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THE ATTOERNEW GENERAL 

OF%%CXAS 

Honorable Ted Butler 

Criminal Diatriot Attorney 

San Antonio, Texas 78204 

Opinion NO. M- 702 

Re: Whether oertaln tiilltm 

personnel are qualified 

to serve as jurors. 

Dear Hr. Butler: 

Your recent letter to thie offioe requesta our opinion 

a8 to the qualiflcatlone of milltary’pereonnel to serve as 

jurors. 

The Texas ConstitiM.on, Article XVI, Sectlon.19, relating 

to the qualifications of Jurors, provides that ?uoh qualifleations shall be preaorlbed by the Legislature. Artiole 2133, 

Vernon’s Civil Statutes, as last amended in 1969, reads, In 

part, a0 followe: 

“All persona both male and female over twenty-one 

(21) years of age are oompetent jurors, unleee disqualified under some provision of thie chapter. No 

person shall be qualified to serve a8 a jurop who doea 

not poeiess the following qualiflcatlons: 

1. He mu& be a oltlzen bf the etate and of the 

oounty,Sn which he Is to serve, and qualified, under 

the Constitution and lane to vote in said county; 

provided, that hla failure to register to vote a8 

required by law ehall not be held to diequalify him 

for jury eeyice In any instance. 

. . . 

It should be noted that the 1969 amendment of Artiole 

2133, aupra, deleted the requirement that a prospective 

juror be a freeholder in the State of Texas or a houeeholder 

In the County. 

Artiole 35.12, Vernon86 Code of Criminal Procedure, as 

laat amended in 1969, ,aontaine the following teet of quallflcations of a prorpeotive juror: 

“3. Exoept for payment of poll tax or regletratlon, 

are you a qualified voter In this county and state under 

the Constitution and lawa of thle state?” 

-3395- 
Honorable Ted Butler, page 2 (M-702) 

The 1969 amendment also deleted from this Artlole the teet 

relating to the prospeative juror’8 status as a freeholder 

In the State or a householder In the County. 

A "qualified voter" or "quallfled elector" as defined In 

the Texas Eleotlon Code, Article 1.018, %eanz a person who 

meet8 all qualiflcatlon8 and requirement8 for voting a8 prescrib&d In (Article 5.02) of this oode." The Texas Election 

Code, Article 5.02, Vernon*8 Civil Statutes, sets out these 

qualifications and requirement8 as follows: 

“Every pereon subject to none of the foregoing 

dl8quallflcatlone who 8hall have attained the age 

of twenty-one year8 and who shall be a oltlzen of 

the United State8 and who shall have resided In this 

state one year next preoedlng an election and the 

.laat~ six month8 within the district or county In which 

suob,person offers to vote, and.who ahall have 

registered a8 a voter, shall be deemed a qualified 

elector;" 

Article 5.02, aupra, was enacted pursuant to the Texas 

Constitution, Artlale 6, Se&Ion 2, and from 1963 until 

1965 provided that members of the Armed Force8 stationed in 

Texas were to vote only In the oounty of their residence at 

the time of their entry Into the service. This requirement 

had long been part of the aforementioned Constitutional 

provision. The effeot of auoh a provision was that a 

servlceman who moved his home to Texas, while In the aervlce, 

could be prevented from ever voting in Texas 80 long as he 

remained In the aervloe. 

No. C-173 (1963). 

Attorney General's Opinion 

This requirement of the Texas Constitution was declared 

to be In violation of rights secured by the,Xqual Proteotion 

Clause or the Fourteenth Amendment of the United State8 

Constitution In the oa8e or Carrington v. Rash,a85sSiC;t. ; 

.Sd.2d 675 

2$ P.&p; %?1964 

9691 d 

I ‘7 

' 

z 

g* 

v. Davis 

us 255 13 L.Ed.2d ala 1965 

, afkrmed ' 

These 

cases prompted the &d&t of Texas Constltutlo~, Article 

Seatlon 2, supra, ln 1966 and a consequent ohange in the 

Texas Election Code, Artlole 5.02, aupra, that 8amc Year, 

6, 

making it clear that a eervlo&aiwho~lniended to move his 

home to Texas, and did, could-qualify to vote. After this 

series of events, Artlole 5.W, Vernon's Civil Statutes, was 

amended in 1967 to provide, in part, a8 follows: 

-3396- 
. . 

Honorable Ted Butler, page 3 ' (M-762) 

"(j) No person tn the nili&ary aervloe of the 

United States shall acquirb a residenae ih this state 

while he is livltig one a milit@Py post in quarters 

whlah he Is required to,ocaupy. A peeson ln mllltary 

service who is permitted to choose his place of abode 

shall ngt be considered to have acquired a residence 

merely In cogeequence of hi8 preeenae &t the plaoe 

where he l$vti'e while performing his n+lltary duties; 

and such person shall not be~coneldered to &we acquired 

a residence unless he Intend8 to reaialn the* ind tb 

make that plaoe his home indefinitely, both during the 

remainder of hls military eervlqe~whenever~ military 

duties db not requlre,his prese,ncelsewhere, and 

afte~.~hie.mlli~ary'~etivlce 18 tbrminated.". 

This Offgce held in Attorney"QenetiaiL'8 Opinion HO., 

W-1322,($962) that."any~memb@r of ,the Armed~Force.8 who 

legally cldima a homestead exemptibn from Tetis ad'valorem 

taxes 18 a lcitl!&en~,,of this State for all purpoBeB of ad,' 

valorem tqes . . . That Opinion states that whether or 

not a'se~illceman~e ho16e Is legally established ,in Texas $8 

a queetin to.be determined from all~reievant fiats. 

It was Suither held In Attorney &nertilla Opinion 

No. C-712 (1966): 

II 3. There Is a rebuttable presumption that euch a 

person In the military service retained his doplloll,ln 

the State from which .he was lnducted,untll such time as 

he i'e shown by olear and unequivocal proof. to have 

effective1 b d d It d t bli 

' a(~p~~ls adgd)? a 

shdd a domicll 

e~lBe*here i 

That Opinion fizther says 'Itliit ~no harti ind 'fast rule 

can be formulated with respedt.to the servlaeq's domlcil 

or residence etatus. Each case muet be 'dealded upon ttya 

peoullar faOtB~preBented with reference to objective,evidence 

to eupport the servlcemsn~a Intention." In fact, the 

ordinary rules of domicll oreate a presumption that the 

p&ace where a person aotually.llvea Is his danioil, althou@ 

it Is clear that SomethIng beyond mere residence .%a needed., ~' 

thl.~~J". 2d.65, Domlcll, Section 5, and cases olted 

. 

Artlole 5.08(j), supra, attempt8 In It8 flret sentence 

to make it Impossible for a serviceman under those olroupa- 

-3397- 
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Honorable Ted Butler; page 4 (M-702) 

StaINeFI t0 acquire a residence in Texas no matter What he 

may Intend to do and no matter what he does to evidence 

that73%iitlon! Such a provision 16 unreaBonable and 

dlacrlmlnatory. It wa8 stated In CarrlngtOn v. Rash, 

supra, at page 96: 

"By forbidding a soldier ever to oontrovtirt the 

preawnptlbn of non-reeldenoe the Texas Constitution 

iaDpOSe8 an lnVidiOU8 dlacri.mination iViO18tiOn Of 

the Fourteenth Amendment." 

It la, therefore, the opinion of 'this Office that the 

Texas Eleatlon Code, Article 5.08(j), Vernon's Civil 

Statutes, inaorar as it prevent8 a serviceman from ever 

establl8hlng a residence In Texas, Is 8,n unaonstltutiona1 

deprivation Of equal protection of the laws to those 

servicemen. The remainder of Article 5,08(j), Bupra, 

eStab1iSheS pre8WnptlOnS against a serviceman aOqUiring a 

resldenoe ln Texas. 

The quallfloatlona for votinft as set out In Article 5.02, 

supra, include that of being one who shall be a oitlzen of 

the United States and who shall have resided in this state 

one year next preceding an electlon and the last elx month8 

within the district or county In which SUCh person offers to 

vote." 

A "citizen" is one who, a8 a member 

the body politic of the sovereign state, 

and may claim reciprooal protection from 

Ozbolt v. Lwnbermens Indemnity Exchange, 

clv.A~p. 1W3 , no wrltj citi hi I 

condition, and le the rtkult o?%h'aot 

0r a nation or of 

owes allegiance to 

Its government: 

204 S.W. 252 (Tex. 

a status or 

and intent. Residence, 

with respeot to the quallfloatlona of jurors,~ls chiefly a 

question of Intent. Vaughn v. State, 134 Tex.Cr3.m. 97, 

113 s.w.2d 895 (1938); Hutson V. State two oases, 106 

Tex.Cr3.m. 278, 291 S.W. go3 rm, &h oitlzenehip and 

residence, therefore, are keyed to'the establishment of the 

necessary' intent. 

The eBtab1iBhment in Article 5,08(j), supra, or 

rebuttable statutory pree\nnptions against a serviceman 

acquiring a resldenoe In TeXa8 muat be viewed In light Of 

what la required of ordinary oltlzena In this regard. To 

discriminate against servicemen In order to avoid admlniatratlve 

dlfficultlea In jury selection would not aatl8fy the requirements 

of CarrlngtOn v. Rash, supra, where it was Bald at page 91: 

-3398- 
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Honorable Ted Butler, page 5 (M-702) 

"In other words, the privilege to vote In a state 

Is wlthln the jurisdiction of the state Itself, to be 

exercised as the state may direct, and upon suah terns 

as to It may seem proper,~provlded, of oourse, no 

discrimination Is made between lndivlduala, in vf6&atlon 

of the Federal Constitution." (Empha~l~ added). 

Consequently, military personnel can gmiry to serve as 

proapeotlve jurors under Article 2133, Vernon's Civil 

Statutes, after 8atlafying the other requirements of the 

Texas Election Code. Drovlded their Intent to establish a 

reBldenCe in TeXaS~ia*boIIa fide. Peacock v.Bradshaw, 

145 Tex. 68, 194 S.W.2d 551, 555 (m-1 8 V. ,&I' tlett, 

377 S.W.2d 636, 637 (Tex.Sup. 1964); &&t?a v:Pena, 4Ob 

S.W.2d 769, 776 (Tex.Clv.App. 1966, no writ). 

SUMMARY 

Military personnel CM qualify to serve as 

prospeotive jurors under Artlole 2133, Vernon's 

Clvll~Statutes, after satisfying the other requirements of the Texas Election Code, provided 

their Intent to establish a residence In Texas 

is bona fide. Article 5.08(j), Vernon's Civil 

Statutes, insofar as it prevent8 a aervlceman 

from ever establishing a residence In Texas, or 

insofar as It discriminates against servicemen 

In the estab&lshlng of a r6sidence in Texas, la 

an unconstitutional vlolatlon of the Equal Protection of the Laws provision of the Fourteenth 

Amendment to the United States Constltutlon. 

Prepared by James Ii. Quick 

A88latant Attorney General 

-3399- 
Honorable Ted Butler, page 6 (M-702) 

APPROVED: 

OPZNION CO~I!ll%E 

Kerns Taylor, Chairman 

W; E. Allen, Co-Chairman 

Wayne Rodgers 

Ralph Rash 

J. C. Davis 

Vlnce Taylor 

MEAD73 F. QRIFFIN 

staff Legal A88istant 

ALFRED WALKER 

Executive ASeiBtWIt 

NOLA WHITE 

Firat Assistant 

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