r

.

E Y GENERAL

GROVER SELLERS AUSTIN m. TEXAS

*TrcBRNEYGENERAL Affirmed by: Tondre vs. Hensley T;T& ;;;,6;y. 1949 223 S.W..

Honorable CokeR. Stevenson Governor oft

Texas OpinionNO. 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 hereinabovecaphas been receivedby this department. We quote

__- tioned matter from your letter as rollows:

“Iam receivingmany inquiries from soldiers and these interested inmembers of the armed services as to what the status of a soldier iswho has returned from foreign servicewith reference to his right to vote in the ensuinggeneral election. Article 2959, as amended, reads as follows:

“‘Apoll tax shallbe collected from every person between the ages of twenty-one (21)and sixty (60)yearswho resided in this State on the first day of January preceding its levy, Indians not taxed,persons Insane,blind, deaf or dumb, thosewho have lost a hand OP foot, those permanently disabled, and all disabled veterans, of foreign wars, where suchdisability is forty (40%)per cent or more, exceptedD It shallbe paid at any time between the first day~of Octoberand,the first day of February following;and the personwhen he pays it, shallbe entitled to his poll tax receipt,
even if his other taxes are unpaid.t
“Otherprovisions of the statutesprovide that thosewho fall within the classification exempted from the payment of poll tax shallprocure an exemptioncertificate from the County Tax Collectorwhen 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% ormore, since the date when such certiflcate of exemption could be obtained.
“Question: Can such disabled veterans vote in theNovember election? If they can vote, whatHon. CokeR. Stevenson, page 2 O-6236

certificate of disability Is necessary, if any, in order to entitle suchperson to vote?"

Your first questlon asks in effectwhether or not dlsabled veteranswho have suffereda 404% disabilitywithin the meaning of Article 2959,Vernon'sAnnotated Civil Statutes, are legallyquallfled to vote without the payment of a poll tax. This inquiry,due to the manner in which it is phrased, requires
an examinationnot only of Texas statutesbut also of the provisions of the Texas Constitutionrelating 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 onewhich, as all constitutional lawyers know, has been consistentlypassed 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 inclinationas a cltlzen would be to follow the same practice but as a public official holding the high office ofAttorney General of this State, I have certain statutoryand constitutionalduties to perform. Article 4399,~Vernon'sAnnotated Statutes, provides that "TheAttorney General at the request of the Governor D

. 0 shall give

. , . . written adviceupon any questIon touching the public interest." Article 4, Sect.22 of the Texas Constitutionprovides that "The Attorney General shall o 0give legal advlce in writing to the Governor and other executive officers,when requested by.them, and perform such otherduties as may be requiredby law." Therefore, since the Constitution,which I have as AttorneyGeneral
sworn to uphold gives me no latltude in the matterunder the question as posed by you, I shalldiscuss both the Cons'citutional and statutoryprovlsions involved in your Inquiry.

The poll tax as we know it in Texas finds its course In both the Constitutionand statutes of Texas. The poll tax of
one dollar was first Imposedby Article 7 Section 3 of our present Constitution,which was adopted In ~$76. That Constitution also provides inArticle 8, Section 1 that "The.Legislaturemay Impose a poll tax." That Constitutionalso,provided in Article 6, Section 3 that cities or corporate townsmight levy a poll tax as a requisite for voting in city elections "todetermine expenditure of money or assumption of money." These provisions are still in the Constltutlon. Itwas 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 constitutionalamendment 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 showinghis poll tax paid before the first day of February next preceding such election D D ythis provision of the Constitution shallbe selfenactingwithout 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 leviednot only the one dollar constitutionaltax 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 casemay be, is the poll tax but from a legal view point there is a distinctionbetween the dollar constitutionaltax and the balance of the tax due to the fact that one dollar of this tax is required by the Constitutionand the balance of the tax is required only by levy of the Legislature,

We shall first consider that part of the poll taxwhich is required only by levy of the legislature. The legislaturehas the inherentpower to levy all taxes and this includespoll 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 itswisdom 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""beforethe first day of February in order for the person taxed tobe eligible to vote. Pursuant to this inherentpower of taxation the Legislature has enactedArtFcle 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 leglslatlvepoll tax (that is the fifty cent tax for general
revenue purposes and twenty five cents for county purposes) "Indiansnot taxed, persons insane,blind, deaf or dumb,~those who have lost a hand OP foot, those permanentlydisabled, and all disabled veterans of foreignwars, where such disability Is forty (40%)per cent ormore-' The only constitutional tests applicable to these exemptlons In so far as they apply to the legislativepoll tax as dlstinguished from the constitutionalpoll tax, is that they be reasonable classificationsand we think that these exceptionsmeet 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 findwhat the Legislature has in Itswisdom providedwith reference to the timesfor payment of this legislativepoll tax and when the disabilitymust have occurred for thosewho seek to comeunder ,this part of the exemption in Article 2959.

Article 2960,Vernon's Annotated Civil Statutes,provides:
"Everypersonwho is more than sixty (60) yearsold, OP who is blind or deaf or dumb, or isHon. Coke R, Stevenson, page 4 o-6236

permanentlydisabled, OP has lost a hand or foot,
or who is a disabled veteran of a foreignwar, where suchdisability is forty (40%)per cent or more, shallbe entitled to votewithout being required to pay a poll tax If he has obtained his certificate of exemption from the County j&$xCollectorwhen same is requiredby the provisions of this title. As amended,Acts 1941, 47th Leg. p. 1336, ch, 604, 8 1.”

Part of Section 4 ofArticle 6, Texas Constitution, provides:

the Legtslaturemay provideby 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 follows9

“Everyperson,who Ls exemptedby 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 1stday of February of the year when such voter shall havebecome entitled to such exemption obtain from the Tax Collector of the county of his or her residence,, a certificate showinghis
or her exemption from thee payment of a poll tax.
“Such exemptperson 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 shallalso state his street addressby name and numbers if numbered,and the groundsu,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:

“Everyperson subject to none of the foregoing.dFsqualifFcationswho shall have a.ttalned the age of twenty-one (21)years and who shallbe
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. CokeR. 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 countymay vote at an electionprecinct in the county to which such county is attached for judicialpurposes; provided that any voter who Is su.bject to pay a poll tax under the laws of this State, shall havepaid 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)Inhabitantsor more, he or shemust procure a certiflcatlon showinghis or her exemptions,as required by this title. If such voter shall have lost or misplaced said tax receipt, he OP she shall be entitled to voteupon making and leavingwith the judge of the electionan affidavit that such tax was paid by him OP her, or by his wife or by her husbandbefore said first day of February next preceding such electlonat which he
or she offers to vote, and that said receipt has been lost or misplaced. In any electionheld 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 foregoingquallficat1on8, the votersmust 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 includinggeneral, 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 leviedand collected from every.personbetween the ages of twenty-one and sixty yearsp residentwithin this State on the first day of January of eachyear (Indiansnot 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 purposesQ Said tax shallbe collected and accounted for by the tax collector each year and appropriatedas herein required. No county shallHon. CokeR, Stevenson,page 6 o-6236

levy more than twenty-five cents poll tax for county purposes, The poll tax due from cltlzens ofunorganized eountles shall be paid in the county to which the unorganized county 1s attached for judicialpurposes."

Based on these statutesyou are advised In reference to the legislativepoll 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 foreignwar (where such dlsability Is forty (40%)per cent or more) residing in a city of 10,000 inhabitants or more, shallbe entitled to vote in the November electionwithout being required to pay a poll tax, providing that he sustained said disability on or prior to January 1, 1943, and has securedan exemption certificate on or prior to January 31, 1944, from the County Tax Assessor-Collectorof 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 kn war (where such residing elsewhere than in a city of LO,000 inhabitantsOP ma-e, shall be entitled to vote In the General Electionwithout 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 answerswould 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 leglslatlvetax. The poll tax for which voters now hold a receipt is the tax which was leviedas 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 veteranswho have sustalneda forty (40%)per cent dlsability sinceJanuary 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 Conutitutioncannot, in our opinion,be considered as strictlya legislative levy. Article 7, Sectlon 3 of the Texas Constltu,tion In so far as applicablehere reads as follows:

"One fourth of the revenue derived from the State,occupatlontaxes and a poll tax of one dollar on every Inhabitant of the State, between the ages of twenty one and sixtyyears shallbe set apart annually for the benefit of the public free schools".Hon. Coke R. Stevenson,page 7 Q-6236

Our Texas Court of CriminalAppeals in Solon vs. State (1908) 114 S.W. 349, at page 359, in speaking of this provision of the Constitution said:

"Underthis provision of Sectlon 3, Art. 7 of the Constltutlonabove quoted there is, in express terms levied in this state a poll tax on everymale inhabitant thereofbetween the ages named therein;and if this section of the Constitution is to control such poll tax is fixedwithout the necessity of legislativeaction. The provision standing alone, is definite, flxed, and as certain
as any legislativeaction can make it, We think the law, ifwe shall hold this section controls, could be sustained on the ground that this provision of the Constitution Is self-executingand in terms levies a poll tax on all personsbetween the ages named, and that the exceptionsof the persons, and classes of persons, named in Article 5048 of ourRevised Statutes could be held to be invalidand 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

"Section3 ofArticleVII 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 ofArticle 7, Section 3, relating to the levy of one dollar poll tax is self executing is in'llnewith 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 inArticle 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: personsunder twenty-one (21) years of age, Second: Idiotsand'lunatics. Third: All paupers supportedby any county, Fourth: All persons convicted of any felony, subject to such exceptionsas the Legislaturemay make. Fifth: All soldiers,mrlnes and seamen, employed in the service of the army ornavy of the United States." This last provision relating to soldiers,marines and seamenwas,amended in 1932 so as to permit all members of the armed forces in the service ofHonorable CokeR. Stevenson,page 8 Q-6236

the United States Government, exceptmembers of the Regular Army and Regular Navy, to vote provided they are otherwisequalified to vote. See our opinionNo. O-5779, addressed to you as of January 15, 1944. (2d) 562. Carpenterv. Sheppard, 135 Tex. 413,~1.45 S.W. The prohibitions ofArticle 6, Section 1 relate to voting and not to thepayment of a poll tax. The personswho
are thus prohibited could not vote even though,theypaid a poll tax. There are many people subject to the payment of a poll tax who neverthelessdo not have a right to vote. This is due to the fact, as previouslynoted, that the payment of a poll tax was not made a qualification for votinguntil 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 ofwhether 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 Constitutionprovides:

"TheLegislature shall have no power to release OP extinguish, OP to authorize the releasing or extinguishing, inwhole or in part, the indebtedness, liability OP obligation of any COPporation or individual, to this State or to any county or defined subdivisionthereof, or other rrmnicipal

corporation therein, exceptdellnquent taxes'whichhave been due for a period of at least ten years."
Article 6, Section 2 of the Constitutionprovides, as we have noted,,that in order to be qualified to vote "anyvoter 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 saidpoll tax was paid before the first day of February next preceding such election." It iswell settled, of course, that the Constitution of Texaswhich is our fundamental law is part of the law included in the phrase "underthe 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 Powellv. City of Baird, 128 S.W. (2) 789, 790, said:

“ As used in the above constitutionalprovision the word 'under'is certainlyused as a preposition, indicating subjection,guidance, OP control, It is used in a sense of 'byauthority of'a"Honorable CokeR, Stevenson, page 9 Q-6236

There is no principle of constitutional law more firmly entrenched in our jurisprudencethan the propositionannounced 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

havingprescribed the qualifications of those entitled to vote in this election, no charter provisionprescribingqualifications was necessary, and none could be made other than as providedby 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 L1vAll the authorities seem In accord with the statement that 'wherethe 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 bindingupon the states. But it cannot be restricted or changed in any otherway. The legislature can pass no law directly OP indirectly either restricting OP extending the right of suffrageas fixed by the Constitution. 10A. & E. Encyclopedia of law, 573, 576; 15 Cyc. 282, 8 R.C.L. Sec. 41.

"InCooley's ConstitutionalLimitations, In section 599, it is said: 'Wheneverthe 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.'

"ITherule statedwas 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: 'Wherea Constitutionhas conferred the right and prescribed the qualifications of electors, it, of course, is paramountuntil amended, and the Legislature cannot change or add to them in any way; but, where the Constitutiondoes not fix the right of suffrage OP prescribe the qualifications of voters, it is competent for the Legislature, as the representative of the lawmakingpower 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 CokeR. Stevenson, page 10 o-6236

489, 128 S.W. (2) 786. The Constltutlonhavingby 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 shallbe a qualification for voting "at any election in this State", the Legislature iswithout power to exempt classes of personsbetween 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 portionwhich may not, is recognized by the Legislature In Article 5840,Vernon's Annotated Civil Statutes,which provides in part, that:

"All officersand enlistedmen of the active militia of this State,who complywith their mllitary duties as prescribedby this chapter, shall be entltled to exemption from the payment of all poll taxes, except the poll tax prescribedby the
Constitution for the support of the public schools;

. e
. 6 D

In this connection see our opinionNo. 0-5808 issuedJanuary 26, 1944,wherein this distinction is furtherpointed out.

This identical constitutionalquestionwas presented to and passedupon by the late Chief Justice Cureton of the Supreme Court of Texas,while he was AttorneyGeneral of Texas. In Attorney General's opinionNo. 1972 that distinguished jurist in
a conference opinion signedby himself and by Federal District JudgeW. A. Keeling,who then was First AssistantAttorney General, held that:

"It is, therefore,apparent that since the Constitution, In express terms, leviesa poll tax the Legislature is powerless to now ingraft exceptions to the constitutionalamendment as itwas enactedby the people."

You are, therefore, advlsed that it is the considered opinion of this department thatArticles 2959, 2960 and 7046, Vernon's Annotated Civil statutesare unconstitutional in so far as they purport to exempt the classes of persons therein named from the payment of the one dollar constitutionalpoll tax or to make those classes of persons qualified voterswithout the payment of any poll tax, We, therefore, answer your first question in the negative.Honorable CokeR. Stevenson, page 11 O-6236

This disposes, also, of your secondquestionwhich 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

APPROVEDNOV 4, 1944 s/GroverSellers ATTORNEY GENERAL OF TEXAS
This Opinion Consideredand Approved in Limited Conference