Mr. Jack H. Holland

County Attorney Henderson County Athens, Texas

Dear Mr. Holland: 

### F EXAS
AKn3TxN11.

TExaS Supersededby Art. l.Ola

Vernon's Texas Election Code December 11, 

### 1962 added in lg3 u &-a/z/
Opinion No. 

### WW-1491

Re: May the City Council of the City of Athens, Texas, a home-rule city, determine that Its population is more than 10,000 people and therebymake effective Art. 

### 5.16of the Texas Election Code relative to poll tax exemptions as to voters in that City.

You ask the Attorney Gsneral to advise you whether a resolution of the City Council of the'city of Athens, Texas, is legally sufficientto determine that the population of that city on October 1,'

### 1962,was more than 10,000 inhabitantswithin contemplationof Art. 

### 5.16of Vernon's Texas Election Codewhich requires certainpersons to secure certificatesof exemption from poll taxes.

Athens is a home-rule city. You state that the City Councilpassed a resolution on October 1, 

### 1962,in which It found that the city on that date had a population in excess of 10,000persons. You further state that this findingwas

11

. . .predicated on the average number of occupants in a dwelling, based upon the national average for water, electrical, and gas service connections,verified by random surveys to dwellings situatedwithin the corporate limits of the City of Athens,

. . .'

You then ask:

"Isa,resident of the City of Athens,

who is over 

### 60years of age and who is in other respects a qualifiedvoter, required to securea certificate from the CountyTax Col1ecto.r before February 1, 

### 1963,showinghis or her exemptionMr. Jack H. Holland, Page 2 (OpinionNo. WW-1491)

'fromthe payment of a poll tax, in order to be entitled to vote at any election In which the voters in the cityvote from February 1, 1963'to January 

### 31, 1964?"

Our answer is that a resident of the City of Athens who is over 

### 60years of age and who is in other respects a qualifiedvoter is required to securean exemption certiflcate prior to February,l, 

### 1963,in order to vote at any election In the City of Athens held between the dates of February 1, 

### 1963,and January 

### 31, 1964,and which election is held pursuant to the Texas Election Code.

Article 

### 5.16of that Code, In its pertinentportions, reads as follows:

"Everyperson who Is exempted by law from the payment of a poll tax, and who Is In other respects a qualifiedvoter, who resides in a city of ten thousand (10,000) inhabltants.ormore, shall, before the first day of February of the yearwhen suchvoter shallhave become entitled to such exemption, obtain from the Tax Collectorof the county of his or her residence, a certificate showinghis or her exemption from the payment of a poll tax. Such certificate shallentitle such voter to vote at any election held between the date of Its issuance and a period of one (1)year from the 31st day of January following its issuance.

. . . "Althoughentitled to an exemption certificate,no one shallvote who does not possess a current exemption certlficate.

. . .'

We find no provision in our constitutionor statutes which prescribes how the population of a city is to be determined for the purpose of making the provisions of Article 

### 5.16 of the Election Code applicable to voters who reside In the city. In the early case of City of Tyler v. Tyler Building & Loan AssIn., 

### 98 Tex. 

### 69,81 S.W. 2 (1904),the Court said:

I! There is no methodprescribed by the'statute for determiningwhen a cityMr. Jack H. Holland,,Page3(Opinlon No. WW-1491)

has more than 1O;OOO Inhabitants,but, the Legislature,havingconferredupon the city councilpower to levy and collect a given rate of tax, conditioned upon the fact that the city has the requisitepopulation, there is in the grant of power, based upon the limltatlon of population, an implied grant of authority to ascertain the facts upon which the right to levy the tax

Riggins v. Richards 

### 77 S.W $g??Tex. Ct. Rep'.908. A& reasonable and suitablemethod by which a city shouldascertain the facts and make a record thereofwould be supportedby the ifpliedpower expressly conferred.

. . . The mode of procedure for determining suchpopulation must be reasonable. City of Tyler v. Tyler Building & Loan Ass'n Brooke v. Dulaney, 100 Tex. 86 

### 3 S.W. 997 (1906) Castleman, 112 Tex. 193, '247S:W? 

### 263 (1922) procedure used by the City Council of Athens-was reasonable. (Authoritiescited In this paragraph.) Of course, the proceedings incident to the resolutionmust conform to the city charter;we assume they do.

The reservoir of power in home-rule cities is well established.

"Itwas the purpose of the Home-Rule

Amendment,Art. XI, Sec. 

### 5,and the enabling statutes, supra, to bestow upon accepting cities and towns of more than 5000population fullpower of selfgovernment,that is, full authority to do anything the legislaturecould 'theretofore have authorized them to do. The result is that now it is necessary to look to the :actsof the legislaturenot for grants of power to such cities but only for limitationson their powers. Yellow Cab Transit Co. v. Tuck. Tex.Clv. APP., 115 S.W.2d 455, er. ref.' ~I~. it Forwoodv. City of Taylor, 147 Tex. 

### i61, 214 S.W.2d 282 (1948). City of Houston v. State, 142 Tex. 190, 176 S.W.2d 928, 929 11943); City of Farmersvillev. Texas-Louisiana Power Co.,Mr. Jack H. Holland, Page 4 (Opinion,No.WW-1491)



### 33 S.W.2d 272 (Clv,App.,1930);

### 30 Tex. Jur. 104-107,Munlclpal Corporations, Sec. 49; Articles 1175 and 

### 1176,V.C.S.

Cities of more than 10,000 Inhabitantshave a constltutionally-vestedinterest in the qualificationsof personswho vote in their city elections. Texas Constitution, ArticleVI, Sections 3 and.3a.~ Texas Power & Light Co. v. Brownwood Public Service Co., 111 S.W.28 1225 (Clv.App. 1938, error ref.). City of Houstonv. City of Magnolia Park, 115 Tex. 101, 276 S.W. btJ5 (1925). Williamsv. Castleman (supra).

The purpose of requiring exemption certificates In cities of more than 10,000 inhabitants is to preserve the purity of the ballotpursuant to Section 4 of ArticleVI of our State Constitution. Texas Power & Light Co. v. Brownwood Public Service Co., supra. Thomas v. Groebl, 208 S.W.2d 412 Civ.App. 1948 reversed on other grounds, 147 Tex. 70, 212 s.W.2d 625 (19 6,.

The time when the number of Inhabitants of a city may be determined is the time the city asserts a right given It under the Constitution. In City of Houstonv. City of Magnolia Park (supra)the Court expressly repudiated the contention that the last Federal census must controlwith reference to cities eligible to adopt home-rule chartersunder Section 5 of Article XI of our State Constitution. The.Court said that It. was the desire of the people of this State

'

. .that cities enjoy these rights at the earliestpossible moment and not have to wait the pleasure of the United States Government in taking a census,which has been done only every 10 years.
. . .' (atP. 689)
The Court held that a delay upon the next Federal censuswas an infringementof the Constitutionalrights of a city,:: ;;;zt home rule when it attained the requisitepopulation. Town of Freeportv. Sellers, 

### 144Tex. 389, 190 S.W.2d 813 (1945); City of Farmersvillev. Texas-Louisiana Power Co. (supra,at p. 276); and Williams v. Castleman (supra).

The determinationby the City Council on October 1 that the population of the citywas in excess of 10,000 Inhabitants was effective from the time of the effectivedate of the proceedingsmaking such determination.I

.

Mr. Jack H. Holland, Page 

### 5 (OpinionNo. WW-1491)

SUMMARY
The City Council of the City of Athens, a home-rule city, may determine that the population of the city is more than 10,000 inhabitants and thereby make effective the provisions of Art. 

### 5.16of Vernon's Texas Election Code to voters residing in that city.
Such determinationwas effective from the time of the effective date of the proceedings making such determination.
The mode of procedure for determining suchpopulationwas reasonable.
The proceedings incident to the resolution must conform to the city charter.
Very truly yours,
WILL WILSON Attorney General of Texas 

# By:

AssistantAttorney General
WEA:pw
APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman Charles Llnd Frank Booth ,VernonTeofan Robert Lewis

REVIEWED FOR THE ATTORNEY GENERAL By: Leonard Passmore