OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN **GROVER SELLERS**  **Arrcmw~Y ocNcrr** *

:.onorable Wed V, Edrridlth 3ounty **Attorney,** Kaufman County **dUfE811,** Texas
No. Q-7022 Dothe provisions of nr5lole VI, 

### sea. 2a,,Conatitution OSTexaa,,,erempting pereona namedt$sti,in from payment as a oon~lti,m

perate a motor

the public hi&- oonticted oi driving while in-

‘\, toxica~ed? iiay\~~~wttness

and mileage r-. ~, \,

1 .\,fa’as in misdemeanor orimlinal / \ ,loases be paid to.reeidents

_-. D&S&: ,;,

‘J “,,(,-.l,;,ythe oounty?

‘\ ‘ j, \- ’

‘1 ~.Iny& letter of January 5, 1946, you rsoueat the opinion-/of this Irepartment on several different questions. a‘or~oonvsnienoe in replying, wswill restate your questi_ons andanswer eaoh in turn.

1. Is aveteran whoooms !vitbin tb provisions of seotlon 2a of ~rtiole VI of the Constitution of Texas,Lonorable Fred V.Lierldlth - **Pan0** #2

andthus ha8the right **to** Yote **without** thr 

### payment **of** a poll tax, In any eleotion held undrr authoritjf OSthe laws oi this State, nsvarthrleer llablo for tbr payxmt oi suoh poll tax, JOthat It will beoomr a dsllnqurnt tax againat him unless **it** is paid **by**

### January 3lst?

TheConstitution and StatUt68 OfTexas provide for the 1OVyandOOileOtiOn OfpOii taxes. Oonatitution, Artlole VI, 30. 2; Art1010 VII, 880. 3, Artiole VIIX, 2300. 11 Vernon’s **Re** vised Civil Statutes or 1926, Artiolea 7046, 2959, 1030. Artiole 2959 provides that the poll tax shall be paid between the first day of Ootobor and the first day of February.

hrtiolr VI, Seo. 2, of the Constitution provides that any voter whois oubjeot to pay a poLl tax **under**the lawa or the Atate 

### orTexas ehall have paid said tax before 

### orrering to vote at any eleotion In this State andhold a reoelpt showing that said poll tax was paid before the first **day**oi February next prsoeding suoh eleotlon or makeaifldavit that suoh reoelpt has bean lost **or** mi818id.

Artlole VI, Seo. 2a of the Constitution (adopted Aug. 25, 1945,)provldee:

Vothing in this Constitution shall be eonatrued to require any person, whoat the time of the holding or an eleotion hereinafter rerrrred to is, or who, within eighteen months immediately prior to the tlnn or holding any suah eleotion warn, amember or theamed fames or the United Statea or of the Amed Boron Reserve of the United States, 

### or or any branoh or oomponent part Ofauoh anned fOrOOa or ArmedForoe Reserve, or the United Stats8 Earftlme Servioe or the United States Li8rohant Karlno, andwho is otherwise a qualified voter under the laws and Constitution af this state, to pay a poll tax or to hold a reoeipt for any poll tax aasessed against him, as a oondition preoedent to his right to Vote in any eleotlon held under the authority of the laws ot this stats, during the tine the United States Is engaged in **fighting** a war, **or** within one year after the olO8e of the oalendar year in whioh said war is terminated.Iionorable Fred V. t’lerldith - Page #‘3
WProvlded, however, that the foregoing prsvlalons or this ssotion donot oonfar the right to **vote** upoa any person whoIs a smaber of ths rsgular establishmsnt ot the United States Amy, Navy, **or** ldarinr Csrps~ snd provided rurthar, that all **psr sons** In ths amnedioross or the United States, or ths oomponent branohos thersof, not members or the regular esta~blishment of ths Unlted States &my, Navy, or Sarina Qorps, are hereby daolarsd not to be 

### dlatpa~lrled from voting byreason of any provision of sub-ssatlon *Fifth* OfSeotion 1, OS this Artiole.” In our Opinion No. O-6821, addressed to Honorable George E. Sheppard, wesaldl

this amendaant does not exempt anyone from the a
“

. ‘+ nt of the poll tax levied by other seations oi t e Constitution and by the statutes enaotsd in pursuanoe thereof. This ansndsmnt provides onlv that the namedcmrsons shall not be rethemas a oondltlon reoedent to their right to vote fn;lr;r;-;7.- -- in the eleotions ape0 Ii 18thererare our opinion that those veterans ooming within suoh ocnstitutifmal provision, although they are permitted to vats without payment of a poll tax,, are-.nevsrthelsss liable for the paymsnt thereof, and the samebeoomes a dellnquent tax against them ii not paid oa or before January 31st.

2. Does this oonstitutlonal amendmentapply to a poll tax levied by a oity?

It will be noted that the bsnsrlts of the amendment extend to “any eleotlon held uhdsr the authority of the laws of this state.” Aoity eleotion is ah eleotion held under the authority of the laws of this state.

ASto the levy of a poll tax by a oity, the Supreme court of Texas said, in the case of ’ Powell v. City or Baird, 133T. 409, 128S. I;. Zd. 7861Eonorable Fred V. Lerldith - Paw $I4

nit is our opinion that a poll 

### taxia leviad Iundera State 

## law,within th. lWUiiIl2 Or%QtiOn 2

or 

## Artiiohv-x

0rourstat8camtitution,ii aomo stats law dirrotly authorizer ruoh l8vy. In tbl8 lastnnoo Art1ol.e 1030, R.C.S., **as**unended, uupra, dirsotly authorlzrr **altier** to 10vy and oolleot poll taxer, It follows **that** suoh poll **taxes,** when80 levied, am levied by **dlreot** authority of a State law, and are, therziore, levlsd under a State law. :;'ebater*s iiewInternatlanal DiatlonaryI 65 C. J. 12021 Savage v. Umphriea, Tax. Clv. App. 118S. W. 093; Linger v, Baliour, Ter. Clv. App., I.493. W. ?Qj$.Bonham v. Buohs, Ter. Civ. App., 226S. Yi. 1112. AI used inthe above oonetltutlonal provIalon, the word *under* $.aOwtainlg used a8 a prepositioil, iAdiO6tiAg eubjeotion, gufbaooe, or oaltrol. It Is ueed in a semae of ***by authority**  Of.‘” &d in the oaae of Texas Power and Light Co., v. BLYIWAwood Pub110Sorvloe Co., the oourt said: (111 S. w. 26 1226)

*It is nowsettled law that the la-age 

### 0r the Constitution determinrs the qunllflcatlons 

### 0r the a1eotorat.e. 

### Neithsr 

### thestatutee 

### nor the 

### provisions or a oitp 

### oharter, whloh in homerule oltler must omrorm with the Ccnstitutlon **and**the general laws of the state, QI~impose additional quallfloations aaa~

## pmJr8qUiBit8 t0the right 

## Ofitz 

## OitiNAs to vote, whloh **are** not authorized by the Constitution. ZoCutoheon v. ;YozenoxMt, 118Tex. 440, 294 S. W. l.iOSl Mndover v. Tobln, Tex. Cit. **App.,** 261 9. X. 234; 

### Csmron

v. Connally, 117Tex. 159, 299 S. iY. 221; Ltahl v. Xiller, Tex. Civ. App., 63S. X. 24 578.” It is our 

### opinionthat this zmendnmt applies to a poll tax lrvled bya oity.

3. Xhat should the sleotion judges require of the soldier or veteran whodesires to vote, Ol8imiimin43 the benefit of the oonstitutional amendmentabove set out7 dust he reqdre 04afrldavit?iionorable Fred V. Nerldlth - Page $5

In suoh oases the **usual proor**  **or right**  to vote (gossession oi a poll tax reoelpt or an exsmption **oertiri aate)**  **iS hOking.**  Therefors ths follu~ing ertiOle8 **from** Vernon's Oivll Statutes of 1925, relating to the oc~duot of elsotions 1s material:

"Art. 3006. 2999 Examination of ohallenged **voter** "XhOna person OifOdAg to **Vote**shall be objeoted to byan eleotion judge or a supervisor or ohslleAger, the gresiding judge shall Ox8mlnehim upona~ oath touohhg the poiats oi suoh objection, and, ii auoh psr8on falls to establish hie 

### right to vote to the SatiSraOtiOA of the 

### majorityaf the judges, he Shall AOt Vote. If his Vote be rSOeived, the word, *sworn,* shall be written upon ths poll list opposite the naaieof the voter." "Art. 3007. 7904000 Vote ohalleoged "IO any elsotlon, State, oounty or municipal, being held In any oity or towA of ten thousand inhabitants or more acoordlng to the preoeding Federal **CsnsUs,**Whenthe right OSanyeleotor to vote 18 ohalleaged, the Sollanl~g prooeedings shall be had: "1. Thejudges of sleation shall 

### retuss to aooept suoh vote of suchelsotor unless Faaddition to his ownoath he proves by the oath **or** onewell knownresident or the ward that he is a qualified voter at suoh elsation and in suoh ward. "2. GheAsuoh vote is aooeptedthe word *ohallmged' shall bewritten on the ballot, aAd the jud&es shall oauss the clerk of eleotlon to makea minute of the n&meoi the eleator aAdthe party tCiStiryiAg under aath as to his quallficatiOAS, and suoh memorandashall be kept by the aounty clerk of the county ror six months after suoh election is held, subject to order of the dlstrlot judge."

# 99

Iionorabls Fred V. Gerldlth- Pagej5

“Art. 3008. 3001 Delivery OSballot "Xhen the judges are satisiied as to the right of the oltizen to vote, the judge shall stamp In legible oharaoterswith a stamp of wood or rubber the poll taz reoelpt

### or oertitloate or exemption with the words: 'Voted

. . . . . . day OS

. . . . .) D.A. 19

. . . .' Orwrits the samewords 

### in ink tindthen return said rsoslpt or oertifloate to the voter, and shall at ths ssms time deliver to him one ofiioial ballot OAthe blaankside OSwhfoh the presiding judgs shall have prevfoualy wrlttea his sicgnature. Thevoter shall then immediately replr 1;os voting booth or a plaoe prs9arsd for voting bythe eleotlon oSflOer8, and there prspar8 his ballot in the nanner provided by law." UAder$hesa statutss it Is our opinion that, when an elector 01&i&s the right ta vote under the provisions OS -4rrtiole KS, 380. 2u, 0s the Ccmstitutlon, it is the duty or the eleation judges to satisfy themselves OShis right to vote before permitting himto oast his ballot. That they s so satisiy thsmselves by szamining himuAder oath or by his arrldavlt, as the case Roybe; but they must doso IS the voter is OhelleAged. Clark '1. Stubbs, 1'523. W. 663.

Your fourth question is enswered by our Opinion No. 04052, a oopy of whioh is enolosed.

5..Xre witnesses duly subpoenaed in misdemeanor oases tried in the county OStheir rssldenoe entitled to olaim witnsss rees and milsqge for thrlr atteAdaAce upon the oourt during the trial OSsuah oases?

Xrttole 1036 OSour Code oS Criminal Proosdure providee in part:

"(1) unywitness whomayhavo bsen sub?oaAa2d, or sAal1 have bean rsaognized or attaohed aAdgiveA bond Sor his appearanoe before any Court, or beioro any grand jury, out oS~the aounty of his residsAc8, to testify in a felony case regardless of disposition of said aasa, andwhoappears in aompl:anco with the obli~atfons 0s such reaogAizaAoe or bocd, shall be ellowed Three (3) Cents per mile goFng to and returning from 

### theCourt or grand jury, by the nearest praotics1 aonveyanoe, and T;roLollars (22) per day for aaon day hemayneoessarlly be absent from homeas a witMa iA suah case;
. . ."Honorable y’red V. Xeridith - Page $7
&oh foes and mileage are to be paid by the State. .atioles 1078, 1079 and 1080, C. C. P., proridrr

“Art. 1078 (1188) (ll38) Fees oi witnesses Witnessoti In orimlnal oases shall beallowed one dollar audfifty ocPts a**day** rorl qoh daythey are In attendanoe upon the oourt, and air oents for eaoh mile they maytravel In going to or returning rrom the plaoe 0r trial.”

“Art. 1079. (1189) (Xl.39 ) TaXed against defendant Wpon oonviotion, the ooets aooruing from the attendanoe of witnesses shall be taxed against the defendant, uponthe atiidavit or suoh ~Itneati,oror soffieoredible pamon, stating the numberof days that such witness has attended upon the oourt In the ease, andthe number of miles he has traveled Ingoing to and returning from the plaoe of trial. The affidavit shall be filed with the papers In the oaee.”

“ht. 1080. (1190) (1140) Nofee8 allowed

“Notees shall be allowed to a person as witness fees unless **r~oh** person has born subpoenaed, attaohed or reoognized as awitness In the ease.” Artiole 1055, C. 0. P., as amended, provides:

“Art. 1655. air 00sts paid orfloors The oounty shall not ba iiablo to thr OffIOer andwitness having costs In a misdemeanor oa8e where defendant pays his fine and ooet6. The oounty ehall be liable ror 0nd.e 0r the reee 0r the orrioera 0r the sourt, whenthe defendant rails to pay his fine and lays his fine out In the oounty Jail or disaharges the same by mans of working euoh iins out on the oounty roads or on any oounty projeot. And to pay suah halr or costs, the county Clerk shall Issue his warrant on the CountyTreaeurer In faror of suah oftioer to be &aid out of the Roadand Bridge Fundor other funds not otherwise appropriated. As mended Aots 1937, 45th Lag., p. 1323, oh. 488, Sec. 1; Aots 1339, 46th Leg., p* 143, Sea. 1."Xonorable Fred V. Xorldith - Page $8
ilofind noTexas deoielon direotly In paint on thr question here presented. But In IAYY* State, 83 Cr. a. 222, 202 S. ‘U. 729, the Cost of Criminal Appeals deoided a simflar question. Wequote iron the opinion In that oaae:

“Appellant Inrista that, Inaamuohas the orfioer was a salaried polloman, he wasnot entitled to oharge witness rae~, and refer3 UBto eeotion 1137b, Vernon*oGrim Stats. 1916, anaot of the **Legi3latur3** 0r 1913. Tkit **rtatute** applier to witness tees In felony 08883, the ooets to be paid bythe etate. rt provide8 that nowitness fee shall be paid to peaor ottioera, nor to anywitness In habeas oorpua oases or sumoned on motion to ohange VMWJ

, and provides rurther that no fee shall beapproved bythe oourt In any oase where the oharge Inoludeo a nisdeaeanor oaae until the ease is rinauy disposed or, Cnzdin ease 0r a 00110 viotion for rtiadetceanor no feee’ahall be paid by the state; and it also provides that witnesses attending **court in**  **more than**  one ease at the same time shall reoeive tees In only one oase; and provided further that In no event the state shall pay per diem In eny one oaae prore than $5 to anywitness in any an3 0888 at any c&oterm 6r oourt. It will benotiosd that these fees are to be paid by the atate, not ~bythe defendant. The aam rule does not apply in ordinary niadevsanor oases. It Is understood to bethe rule with **reference** to ohmgihg rees that none will be permitted exoept where authariz3d by statutei t&it Ia, It i6 a prerequieite before fees mayboohargad that the L3gIslature pass suitable legielation authorizing the oharging and paying of suoh reer, whether by the etats orthe defendant. r;Ith reference tomisdemeanors, there ISno Interdiotion of the ohargihg or witneslr fees so tar as offioers are oonoerned. They meemto oomewithin the general olase of Hbtneasea, and are entitled to the dam fess as other witneeses In ruisdemeaanoroases. Awitness **in** a aisden;oanor oaae can be paid no fees other than those provided, but Is ehtltled to oharge suoh fees as the statute enaot8. There being no **dirferenoe** with referenoe

# 102

1Xonorable Fred V. Xeridith - Page #Q

to misdemeanor oases as to the oharaoter of witnesses, whether ofrioera or not, the ofrioer would oomewithin the general oategory, as weunderstand the law, as witness. His o~fioial charaoter, so far as that proposition Is oonoerned, would nake no dirrerenoa. There are no traveling expenses In the oaae to oomplioats~ therefor wehave the question as to whether or not an officer in misdemeanor oases can oharge fees as awitness for hi3 attendahoe uponthe oourt. ?ie are ol the opinion that he oan, andthat the oourt did not err In allowing the Sees charged by the offloer.” i:ieare therefore of the opinion that suohwitness fees and mileage are payable to In-oounty witnesses, duly subpoenaed, in misdemeanor oases, But neither the State nor the oounty are liable therefor, andthey can bepaid to the **~if&133~** only whencharged as oosts and oolleoted Iron the defendant, upon oonviotion.

?:aare enolosing oopies of our Opinions Nos. O-6521, O-6828, O-6052, O-6456 and 0-6955.Yours very truly ATTORNZY

GENERAL

OFTEXAS

VJ.R. Allen Assistant XU: zd