r . 

E Y GENERAL 

GROVER SELLERS 

AUSTIN m. TEXAS 

*TrcBRNEYGENERAL 

Affirmed by: Tondre vs. Hensley 

T;T& ;;;,6;y. 1949 223 S .W.. 

Honorable Coke R. Stevenson 

Governor oft Texas 

Opinion NO. 0-6236 

Austin, Texas 

Dear Governor Stevenson: 

Re: Whether disabled veterans 

can vote 1n the November 

election, and related 

questions. 

Your request for our opinion on the hereinabove caphas been received by this department. We quote _ _- 

tioned matter 

from your letter as rollows: 

“I am receiving many inquiries from soldiers 

and these interested in members of the armed services as to what the status of a soldier is who 

has returned from foreign service with reference 

to his right to vote in the ensuing general election. Article 2959, as amended, reads as follows: 

“‘A poll tax shall be collected from every 

person between the ages of twenty-one (21) and 

sixty (60) years who resided in this State on the 

first day of January preceding its levy, Indians 

not taxed , persons Insane, blind, deaf or dumb, 

those who have lost a hand OP foot, those permanently 

disabled, and all disabled veterans, of foreign 

wars, where such disability is forty (40%) per cent 

or more, excepted D It shall be paid at any time 

between the first day~of October and, the first day 

of February following; and the person when he pays 

it, shall be entitled to his poll tax receipt, 

even if his other taxes are unpaid. t 

“Other provisions of the statutes provide 

that those who fall within the classification 

exempted from the payment of poll tax shall procure an exemption certificate from the County 

Tax Collector when same is required by such provision. Many soldiers have suffered the loss of 

a hand or a foot or become disabled to the extent 

of 40% or more, since the date when such certiflcate of exemption could be obtained. 

“Question: Can such disabled veterans vote 

in the November election? If they can vote, what 
Hon. Coke R. Stevenson, page 2 O-6236 

certificate of disability Is necessary, if any, 

in order to entitle such person to vote?" 

Your first questlon asks in effect whether or not dlsabled veterans who have suffered a 404% disability within the 

meaning of Article 2959, Vernon's Annotated Civil Statutes, are 

legally quallfled to vote without the payment of a poll tax. 

This inquiry, due to the manner in which it is phrased, requires 

an examination not only of Texas statutes but also of the provisions of the Texas Constitution relating to the payment of a 

poll tax as a qualification for voting. The constltutional 

questlon Involved Is one of serious concern to the people of this 

State. It is one which, as all constitutional lawyers know, 

has been consistently passed over or around by the appellate 

courts of this State and on which we do not have an authoritative 

decision by OUT Supreme Court. My own inclination as a cltlzen 

would be to follow the same practice but as a public official 

holding the high office of Attorney General of this State, I have 

certain statutory and constitutional duties to perform. Article 

4399,~Vernon's Annotated Statutes, provides that "The Attorney 

General at the request of the Governor D . 0 shall give . , . . 

written advice upon any questIon touching the public interest." 

Article 4, Sect. 22 of the Texas Constitution provides that "The 

Attorney General shall o 0 give legal advlce in writing to the 

Governor and other executive officers, when requested by.them, 

and perform such other duties as may be required by law." Therefore, since the Constitution, which I have as Attorney General 

sworn to uphold gives me no latltude in the matter under the 

question as posed by you, I shall discuss both the Cons'citutional and statutory provlsions involved in your Inquiry. 

The poll tax as we know it in Texas finds its course In 

both the Constitution and statutes of Texas. The poll tax of 

one dollar was first Imposed by Article 7 Section 3 of our present Constitution, which was adopted In ~$76. That Constitution 

also provides in Article 8, Section 1 that "The.Legislature may 

Impose a poll tax." That Constitution also,provided in Article 

6, Section 3 that cities or corporate towns might levy a poll tax 

as a requisite for voting in city elections "to determine expenditure of money or assumption of money." These provisions are 

still in the Constltutlon. It was notuntil 1902, however, that 

the people of Texas by amendment of Article 6, Section 2 of the 

Constitution tied the poll tax to the rfght to vote. The constitutional amendment adopted December 26, 1902, provides "that 

any voter who is subject to pay a poll tax under the laws of the 

State of Texas shall have paid said tax before he offers to vote 

at any election in this State and hold a receipt showing his poll 

tax paid before the first day of February next preceding such 

election D D y this provision of the Constitution shall be selfenacting without the necessity of further legislation." This 

amendment is still a part of our Constitution. 
Hon. Coke R. Stevenson, page 3 o-6236 

The Legislature of Texas has levied not only the one 

dollar constitutional tax but also a poll tax of fifty cents I'for 

general revenue purposes" and It has authorized the counties to 

levy a poll tax of not more than twenty five cents for "county 

purposes". Article 7046, Vernon's Annotated Civil Statutes. So 

far as the taxpayer is concerned, this $1-50 or $1.75 tax, as 

the case may be, is the poll tax but from a legal view point 

there is a distinction between the dollar constitutional tax and 

the balance of the tax due to the fact that one dollar of this 

tax is required by the Constitution and the balance of the tax 

is required only by levy of the Legislature, 

We shall first consider that part of the poll tax which 

is required only by levy of the legislature. The legislature has 

the inherent power to levy all taxes and this includes poll taxes 

as well as other taxes. There is no provision in the constitution which limits the amount of the poll tax which the Legislature in its wisdom may decide to levy. And when the Legislature 

does levy a poll tax, this tax must, under Article 6,,Section 2 

of the Constitution, be paid 

next preceding such election" 

"before the first day of February 

in order for the person taxed to be 

eligible to vote. Pursuant to this inherent power of taxation 

the Legislature has enacted ArtFcle 2959, Vernon's Annotated 

Statutes, which is quoted In your opinion request above. In this 

statute the Legislature has exempted from the payment of this 

leglslatlve poll tax (that is the fifty cent tax for general 

revenue purposes and twenty five cents for county purposes) 

"Indians not taxed, persons insane, blind, deaf or dumb,~those 

who have lost a hand OP foot, those permanently disabled, and all 

disabled veterans of foreign wars, where such disability Is 

forty (40%) per cent or more-' The only constitutional tests 

applicable to these exemptlons In so far as they apply to the 

legislative poll tax as dlstinguished from the constitutional poll 

tax, is that they be reasonable classifications and we think that 

these exceptions meet that test. Solon v. State, 54 Tex. Cr. OR. 

261, 114 S.W. 349. Texas Power & Light Co. v, Brownwood PubIlc 

Service Co. 111 S.W. (2) 1225, writ refused. 40 Tex. Jur. 78, 

79. 

We turn, therefore, to find what the Legislature has in 

Its wisdom provided with reference to the times for payment of this 

legislative poll tax and when the disability must have occurred 

for those who seek to come under ,this part of the exemption in 

Article 2959. 

Article 2960, Vernon's Annotated Civil Statutes, provides: 

"Every person who is more than sixty (60) 

yearsold, OP who is blind or deaf or dumb, or is 
Hon. Coke R, Stevenson, page 4 o-6236 

permanently disabled, OP has lost a hand or foot, 

or who is a disabled veteran of a foreign war, 

where such disability is forty (40%) per cent or 

more, shall be entitled to vote without being required to pay a poll tax If he has obtained his 

certificate of exemption from the County j&$x Collector when same is required by the provisions of 

this title. As amended, Acts 1941, 47th Leg. p. 

1336, ch, 604, 8 1.” 

Part of Section 4 of Article 6, Texas Constitution, 

provides: 

the Legtslature may provide by law 

for the registration of all voters in all cities 

containing a population of ten thousand inhabltants 

or more a D . 

Article 2968, Vernon’s Annotated Civil Statutes, provides, in part, as follows 9 

“Every person, who Ls exempted by law from 

the payment of a poll tax, and who is in other 

respects a quellfled voter, who resides in a city 

of ten thousand (10,000) inhabitants or more, shall 

before the 1st 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 thee payment of a poll tax. 

“Such exempt person shall on oath state his 

name, age, race, county or residence, occupation, 

the length of tFme he has resided in sald county, 

and the length of time in the city, and the number 

of the ward or voting precinct in which he restdes, 

and shall also state his street address by name 

and numbers if numbered, and the grounds u,pon which 

he claims,,exemption from the payment of a poll tax 

. D 0 a e 

Article 2955, Vernon’3 Annotated Civil Statutes of 

Texas, provides: 

“Every person subject to none of the foregoing .dFsqualifFcations who shall have a.ttalned 

the age of twenty-one (21) years and who shall be 

a citizen of the United, States, and who shall have 

resided in this State on,e year next preceding an 

election, and the last 3i.x (6) months wlthin the 
. , 

Ron. Coke R. Stevenson, page 5 

district or county in which he or she offers to 

vote, shall be deemed a qualified elector. The 

electors living in an unorganized county may vote 

at an election precinct in the county to which such 

county is attached for judicial purposes; provided 

that any voter who Is su.bject to pay a poll tax 

under the laws of this State, shall have paid said 

tax before offering to vote at any election In this 

State and holds a receipt showing that said poll 

tax was paid before the first day of February next 

preceeding such election; and, if said voter is 

exempt from paying a poll tax and resides In a city 

of ten thousand (10,000) Inhabitants or more, he or 

she must procure a certiflcatlon showing his or her 

exempt ions, as required by this title. If such 

voter shall have lost or misplaced said tax receipt, 

he OP she shall be entitled to vote upon making and 

leaving with the judge of the election an affidavit 

that such tax was paid by him OP her, or by his 

wife or by her husband before said first day of 

February next preceding such electlon at which he 

or she offers to vote, and that said receipt has 

been lost or misplaced. In any election held only 

in a subdlvision of a county for the purpose of 

determlning any local question or proposition affecting only such subdlvlsion of the county, then 

in addition to the foregoing quallficat1on8, the 

voters must have resided in said county for six 

(6) months next preceding such election. The provisions of this article as to casting ballots shall 

apply to all election8 including general, special, 

and primary elections; provlded that a city poll 

tax shall not be required to vote in anJ election 

In this State except in city elections. 

Article 7046, Vernon’s Annotated Civil Statutes, provides: 

“There shall be levied and collected from 

every.person between the ages of twenty-one and 

sixty years p resident within this State on the 

first day of January of each year (Indians not taxed, 

and persons insane, blind, deaf or dumb, or those 

who have lost one hand OP foot, OP are permenently 

disabled, excepted), an annual poll tax of one 

dollar and fifty cents, one dollar for the benefit 

of the free schools and fifty cents for general 

revenue purposes Q Said tax shall be collected and 

accounted for by the tax collector each year and 

appropriated as herein required. No county shall 
Hon. Coke R, Stevenson, page 6 o-6236 

levy more than twenty-five cents poll tax for 

county purposes, The poll tax due from cltlzens 

of unorganized eountles shall be paid in the 

county to which the unorganized county 1s attached 

for judicial purposes." 

Based on these statutes you are advised In reference 

to the legislative poll tax (that is, the fifty cents tax for 

general revenue purpose3 and twenty-five cents for county purposes) that: 

1. A disabled veteran of a foreign war (where such dlsability Is forty (40%) per cent or more) residing in a city of 

10,000 inhabitants or more, shall be entitled to vote in the 

November election without being required to pay a poll tax, providing that he sustained said disability on or prior to January 

1, 1943, and has secured an exemption certificate on or prior to 

January 31, 1944, from the County Tax Assessor-Collector of the 

county of his legal residence on January 1, 1943. 

2. A disabled veteran of a forei 

disability is forty (40%) per cent or more k 

n war (where such 

residing elsewhere 

than in a city of LO,000 inhabitants OP ma-e, shall be entitled 

to vote In the General Election without being required to pay a 

poll tax or secure an exemptlon certificate, providing said 

disability occurred on or prior to January 1, 1943. 

The forego1 

7 

answers would also apply if the entire 

poll tax of $1.50 OP 1*75 (In case a county tax has been levied) 

were considered only as a leglslatlve tax. The poll tax for 

which voters now hold a receipt is the tax which was levied as of 

January 1, 1943. We, therefore, see that the Legislature has not 

by Its enactments extended the exemption from the 1943 poll tax 

to those veterans who have sustalned a forty (40%) per cent dlsability since January 1, 1943. 

The poll tax of one dollar "on every inhabitant of this 

State between the age3 of 21 and 60" as levied by Article 7, Settion 3 of the Texas Conutitution cannot, in our opinion, be considered as strictly a legislative levy. Article 7, Sectlon 3 of 

the Texas Constltu,tion In so far as applicable here reads as 

follows: 

"One fourth of the revenue derived from the 

State,occupatlon taxes and a poll tax of one dollar on every Inhabitant of the State, between the 

ages of twenty one and sixty years shall be set 

apart annually for the benefit of the public free 

schools". 
Hon. Coke R. Stevenson, page 7 Q-6236 

Our Texas Court of Criminal Appeals in Solon vs. State 

(1908) 114 S.W. 349, at page 359, in speaking of this provision 

of the Constitution said: 

"Under this provision of Sectlon 3, Art. 7 

of the Constltutlon above quoted there is, in express terms levied in this state a poll tax on 

every male inhabitant thereof between the ages 

named therein; and if this section of the Constitution 

is to control such poll tax is fixed without the 

necessity of legislative action. The provision 

standing alone, is definite, flxed, and as certain 

as any legislative action can make it, We think 

the law, if we shall hold this section controls, 

could be sustained on the ground that this provision of the Constitution Is self-executing and 

in terms levies a poll tax on all persons between 

the ages named, and that the exceptions of the 

persons, and classes of persons, named in Article 

5048 of our Revised Statutes could be held to be 

invalid and unavailing, so that the law and tax 

could stand and the attempted exceptions fail." 

OUP Supreme Court of Texas in Powell v. City of Baird 

$9~3;,WW;;, WA : ~3 S .W. (26) 786, at page 787 In speaking 

"Section 3 of Article VII of our Constitution, 

supra, so far as applicable here, has effect to 

levy annually a one dollar poll tax for the benefit of the public free schools of this State.' 

The holding that the portion of Article 7, Section 3, 

relating to the levy of one dollar poll tax is self executing 

is in'llne with decisions of our Supreme Court holding other 

sections of our Constitution to be self-executing. 9 Tex. Jur. 

423. 

The exemptions from the payment of a poll tax as provided for by the Legislature in Article 2959, 2960 and 7046, 

supra, are no where to be found in the Constitution. Article 6, 

Section 1 of the Texas Consi;u;;on prohibits certain classes of 

persons from voting, viz: persons under twenty-one (21) 

years of age, Second: Idiots and'lunatics. Third: All paupers 

supported by any county, Fourth: All persons convicted of any 

felony, subject to such exceptions as the Legislature may make. 

Fifth: All soldiers, mrlnes and seamen, employed in the service 

of the army or navy of the United States." This last provision 

relating to soldiers, marines and seamen was,amended in 1932 so 

as to permit all members of the armed forces in the service of 
Honorable Coke R. Stevenson, page 8 Q-6236 

the United States Government, except members of the Regular Army 

and Regular Navy, to vote provided they are otherwise qualified 

to vote. See our opinion No. O-5779, addressed to you as of 

January 15, 1944. 

(2d) 562. 

Carpenter v. Sheppard, 135 Tex. 413, ~1.45 S.W. 

The prohibitions of Article 6, Section 1 relate to 

voting and not to the payment of a poll tax. The persons who 

are thus prohibited could not vote even though,they paid a poll 

tax. There are many people subject to the payment of a poll 

tax who nevertheless do not have a right to vote. This is due 

to the fact, as previously noted, that the payment of a poll tax 

was not made a qualification for voting until 1902, whereas the 

provision levying the poll tax has been in the Constitution since 

Its adoption in 1876. 

Since the exemptions from the payment of the poll tax 

which the Legislature has provided in Article 2959, 2960 and 

7046 are not to be found in our Constitution, we come to the 

narrow question of whether these exemptions can relieve a taxpayer of his obligation to pay the one dollar constitutlonal 

poll tax. This part of the poll tax is, as we have seen, levied 

by the Constitution itself. Article 3, Section 55 of the Constitution provides: 

"The Legislature shall have no power to release OP extinguish, OP to authorize the releasing or extinguishing, in whole or in part, the 

indebtedness, liability OP obligation of any COPporation or individual, to this State or to any 

county or defined subdivision thereof, or other 

rrmnicipal corporation therein, except dellnquent 

taxes'which have been due for a period of at 

least ten years." 

Article 6, Section 2 of the Constitution provides, as 

we have noted,,that in order to be qualified to vote "any voter 

who is subject to pay a poll tax under the laws of the State of 

Texas shall have paid said tax before offering to vote at any 

election in this State and hold a receipt showing that said poll 

tax was paid before the first day of February next preceding such 

election." It is well settled, of course, that the Constitution 

of Texas which is our fundamental law is part of the law included 

in the phrase "under the laws of the State of Texas" as used in 

Article 6, Section 2, supra. In this connection the Supreme 

Court in the recent case of Powell v. City of Baird, 128 S.W. (2) 

789, 790, said: 

“As used in the above constitutional provision the word 'under' is certainly used as a preposition, indicating subjection, guidance, OP 

control, It is used in a sense of 'by authority 

of' a" 
Honorable Coke R, Stevenson, page 9 Q-6236 

There is no principle of constitutional law more firmly 

entrenched in our jurisprudence than the proposition announced 

by OUP Supreme Court in Cameron v. Connally, 117 Tex. 159, 299 

S.W. 221. The Court at page 223 in that opinion said: 

"The Constitution having prescribed the qualifications of those entitled to vote in this election, no charter provision prescribing qualifications was necessary, and none could be made other 

than as provided by fundamental law. The following 

language of the court In the case of Koy v. Schneider, 

110 Tex. at pages 377 and 378, 218 S.W. 480, is apt 

and controlling to wit: 

fj I0 0 L1 v All the authorities seem In accord 

with the statement that 'where the right of suffrage 

is fixed in the constitution of a state, as Is the 

case in most states, it can be restricted OP changed 

by an amendment to the constitution or by an ainendment to the federal Constitution, which, of'course, 

is binding upon the states. But it cannot be restricted or changed in any other way. The legislature can pass no law directly OP indirectly either 

restricting OP extending the right of suffrage as 

fixed by the Constitution. 10 A. & E. Encyclopedia 

of law, 573, 576; 15 Cyc. 282, 8 R.C.L. Sec. 41. 

"In Cooley's Constitutional Limitations, In 

section 599, it is said: 'Whenever the Constitution has prescribed the qualifications of electors, 

they cannot be changed or added to by the Legislature or otherwise than by an amendment to the Constitution.' 

"IThe rule stated was approved in the opinion 

of Justice Ramsey in Solon v. State, 4 Tex. Cr. 

(54,Tex. Cr. R.) 261, 114 S.W. 349, where it is 

said: 'Where a Constitution has conferred the right 

and prescribed the qualifications of electors, it, 

of course, is paramount until amended, and the 

Legislature cannot change or add to them in any way; 

but, where the Constitution does not fix the right 

of suffrage OP prescribe the qualifications of voters, 

it is competent for the Legislature, as the representative of the lawmaking power of the State, to 

do so."' 

See, also, Wendover v.Tobln, 261 S.W. 434, 438; McCutcheon 

v. Wozercraft, 116 Tex. 440, 294 S,W. 1105, Ramsey v. Wilhelm 52 

S.W. (2) 757, writ refused and Powell v. City of Baird, 133 Tex. 
. 

Honorable Coke R. Stevenson, page 10 o-6236 

489, 128 S.W. (2) 786. The Constltutlon having by Article 7, 

Section 3, levied a poll,tax of one dollar I'on every inhabitant 

of this State between the ages of,.21 and 60 years" and havihg 

by amendment to Article 6, Section 2 provided since 1902 that 

the payment of this tax shall be a qualification for voting "at 

any election in this State", the Legislature is without power 

to exempt classes of persons between the ages of 21 and 60 from 

the payment of this poll tax or to authorize such persons to 

vote without payment of such tax, as it has attempted to do in 

Articles 2959 and 2960. 

This distinction between the portion of the poll tax 

which may be forgiven and the portion which may not, is recognized by the Legislature In Article 5840, Vernon's Annotated 

Civil Statutes, which provides in part, that: 

"All officers and enlisted men of the active 

militia of this State, who comply with their mllitary duties as prescribed by this chapter, shall 

be entltled to exemption from the payment of all 

poll taxes, except the poll tax prescribed by the 

Constitution for the support of the public schools; 

. e . 6 D 

In this connection see our opinion No. 0-5808 issued January 26, 

1944, wherein this distinction is further pointed out. 

This identical constitutional question was presented to 

and passed upon by the late Chief Justice Cureton of the Supreme 

Court of Texas, while he was Attorney General of Texas. In 

Attorney General's opinion No. 1972 that distinguished jurist in 

a conference opinion signed by himself and by Federal District 

Judge W. A. Keeling, who then was First Assistant Attorney General, held that: 

"It is, therefore, apparent that since the 

Constitution, In express terms, levies a poll tax 

the Legislature is powerless to now ingraft exceptions to the constitutional amendment as it was 

enacted by the people." 

You are, therefore, advlsed that it is the considered 

opinion of this department that Articles 2959, 2960 and 7046, 

Vernon's Annotated Civil statutes are unconstitutional in so 

far as they purport to exempt the classes of persons therein 

named from the payment of the one dollar constitutional poll 

tax or to make those classes of persons qualified voters without 

the payment of any poll tax, We, therefore, answer your first 

question in the negative. 
Honorable Coke R. Stevenson, page 11 O-6236 

This disposes, also, of your second question which is 

conditioned on an affirmative answer to your first question. 

Respectfully submitted 

Grover Sellers 

ATTORNEY GENERAL OF TEXAS 

By s/Fagan Dlckson 

Fagan Dickson 

Assistant 

By s/J.C. Davis, Jr. 

J.C. Davis, Jr. 

Assistant 

FD/JCD/bt/ff/wc 

APPROVED NOV 4, 1944 

s/Grover Sellers 

ATTORNEY GENERAL OF TEXAS 

This Opinion Considered and Approved in Limited Conference