Untitled Texas Attorney General Opinion

-E I?bTR=-T=OR~T GEmRAL Overruled by Carrington v. R~I OF 7flFExAs U.S.- 85 S.Ct. 7-b (1965 November 6,.1963 Honorable Jack N. Pant County Attorney El Paso-County Re: Conatruotlonand El Paso, Texas constitutionality of Artlole 5.02, Texas Election Code, relative to voting by members.of'the~ Armed Fcrces lihlle pear Sir: onaotlve du'y. You have requested an o&&on on the oonstruoti~n and c6natltutlonalltyof the fol,louing'provLalons in’ Artl- cle 5.02, Vernon's Texas Election Code; whloh'*ere.added by~an amendment enactedby 'the58th Legislature (Acts 58th Leg.,~1963, oh. 424,.sec. 13): 5 "Nottilthst&ndlngany other'provialon .’ . ofthis'seotion, any member of the Anned Forces of'the'UnltedStates or components branches therebf.who is on'actlve'dutyIii the mllitary'servlceofthe United States may vote only In the county'in,whihh~he or she~resldedat-the time 'of entering'suoh service so'long as he or she la 'amember-" 6f the Armed Forces. Thla restriction ap- pliesonly whd' ,are. to'members^of oh atiesv& 'the acf;y*-.andArmed'FMoea the phrase. -. 1tijae-of'&jt'@+~ng‘ suoh a@fizc&8"',j,e&& the time of commenolng the ourrent atM.vi 'duty. A re-enlistmentafter a temporaryseparation from service upon termlnatlon of a prior en- listment shall not be oonstrued to be the commencementof a new period of service,and in such case the oounty in whioh the peraon resided at the time of oommenolngaotive servloe under the prior enlistment shall be construed to be the aounty of resldenoe at the time of entering eervlce." You have alao aaked for an opinionon oorreepondlng provisions In Artlole 02 of the Eleotlon Code ae'amended th Legislature,whloh will take by Chapter 430, Aots 5ii* -835- Hon. Jack N. Fant, Page 2 (C-173) effeot tiuiq'supersede the above-quotedptivleldns if'the pro- $titMdconeZitutrahirP~~enaaeti~.abollehliog p8jrmeht"of..the"'..' ... poll t&x tie'hpr&eqMiiite'for votlhg i#Xiioijt~d&t'the'&Iec- tloh-'tobe'held on NoVembiti9, 1963. These provisions are quoted at a later.point,lnthe opinion. You have asked the following questions: "1. What aonstruatlonor lnterpre- tatlon does your Departmentmake of the first sentenoe In paragraph two'of Artlole 5.02, Texas Election Code, as amended, which reads: 'Notwithstandingany other provision of thla section, any member of the-Armed FoSces'of the United States or cotiiionent branches thereof wh6 Ition a& tlve'duty Iiithe~mlllta?y~tiervloe'~of-then' Urilttid ‘States'm&yv&e 6iily”in’khe aotity In Wiich lie’or-‘slit3 I;esidedtitthe Umei of eiiterlh&buoh setilc’e‘a6lorig-(rb he or she is a member of the Armed Forcesifi? "2. What construct’lonor lnterpre- tatidn doe8’your Departmentmake of th6 . remainiti~g’tw6 sentences in paragraph two of &tlcle 5.021 "3. 'What Is meant by the tWi.'tetipo- rary separatloti'itithe'third sentence of paragraph two of Article 5.02? "4. In the event the poll tax emend- meat Is adopted at the .elebtionto be held on November 9, 1963,.then what construotion do you make of the emended portion of Article 5.02, Texas Election Code, effective February 1, 1964, which read@: I* * * provided that any member of the bed Foroes of the United States or oomponent branches thereof, or in the mill- tary servioe o? the United,Statea, may vote only in the oounty in whioh such pereon re- sit+edat the time of enter$ng suoh eervlce.83 “5. Are the provisions contained in Artti- cle',VI,Section 2 of the Texas Constitution and amended Artlc’lXc&Q2 ‘Bf.th&X&xas.EMc’c-: :.. tlon Code, a8 pertains to the right of member8 of the Armed Foroes to vote In Texas,‘vlolative of or repugnant to Se&Ion 1 of the 14th’hmetid- meat to the United States Constitution?" -836 Ron. Jack N. Fant, Page 3 (C-173) Section 1 of Article VI of the Texas Constitution enumerates the classed of persons who are not allowed to'~ vote In this State. Seotloh 2 of~Artlcle‘VIsets 'Oue'the quallfi~atlonsand PequXrements~forvoting. The general qualificationsare stated as follows: ~"Every person subject to none of the foregoing dlsqiiallflcatlonswho shall'have attained the age of'twenty-one (21) years and who shall-be a 3itiien of the United' States.atidwho shall'~haveresided In this State one (1) year next receding an elec- tion atidthe last six (6B months within the district or cdunty in which such person offers to vote, shall be deemed a qualified elector;.and provided further, that any voter who is subject tb pay a pbll tax under the laws of the State of Texas shall have Paid' said tax before.offering to vote &t'any eleo- tlon In this State &nd hold a receipt showing that said poll tax was Paid b&f&i the.flr&t d,ai$ FebNary next preceding such election. ;:' irIo+ to 1954, a provision in Section 1 of Artlale VI dls@allfied members of the regular military establlshrhents from Voting in this State. The hi~torlo~l b;ickgr6uidof this provision IKdesdPibed In a cotientary.ptibllshed In Vernon's Annotated Texas Statutes, Volume 9, page XVII, In the year 1952: "The Second Congressfif the Republic of Texas in 1837 enacted the first election law **d '.' Thls.first act contained a novel sec- tion irovialng 'that regular enlisted soldiers, and volunteers for during the war, shall not be eligible to vote for civil officers.' This provision was no doubt Inspired by the mutlnoua conduct of the nonresident.volunteers who had been recNited In the United State8 after the Battle of San Jaclnto. They had defied the provisional government and on one occasion in July, 1836, had sent an officer to arrest weal- dent David Q. Burnett and his aablnet to bring them to trial before the army. They had con- tinued their rebellious conduot after Sam Houston became the first president under the Constitutionof 1036. It nas not until May, 1837, that Houston was able to dissolve the -83-i- Hon. Jack N. Fant, Page 4 (C-173) any and ellmln&te this threat to clvll tiuthority.This 'provisiondlsfranchlelng soldiers in the~~regulararmy was placed in 'the1845 Con~tititutlon of the~Stat6 of' Texas and has remained-ineach succeeding &ihatltutlon. It was modified in 1932 to &iempt'the'Natlonal~~GuBrdand reaerki and retired officers and men." In 1954, Section 1 of Article VI was amendedto delete the alsquallflcatlonagainst persons ltimilitary servlbe, and Section 2 was amended to add the following provision: '1 * * Any member of'thi Armed Force6 of the United States or component branches thereof, or In the military service of the United Statea, may vote only In the county In which he or she reelded at the time of entering Buch servicti80 longsas he or she Is a member of the Armed Forces." Two former opinions of this office, CpinionS-148 dated December 18, 1954, and Opinion WW-157 dated July 8, '1957, hav@~'dealtwith aevetialquestions of consttictlonarising uziderthe 1954 amendment of the Constitution. The following quotation is from Opinion s-148: "Formerly,National Guardsmen,reser- vists and draftees In active service oould vote at the place of their legal resldeno,e at the time of voting (providedthey had re- s'idedwithin the State for one year and with- in the county for six months) without regard l to the place of residence at the time they entered service. Active members of the regular establishmentcould not vote at all. Now, all these groups'are qualified eleotors if they meet other requirements,but none of them may vote anywhere in Texas except In the county where they resided when they enter- ed service. If a person In military service changes his legal reeldence to some Place other than the county In Texas in which he resided at the time he entered service, he cannot vote In this State. 'Throughoutthis opinion the term 'real- dence' means legal residenoe as distinguished from aatual reeidence. -838- , Hon. Jack N. Pant, page 5 (C-173) "The constitutionalamendment does not change the'rules'fordeterminingwhat' place'18 the legal resldende of the voter, nor-does It mean that in all tilrcumstances a person In military servl&e will 'been- titled to claim a voting residence In the county of whfah he was B resident at then time he entered semiice~; Flace.~ofresidence Is still to be determined In the same-way that It has always been. Abaence'fromthe aounty or State for the purpose of perform- ing military service does'not of Itself cause a loss of residence, but It la posal- ble for a person to abandon his old resl- dence and acquire a new residence during time of service. Tex.Conat. Art. XVI, Sec. 9; Clark v. Stubba, 131 S.W.28 663 (Tex. Clv.App. 1939) Struble v. StNble, 177 S.W. 26 279 (~e~.ciS.App. i 1.77S.W.2d~2 fiSti&%,. Robinson, 3UJ 15 Tax. Jur. 715, Domicile, SePO:2:' If he'does so, and thereby changes his residence to some other county4 he loees his right to vote In this State while he continues In service, unless he re-establishes his residence In the county in which he're- sided when he entered~servlce. Further, no person who entered service as,a resident of another State may acquire a voting residence In Texas while he la in service. "It Is our opinion that the restrlc- tlon to voting In the county of residence at the time of entering service applies only to persons who are on extended aatlve duty. Members of the.NatlonalGuard and reservists who are'not on'extended aatlve aervlce and retired mllltary~'peraonnelare not subject to this restriction. Further, 'county of residence atthe;.time'ofentering such serv- ice' means the.county In whloh the person resided at the time he began his current active service. To Illustrate: A person, while residing In County A, ,jolna one of the reserve component,8but does not go Into aotlve service. He later moves to County B. After he has fulfilled the length of -83% Hon. Jack N. Fant, Page 6 (C-173) residence requirement,he may vote In ' County B; In fact, he could vote nowhere' else, While living In'CountyB, he la called Into 'adtlveaervlce. During this tiine'hlaplace'of.votlngIs In County B, the county In which he.reslded when he' went Into active service. After his re- lease from that tour of duty, he~changes his residence to County C. Hls'place'of voting la In County C so long as he con- tlnuea to live there. If he Is again call- ed Into active service whlle'llvingIn County C, that Is the place where he will vote. The question In Opinion WW-157 waa whether a person who had been stationed at an air base In Victoria County, who after discharge had subsequentlyre-enlisted,with some period of time Interveningbetween the discharge and re- enlistment,was quallfled to establish a domicile for voting purposes In Victoria County. In answer, the opinion said: "What Is meant by 'the time of enter- ing such service' within the meaning of the Constltutlon? Is It the time of the aubse- quent enlistment or the time of the original entry Into service? If the subsequentperiod of service Is a mere continuationof the prior period, the time of re-enlistmentIs not the time of entering such service within the mean- ing of the Constitution,for the restriction lasts 'so long as he or she la a member of the Armed Forces.' "No doubt, In some instances an airman may be completely separated from the service In a very real sense by discharge and later re-enlist. In such cases It cannot be said that his re- enlistmentor decision to re-enlist constituted the second period of service a continuationof the prior period of service, and the time of entering such service within the meaning of the ConstitutionIs the time of hle re-enlistment. The mere fact that there has been a dlsoharge and a time lapse between the date of discharge and the date of re-enlistmentIs not, however, controllingon this question. The law looks to the substance and not to the mere form of the transaction. It can be judiciallynoted that -840- ' Hon. Jack N. Fant, page 7 (C-173) frequently re-enlistmentpapers are actu-. ally signed prlor..todischarge and post- dated at some later date to the discharge date. Or.some oacaslons the service man retains 'thesame privileges,.rank,and status as weIl,as the same organization i%~slgnmentand Job assignment Snthe'sub- sequent enlistment as In the prior period Of'seNlce. In ~such'oase's the discharge and re-enlistmentare mere legal~flctlons and the subsequent period of service Is merely a tiontlnuatlonof the prior period. The date of re-enllstment'isnot the 'time of'entry Into such servloe' within the mean- ing of the Constitution. Residence in Victoria; Texas; at that time alone cannot be ubed'as~a basis of claiming voting resl- denue In Texas during the subsequentperiod of service. *Therefore,we hold that an airman stationed at ah aitibase looated In Vldtorla County who'recelves a bona fide discharge and who completely"severihis active duty'relatlon tilththe'~AirForce'andsubsequently re-enlists tiithstimeperlod~of timesintervening between discharge and're-enlistmentIs qualified to establish a residence In Victoria County for voting purposes If the discharge and re- enlistment are not mere legal fictions 80 as to constitute a continuationof the prior_. period of service." Articles 5.01 and 5.02 of the Election Code are the statutory counterpartsof Sections 1 and 2 of Article VI of the Constitution. Following the amendment of the Conatl- tutlon In 1954, no correepondlngchange'waa made In the statutes until this year, ,whena series of amendyenta to the Election Code were enacted In Senate Bill 61, Chapter 424, Acts of'the 58th Leglelature, 1963. Senate Bill 61 was drafted by an Interim Election Law Study Committee created by the 57th Legislature (S.C.R. 30, 57th Leg., R.S. 196x). The files and reports of the Com- mittee reveal that the amendment to Article 5.02 undertook to express In statutory form the constltutlonalprovision as Interpretedin the opinions of the Attorney General. The second sentence of the new aragraph In Article 5.02 states the holding of Opinion S-148 which construed the,restriction -84i- Hon. Jack N. Fant, page 8 (c-173) on place of voting as'applylngonly to periods of sctlve - ., servlbe..'The 'thirdeentence~undertakesto summarize In .' &"'brlefstatemint'theholding ~f'Opinlon"UW-159oh'the.ef- Sect bf.a temporary break In service between enlistment periods. We are in agreement with the constructiongiven to the 6onsfitutSonaSprovision In'Oplnlonss-148.anaAW:157. And we are further of the opinion thiit the construdtlon of the constitutionalprovision Is applicable to Article 5.02. We therefore~beXlevethat those opinions sufficiently answer your first two queetlona. In answer to your third question, as"to the meaning of "temporarysep~ratlon"‘ln~Artlcle5.02, we thlnk~the term. was Intended to mean a separatlon'undercltidumstances de- scribed In Opinion W-157 which would not preventthe:sub- sequent period of aervloe from'belng ln~essence'merelya '- continuationof the prior period. It Is not possible to.la9 down-a blanket rule setting out the clrcumataricesin detail; as each case must be determined on Its own particular set of facts as to the acts and Intention of the Individual. Two examples ~111 Illustratehow these provisions operate. Suppose a aoldler, while atationed at Fort Bliss ::.~ In El'Paso County, has establishedhis legal residence there (but without voting rights, beaauee he did not reside In that county at the time of entering service) and Intends to live there'aftereventual retirement-frommilitary service. He completesan enlistment and Is discharged,but at all times his Intention for the present Is to re-enlist and aontlnue In military service. Even though some period of time may elapae between his discharge and his re-enlistment,the two enllat- meritsw0uia ordinarily oonstltute one continuousperiod of servloe within the meaning of these provisions. Suppose, how- ever, that at the time of his dlsohargehe has no Intention of re-enteringmilitary service. After seeking employment he finds nothing to his liking and he thereupon decide8 to go back Into military service. Ordinarilythis would be the beginning of a new period of service, and he aould vote In El Paso County If otherwise qualified. &e Constitutionprovides that a person In military service may vote only In the county In which he resided at the time of entering servloe. (It should be noted that the place. of voting Is the aounty of residence, not the county In which the enlistment occurred,nhlch might be In some other place than the place of legal residence.) In a brief submitted to this office by an Interested organization,the contention Is made that this provision of the Constitutionattempts to, -842- Hon. Jack N. Fant, page 9 (C-X73) remulate regulate v&Inn voting rights outside Texas as well aa within the statf3. State. "1% "1% g6ei goes without saylng.thBtthenTexas Cons'tltutlon oannot ,replate voting rights.of'.pereonsat &nj place other than rlthln the State of Texas; 'andcannot affeot,'the.'vot- lng 'rightsof-residentsof 'otherStates 'whilestationed-in Texas; This provision relates only"t~~'r&?iidentsof 'this' '. State;'but'lt does relate'both"to"personsriho ~eiWres1debt.a of Texasbefore entering service'ahdto persons who'becarhe" residents of'Texas after entering.service. .If~the only place at uhlch a person-may vote In this State Is the aounty In which he resided at the time of'enterlng service,'and'if"at that time he did not reside In any dOi.ukyIn 'Texas,It fol- lows that'he cannot vote In thIs'Stat%; Acoordlngly,'lt '~ was .saldIn Opinion S-148 that no person 'whoentered servlce~' as a resident of another State may acquire a voting residence IKTexas Uhlle he:ls,in service. It has been suggested In the brief that the provisions under considerationdo not preclude a nonresident of Texas from establishinga legal residence and becoming a qualiflea elector having the privilege to vote In Texas; that a resl? dent of Texas who enters military service oa>not ohange his voting residence while on .aotive,duty,and that a former non- resident, after having aoqulred a voting residence while on ' ., active duty In this State, aannot thereafter change It to some other county; but that.a resident of~another State can acquire an original voting residence In Texas while In mill- tary service. We are unable to find support for this suggestion, either In the language used or In the reason for the restrlc- tlon. As we view 1t;the purpose of the restriction Is to prevent a concentrationof military voting strength In lo- calities where military lnstallatlpleare situated, which "might well lead to complete domination and control of lo- cal politics by the overwhelmingnumber of military men to the prejudice of the olvlllan citizen8 of the.communlty." Interpretivecommentary under Art. VI, Seo. 1, Vernon's Ann. 5 Tex. Const., ~1. 2, P. 336. me conoentratlonsought to be prevented oould cOme about from voting by former residents of other States as readily 811from voting by former residents. -.of other oauntles In this Stat.e. Ue fall to see the rationale for allorlng a resident of so106other State who Is stationed' at Fort Bliss to ~acqulrea voting residenoe In El Paso County, while denying that privilege to a resident of Texas; nor do ue see any rationale for freezing hia voting residence in El Paso County If he Is transferredto ~,milltary Installation In sOme other oounty or State. ,: -843- , . Hon. Jack N. Fant, page 10 (C-173) We are not impressed by the suggested explanation that the person who resided In Texae at the time of'enteti- lng servloe does have a place to vote In Texas (I.e., the county of his residence st the time of entering service), but the person ~who.resldedIn some.otherState at the time of entering service would have no place to vote In Texas If he Could not acquire a voting residence at the plaoe where he was stationed. me 1954 amendment evince8 an Intention to remove the dl8franchl8ementof active members of the regu- lar military establishments,but subject to the llmltatlon-, that they will not be allowed to acquire a new votlng,real- dence In this State while In military service. It does not chow an Intention to enfranchlse'any'peraon'orclass of per- sons In military service on any other terms. It'should be kept In mind that a person who enter8 military service as a resident of some other State gives up his voting realden'ce In that State only by his own volition. So far as we are' able to find, there Is not a State in the Union whose laws cat&e a resident to lose his reeldence'andoonaanltantvat-~ lng~rlghtsagainst his will by reason of absence'in military service. If he loses his residence and voting prlvlleges at the plaoe where he resided when he entered service, It 18 by his own desire to acquire a new residence at a different place. You have stated that many of the military personnel tell you that.when they write to the State and county where they entered the service, so as to vote absentee there, that State takes the position that they have nor lost their reel- dence there. In these cases, It wouldseem that the lndlvldu- al by hi8 own voluntary acts has relinquishedhis former'resl- dence or that the administrativeofficers of his home State .havemlalnterpretedthe law of that State. It has also been suggested that the law dlscrlmlnatea against-resident8of other States and la therefore repugnant to the 14th Amendment of the United States Constitution. We do not agree that It dlscrlmlnatesagalnst'nonresldents. A Texas resident la under the same limitation as a nonresident. No matter how much a soldier at Fort Bliss might prefer El Paso County to his home aounty In East Texas, or North Texas, or South Texas, and might want to make El Paso his county of leEa residence,he has to choose betueen acquiring a domicile In El Rrso County and losing his right to vote, for If he does change his realdenoe to El Paso County he also Is left without a voting plaoe. It Is true that military men who have been many years away from their place of resldenoe at the tlme of entering servicemay lose Interest In the affairs of that locality, but may be keenly interested In the affairs of the locality where -844- Hon. Jack N, Fant, Page 11 (C-173) . they '&re'statloned;and the privilege of retaining their - voting residence at.the former place may be to them'an empty one. It Is also tnie‘thtitt,e Texas realiiehtstationedin Texas~'could ‘on state-wide stlll'votefor ~t'aE~"offlbes"..bdd lssues.of Interest to hLm;'whereas"theresident of sbmm8 other State would"flhd no.'drea'bf~interestIn'the 'tile&Ionsof'hls home,State except for President and Vice-Presidentof the . Unlted'States.‘These are considerationsgoing to the poll&y, wisdom; and equlty~of the ~onstltutlonal'reatrlotlon,~rathsr~ than to Its interpretatlon.~We‘hastento state that‘our funb; tlon-la merely to construe the provisions as they are written. In yourrourth question you ask for a constructSonof the provision on military votlng'ln the amendment of Article 5.02 of the Election Code which wlll'take effect If the'pro- pos'edconstitutionalamendment abolishing payment'of the poll tax as a prerequlalte'forvoting Is ado ted at the'electlon to be'held'on November 9, 1963. Aota.58th'Leg., 1963, ML. 43o;seo. 1, p.~1103. The~~pertlnent portion of the proposed amendment of Article VI, Section 2 of the Constitutionreads: 'Section 2. 'Everyperson subject to node of the foregoing dlsquaIlflOatlonswho shall have'attalnedthe age of"tuenty-one years and who shall be~~a~citlienof"the ~UnlteilStates and'who~'shall-.~have resided In thle state one year next preceding an elec- tion and the lastsix months within the,dls- trl6t or county In which such peraontiffera to-vote, shall be deemed a quallfled elector; .” provided that any member of the Aped Foraes, of the United States or component branches thereof, or In the military servloe of the United States, may vote.only In the oounty ln%hlch he or she resided at the time of entering such service so long as he or she la a member of the Armed Forces; and provided further, that before offering to vote at an eleatlon a voter shall have reglatered If re- quired by law:.todo so.* * *" Insofar as It ooncerns place of voting by persons In military aervlce, there la no ohsnge In the meaning of the seation although the language has been rearranged. me text of Article 5.02 of the Eleqtlon Code, as amended to take ef- fect in event of adoption of the.constltutlonalamendment, 18 aB follows: !’ -845- Hon. Jack N. Fant, Page 12 (C-173) "Ev&i-ypeiv3iM'eubjedttd imiieof the-‘foregoingdlsqii&SlflaaEionsWho shall hatieattaln’edthe age-ol-twehty-bneye&es aiidwho shall be ti‘dltlzen6i the Unlted’~ St&it& andMid slitillhave reiildei& Siithlti atiitetine$i?ati iiextpriectidlng’an blictldn aridthe last ~~’bounty i3ix’mohths in wh.ch irithiniirrere’..ta .aubli tIj&diet+lct ,pgjriaoii __..,.~ vote,’and ‘*hoMid11 ‘have”regiate’red’ a8 a Voter If tiqiiired ‘t6 dd ‘80,‘~ ehall‘be deemed a qualified electbr; ptiovldbdthat any member of the ArinedFdticeaijfthe United States or component branches thereof, or In the’mill,taryservice of the United Statea, may vote only in the oounty in nhlch auoh person resided at the time of entering such service. * * *” Thla’provieiontraake the proposed conetitutional‘amehdtient, except for omlealon of the words “80 long aa he.or’sHe-‘la a member o$ ~theArmed Forces;” Since the ptiovfsloti ‘dealswith the voting place 6i’memberb:;notform& tiemberedr TtituM -’ memb&s--of the Atied Forbee, ‘the~omlsalonof thi quallfylng,.~ dlause does liot.changeltismeaning. ‘Unllk6 the iimi%ndBenten- adtea by Chapt& 424,‘.thla V&i~loti’ of’the stM-.utedoea hot- aoiitain’thti provlalontilncqz$oratlrigthe Interpretationsdi , the Attorney ffenerallsopinions. But the.addltlon’M those provlelonadid not alter eliletlnglaw; It merely verbalized the exietlng law into atatutory lonn. Acocfrdingly, the~lirr as It will exist If Chapter 430 takes effect will be the same aa It is now. Your fifth queatlon la whether the constitutionaland atatutor provlelope under aonelderatlonviolate Section 1 of the 1%th Amenduientto the United Statea Constitution, which reads as followa: “All persons born or naturalized in the United Statee, and eubjeot to the jurladlation thereof, are oltlzens of the United States and of the State wherein they reside. No State shall make orenfome uny law whloh ahall ak bridge the privileges or lmmunltlea of oltlzens ot the United States; nor rhall any State de- prive any person of life, liberty, or property, without due pr~ceaa~.@f; lnu# mar;denydp ,vy;.:pqrson within It6 jurledlctlonthe equal protection OS the lam.* -846- . . Hon. Jack N. Fant, Page 13 (C-173) We have seen that the law of thla State complettily disfrahchlsedall pertions.ln’~inllltar~ hervice for almMt’.a hundred jlearaand disfranchisedm&fibersof'the-regular&a- tabliMvaeht8for twenty more years: If those provlslona did nbt offend th&'Federal ConstltutlorY, It 16 e'Viident that the.. less drastic provisions of the,preaent'lbwale6 are notsub- ject to that‘lnflrmlty.'~The‘lbthAmen&&t was ratified Sn 1868. During the lntetienlngyeatis.'before Section 1.0 Artl- tileVI of the Texas Constitutionwas amende$.ln 1954,~&here was no case dlreotly raisk;lgthe validity of the Texas law, but the implication In two cases Bebided by the T+xas'coutits seems to be that the State had the poker’to withhold suffrage from persons-In military service. h Savage v. Umphrlea, - i18.S.W. 893, 8% (Tex.Clv.App.1909), the court. said: ';~ "Who shall exercise suffrage Is a f'undamentalquestion, which the body politic must deolde upon a just view of the true relation between the power of the auffragana and the rights of the whole people. Hence the exerclae of the elective franchise Is not a natural or God-given right, but Is, as the word lfranchlae*implies, a right conferred by the state or body politic.' In other wordd8,as la aald by an eminent authority bn constltutlon- al law, the'.questldns whether one Is fitted by lntelllgen6eto perform the function of an elec- .., tor, or has such IMerest In the matters con- trolled through hla suffrage as to check t:he misuse of power which self-Interestprompts; or has euch oommunlty of Interest In the lawa which are to govern the community,uhlch should fit him for the dlecharge of the.dutlee of a auffragan,must be determinedby the body p011t1c." One of the holdings In that case was that under Artlole VI, Section 1 of the l!ex&aConstitution,a person In the service of the army of the Ublted States was not entitled to vote at all. Ii8 s.W.2dat page 908. In'McBethv. Strelb,96 S.W. 26 992, 995 (!Pex.Clv.App. 1936),the court said: "Our qrganlo and statutory laws, In plain terms, deny the right of franchise to citizen8 In the military service. The reasons for euch denial were properly determined by the adopters of the Constitutionand members of our lawmaking bodlea.". -847- . . Hon. Jack N. Fant, Page 14 (C-173) Solon v:State, 54 Teic;Ci+in.261, 114 S.WiY349, 352 (1908) aeacnbea the naturp . 0s suffrage _, -, aa r0110rta: . "'.* * l The ttib'tile lb that the right to vote-Sa^not'a.neceaaaFy or-fixed Incident of cltl,zenahlp; or lnh&i?ehtia ea&h and every lndlvldual,butthat voting IS the'exercise 61 political poweF, and no on& la entitled to vote, unless the people In their aover6lgn cbpadlty, have conferred on him the right to do io. It map-be laid down aa a general propoaltlon that the right of suffrage may be regulated and modified or withdrawn by the authority which conferred It.,*-+ * In the case of State v. Dillon,'32 Fla. 545, 14 SO. 383, 22 L.R.A. 124, In treating thla general aubJeot, the court say: "The right to vote ia not ai, Inherent or absolute rlght~found among those generally reaerved In bllla of rights, but Its poaaeaalon la'dependentupon o6natltutlontil or statutory grant. Subject-to the limlt~tlona~ contained In thenSeder&l CQaafltutlon,the elec- tive .f&chiae la undhr~the bontro1 of'the aoverelgnpower of the states, expressed In zoiazM);utiona or atatutaa properly enacted. . _ . ? The United Staten Constitutiondoes not confer on or guarantee to cltlzena the right to vote, Wit It doea llmlt the.pwer of a State to abridge or.denv to some citizens a right of suffrage which the St&be has granted to others. 10 Am.Sur.. Elections, 88 '16,47; f@C..S.S., Electlonb, gII 5-8. 'Ihe15th and 19th Amendments prohibit denlal~of the-. eight to'vote because of race, color, previous condition of servitude,or sex. 'The14th'Amendmentprohibits a State' from abridging the privileges ,orlmmunltlea of cltlzena of the'Unlted States or SrorPdenying-the equal protection of the lawa to any person within Its jurladlctloa;but these prohl- bltlona do not preclude a State fraa making reasonable claaal- flcatlona of persona or things forthe purpose of leglalatlon If all within the same olaaa are treated allke. .The general principlea on the validity of olaaalflcatlonaare stated In the following quotatlons'froh16~ C.J.S. 240 et seq., Conatl- tutlow UW, I 489: "Class leglalatlom la invclld where the claaalflcatlonla arbltrarv and unreaeonable. The provision of the Fourtbenth Amendment to the federal.Constitutiondeclaring that no 1 -048- Hon. Jack N. Fant; page 15 (Gl73) btdte shall make oti'enforce'enylaw which shall abriilg6'the~prIvIlCgea _-. -or'ImiininItIea of.6'Itlzenaoi'the hltbd States, or deng to any'pert3onWithin Its jiirIsdlctlbnthe i?Qual.'pivtectlon of th6 lawa,‘aiiWell 'as - pr6vialdliacomziolily ~ioiind In-'stateooir~tltu- tlona ptihlbltlngthe e'n&dtmeht'bf~l'aria grantIng'~&ny'dpedIal05~i$xolualve.prIvilegea, Iizmuhltlea;or fri%n6hIilea,'~* l ~*rend&r‘~Vold all state statuteswhich make-&y unreaaotiable 6r arbitrarydlacrImlnatl6n betweendifferent personaor olaaaeaof persona.l * * "Therela no generalrule by which to dlatlnguIaha reasonableand lawful froa,un- i%Aaonable'and apbltraryolaaaIfIc~tlon, the questionbeing a praotIc&lone, deliendent ?n tizperleribe, and.vtiJIIagwlth'thefacts In eaoh.~aaae.In order...to~'be valid'&atatilfoe olaaaIfIoatIon mubt reaabirabljprdloteaaae' proper object,of public welfareor Interest,, mat rest on real and"subat&ntlal differenuea, having a natural,.reaaonable;andaubatantIa1 relationto the aubj&otof the legldlation; and must affect alike all person6or'thlhga within a particularclass, or 8laWaiQy aitu- ated;.but;If the legislaturehas power~to deal with thf2aubjeot’matterof the claaaIflca- tlon and,therela a reaaohablegSound-Sor.the ~olaai3lfloatlo~ and the law operatiesequallyon all'tilthlnthe aAme olaaa, It la valid, even th6Ugh the act confers dlfierentrlghtaor-l&-- poses differentburdens on the aeveral'clabsea, dr rails to pmvlde Sor future contlngencI~a, or %hos&m partlaularpersonafind lt-':dlffi:~ cult or even ImpoaaIbleto complywith condl- tlona preoedenton whIah the enjoymentof the. privilegeIs made te depend.l * l "In detetialag wh&hqr or not a basis of olaaalfIoatIon is reasonable, It must be look@ at fra the rtandpoi.nt o? the leglrlatureenaot- lng It, and with refezmme to the oondltlona existingwhen the atattrte.waa enaated,not when the constitution was adopted. Aa discussed aupra 8 151 (4), the question OS olaaaIfloa- tioa Is one priaarllv for the legislature,and In the exerciseof this power the le,glalature poaaeaaeaa wide diearetion. A rtatutrwill Hon. Jack Fant, page 16 (C-173) be auatalnddwhere the basl8’Toti bliSsI- flo’&tli5n iaadeby- It ‘ootild h&e be&med tiebaonabl6 twthe legIblatru%‘;even’ thoq@ duMi b&sib seems tii‘thecourtd”tobe tin- reaaolialjle. .‘U’~~ile\r”of the“p~~aumptlotia~ iiiTaior“bf’a’l~glalatlve olaaalflaatIon; aa’dIbcuaa&dSup&i U 100; t&e leglaliitlie jiaaepPent’-se to clasaltl6afloii will”be’up: h@ld.‘If’ a.nystate Of facts.can reasonably be dondeivedto auatain.~It, dnd can be ovePthPown ‘brthe courts only when It Is, clearlyerroneous. y... The Texas Constitutionolaaalfle~pe~aonaIn military servicefor specialtreatmentIn conferringthe right to votd,“‘and accords’the same trektmbntto all wlthlh that‘ala&a. We“Ue unable to ‘a&ythat‘ther6’.is no’r&Son&l b&ala for the 6SAlaZficatloti, is”our. opinionthat fihb bnd’a6niieQuently~lt p~vlblti does not violatethe 14th Amendmentto the Vnited States~onatltutIon. Ihe prcvI6lonaor ArtloSe3i02, Vernon’s!l!uxaa ElectionCode, as amend- ed’by Chapter424, Aeta o? the 58th Imgla- lature,1963, which Wrtaln to voting by persona’lmmllltary service,do nothing ; more than restatethe law aa containedIn the 1954 amendaentto &ticle.VI, Section ,4; 2 o? the’Texas~Conatltution;Attorneg deneralguOpinionaS-1118 end UU-157, ln- kerpretlngthe oonatItutl6nal provGiona., aru ruaiflned. ltlelaw on votingby personaIn mill- tary service,aa containedIn the amendment to ArticleVI, Section2 of the Constitution which la proposedby S.S.R.NC. 1, 58th Legla- lature to be submittedto a vote on Noveslber ’ 9, 1963f and In,Article5.02 of the Election Cod&, aa umendedbx Chapter430, Acts of the 58th Legislature,which will-take effect It ,’ the proposed coaatltutlonalaaendnent Is adopted,Is the saute88 the presentlaw. me provIslonaof ArticleVI, Section 2 of the !kixaaCcnatltutlon, and OS Article 5.02 of,the Texas Nleotlon Code, whloh pro- vide that membersof the Armed Forces of the -8SO- .’ . Bon. Jack N. Fant, Pee 17 (C-173) , United Statesmay vote only In the county In which they residedat the time of entering service.does not vlolistethe 14th Amendmexit'to the United States Constitution. Yours very truly, WAGGONERCARR AttqrneyQenefal .i' I By r, a4 -Y Maw . Wall Aaalafant MKW:aj:ma APPROVED: OPINIONCOMMITTEE W.'V."Oeppert,Chairman Howard Fender MalcolmL. Quick Ernest Forteriberrv Paul Robertson APPROVEDFOR THE ATTORNEY GENERAL By: StintonStone -851- ! I