July 15, 1948 

Hon. Perry L, Jones 

County Attorney 

Travle county 

Aus tin, 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 Sergstrom Fleld. 

“You will note he 1~ asking whether 

members of the Regular Air Foroe personnel 

come under Article 5 Sections; 1 and 2a of 

the Constitution of Texas which prohibits. 

voting by Regular Army and Ravy personnel. 

‘1 do not have the Federal statutes 

pertaining to 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 Regular Army and 

Navy defense set-up. However, this quea,tlon 

is one of state wide interest and I believe 

should be passed upon by your offlce rather 

than by mysrlf .* 

In 1947, the 80th Congres’s, First Session, 

passed the ‘National Security Act of 1947.” W4 quote 

from the pertinent portions of aaid Act found in U. S. 

Code, Congressional Service, 80th Congress, page4 503- 

507% 

“Sec. 201. (a) There Is hereby establlshed the National Military Establishment, and the Secretary of Defense Shall 

be the head thereof. 
Bon. Perry L. Jones, page 2 (V-635) 

l (b) The I?atlonal YlilltAry Est~bllrhnmnt shall consist o f the Dspartnumt of.tbo 

Army, the department of the Havy, snd the 

Department bf the Air Force, together tith 

all other agencies created under title II 

of this Act. . : '.' 

%4c. 208. (a) The United States Air 

Force Is hereby established undsr th4 Dapartment of the Air Force. ;The Army Air 

Forces, ths Air Corps, United States Army, 

and the GeneraLHeadquarters Air For04 

(Air Force Combat Comma&l), shall be transferred to the United States Air 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 dlrectlon of'the Secretary of ths Air 

Forze 3 the Chief of Staff, United States Air 

Force, shall exercise command over the United 

States Air Force and shall be charged with the 

duty of carrying into execution all lawful 

orders and directions wLM.ch my be transmltted to him. The functions of 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 traneferrdd to th4 

Chief of Staff United States Air Force. When 

such transfer becomes 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 Commanding General: 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 allowances equivalent to those prescribed by law for the Chief of Staff, United 

States Army. 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 thsmselvss according to their relative date@ of appolntment as such, and shall each take rank l bot4 

all other officers on 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 enlisted men, commissioned, 

holding warrants, or enlisted, in the Air 

Corps, United States Army, or the Army Air 

Forces, shall be transferred in 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 

continued under th4 authority or command of 

the Chief of Staff; United States Air Force, 

and under the jurladiotlon of the Department 

of the Air Force. Personnel whose status 

is affected by 'th3.8 rubsection shall retain 

their exletlng commissions, warrants, or enlisted status in existing componaats of the 

armbd forcea unless otherwise altered or 

terminated In accordance with existing law; 

and they shall not be deemed to have been 

appointed to a new or different office or 

grade, or to have vacated their permanent 

or temporary appointments in an existing 

component of 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 deprive him of any 

right, benefit, or privilege to which he rpay 

be entitled under existing Law. 

y(d) Except as otherwise dirsoted 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 continued to the same 

extent under, the jurisdiction, control, authority, or conunand, respectively, of the 

ChLLef OS ,Staff, United States Air 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 .” (Emphasis added. 1 

The last sentence’ of section 1 of Article III 

of the Texas~ Constitution of 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 created by thi8 

Constitution.” 

A eimllar provision was contained in all the 

Constitutions ado ted by this State subsequent to the 

Constltutron of 1 8 45, and we call your particular attention to a part of section 1 of Article VI of the 

Constitution of 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 amended by adding thereto the following% 

“Provided that this restriction shall 

not apply to officers of the National Guard, 

of Texas, the National Guard Reserve, the 

Officers Reserve Corps of the United States, 

nor to enlisted men OS the National Ward, 

the National Guard 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 

officers and retired enlisted men of tti 

United States Army, Navy, and Marine Corps.' 

Hot only was the above provision in sootion 1 

of Article VI 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 

contained In our various Constitutions relative to the 

prohibition against service men voting. and particularly 

the provision in our Constltution of 1676,and the amendment to the same 8s adopted In 1932. In doing this, we 

call your attention to the statement of the Supreme 

Court in the case of Travelers Insurance Company v. Marshall, 124 ‘Tex. 45, 76 S.W.(2d) 1007, which is as follows: 

“The meaning which a oonstltutional 

provision had when adopted, it had today; 

its intent does not change with time nor 

with conditions; while it operates upon 

new subjects and changed COnditiOns, it 

operates with the same meaWn& and Intent 

which It had when formulated and adopted. 

9 Texas Jur. 

t’ 

427; Sec. 18; 6 Ruling 

Case Law, p. 6, Sec. 39; Cooley's Constltutlonal Limitations (8th Ed.) vol. 1, p. 

123. As Jud?;e Cooley saysr ‘A COn$tttUtion 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 fundamentals of government 

beyond their control, that these instruments ore framed . . . THE MEANING OF 

THE CONSTITUTION IS FIXED WHEZN IT IS ADOPTED, AND XT IS NOT DIFFERENT AT m SW%%- 

~;W&TT;.E$ifN A COURT HAS OCCASION TO 

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 provision in 1876 which deprived ‘ally soldiers, marines and seamen, employed ln the service of 

the Army OF Navy of the United States“ from voting at 

elections in thls Stat&, certainly intended to exclude 

all members employed Ifa any branch of the Armed Services 

of the Unlted States’ from voting at el,ectlons In this 

State. We are sustained in this conoluslon by the.holdlng of the court in ‘t& case of Savage ‘v. Humphri$s, 118 

S.W; 893, rendered pribr to the 1932 amendment, wherein the court held that .B member of the National Guard 

employed in the seiVlce of the Army of the United States 

was not entitled to vote under the State Constitution. 

Thfs holding, is very slgnlficant in view of ths fact 

that the vords “Texas Natlonal Guard” were not used In 

the constltutlonal provision of 1876 that the oourt was 

ccnstrulng in the instant case, and what is more, the 

Texas National Guard 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 Adjutant General for the years 1903- 

104). 

z 

Also, in the case of State v. Degress, 53 Tex, 

3 7, the oourt held that the retired officers constitute 

a part of the Army of the United Staten and a8 a ooneequenos are held to oooupy,an offloe of profit or trust 

under ths United States wlthln the meanin or Article 

XVI, seotlon 33 of ths Oonstitutlon. (ThL aeoision 

was also pendered prior to the amendment of 193?), 

From the forseolng it &an be clearly seen that 

ths spirit and Intent of the provielon oontained in the 

aonstltution of 1876 prohibited all membeirs of the Armql 

Foroes,,,of the United States Goverrlrnent from voting in 

eleotibns in this State, regardless of 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 

conditions have changed, we have gone through two of the 

most deVa8tRting wars in the history of the Nation, and 

it has been necessary that the Armed.Forces of the United 

States be reorganized from 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 branahes of the Armed Forces have been knOXn. As 

stated in the case of Travelers Insuranoe Co. v. Manshall, 

“A Constitution Is not to be made to mean one thing 

~~“~~ time and another at some subsequent time when the 

circumstances may have so changed as perhaps to make a 
Hon. Perry L. Jones, page,7 (v-635) 

different rule in the case seem desirable.U The meaning 

of the Constitution is tix0a when it 1s adopted, and It 

is no different at any subsequent time, 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 National Guard of 

Texas, Natlonal Guard Reserve, Officers Reserve Corps' 

of the United States, enlisted men of the National Guard, 

the National Guard Reserve, Organized Reserves of the 

United States, retired offloers of the United States Army, 

Navy ana Marine Corps, and retired warrant officers and 

retired enlisted men of the United States Army, Navy and 

Marine Corps. 

From the effective date of the amendment of 

1932 it was intended that all persons above named could 

partlclpate In 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 enumerated exceptions, then they muat cIearlg bring themselves thereunder. As stated by the Supreme Court ln the case of 

Cramer v. Sheppard, 140 Tex. 271, 167 S.W.(2d) 147, "In 

construing or interpreting the constitutional and statutory provisions whioh define a general rule and then provide exceptions thereto, one clalmlng under,,the exception 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 subsection 5, section 1, Article VI of our Oonstltution. Also, you will observe from reading thz 

"National. Security Act'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'to give such individual 

any special right, benefit or privilege ‘not enjoyed by 

the other members of the Regular Armed Forces of the 

united States. 

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

from reading the underlined portion of the National Security Act above quOted’j,,?that fora’perlod of two years 

from the enaotment o? saM Act, military personnel may 

be transferred betwem the Department of the Arb and 

the Department of the Regular Air Force by dlreotlon 

of the Secretary of Defense. This clearly showa, that 

at least for two years it is possible for 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 -of the Regular Air Force. 

Further, a careful study of the entire~“Nationa1 Security Act of 1947” oonvinces qs that the personnel of the 

Regular United States Air, Porte :,come vithln the prohlbitioa oontained in subaactlon 5,>seotion 1, Article VI 

of the Texas Conetitutioh, .ana it is, .therefore, our 

opinion that they cannot vote at the eleotlons held in 

this State. 

plembers.of the Regular United States 

Air Force are prohibited from voting at 

eleotlona In tNa State. Subrectlon 5, 

seotlpn 1, Artiole VI, Texas Coaatltutlon. 

., 

Yours very,,. truly, ‘W 

ATTORNEY ‘OENERAL CP’ TEXAS 

JCD: wbs mw . C. Davla, Jr. 

APPROVEDt ‘d’ 

.