Untitled Texas Attorney General Opinion

THE ATTOEWEY GENERAL OF =XAS Honorable Jules Damiani, Jr. Opinion No. C-369 Criminal District Attorney Galveston County Re: Qualificationsfor voting Galveston, Texas in an election held under Article 1243, R.C.S., for abolition of cor- porate existence of a Dear Mr. Damiani: city. You have requested an opinion on whether, In an election for abolition of a city's corporateexistence under Article 1243, Revised Civil Statutes of Texas, a person must be listed on the tax assessment roll of the city as a pre- requisite for voting. You further ask whether, because of the effect of,the community property laws of the State of Texas, a man or a woman not listed on the city tax assessment roll who is married to a person listed on the roll as the owner of community property would be entitled to vote in the election. Article 1243 reads as follows: "All persons who are legally qualifiedvoters of the State and county in which such an election is ordered, and are resident property taxpayers in the city or town where such election is to be held, as shown by the last assessment roll of such city or town, shall be entitled to vote at such election. If a majority of such voters voting at such election shall vote to abolish such corporation,the county judge shall declare such corporationabolished, and enter an order to that effect upon the minutes of the commissionerscourt, and from the date f such order, P said corporation shall cease to exist."-/ J Abolition of cities and towns incorporatedunder Chapter 1 0: Title 28 R.C s must follow Arts. 1241, 1242 and 1243, R.C.S., where& aboliiion of towns and villages incorporated under Chapter 11 of Title 28 must follow Art. 1261. Richardson v. State, 199 S.W.2d 239 (Tex.Civ.App.1947, error ref. n.r.e.1. -1750- Bon. Jules Damiani, Jr., page 2 (C-369) We have concluded that the provision in Article 1243 which limits voting at the election to property taxpayers is unconstitutional,in the light of recent decisions by the Rxas courts, and we are so advising you. finview of this holding, we do not answer the questions you have asked. Article VI, Section 2 of the Texas Constitution prescribes the requirementsfor being a "qualifiedelector." Property ownership is not one of the enumerated requirements. The residence requirementsare that the person "shall have resided in this State one year next preceding an election and the last six months within the district or county in which such person off&s to vote." Article VI, Section 3 of the Constitution,which has been a part of the present Constitutionwithout change since its adoption in 1876, reads: "All qualified electors of the State, as herein described,who shall have resided for six months immediatelypreceding an election,within the limits of any city or corporatetown, shall have the right to vote for Mayor and all other elective officers;but in all elections to determine expenditure of money or assumption of debt, only those shall be qualified to vote who pay taxes on property in said city or in- corporated town; provided, that no poll tax for the payment of debts thus incurred, shall be levied upon the persons debarred from voting in relation thereto." Section 3a of Article VI, added to the Constitution in 1932, reads: "When an election is held by any county, or any number of counties, or any political subdivision of the State, or any political subdivisionof a county, or any defined district now or hereafter to be described and defined within the State and which may or may not include towns, villages or municipal corporations,or any city, town or village, for the purpose of issuing bonds or other- wise lending credit, or expending money or assuming any debt, only qualified electors who own taxable property in the State, county, political subdivision, district, city, town or village where such election is held, and who have duly rendered the same for taxation, shall be qualified to vote and all electors -1751- Bon. Jules Damlani, Jr., page 3 (C-369) shall vote--lnthe election precinct of their residence." These three sections of the Constitutionare the only ones prescribing the quallflcatlonsof voters generally. There 1s no provision in the Constitutionrelating specifically to qualificationsfor voting in this particular type of elec- tlon. It Is a general principle of law that where the Constitutionhas prescribed the quallflcatlonsfor voting at an election, the legislaturecan neither add to nor take from those quallflcatlons. Koy v. Schnelder,~llOTex. 369, 218 S.W. 479, 221 S.W. 880 (1920). Texas Power & Light Co. v. Brownwood Public Serv. Co., lli S.W.2d 1224 (Tex.Civ.App. 1936, error ref.). An election on abolition of the corporate existence of a city is not an election to determine expenditureof money or assumption of debt, under the provisions of Section 3 of Article VI, nor is it an election for any of the other purposes enumerated in Section 38. The crucial question, then, as bpplied to the present situation, is whether Section 2 of Arti- cle VI prescribes the qualificationsfor..votlng~,Xnh'el&&ion nf'thls nature. In Bonham v. Fuchs, 228 S.W. 1112 (Tex.Civ.App.1921, error ref.), the majority of the court held that the provision in Article 1248 limiting voting to property taxpayerswas not ln conflict with Sections 2 and 3 of Article VI, saying that Section 3 "shows upon Its face that the makers of the Conetitu- tlon did not intend by the provision of section 2 of this artl- cle to confer and regulate the right of suffrage ln munlclpal elections ln cities and towns," and that Section 2 "was only intended to confer and regulate the right of suffrage ln general elections affecting the state as a whole." In a vigorous dissent, one member of the court pointed out that this holding seemed to him to be at variance with the direct former pronouncement of the same court in Warrener v. Lambrecht, 146 S.W. 633 (Tex.Clv.App.,1912), involving an lnterprefatlon of the.same statute. We quote from the dissent'inthe Bonham case : " * l * The validity of the statute as against the constitutionalobjection sustained in the trial court in this suit wbs not involved, but as one of the grounds upon which Its judgment was rested n Warrener v. Lambrecht7 this court expressly he1c &at the qualificationsof a voter prescribed in -1752- Hon. Jules Dadaal, Jr. page 4 (C-369) rectlon 2 did apply to an election under this brticle to abolish the corporate existence of a town, ita language being bB follows: “‘Section 2 of the Constitution,as amended ln 1902, prescribing the qubllflcatlonsof ‘8 voter, in addition to the requirementthat he shall have resided ln the state one yesr and in the county six months, provided that he must have attained the age of 21 years, be a citizen of the United States * * * and must have paid his poll tbX and hold a receipt therefor, showing the same to have been paid before the 1st day of February next preceding the election. We think the proof offered at the trial falls short of showing that the 19 persons poseessed all these prescribed quallflcatlons.* * *I” The Supreme Court refused an application for writ of error In the Bonham case. Although the notation of “error refused” did m that tlme have the connotationof bpprovlng the principles of law declared in the Court of Civil Appeals’ opinion, It did connote approval of.the result reached. See “~OtbtiOIM on Applications for Writs of Error,” by Gordon Simpson, 12 Texas Bar Journal 547, 574. In 1951 this nrovlelon in Article 1243 amin came before the bppeilate cobts ln two election conte8; cbsee. Franklin v. ‘Wilson,242 S.W.2d 820, decided by the Eaetland Court of Civil Appeals, held that the tax assessment roll provided for ln Article 1243’\1s merely directory and provided to bid the county judge and election judges in determining who owns property within the ‘area, and are thereby eligible to Vote bt the~~electlon, bd",thbt votes were not rendered illsgbl bec&ih”‘thenames of ,thevoters did not bp ear on the roll.: In :Polk*. Vance, 150?l!ex. 586, 243 S.W.2d 129, : ansuerlng certlfled,questionsto which the Dallas Court o? Zlvll Appeals conformed its opinion ln 244 S.W.2d 869, the Supreme Court held that the citizens of b city could not be deprived of their right to vote at the abolition election by the fact that the city had not compiled an assessment roll. The constftatlonblltyof the provision ln Article 1243 rertrlctlng voting to property taxpayers was not rblsed ln either of these c&wee. Felther the Vblldlty nor the constructionof Article I243 has comebefore an appellate court since 1951. However, there ha8 been b series of cr#es decided since that date Which, in our opinion, have lmplledly.overruled the holding lnBonham v. Fuchs. .,Butbefore.discuss$.ng~~those cases we wish to mention two ether’decisions rendered after 1921, the date of the Bonham CbBe; which blso bear on the question. It has already been noted that Warrener v. Lambrecht, -1753- Hon. Jules Damlaml, Jr., page 5 (C-369) 146 S.W. 633, decided by the Galveston Court of Civil Appeals in 1912, held that Section 2 of Article VI applied to city elections other than those expressly mentioned in Article VI, Section 3 of the Constitution. Other cases holding to the same effect have also been decided since Bonham v. Fuchs. In Texas Power & Light Co. v. Brownwood Public Service co., 111 S.W.2d 1224 (Tex.Civ.App.1938, error ref.), involving qualificationsof voters at a referendum election on the granting of a city franchise,the court said: "It is now settled law that the language of the Constitution determines the qualificationsof the electorate. Neither the statutes nor the provisions of a city charter, which in home rule cities must conform with the Constitutionand the general laws of the state, can impose additional qualifications as a prerequisite to the right of its citizens to vote, which are not authorizedby the Constitution." In Powell v. Cite of Baird, 133 Tex. 489, 128 S.W.2d .,Tnd election, the Supreme 786 (1939); which involved a citv Court said that Section 2 of PLrticleVI disqualifiesas a voter, at all elections, every person who is subject to payment of a -- ~011 tax under the laws of the State unless such nerson has paid the tax by a certain named date. This case -?Ieffect holds that by force of its own terms Section 2 applies to all elections. - We come now to the cases decided since 1951. In Snelson v. Murray, 252 S.W.2d 720 (Tex.Civ.App.1952, error ref., n.r.e.), the Court of Civil Appeals held that Article VI, Section 2 of-the Constitutiongoverns qualificationsof voters for election of officers of a conservationdistrict created under authority of Article XVI, Section 59 of the Constitution, and that a statute restrictingvoting at the election to qualified voters of the county "who own taxable real property within the district" was unconstitutional. As observed in a concurring opinion, the officers of the district are officers of the State in a broad general sense, but the election would hardly seem to come within the descriptionof a general election "affectingthe state as a whole," to which it was said in Bonham v. Fuchs that Section 2 of Article VI was only intended to apply. In King v. Carlton IndependentSchool District, 156 Tex. 365, 295 S.W.2d 408 (1956) the question for determinationwas the validity of a statute limiting voting at an election on adoption of a school maintenance tax and bond law to qualified voters of the school district "who own property which has been -r754- . . .. Hon. Jules Damiani, Jr., page 6 (C-369) duly rendered for taxation on the tax rolls of the county." The Supreme Court held that the adoption election was not of a nature to make it subject to the requirementsof Article VI, Section 3a of the Constitution. After quoting the definition of a qualified elector in Section 2 of Article VI, the Court further held: "Any qualified elector, as defined by that Article, is entitled to vote in any election other then one for which additional qualificationsare prescribed by some other provision of the Constitution. The Legislaturewas not authorized to prescribe any other standard for voters at the adoption election than that of qualified electors as defined by Article VI, Section 2. Koy v. Schneider, 110 Tex. 369, 218 S.W. 479, 221 S.W. 880; Texas Power & Light Co. v. Brownwood Public Service Co., Tex. Civ.App.,111 S.W.2d 1225, er. ref .; Snelson v. Murray, Tex.Civ.App.,252 s.w.2d 720, er. ref. n.r.e. More specificallystated, the Legislature was not authorized to limit the voters at the adoption election to 'qualifiedvoters of such district who own property which has been duly rendered for taxation on the tax rolls of the county for that purpose.' All of the language just quoted following the words 'qualified voters of such district' is in conflict with the provisions of Article VI, Section 2, of the Constitution,and should therefore be stricken from the Act." Richter v. Martin, 337 S.W.2d 134 (Tex.Civ.App.1960), involved the constitutionalityof a provision in the Urban Renewal Law limiting voting at an election on the adoption of the law to "qualifiedvoters residing in said city, owning taxable property within the boundaries thereof,who have duly rendered the same for taxation." The Court of Civil Appeals concluded that the election did not come within the terms of Sections 3 and 3a of Article VI, end that the provision in question was therefore invalid under Article VI, Section 2 of the Constitution. In reaching this result the Court of Civil Appeals necessarily rejected the holding in Bonham v. Fuchs. The Supreme Court disagreedwith the Court of Civil Appeals on the question of whether the election involved expenditureof money, and held that Sections 3 and 3a of Article VI did apply and that the limitationwas valid. Martin v. Richter, 342 S.W.2d 1 (Tex.Sup. 1960). However, there is nothing in the Supreme Court's opinion which would cast doubt on the correctness of the Court of Civil AppealsI holding for any city election -1755- . . .‘. . . - I . Bon. Jules wani, Jr., page 7 (C- 369) which did not come within Sections 3 end 3a of Article VI. Finally, the following language in the opinion of the Supreme Court in Sweeny Hosnital District v. Carr, 378 S.W.2d 40 (Tex.Sup.lg64‘),raises a question as to the continuing force of the holding in Bonham v. Fuchs: "We are concernedwith the meaning of'the 'qualifiedproperty tax paying electors Fo~:$~ when it is used in the Constitution and in statutes to define a class of voters, and we recognize that our interpretationof the phrase as applied to the facts of this case may qause some confusion in ordering other elections. We have not sought to ferret out the many statutes which use the expression. To avoid, as much as possible, confusion that may result from our holding in this case, end with due deference to the Court of Civil Appeals' decisions heretofore noted, we will interpret the phrase in varying situationsas follows: (1) when the phrase is used in the Constitutionto define a class of voters in any kind or type of election, it will be interpretedto mean those electors who are qualified under Sets. 2 and 3a, Article 6 of the Constitution; (2) when used in a statute to define a class of voters in an election for any of the purposes set out in Sec. 3a, Article 6, it will be interpreted to mean those electors who are qualified under Sets. 2 and 3a, Article 6 of the Constitution,unless the Constitution itself specifies a different class of voters in the particular election; (3) when used in a statute to define a class of voters in elec- tions for purposes other than those set out in Sec. 3a, Article 6, the words, 'propertytax paying,' will, unless otherwise required by ~S~~stitution, be disregarded as violative 2, Article 6 (see King. v. Carlton IndepeAdentSchool District, 156 Tex. 365, 295 S.W.2d 408), and the phrase will be interpreted to mean those electors who are qualifiedunder Sec. 2, Article 6 of the Constitution. In elections of the type mentioned in (3) orders and notices of elections should omit the words, 'propertytax paying.'" In the light of these recent decisions, it IS our opinion that the provision limiting the voting to property taxpayers is invalid. We therefore advise you that all -1756- , . . . - . Bon. Jules Damiani, Jr., page 8 (C-369) electors who are qualified under Article VI, Section 2 of the Constitutionshould be permitted to vote at the election, end that the election orders and notices should omit any reference to property taxpayers. SUMMARY The provision in Article 1243, Texas Revised Civil Statutes, which limits voting at an election for abolition of the corporate existence of a city or town to property taxpayers is in violation of Article VI, Section 2 of the Texas Constitution and is void. All persons qualified under Section 2 of Article VI are eliaible to vote at the elec- tion. King v. Carlton.-Independent School District, 156 Tex. 365, 295 s.w.2d 40 District v. Carr, 378 S.W.2: dig@iCv Yours very truly, WAGGONER CARR Attorney General By Z$YZaZ? mdcLc Assistant MKw:sj APPROVED: OPINION COMMITTEE J. C. Davis, Chairman John Reeves Pat Bailey Milton Richardson W. 0. Shultz APPROVED FOR TRE ATTORNEY GENERAL BY: Stanton Stone -1757-