July 15, 1948

Hon. Perry L, Jones County Attorney Travle county Austin, Texas Opinion No. V-635

Re: Legality of personnel of the Regular United States Air Foroe voting in Texas elections

Dear Mr. Joneet

Reference la made to your letter of recent date wherein you request our opinion on the above captioned matter. We quote from your letter at3 followa:

“I received the enclosed letter from the Legal Officer out at SergstromFleld.

“You will note he 1~ askingwhether members of the RegularAir Foroe personnel
come under Article 5 Sections; 1 and 2a of the Constitutionof Texas which prohibits. voting by Regular Army and Ravy personnel.

‘1 do not have the Federal statutes pertainingto the consolidation of the Army and Navy, however, it is my understanding, and belief, that the Regular Air Foroe parsonnel Is now a part of the RegularArmy and Navy defense set-up. However, this quea,tlon is one of state wide interestand I believe should be passed upon by your offlce rather than by mysrlf.*

In 1947, the 80th Congres’s, First Session, passed the ‘NationalSecurityAct of 1947.” W4 quote from the pertinentportions of aaid Act found in U. S. Code, Congressional Service, 80th Congress,page4 503- 507%

“Sec. 201. (a) There Is hereby establlshedthe NationalMilitary Establishment, and the Secretaryof Defense Shall be the head thereof.Bon. Perry L. Jones, page 2 (V-635)



## l (b) The I?atlonal YlilltAry Est~bllrhnmnt shall consist 

## of the Dspartnumtof.tbo Army, the departmentof the Havy, snd the Departmentbf the Air Force, togethertith all other agencies createdunder title II of this Act.

. : '.'

%4c. 208. (a) The United States Air Force Is hereby establishedundsr th4 Dapartment of the Air Force. ;The Army Air Forces, ths Air Corps, United StatesArmy, and the GeneraLHeadquartersAir For04 (Air Force Combat Comma&l), shall be transferred to the United StatesAir Force.

*(b) There shall be a Chief oi Staff, United States Air Force, who shall be appolntccl by the President,by and with the advice and consent of the Senate, for a term of four years from among the officers of &enera1 rank who are assigned to or commissioned in the United States Air Force. JJnder the dlrectlonof'the Secretaryof ths Air **Forze** 3 the Chief of Staff, United StatesAir Force, shall exercise command over the United States Air Force and shall be chargedwith the duty of carrying into executionall lawful orders and directions wLM.ch my be transmltted to him. The functionsof the Cmmanding General,General Headquartem Air Force (Air Force Combat Cc&and), and of the Chi4f OS the Air Corps and of the Dcminanding G4mmi1, Army Air Forcea,;shall be traneferrddto th4 Chief of Staff United States Air Force. When such transferbecomes effective,the offices of the Chief of the Plr Corjm, Unlted Statea Army, and Assistant@to the Chief of the Air Corps, United States)Arm~r,,'~~ro"lded for by the Act of June 4, 1920, as amended (41 Stat. 768), and CommandingGeneral:General Headquarters

Air Force, provided for by Seotion 5 of the Act of June 16,' 1936 {49 Stat. 1525), shall ceas4 to exist. while holding oifice as,Chief of Staff,, United States Air' Foro4, the incumbent,s'bahi hold a grade and receive allowancesequivalentto those prescribed by law for the Chief of Staff,United StatesArmy. Ths Chief of Staff, ZTnited States Army, the Chief of Ipaval Operations,Bon. Perry L. Jones, page **3 (V-635)** 

and the Chief of Staff, United States Air Force, shall take rank among thsmselvssaccording to their relative date@ of appolntment as such, and shall each take rank l bot4 all other officerson the aotlve list of the Army, Ravy, and Air Force: PROVIDRD,That nothing in this Act shall have the effect of changing the relative rank of the present Chief of Staff, United States Army, and the present Chief of Naval Operations.

*(c) Ail commissioned officers,warrant officers,and enlistedmen, commissioned, holdingwarrants, or enlisted, in the Air Corps, United States Army, or the Army Air Forces, shall be transferredin branch to the United States Air Forc4. All othsr cotiosioned officers,warrant officers,and enlisted men, who are con~nission4cl, hold warrants, or are enlisted,in any ccmpcmrnt of the Army of the Unit4d State8 and who are under the authority or commend of the Commanding General,Army Air Forces, sball be continuedunder th4 authority or command of the Chief of Staff; United States Air Force, and under the jurladiotlonof the Department of the Air Force. Personnelwhose status is affected by 'th3.8 rubsectionshall retain their exletlng commissions, warrants, or enlisted status in existing componaats**of** the armbd forcea unless otherwisealtered or terminatedIn accordance with existing law; and they shall not be deemed to have been appointed to a new or differentoffice or grade, or to have vacated their permanent
or temporaryappointmentsin an existing componentof the annea forces, solely by virtue of any change in status under this subsection. No such change in status shall alter or prejudice the status of any lnd$vldual 80 assigned so a8 to deprivehim **of** any right, benefit, or privilege to which he rpay be entitledunder existing Law.
y(d) Except as otherwisedirsoted by the Secr4targ of the Air Force, all property, r4cords, in4tallatlons, agsncies,activities
, projects,and civilian pereonu41 under the jurisdiction, COntrOl, 4UthOrity,Hon. Parry L. Jones, page 4 (V-635)

or commnd of the CommandingGeneral,Army Air Forces, shall be continuedto the same extent under,

the jurisdiction,

control,authority, or conunand, respectively,of the ChLLef OS ,Staff,

United StatesAir Forue, in the Depa&nent of the Air Forcr.

“(0) For a period of two Years from the date of enactment of this Aot. person-’

he Air Force by direction of the Secretary of .Defense

.” (Emphasisadded. 1

The last sentence’ of section 1 of Article III of the Texas~

Constitutionof 1845 reads as follows: (I and provided further, that no soldiei,‘seaman,or marine in the Army or Navy of the United States ahall be entitled to vote at any election createdby thi8 Constitution.”

A eimllar provisionwas containedin all the Constitutions

ado ted by this State subsequentto the Constltutronof 1845, and we call your particularattention to a part of section 1 of Article VI of the Constitutionof 1876, which reads as follows:

tlon *The Pollming classes of persons shall not be allowed to vote in this State, to-wit: . l .
“Fifth@ AI1 soldiers,marines an4
seamen, employed iri the service of”tba Army or Navy of the United States.

In 1932~

the above provision of the Constituwas amendedby adding thereto the following%

“Providedthat this restrictionshall not apply to officers of the NationalGuard, of Texas, the NationalGuard Reserve, the OfficersReserve Corps of the United States,
nor to enlistedmen OS the NationalWard, the NationalGuard Reserve,and the Crganized Reserves of the United States, nor to.

Hon. Perry L. Jones, page **5 (V-635)** 

retired officers of the United States Army, ??a*~, and Marine Corps, and retired warrant officersand retired enlistedmen of tti United States Army, Navy, and Marine Corps.'

Hot only was the above provision in sootion 1 of ArticleVI of the Texas Conntitution anientled

80 as to allow the above named pergnxral of the Arpraa

Services to vote, but at the atune time seotions **33** #nd 40 of Artlcle XVI of ths Oonetitutloa were ala0 amnaea a0 as to allow them to hold **publio** offices.

In order to answer your quest&on,it is necessarg for us to determine the meaning of the provision containedIn our various Constitutions relative to the prohibitionagainst service men voting. and particularly the provisionin our Constltutionof 1676,and the amendment to the same 8s adopted In 1932. In doing this, we call your attention to the statementof the Supreme Court in the case of Travelers InsuranceCompanyv. Marshall, **124 ‘** **Tex. 45,**  **76** S.W.(2d) 1007, which is as follows:

“The meaning which a oonstltutional provisionhad when adopted, it had today; its intent does not change with time nor with conditions;

while it operatesupon
new subjectsand changed COnditiOns,it operateswith the same meaWn& and Intent which It had when formulatedand adopted. 9 Texas Jur. t’ 427; Sec. **18; 6**  Ruling Case Law, p. 6, Sec. 39; Cooley's ConstltutlonalLimitations (8th Ed.) vol. 1, p. 123. As Jud?;e

Cooley saysr ‘A **COn$tttU** tion is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have

so changed a8 perhaps to make a different rule in the case seem desirable. *** It is with special reference to the varying moods of public opinion,and with a view to putting the fundamentalsof government beyond their control, that these instruments ore framed

. . . THE MEANING OF THE CONSTITUTIONIS FIXED WHEZN IT IS ADOPTED, AND XT IS NOT DIFFERENTAT m SW%%- ~;W&TT;.E$ifN A COURT HAS OCCASIONTO

Oooleg~s Const. **1, pp.**  **123,** i24 (ItaEics OUP~).”Urn. vol.Hon. Perry L. Jones, Page 6 (v-535)

The members of tile Constitutional Conventions of 1845 and 1875 and the votere of Texas who adopted the above quoted provisionin 1876 which deprived ‘allysoldiers,marines and seamen,employedln the service of the Army OF Navy of the United States“ from voting at electionsin thls Stat&, certainlyintendedto exclude all members employedIfa any branch of the Armed Services of the Unlted States’ from voting at el,ectlons In this State. We are sustainedin this conoluslon by the.holdlng of the court in ‘t& case of Savage‘v.Humphri$s,118 S.W; 893, renderedpribr to the 1932 amendment,wherein the court held that .Bmember of the NationalGuard employed in the seiVlce of the Army of the United States
was not entitled to vote under the State Constitution. Thfs holding,

is very slgnlficantin view of ths fact that the vords “TexasNatlonalGuard” were not used In the constltutlonal provisionof 1876 that the oourtwas ccnstrulngin the instant case, and what is more, the Texas NationalGuard was not authorlsed nor organleeil until 1903. (See Senate BillJL.5, Aots of the 28th Legislature,Regular Sessirin, 1903, p. 206, and the blennial repo&s **of** the AdjutantGeneral for the years 1903- 104).

z Also, in the case of State v. Degress,53 Tex, 3 7, the oourtheld that the retired officers constitute

a part of the Army of the United Staten and a8 a ooneequenos are held to oooupy,anoffloe of profit or trust under ths United Stateswlthln the meanin or Article XVI, seotlon33 of ths Oonstitutlon. (ThL aeoision

was also penderedprior to the amendment**of** 193?),

From the forseolngit &an be clearly seen that ths spirit and Intent of the provielonoontainedin **the** aonstltutionof 1876 prohibited all membeirs

of the Armql Foroes,,,of the United StatesGoverrlrnent from voting in eleotibnsin this State, regardlessof whether they were known by the name of soldiers, marines, or seamen ln’ the service of the Army **or** Nary of the United States, or by

some similar or comparable name. Of course,a8 times ana conditionshave changed,we have gone through two of the most deVa8tRting wars in the history of the Nation, and it has been necessarythat the Armed.Forcesof the United States be reorganizedfrom time to time so as best to aope with the emergencies. But at the 881118 time, we tunk it is Immaterial ds to the name 0~ names by which said branahesof the Armed Forces have been knOXn. As stated in the case of TravelersInsuranoeCo. v. Manshall,

“A ConstitutionIs not to be made to mean one thing ~~“~~ time and another at some subsequenttime when the circumstances

may have so changedas perhaps to make aHon. Perry L. Jones, page,7 (v-635)

differentrule in the case seem desirable.U The meaning of the Constitutionis tix0a when it 1s adopted, and It is no differentat any subsequenttime, and the same aan only be changed by a V&e of the people in a proper election oallea for that purpose.

In 1932 the voters of this State adopted an amendment to section 1, Article VI, which excludes from the provision thereof officers of the NationalGuard of Texas, NatlonalGuard Reserve, OfficersReserve Corps' of the United States, enlistedmen of the NationalGuard, the National **Guard** Reserve, OrganizedReserves of the United States, retired offloersof the United States Army, Navy ana Marine Corps, and retiredwarrant officersand retired enlistedmen of the United StatesArmy, Navy and Marine Corps.

From the effectivedate of the amendment of 1932 it was intended that all persons above named could partlclpateIn the elections of this State provided they possessed the other necessary qualifications for voting. However, if the members of the Armed Force6 of the United States are to come wlthln one of the above enumeratedexceptions, then they muat cIearlg bring themselvesthereunder. As stated by the Supreme Court ln the case of Cramer v. Sheppard, 140 Tex. 271, 167 S.W.(2d) 147, "In construing or interpretingthe constitutional and statutory provisionswhioh **define** a general rule and then provide exceptionsthereto, **one** clalmlngunder,,theexception must clearly brl* himself thereunder.

To our minds, the rule has not been met in 'this Instance for the members of the Regular United States Air Force cannot clearly come under the exceptions contained in subsection5, section 1, Article VI of our Oonstltution. Also, you will observe from reading thz "National.

SecurityAct'of 1947" that "no such change in status ahall alter or prejudice the status of any lndlvldual so areigned, so as to deprive hlm of any right, benefit or prlvllege to which he may be entitled under existing law.' Certainly,the lVationa1 Congress did not ,intend to deprive **a** member of ~the Regular Air Force of the United States of any privilege **or** benefit that he might be entitled to.upder the existing law. On the other hand, it did not intend'togive such individual any special right, benefit or privilege‘notenjoyed by the other members of the RegularArmed Forces of the united States.

In addition to the f&gc)ing, you will observeHon. Perry L. Jones, page 8 (V-635)

from reading the underlinedportion of the NationalSecurityAct above quOted’j,,?that for a’perlod of two years from the enaotment o? saM Act, military personnelmay be transferred

betwem the Departmentof the Arb and the Departmentof the Regular Air Force by dlreotlon of the Secretaryof Defense. This clearly showa, that at least for two years it is possiblefor the members of the Regular Air Forces of the United States to also be members of the Regular Army, or for the members of the Regular Army to be members -ofthe RegularAir Force. Further, a careful study **of** the entire~“Nationa1Security Act of 1947” oonvincesqs that the personnelof the Regular United StatesAir, Porte :,come

vithln the prohlbitioa oontainedin subaactlon5,>seotion1, Article VI of the Texas Conetitutioh, .anait is, .therefore, our opinion that they cannot vote at the eleotlonsheld in this State.

plembers.of

the Regular United States Air Force are prohibitedfrom voting at eleotlonaIn tNa State. Subrectlon5, seotlpn 1, Artiole VI, Texas Coaatltutlon.

., Yours very,,. truly, ‘W

ATTORNEY ‘OENERAL

CP’ TEXAS

JCD: wbs mw 

## . C. Davla, Jr.

APPROVEDt ‘d’

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