Mr. Jack H. Holland 

County Attorney 

Henderson County 

Athens, Texas 

Dear Mr. Holland: 

F EXAS 

AKn3TxN 11. TExaS Superseded by Art.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 thereby make 

effective Art. 5.16 of 

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 sufficient to determine that the population of that 

city on October 1,' 1962, was more than 10,000 inhabitants within 

contemplation of Art. 5.16 of Vernon's Texas Election Code which 

requires certain persons to secure certificates of exemption from 

poll taxes. 

Athens is a home-rule city. You state that the City 

Council passed a resolution on October 1, 1962, in which It 

found that the city on that date had a population in excess of 

10,000 persons. You further state that this finding was 

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 

situated within the corporate limits 

of the City of Athens, . . .' 

You then ask: 

"Is a, resident of the City of Athens, 

who is over 60 years of age and who is 

in other respects a qualified voter, 

required to secure a certificate from 

the County Tax Col1ecto.r before February 1, 1963, showing his or her exemption 
Mr. Jack H. Holland, Page 2 (Opinion No. WW-1491) 

'from the payment of a poll tax, in order 

to be entitled to vote at any election 

In which the voters in the city vote from 

February 1, 1963'to January 31, 1964?" 

Our answer is that a resident of the City of Athens 

who is over 60 years of age and who is in other respects a 

qualified voter is required to secure an 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 5.16 of that Code, In its pertinent portions, 

reads as follows: 

"Every person who Is exempted by law 

from the payment of a poll tax, and who 

Is In other respects a qualified voter, 

who resides in a city of ten thousand 

(10,000) inhabltants.or more, shall, 

before the first day of February of 

the year when such voter shall have 

become entitled to such exemption, 

obtain from the Tax Collector of the 

county of his or her residence, a 

certificate showing his or her exemption from the payment of a poll tax. 

Such certificate shall entitle 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. 

. . . 

"Although entitled to an exemption 

certificate, no one shall vote who does 

not possess a current exemption certlficate. . . .' 

We find no provision in our constitution or 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 method prescribed by 

the'statute for determining when a city 
Mr. Jack H. Holland,,Page 3(Opinlon No. WW-1491) 

has more than 1O;OOO Inhabitants, but, 

the Legislature,having conferred upon 

the city council power to levy and collect a given rate of tax, conditioned 

upon the fact that the city has the 

requisite population, 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 suitable method by which a city 

should ascertain the facts and make a 

record thereof would be supported by 

the ifplied power expressly conferred. 

. . . 

The mode of procedure for determining such population 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, '247 S:W? 263 (1922) 

procedure used by the City Council of Athens-was reasonable. 

(Authoritiescited In this paragraph.) Of course, the proceedings incident to the resolution must conform to the city 

charter; we assume they do. 

The reservoir of power in home-rule cities is well 

established. 

"It was 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 5000 population full power of selfgovernment, that is, full authority to 

do anything the legislature could 'theretofore have authorized them to do. The 

result is that now it is necessary to 

look to the :acts of the legislature not 

for grants of power to such cities but 

only for limitations on their powers. 

Yellow Cab Transit Co. v. Tuck. Tex.Clv. 

APP., 115 S.W.2d 455, er. ref.' ~I~. it 

Forwood v. 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 Farmersville v. 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 Inhabitants have a constltutionally-vested interest in the qualifications of persons who vote in their city elections. Texas Constitution, 

Article VI, 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 Houston v. City of Magnolia Park, 115 

Tex. 101, 276 S.W. btJ5 (1925). Williams v. Castleman (supra). 

The purpose of requiring exemption certificates In 

cities of more than 10,000 inhabitants is to preserve the 

purity of the ballot pursuant to Section 4 of Article VI 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 Houston v. City of Magnolia 

Park (supra) the Court expressly repudiated the contention that 

the last Federal census must control with reference to cities 

eligible to adopt home-rule charters under 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 earliest possible 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. . . .' 

(at P. 689) 

The Court held that a delay upon the next Federal census was 

an infringement of the Constitutional rights of a city,:: ;;;zt 

home rule when it attained the requisite population. 

Town of Freeport v. Sellers, 144 Tex. 389, 190 S.W.2d 813 (1945); 

City of Farmersville v. Texas-Louisiana Power Co. (supra, at 

p. 276); and Williams v. Castleman (supra). 

The determination by the City Council on October 1 that 

the population of the city was in excess of 10,000 Inhabitants 

was effective from the time of the effective date of the proceedings making such determination. 
I . 

Mr. Jack H. Holland, Page 5 (Opinion No. 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. 5.16 of Vernon's Texas Election Code to 

voters residing in that city. 

Such determination was effective from the 

time of the effective date of the proceedings 

making such determination. 

The mode of procedure for determining 

such population was reasonable. 

The proceedings incident to the resolution 

must conform to the city charter. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

By: 

Assistant Attorney General 

WEA:pw 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Charles Llnd 

Frank Booth 

,Vernon Teofan 

Robert Lewis 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Leonard Passmore