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### THE ATTOERNEW GENERAL OF%%CXAS

Honorable

Ted Butler Criminal

Diatriot

Attorney San Antonio,

Texas 78204 OpinionNO. 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, providesthat ?uoh qualifleationsshallbe 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,

unleeedisqualified

under some provision of thie chapter. No person shallbe qualified to serve a8 a juropwho 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 failureto registerto vote a8 required

by law ehallnot be held to diequalify him for jury eeyice In any instance.

. . . It shouldbe noted that the 1969 amendment of Artiole 2133, aupra, deletedthe requirement that a prospective jurorbe 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 quallflcationsof a prorpeotive juror: “3. Exoept for paymentof poll tax or regletratlon, are you a qualified voter In this county and stateunder the Constitution

and lawa of thle state?”

-3395-Honorable Ted Butler,

page 2 (M-702)

The 1969 amendment also deletedfrom this Artlole the teet relating

to the prospeative juror’ 8 statusas a freeholder In the State or a householder In the County.
A "qualified

voter" or "quallfled elector"

as definedIn the Texas Eleotlon

Code, Article 1.018, %eanz a personwho meet8 all qualiflcatlon8 and requirement8

for votinga8 prescrib&dIn (Article 5.02) of this oode." The Texas Election Code, Article 5.02, Vernon*8Civil Statutes, sets out these qualifications

and requirement8

as follows: “Every pereon subjectto none of the foregoing dl8quallflcatlone

who 8hall have attained the age of twenty-one

year8 and who shallbe a oltlzenof the United State8 and who shall have resided In this state one year next preoedlng an election

and the .laat~

**six** month8within the district or county In which suob,person

offers to vote, and.whoahall have registered

a8 a voter, shallbe deemeda qualified elector;" Article 5.02, aupra, was enacted

pursuantto the Texas Constitution,

Artlale 6, Se&Ion 2, and from 1963 until 1965 providedthat membersof the Armed Force8 stationed in Texas were to vote only In the oountyof 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 remainedIn 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 ' zg*

v. Davis
us 255 13 L.Ed.2dala 1965 , afkrmed ' These casespromptedthe &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 seriesof 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&aryaervloe of the United States shall acquirba residenae ih this state while he **is** livltig

one a milit@Py post in quarters whlah he Is requiredto,ocaupy. A peeson ln mllltary service who **is** permitted

to choosehis place of abode shallngt 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+lltaryduties; and such person shallnot be~coneldered to &we acquired a residence

unlesshe Intend8to reaialn the* ind tb make that plaoe his home indefinitely, both during the remainder

of hls militaryeervlqe~whenever~ military dutiesdb not requlre,his prese,nce

lsewhere,

and afte~.~hie.mlli~ary'~etivlce 18 tbrminated.". This Offgceheld in Attorney"QenetiaiL'8 Opinion

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

who legally

cldimaa homestead

exemptibn

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

. . . That Opinion states that whetheror not a'se~illceman~e

ho16e Is legallyestablished ,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 peoullarfaOtB~preBented with reference

to objective,evidence to eupport

the servlcemsn~a

Intention." In fact, the ordinary

rules of domiclloreatea presumption that the p&ace where a person aotually.llvea Is his danioil,

althou@ it **Is** clear that SomethIng beyondmere residence .%a needed., ~' thl.~~J". 2d.65,Domlcll,Section 5, and cases olted

. Artlole 5.08(j),supra,attempt8In It8 flret sentence to make it Impossible for a serviceman

under those olroupa-

-3397--

Honorable

Ted Butler;**page** 4 (M-702)

StaINeFI

t0 acquirea residence in **Texas** no matter **What** he may Intend to do and no matterwhat 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

i ViO18tiOn

Of the Fourteenth

Amendment."
It la, therefore,

the opinionof 'this Office that the Texas Eleatlon

Code, Article 5.08(j), Vernon'sCivil Statutes,

inaorar

as it prevent8a serviceman from ever establl8hlng

a residenceIn 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

againsta **serviceman aOqUiring**  **a** resldenoe

ln Texas. The quallfloatlona

for votinft

as set out In Article 5.02, supra, includethat of being one who shallbe a oitlzenof 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 politicof the sovereign state, and may claim reciprooal protection

from Ozboltv. 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 statusor and intent.

Residence, with respeot to the quallfloatlona of jurors,~ls chieflya question

of Intent. Vaughn v. State, 134 Tex.Cr3.m. 97, 113 s.w.2d 895 (1938); HutsonV. State two oases, 106 Tex.Cr3.m.

278, 291 S.W. go3 rm, &h oitlzenehip and residence,

therefore,

are keyed to'theestablishment of the necessary'

intent. The eBtab1iBhment

in Article 5,08(j),supra,or rebuttable

statutory

pree\nnptions

againsta serviceman acquiring

a resldenoeIn TeXa8 muat be viewed In light Of what la required

of ordinaryoltlzenaIn this regard. To discriminate

against servicemen

In order to avoid admlniatratlve dlfficultlea

In jury selection

would not aatl8fythe requirements of CarrlngtOn

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

-3398-. - -

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 statemay 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 FederalConstitution." (Empha~l~ added). Consequently,

military

personnel

can 

### gmiry to serve as proapeotlve

jurorsunder Article2133,Vernon's Civil Statutes,

after 8atlafying

the other requirements of the Texas Election

Code. Drovldedtheir 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 qualifyto **serve** as prospeotive

jurorsunder 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 againstservicemen In the estab&lshlng of a r6sidence

in Texas, la an unconstitutional vlolatlon

of the Equal Protectionof the Laws provision of the Fourteenth Amendment

to the United StatesConstltutlon.

Prepared

by James Ii.

Quick A88latant

Attorney

General

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

APPROVED: OPZNIONCO~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** ALFREDWALKER **Executive ASeiBtWIt**  NOLA WHITE **Firat** Assistant

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