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 

Do the provisions of 

nr5lole VI, sea. 2a,,Conatitution OS Texaa,,,erempting pereona named t$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 

~.In y& letter of January 5, 1946, you rsoueat 

the opinion-/of this Irepartment on several different 

questions. a‘or~oonvsnienoe in replying, ws will restate 

your questi_ons and answer eaoh in turn. 

1. Is a veteran who ooms !vitbin tb provisions 

of seotlon 2a of ~rtiole VI of the Constitution of Texas, 
Lonorable Fred V. Lierldlth - Pan0 #2 

and thus ha8 the right to Yote without thr payment of a poll 

tax, In any eleotion held undrr authoritjf OS the laws oi this 

State, nsvarthrleer llablo for tbr payxmt oi suoh poll tax, 

JO that It will beoomr a dsllnqurnt tax againat him unless it 

is paid by January 3lst? 

The Constitution and StatUt68 Of Texas provide for the 

1OVy and OOileOtiOn Of pOii taxes. Oonatitution, Artlole VI, 

30. 2; Art1010 VII, 880. 3, Artiole VIIX, 2300. 11 Vernon’s Revised 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 who is oubjeot to pay a poLl tax under the lawa or the 

Atate or Texas ehall have paid said tax before orrering to vote 

at any eleotion In this State and hold a reoelpt showing that 

said poll tax was paid before the first day oi February next 

prsoeding suoh eleotlon or make aifldavit 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, who at 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, a member or the amed fames or the United Statea or of 

the Amed Boron Reserve of the United States, or 

or any branoh or oomponent part Of auoh anned fOrOOa 

or Armed Foroe Reserve, or the United Stats8 Earftlme 

Servioe or the United States Li8rohant Karlno, and who 

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 do not oonfar the right 

to vote upoa any person who Is a smaber of ths rsgular establishmsnt ot the United States Amy, Navy, 

or ldarinr Csrps~ snd provided rurthar, that all psrsons In ths amned ioross 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 by reason of any provision of sub-ssatlon *Fifth* Of Seotion 1, OS this 

Artiole.” 

In our Opinion No. O-6821, addressed to Honorable 

George E. Sheppard, we saldl 

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 named cmrsons shall not be rethem as a oondltlon reoedent to their right to vote 

in the eleotions ape0 fn;lr;r;-;7.- -- 

Ii 18 thererare 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 same beoomes a dellnquent tax against them ii not paid oa or before January 31st. 

2. Does this oonstitutlonal amendment apply 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.” A oity eleotion is ah eleotion held under 

the authority of the laws of this state. 

AS to the levy of a poll tax by a oity, the Supreme 

court of Texas said, in the case of’ Powell v. City or Baird, 

133 T. 409, 128 S. I;. Zd. 7861 
Eonorable Fred V. Lerldith - Paw $I4 

nit is our opinion that a poll tax ia leviad 

Iunder a State law, within th. lWUiiIl2 Or %QtiOn 2 

or Artiioh v-x 0r our stat8 camtitution, 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, when 80 

levied, am levied by dlreot authority of a State 

law, and are, therziore, levlsd under a State law. 

:;'ebater*s iiew Internatlanal DiatlonaryI 65 C. J. 

12021 Savage v. Umphriea, Tax. Clv. App. 118 S. W. 

093; Linger v, Baliour, Ter. Clv. App., I.49 3. W. 

?Qj$.Bonham v. Buohs, Ter. Civ. App., 226 S. Yi. 

1112. AI used inthe above oonetltutlonal provIalon, the word *under* $.a Owtainlg 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 Pub110 Sorvloe Co., the oourt said: (111 S. w. 26 1226) 

*It is now settled law that the la-age 0r 

the Constitution determinrs the qunllflcatlons 0r 

the a1eotorat.e. Neithsr the statutee nor the provisions or a oitp oharter, whloh in home rule oltler 

must omrorm with the Ccnstitutlon and the general 

laws of the state, QI~ impose additional quallfloations aa a~ pmJr8qUiBit8 t0 the right Of itz OitiNAs 

to vote, whloh are not authorized by the Constitution. 

ZoCutoheon v. ;YozenoxMt, 118 Tex. 440, 294 S. W. 

l.iOSl Mndover v. Tobln, Tex. Cit. App., 261 9. X. 

234; Csmron v. Connally, 117 Tex. 159, 299 S. iY. 

221; Ltahl v. Xiller, Tex. Civ. App., 63 S. X. 24 

578.” 

It is our opinion that this zmendnmt applies to a 

poll tax lrvled by a oity. 

3. Xhat should the sleotion judges require of the 

soldier or veteran who desires to vote, Ol8imiimin43 the benefit 

of the oonstitutional amendment above set out7 dust he reqdre 04 afrldavit? 
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 oertiriaate) 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 

"XhOn a person OifOdAg to Vote shall be objeoted to by an eleotion judge or a supervisor or 

ohslleAger, the gresiding judge shall Ox8mlne him 

upon a~ oath touohhg the poiats oi suoh objection, 

and, ii auoh psr8on falls to establish hie right to 

vote to the SatiSraOtiOA of the majority af the 

judges, he Shall AOt Vote. If his Vote be rSOeived, 

the word, *sworn,* shall be written upon ths poll 

list opposite the naaie of 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, When the right OS any eleotor to vote 18 

ohalleaged, the Sollanl~g prooeedings shall be had: 

"1. The judges of sleation shall retuss to 

aooept suoh vote of such elsotor unless Fa addition 

to his own oath he proves by the oath or one well 

known resident or the ward that he is a qualified 

voter at suoh elsation and in suoh ward. 

"2. GheA suoh vote is aooeptedthe word 

*ohallmged' shall be written on the ballot, aAd 

the jud&es shall oauss the clerk of eleotlon to 

make a minute of the n&me oi the eleator aAd the 

party tCiStiryiAg under aath as to his quallficatiOAS, and suoh memoranda shall 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- Page j5 

“Art. 3008. 3001 Delivery OS ballot 

"Xhen the judges are satisiied as to the right 

of the oltizen to vote, the judge shall stamp In 

legible oharaoters with a stamp of wood or rubber 

the poll taz reoelpt or oertitloate or exemption 

with the words: 'Voted . . . . . . day OS . . . . .) 

D. A. 19 . . . .' Or writs the same words in ink 

tind then return said rsoslpt or oertifloate to the 

voter, and shall at ths ssms time deliver to him 

one ofiioial ballot OA the blaank side OS whfoh the 

presiding judgs shall have prevfoualy wrlttea his 

sicgnature. The voter shall then immediately replr 

1;o s voting booth or a plaoe prs9arsd for voting 

by the 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 OS his right to 

vote before permitting him to oast his ballot. That they 

s so satisiy thsmselves by szamining him uAder oath or by 

his arrldavlt, as the case Roy be; but they must do so 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 OS their rssldenoe entitled to olaim 

witnsss rees and milsqge for thrlr atteAdaAce upon the oourt 

during the trial OS suah oases? 

Xrttole 1036 OS our Code oS Criminal Proosdure providee in part: 

"(1) uny witness who may havo bsen sub?oaAa2d, 

or sAal1 have bean rsaognized or attaohed aAd giveA 

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, and who appears 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 the Court or grand jury, by the nearest praotics1 aonveyanoe, and T;ro Lollars (22) per day for 

aaon day he may neoessarlly be absent from home as 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 be allowed 

one dollar aud fifty ocPts a day ror l qoh day they 

are In attendanoe upon the oourt, and air oents for 

eaoh mile they may travel 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, upon the atiidavit or suoh ~Itneati, or or 

soffie oredible pamon, stating the number of days that 

such witness has attended upon the oourt In the ease, 

and the number of miles he has traveled In going to 

and returning from the plaoe of trial. The affidavit 

shall be filed with the papers In the oaee.” 

“ht. 1080. (1190) (1140) No fee8 allowed 

“No tees shall be allowed to a person as witness 

fees unless r~oh person has born subpoenaed, attaohed 

or reoognized as a witness 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 

and witness 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, when the 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 County Treaeurer In faror 

of suah oftioer to be &aid out of the Road and Bridge 

Fund or 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 

ilo find no Texas deoielon direotly In paint on thr 

question here presented. But In IAY Y* State, 83 Cr. a. 222, 

202 S. ‘U. 729, the Cost of Criminal Appeals deoided a simflar 

quest ion. We quote iron the opinion In that oaae: 

“Appellant Inrista that, Inaamuoh as the orfioer was a salaried polloman, he was not entitled 

to oharge witness rae~, and refer3 UB to eeotion 

1137b, Vernon* o Grim Stats. 1916, an aot of the 

Legi3latur3 0r 1913. Tkit rtatute applier to witness tees In felony 08883, the ooets to be paid 

by the etate. rt provide8 that no witness fee 

shall be paid to peaor ottioera, nor to any witness In habeas oorpua oases or sumoned on motion 

to ohange VMWJ , and provides rurther that no fee 

shall be approved by the oourt In any oase where 

the oharge Inoludeo a nisdeaeanor oaae until the 

ease is rinauy disposed or, Cnzd in 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 any witness 

in any an3 0888 at any c&o term 6r oourt. It will 

be notiosd that these fees are to be paid by the 

atate, not ~by the defendant. The aam rule does 

not apply in ordinary niadevsanor oases. It Is 

understood to be the 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 may bo ohargad that the L3gIslature pass 

suitable legielation authorizing the oharging and 

paying of suoh reer, whether by the etats or the 

defendant. r;Ith reference to misdemeanors, there 

IS no Interdiotion of the ohargihg or witneslr fees 

so tar as offioers are oonoerned. They meem to 

oome within the general olase of Hbtneasea, and 

are entitled to the dam fess as other witneeses 

In ruisdemeaanor oases. A witness in a aisden;oanor 

oaae can be paid no fees other than those provided, 

but Is ehtltled to oharge suoh fees as the statute 

enaot 8. 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 

oome within the general oategory, as we understand 

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 we have the 

question as to whether or not an officer in misdemeanor oases can oharge fees as a witness for 

hi3 attendahoe upon the oourt. ?ie are ol the 

opinion that he oan, and that the oourt did not 

err In allowing the Sees charged by the offloer.” 

i:ie are therefore of the opinion that suoh witness 

fees and mileage are payable to In-oounty witnesses, duly 

subpoenaed, in misdemeanor oases, But neither the State nor 

the oounty are liable therefor, and they can be paid to the 

~if&133~ only when charged as oosts and oolleoted Iron the 

defendant, upon oonviotion. 

?:a are enolosing oopies of our Opinions Nos. O-6521, 

O-6828, O-6052, O-6456 and 0-6955. 

Yours very truly 

ATTORNZY GENERAL OF TEXAS 

VJ. R. Allen 

Assistant 

XU: zd