C 

Honorable John R. Shook 

Criminal District Attorney 

San Antonio, Texas 

Dear Slr: Opinion No. o-3281 

Re: 1. Right of aliens, under conalYour written request 

department has been received 

your letter a8 follows: 

asking for an opinion from this 

and considered. We quote from 

"1 . Is an alien who resided in the State of 

tions stated to vote upon becomlng naturalized. 2. Does the 

Tax Assessor and Collector have 

authority to change a naturallzed 

alien's name from the aliens poll 

list to that of the regular qualified electors poll list? 3. 

Should the election judges allow 

a naturallzed alien to vote, under 

the facts submitted? 

Ttixas, County of Bexar, and City of San Antonio, on 

January lst, 1940, and who has since been 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 otherwise qualUied? 

"2 . Is an alien who resided in the State of 

TBxas, County of Bexar and City of San Antonio, 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 Election at 

which he desires to vote, and who has 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 In Bexar 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 shall be followed by 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 in which he resides and placing 

the name of such alien in proper poll tax book and 

precinct poll list? 

“4. If the Tax Collector under the law is unable 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 satisfactory evidence 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 constitutional provision haps as its counterpart Article 

2954, Revised Civil Statutes, 1925, as amended, contains both 

the constitutional and the statutory provisions stating the 

classes of persons who are ineligible or incompetent to vote. 

Article 6, Section 2 of the same Constitution and 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 

election and the last six months within the county in which 

the elector desires to vote and provided that any voter who' 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 said poll 

tax was paid before the first day of February next preceding 

such election. 

Article 2959, Revised Civil Statutes, 1925, provides: 

"A poll tax shall be collected from every 

person between the ages of twenty-one and sixty 

years who resided in this State on the first day, 

of January preceding Its levy, Indians not taxed, 

persons Insane, blind, deaf or dumb, and those 

who have lost a hand or foot, or permanently disabled, excepted. It shall be paid at any time between the first day of October and the first day 

of February following; and the person when he pays 

it, shall be 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 shall be stamped on the face thereof: 

'Holder not entitled to vote,' and the names of 

the holders of such poll tax receipts shall not 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 information on the poll tax receipt above required, it appears that the party 

receiving the same is an alien, he shall be given 

a receipt from a book specially prepared for alien 

taxpayers, which book is hereinafter provided in 

this Title, and the Tax Collector and the Commlssioners Court or other authorities providing said 

poll tax receipt shall have printed on the face of 

said receipt the word '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 is delivered to the citizen, it shall be detached from 

the book and retained 'by him for his future use and 

identification in voting, and at the time said books 

are made, the Commissioners Court shall prepare a 

separate book for each precinct as herein provided 

which shall be marked 'Alien Poll Tax Receipt Book' 

and if the tax certificate provided for in Article 

2965 of this Chapter discloses that said applicant 

Is an alien then the Tax Collector shall issue from '* 

the book marked 'Alien Poll Tax Receipt Book' a receipt to said applicant which 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 Collector may carry out this provision, it 

shall be the duty of the Commissioners Court to 

provide the separate book as herein set out and 

have the receipt prepared In s,aid book in conformity with 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-makes up his 

lists of voters as herein provided, he shall at the 

same time on a separate list make up a list of alien 

poll taxpayers and shall mark at the-top of'saM 

list the words 'Alien Poll Taxpayers,' and. such list 

shall~'be delivered at the same time and tha same man-~ 

ner, and to the same officials as hereinabove provided for other poll tax lists, and. the lists of qualified voters in said county and the various precincts 

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 shall be used with reference to 

the list of alien taxpayers furnished the officials 

as provided in this Article." 

It will be noticed that the above Article, in the first paragraph; not quoted, expressly provides the procedure for a Tax 

Collectorto follow in making out the lists of qualified electors and. also the procedure to be followed in furnishing the 

s~upplemental lists not less than four days prior to any'primary or general election in instances where the qualified 

electors have removed to another voting precinct of the city 

or town of a certain population. It will be noticed that nothing in the first paragraph has to do with the furnishing 

of supplemental lists to alien poll taxpayers. 

We quote from Article 3005, Revised Civil Statutes, 

1925, as follows: 

"One election judge shall receive 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 judge after comparing the appearance of the party with the description given in the certified list of qualified voters '. 

of the orecinct made out by the county collector, and 

belnc satisfied that it accords therewith. shall 

pronounce in an audible voice the name of-the voter, 

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 shall present 

his affidavit of that fact, and-if his appearance 
Honorable John R. Shook, page 5 o-3281 

tallies with 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 cases where the same 

is permitted by this title, together with his recelpt or certificate or affidavit of the loss thereof, and the judges of election shall be satisfied 

that he paid his poll tax or received his certificate of exemption before the first day 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 ~of qualified 

voters with the word, 'correct.'n (Emphasis ours) 

An examination of Chapter 5 of Title 50 of the Revised 

Civil Statutes of Texas, 1925, dealing with "suffrage" will 

clearly show that the Legislature of this State has carefully 

made a separate procedure for the Tax Collector to follow in 

making out the regular poll list, issuing poll tax receipts, 

the type of poll tax receipts, from the regular qualified electors who are possessed with all of the constitutional requirements as of February first of each respective gear, and those 

persons who are aliens as of the same date. 

The Constitution (Article 6, Section 2) and Article 

2955, Revised Civil Statutes, 1925, as amended, clearly prohibit aliens from voting. 16 Tex. Jurls., Sec. 33, page 43 

and cases cited. 

Article 6, Sectlon 4 of the Constitution of Texas provides that the Legislature shall have certain powers in connection with elections, as follows: 

"In all elections by 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 Legislature may provide by law for the registration of all voters in all cities containing a 

population of ten thousand inhabitants or more. 

Although the Constitution provides that "all political 

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 conferred by the State or bodies 

politic. The right of suffrage is not included among the rights 

of property or person. It is conferred by the Constitution; 

and, although it is not to be taken away except by 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, County Attorney et 

al, 95 S.W. (2a) 149, at page 152, as follows: 

"No citizen qualified to vote in this State 

should be denled that right or deprived of the 

exercise of that privilege and duty, except upon 

a very definite legal ground or upon a clear showing tQat he has not intentionally or wilfully failed 

or refused to comply with 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 restricted by 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 election which 

may be required, or authorized by law. Indeed the 

constitution contemplates that the legislature shall 

have power to exercise some control over the right 

of suffrage, for it provides 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 legislature may 

not deny to anyone the right of suffrage granted 

in the constitution, it may enact laws and regulations intended fDr the preservation of order in 

elections, to guard against and punish fraud and 

undue influence, and impose reasonable and proper 

limitations upon the right of suffrage. Inasmuch 

as the power has been confided to the legislature 

by the constitution without defining limits to its 

discretion, the power includes both judicial and 

executive attributes. Thus it appears that the 

elector takes the right to vote subject to such 

regulations as the legislature may properly impose." 

As indicated above, the Legislature has been given~ certain powers, within its scope of lawful legislation, regulating 

the right of suffrage. Clearly, the Cohstitution has given the 

Legislature the power to provide the means of registering or 

recording the number and, name, in voting precincts, of qualified 
Honorable John R. Shook, page 7 O-3281 

electors in each respective county of the State of Texas and 

this can probably be said not only to be a matter of facilltating the handling of an election but also is a means to preserve 

the purity of the ballot box by cutting down the chances of 

fraudulent votes 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 find where an alien is entitled to an exemption from the 

payment of a poll tax. 

In Article 2966, Revised Civil Statutes, 1925, provision Is made for a citizen, in a city of ten thousand inhabitants, who moves to another ward. or voting precinct to have 

his name put on the proper tax roll provided he appears before the Tax Collector not less than five days before such 

election or primary election and obtains his corrected receipt 

or certificate. In no place do we find where such provision 

is made to apply to an alien or to a naturalized alien. 

We believe the Legislature has acted within the scope 

of its power, as given to it by Article 6, Section 4 of the 

Texas Constitution, in providlng for the existing manner of 

registering, separately, qualified electors and 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 thesame poll 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 alien who, after paying his poll tax, becomes 

a naturalized citizen, to the proper list of regular qualified 

electors, has not exceeded Its lawful power, by thus depriving 

such persons of the right to vote. 

From all of these observations, we believe, that under 

the circumstances submitted in your 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 intention to 

provide that such a naturalized citizen shall be entitled to 

vote at an election during that year. It is obvious that the 

Legislature has made a clear and marked distinction between 

regular qualified electors and an alien who has paid his poll 

tax for which he would be liable under the provlslons of Article 2959. We believe that the specific provisions, 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 Legislature did not intend for such 
Honorable John R. Shook, page 8 0 -3281 

naturalized aliens to be transferred from the alien poll list 

to that of the regular poll list and thereby place~such naturalized aliens on the list of regular qualified electors. 

Since we have been unable to find where the Legislature has provided for the transfer of said aliens to the regular voting list when said alien becomes a naturalized citizen 

and since the Legislature by Article 3005 has expressly provided that election judges shall ascertain the voter's right 

to vote by consulting the list of qualified voters furnished~ 

by the Tax Assessor and Collector, and for all of the fore- "~ 

going reasons which we have discussed and in view of the constitutional and statutory provisions heretofore enumerated 

and the rulings and the authorities cited, we are of the " 

opinion,,and you are so advised, in answer to your first proposition, that it is answered in the negative and that the 

alien who has become a naturalized citizen subsequent to February 1, 1941, is not entitled to vote at an election during 

the year 1941. 

We can find no substantial difference in the facts 

submitted in your second proposition which would change the 

ruling and our opinion, as has been expressed in answer to 

your first proposition, and you are therefore advised that 

your second proposition 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 answering your 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 said person on the 

list of regular qualified electors. The statutes dealing with 

the poll list are mandatory. Yett v. Cook, supra. For the ~'~ 

reasons given in answer to your first proposition you 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 person who appears on the alien poll tax roll to the regular 

qualified elector poll list. 

In answer to your fourth proposition, you are advised 

that election officials who are charged with the duty and responsibility of holding an election have no power except that 

which is expressly given by law and that which is necessarily 

implied to carry out those express powers with a view of holding a valid and lawful election in which the will of the electorate shall be fairly and honestly expressed. The statutes 

of this State have with great particularity, defined what the 

duties of election judges shall be and have provided for 
Honorable John R. Shook, page 9 O-3281 

criminal prosecution of such officials if such duties are not 

properly discharged. 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 is no such express provision given 

by law that election judges would have no power and neither 

would it be their duty, to allow an alien who became's naturalized citizen, under the facts of your first and second propositions, 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 that we have fully answered your inquiry. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Harold McCracken 

Harold McCracken 

Assistant 

HM:db:wc 

APPROVED JUN 20, 1941 

s/Grover Seller9 

FIRST ASSISTANT 

ATTORNEY GENERAL 

This opinion considered and approved in limited conference.