions,referred to above, dealing with the transfer or regular voters from-one voting list to another regular voting list, by implication, clearly shows that the Legislaturedid not intend for suchHonorable John R. Shook, page 8 0-3281

naturalizedaliens to be transferred from the alien poll list to that of the regular poll list and therebyplace~suchnaturalized aliens on the list of regular qualified electors.

Since we have been unable to findwhere the Legislature has provided for the transfer of said aliens to the regular voting listwhen said alien becomes a naturalized citizen and since the Legislatureby Article 3005 has expresslyprovided that election judges shallascertain the voter's right to vote by consulting thelistof qualified voters furnished~ by the Tax Assessor and Collector,and for all of the fore- "~ going reasonswhich we have discussed and in view of the constitutionaland statutoryprovisions heretofore enumerated and the rulings and the authorities cited,we are of the " opinion,,andyou are so advised, in answer to your firstproposition, that it is answered in the negativeand that the alien who has become a naturalized citizen subsequentto February 1, 1941, isnot entitled to vote at an electionduring the year 1941.

We can find no substantialdifference in the facts submitted inyour secondpropositionwhich would change the ruling and our opinion,as has been expressed in answer to your first proposition,and you are therefore advised that your secondproposition is answered in the negative for all of the reasons given In answer to your first proposition.

In answer to your third proposition,we call your attention to our discussion in answeringyour first proposition, to the effect that then Legislature has not made any provision for the Tax Assessor and Collector to remove the person from the alien poll list and place saidperson on the list of regular qualified electors. The statutesdealing with the poll list are mandatory. Yett v. Cook, supra. For the ~'~
reasons given in answer to your first propositionyou are respectfully advised, that it is our opinion that the Assessor and Collector of Bexar County,Texas, under the existing laws, does not have the power nor is it his duty to transfer a personwho appears on the alien poll tax roll to the regular qualified electorpoll list.

In answer to your fourthproposition,you are advised that election officialswho are chargedwith the duty and responsibility of holding an electionhave no power except that which is expresslygiven by law and thatwhich isnecessarily implied to carry out those expresspowerswith a view of holdinga valid and lawful election inwhich the will of the electorate shallbe fairly and honestly expressed. The statutes of this State havewith great particularity,defined what the duties of election judges shall be and have provided forHonorable John R. Shook, page 9 O-3281

criminalprosecution of such officials if suchduties are not properlydischarged. See Chapter 8 of Title 50, Revised Civil Statutes, 1925, and Title 6 of the Penal Code of the State of Texas, 1925. We believe that under this pattern of the election laws and in view of what has already been said in our discussion and since there isno such express provisiongiven by law that election judgeswould have no power and neither would itbe their duty, to allow an alien who became's naturalized citizen, under the facts of your first and secondpropositions, to vote at an election if his name was not properly upon the regular election rolls in the manner heretofore discussed and required by law.

We trust thatwe have fully answered your inquiry.

Yours very truly

ATTORNEYGENERAL OF TEXAS

By s/HaroldMcCracken Harold McCracken

Assistant

HM:db:wc

APPROVED JUN 20, 1941 s/Grover Seller9 FIRST ASSISTANT ATTORNEYGENERAL
This opinion considered and approved in limited conference.