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Hon. Jack Roberts - Page 2 'V-129 _'

statutes

do not requirethat a voter &hallhave resided six months withina precinct of a countyto be eligible to.vote,

but that the six monthsrequirement is corn-' pliedwith if the voter has residedsuch time within the county.

We quote from.Opinion No. 2ll6 of this Department,

dated July 16, 1919, as follows:

. *If a voter has in fact moved into a new precinct

withinthe same county, in good faith to reside in such precinct and to acquke a residence therein,

suchvoter is entitled

to-vote

at any generalelection held subsequent to his acquiring

his

_ qew nsidence as aforesaid," .~ In rlew of the foregoing, you are respectful1 adklsedthat It is the opinionof this Department & t t a personmayvote in a special election

such as a local optionelection, who has moved into the precinct immediately

beforethe election, on his own~atatement

.- that he is-a legal residentof the precinct, provided he has his poll tax receiptor certificate of exemption, if roqulred

by'law,and 'is

otherwise

a qualified~voter; and provided

furtherthat the factsand circu~~tanods are such aswould make him a legalresident of~that ~~

. particular'precinct; one of which-is

his intention

at the time ha moved into such precinct.*Linger vao.
- Dalfour,

l/+9 S.W.'803;

Harvey vs,'Cain,

197.S.W,

765.. ~&ever, 'there

is an exception $0 this g&r- .ti'..e'whenthe person who is offering

to vote lives’ in a city of 10,000 inhabitants or:'more.

Then he must comply tith Articles

2966 and 2967, V&S., which ares aa follows: .:.~ ~; 8

_ =&z-t.

2966. Bemovalto another ward* 'If a citizenin a city of ten thousand &r&habitants,

after receiving

his poll tax receipt

or certificate~of

exemption removes to another

ward in the same city beiorethe next election,

he may vote at any general electionin the ward of his new residence‘by presenting

his poll tax'receipt or certificate of exemption

to the precinct

election judges,

or by mahingaffidavit that it has.Hon.'Jack Roberts- rage 3 _' v-129

.
been loat or misplaced; which affidavit sh+llbe left with the judgesand forwardedwith tha election returns. But in all such caws if the removal uaa to the ward of his neu residence in the aame city before the certified llat of voters wna t$ellwed to the aball appear before t r clnot judgea,

he. e tax collector

not loss +m fire dqs beSoreayh l lectlon er primaryllectlon and ohtaln a Comwt~d r8ceiptor certificate* and his name &AU k added to the liot 0) voters for the -Iact of his new xwaidance; and ha &all uot wte In that event unlua hi8

us ~z1 the carblfled

llat of

. . . Gtzl. pi?

. ’

” wrt. 2947. EemoYal~fO anotierfxnmty 6r preciaot.

P@JJ .If a cltiren

aftor,rece*vin&

hls -tu ncalpt or cert~flcate of oxomptloa,

cImw08 to aa- ctnlnty of to I ~hwpncinctlntha aane county ha qy veto at an eloctlaS ln the pr&ct ofUmnmrmsidaneaLnauoh’athwcauey or proalht by pqesontlng hfs pall tax maeipt 0T oestifiaatte ef exeqtion er hl8 affidavit

of its lors to tha pnotict’ il Mgea of election,

and state in auchif- ' davitwhore he paid such poll.tax or.

. received

such certificate

of exemption, aud **by** naking oath that ha ia the ident%- cal peraendescribed In euoh.pall-tax

roeaipt ar Cortlfloato of oxemptlon, md tht b then re&&4w 5a the precinct .c: wbua% he offers tovotoandba8rwl(d

_ for the last alx matbe IA the district I or aounty ia which he aff+rate tote end twelvema~ths iqa~the~8Qtts. BUS no such pe.raasW&lbmpemittm~toootofDa

.

thewwd~bituatr~rasu 

### l ll q e t e r

o f & i s r w kl a s a c s

a tax 

### n c o i p t or cart.Ulcato, AOt lose thml feur &p prior to rush election or primaryrlrc-. tion er mede rffitivit af ita,loss

and eating iA muh affldartt lchue ho peld : ruch poll tax or ncei~ed mmh oa'$lfl~te,, .
Edn.

:

: ._

. . This~

question we think,. is answered

in Opinion. Ho. O-7034 of this fiepartment dated January17, 1946,

. . .' &n the' answersto questions 7 and 8 therein; a co

_ - uh+h is herewith enclosed. In this opinion thia%zf -partment

ruled that such persons were entitled

to vote withoutbeing included on the certified

lists of voters : prepared

by' the tax assessor

and collector;

that the Y, udgas could.

require them to show by their ownoaths .:. :'

.. and if. in a city or town of .10,000 or more .$nhabltants, : by the oath of one well known resident) that they were qualSf%ed

to 'vote:

and that the election' officials

could

. ~0% :requirr more. . . . .: "

Jack Boberts - Page 4 :

. . of.memption;and the collector &all thereupon add his name-

to the list of qualified voters of the precinct of his new residence; and, uiiLess

such voterhas done this and his name appearsin the,certifled list of voters of the precinct

of his new residence;heshallnot vote.' ':_ _' -Tour Question.ho.

2 is as.follows:,

,,_ ,. 1.2. Ii case .of

'service

men or women. entitled

to vote,

withoutpoll tax, are theyrequiredto make any showingas to whether
. they live.

in the precinct?"

.. . . . Tour &estion ?0..,.3 %8 as follows: : : " 

### l 3d If a personactA.ly'~reaide*~ 'in .

. . y .a' precinct.

one night.

preceding'

the electton .by merely sta ing in it overnlght,.and oer' not move'

his Eousehold

goods, etc.

) and then : returnsto -his

usual residence

in ,some

other $reainct,

is .he subjeotto prosecution fo.r '.' _' voting.in

the el;ection?" Iike vr6 are faced with a que&ion of fact. 'iou6tate that the personactually resides in a pre- 'cinct one night,yet at the sametime you say he did not mow hia household goods, etc.. The facts ou 'their face are hot consistent with modng to a new residence '.. wI.h a bona fide Intentof making it his perrnaA~At .' reeidenci. 2

A6 atotedby JueticiHorvellin the aaae of Ii&de vs. Cantu, reportedin 143 9. W. (2) 126, ue' find the .follorring:
.

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Hono Jack Roberts - Page 5 V-129

'*Thetestimony

of a witnessas to his intention

is, of course,

not.necesaarily controlling. It is, however, an element whichmay be considered by the authority authorized

to determine

fact issues- the jury or the trial judge. "In our opinionthe correct rule Is stated in Stratton

vs. hall,Tex. Civ.. App., 90 S.W. (2) 865, 866, by the El Paso Court of Civil Appeals,

wherein It was held that althoughthe declaration of a voter as to his intention

is not controlling, %z isbT element.which

may be considered. Words, the question of the residence

of a marriedperson for votingpurposes under Article 2958, is one which'muat be determined by reference to the actualfacts and circumstances; one of whichwill.be his in-

. tentions.'*
; The&ore, sinceyourquestion'ls~one of fact, thiaDepmtmeat aannot pasauponthe same.

Question

No. 4 of your request is,as follaua: ..‘ '40 &,there a different regulation - for voters of rural and city precincts, aa. to their qualifying to vote in a precinct Idto which they have moved? Are bdth re- *a quirsdto make affidavit that they have removed-tothe precinct.where they offer to vote? Is there a time limit for,either or both, preceding

the election? What is it?" .:., In answer to this questfon and in view of the. forego&g authorities, it is the opinion

of this Department that there is not a different regulation

for voters of rural and city precincts, as to their qualifying to vote in a precinct into which they have moved unless the city in which they are voting'ia. oae which has a population of more than 10,000 inhabitants.

In either instance

the votermuat tie an affidavit

that he has removedto the precinct where he offers to.vote if required to dc so by the electionjudges

In the case of Yett vao"Cook, reported ha 281 3% 839# Chief Justice Curetoasaid:Hon.'Jack Boberts- Page 6

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2%.

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. . . Wae purityof-theballotin Texashas
. been safeguarded

by many constitutional and atatutory~proviaiona. Const.art. 14 0 '2;. article6, ga 4, 5, 2; article7$ 8 3. See, generally,

also, devisedStatutes 1925, 83&3~,2~!3

to 3173$ and Pen. Code 1925, art. e

.- "Amongother provisions havingfor

. -their purposethe purity.

of the ballotare those relating

to the paymentof poll taxes and evidence

thereoffor use at elections. Tax colleciora

are compelled

to prepare

and furnish poll tsx lists to election boards ;for.distributioa

to the precinct

election : officers. These lists conatitute~part of the'election

supplies,

and the numberof. ballots

to.be furnished

each voting

precinct la ascertained

by reference

thereto* Revised Statutes

1925, arts0 2975,.

2984. In the-case of municipal

elections

the eleation

board.is' muaposedorthe mayor and othera,-uhose 'duty .;;eis to obtain election

supplias,

including ll lists referred

to and furnishthem. to 6 E" l ctionoffiaerso-Bevised Statutea

1925, arta 2997$ 2996, 2992r 2993o Supplemental liats.of

the voterswho have paid their poll tsxeemuat be furnIahed*notleaa~thaq four

. days prior to any * *.* general -election.'

. . . .Beviaed

Statutes

1925,hart..

2975. If all lists an not furnished the residingjudges.: R . : .ofthe various election prec cts *at.leaat three days before electioa,q it is their. '. '.'** duty to send for &d procure them,,. Beviaed.. '.': Statutes

1925 art0 2993,'Theae.poll lists;: : '. .are used on the .day

of'elaction

as a means .of identifying

those I&O appear for the' purposeof voting. Describing the actual .:m methodof voting, article.3005 declaree*.that, when the voter uresents ~himself

to vote. he ,-.. .
Hon. Jack Roberts - Page 7

?It‘canserveno

. .

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_’ good purpose to make statutes

which show reference

to the many that the poll lists are one of the things which carmotbe dispensed with if a lawful electionis to be held, Since the statutes oonternplate

that the poll lists shallbe used as an active and efficient aid towards securing

the purity of the ballot, they necessarily

mean that complete

poll lists shallbe used; that is to cay, the lists shouldcontainthe mames of everyvoterwho may pay his poll tax prior to the closeof January..U~st

each year. We think it quite orldmt that the poll lists in a city like Auotin could not properlybe prepared and disttibuted

and the etatuteain other iplportant.respekts be ixmtplied

with between th hour of midnightJanuary 3lstandtha hour of the qwnfng when an election -weu.ld V-129

.

a&nstruiag the various atatutes'bearlng en the subject in the light of the Con-
. 8titution

shows tonelusively

that the provisions

relatingto poll tax listsare man-.' ,_ .datory.

.a ~. .* (Underscoring ours1

.. . . .' It i$ clearly seen from the foregoing tuthor- .ltidi tbat it Ss.mandatory that thetax asseshrdtnd collector

of the county fixrUsh a poll t&x list to the ' Board, beforethe'firstday of April of every year. If in a county

wnich'.contains

azity of more than 10,000 .lnhabitants

the tax'

collector

shall also furnish

to saidBoardnqt,lessthan four days‘prior toany Primary or'General

Election supplemental lists in the form. herein prescribed,

of all poll taxpaying voters uhe' have, sincepaylng.theis poll taq removed

to each vatlng precinct

in each such city.or town in the county from anothercounty or in other prtcincts,in tho same 'In turn the Board shall furnisheachpresiding ~$~'~f a precinctthe certified lists and,supplemental Mats of'votcrs. of his precinct-at

tho time when ,itHon. Jack Boberts- Page 8

furnishes

other election

supplies. If said.list

or supplemental

list Is not furnished said Board, it is then incusbent upon said Board to demand the same since it is absolutely necessary

end mandatory that the election udgeahave said lists throo dayc before said elect i on in order to ascertain who are qualified

voters;and if they do not receive same, they shouldmake demandfor. them, It is only in this respectthat there is a difference in regulations for votersof rural and city precincts.

It necessarily

followsfrom uhat has been .aaid that, if a person

moves from one precinct .toanother. precinct

in the same countyand in a city or town of more than 10,000 inhabitants,. subsequent

to. the time ,tbat the supplemental lists have been made out by the tax collector

and, delivered

to the.Board,

he could be deniedthe right.

to vote. Whereas,If he removed to’
. aaother

precinct

$n the ‘same

countyeven after the poli list had ‘been

made by the tax amessor and collector and ‘delivered

to sa%d @xrd but not being in a town or ‘-city of inore

than lO,OOO.inhabitants, he could.

not be
. denlod the right--to

vote regardless

of when he moved to his new precinct,

if he was otherwise qualified

to vote.- Ye.~sre .fami.lW”uith

the principle

that the’ Cou+s of Texas:throughout the yearshave.liberall h construed, the. statutory

regulations

affecting

therig t of a voter freelyto cast. his vote in the exprosalon of his choiceat an election snd, .in

the abscnce’of

statury command,

will not disfranchise hizap, yet, since.

it - Is msMat0r.y

that then

supplement&l

lists .be

furnished ‘to the election .judgsa, in cities’of.more

than 10,000 inhabitants if a person moyes to such city after the stapplementa$

.poll list has been delivered, or moves from one precinctto another precinkt

la such ait election

judge-could

refusehim a ballotbecause tc:he
name wouldnot appear oA.saidlist as required by law* ‘Thifirst part of Question No.’ 5 of your re-. quest that is: When a person casts an’absentee vote, what, 1s the duty of the County. Glerk as to ascez%ain’izxg the legalresidence of such voter?s.,

we think, is an- ~swered

in Opinfon:No.

O-7069of this Depsrtment, dated February

23, 1946,a copy of which is herewith enclosed. The &I% part of Question No, S is as follows:_:...
hon. Jack Roberts- Page 9 V-129

*What is the duty of tho election of-
. . ficial.8

of a precinct

when a personoffers to vote and presents an affidavit

that he has removed

his residence

to that prqainat’M Articles

206 to 280, V.P.C.,are otherprovi-. slonshavingfor theirpurposethe purity of the ballot and which ret out some of the dutiesOS tho slection %%rti~les 3002 3004 3005 and 3006 V C - particularly

Articles

216 and 217 to

3 ether These ‘tiicles provide

h;w theieelection

judge:&y:a&ortain who is a qualified

voter,what the votermust .doin ‘order to ba eligible

to vote, and the remedy of the voter If challenged as such. Article3007,V.C.S., is the pprticulsr

statute which. governsif the election ls bolng held ia a town of 10,000or more inhabitants where the voter’s

right to vote is challenged.’ It is apparent

from &at has already beqn said and in-

view of the aforementioned statutes.

that .if the person is OtherwiSe qualified

to vote it is their the duty of the election fact8 Srom the voter under i! udges to rot&e such oat which hs (soems tiooes-

. sary to a&surethe judgesthat the personhas aatually becomea bona fide resident of safd preoinqet; : ofmoh *han.lO.'OOO

ascertaining

.ths’fa&s

asinperson’s

‘natme must appear’in

the persdn Se.required. 

### to have .a of. exemption;

othsrrrfse.

the olectioa udge,should refuse.toissue srich,person-a bpllot..

L addition

to this, Article 3007, suprat is also applicab1.e

a It “goes

without saying.

that the ‘law imposing.all

the other duties upon the affiaialsholdipg ale&ions must aSso be abserved.
. .:.

. .

: ‘SUMKARY.. ..’

Is. An otherwIse

qualified

v0te.r ,iho.“. ‘,has moved into a precinctbeforean olection may vote in a local’ optionelection on .his own statement

as to precinct

red- .dence.ff

he has been a residentof suoh oounty for 6‘monthaimmediately procoding ‘such oleation

upon presentation

of.hiepoll tax receipt.

or certifloate

of exemption,

.lf. requlrod;

htiovers

if voting lm a .city of 10,900 .inhabitsnts

or more a votw musts In. . ;.. Hon.~Jack Roberts - Page 10. .vy129..

.

. .

. addition

to the fore'oing,

complywith " Articles2966'aud

29 7; V.C.S. % .:~~ 2. As .to

whethera voter is subject to prosecution

who residesin a preainct one night and doesnot move his household goods,etc0 ) presents a fact question, A declaration

of a voter is not controlling as to intention

althoughit is an element whichmay be considered. (90 S.W. 2d 865; ll+3 S.W. 2d 126) 3. There is not a different regula- 'tion for voters of rural and city precincts, as to their qualifying.to vote in a preoinct into which,they have moved unless the city in .tiich

they are voting is,one:which has a population

of more than 10,000 in-, habitants* In either,instance the voter must make an affidavit that he has removed to the precinct

where he offers to vote, if requiredto do so by the electionjudges, There is.no time*limit for either~,

preceding the;election.,

butif in a town of more. than 10,000 inhabitants the voter, if rcquested

by the jud e; must aom Xy with. Article 3007,V.C.

8 *, in addit on to the .1

E other requiimwnta set out in the statutes* 'l+.- If a person is otherwise qualified'~ 

### to foto, it is the duty of the electiqn .' jridge to retire suah facts from the rot&? Under oath which he deems necessary to a's8ure the judge that the personhas.actually. beoome 'a

bona fide Fesident

of said preoinct. :r'

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_’ ”

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APPROVED.APRIL

8, 1947 AFm,GENEXAL OF TEXAS

BruceAllen Assistant; BAa.djm:erc Enclosures '. _.~. :. I :.

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