Untitled Texas Attorney General Opinion

Honorable Marvin II.Brown, Jr. Criminal District Attorney Fort Worth, Texas Attentiori:Mr. Stewart W. Hellman Assistant Criminal District Attorney Dear Sir: Ovinion No. O-1009 Re: (a) Ellgibllltg of tubercular inmates of Elmwood Sanitarium to vote.. (b) If eligible, question Of whether exempt on grounds Of permanent disability. Thank you for your letter of January 6, 1940, requesting an opinion from this department based upon the following facts:~ We quote: ‘There Is operated in Tarrant County, Texas, an institution known as the~Elmwood Sanitarium. This institution is for Indigents who are tubercu- lar, and the same la jolntly'operated,by the city of Fort Worth and'countg of Tarrant. By that, 'I mean that‘the~cos~tof 'maintaining said inst,itution is borne equally betweenthe city of Fort Worth and the countyof Tarrant.,,*,* t "The only requirement made covering. admission of patients to the'sanitarium, Is that the lndivldual must have been a resident of FortWorth and/or Tarrant County for two years Immediately preceding the time of making his appl&c,atlonfor admission, and, of course, be a tubercular. The questions you-des,ireto,have answered have been restated as follows: (a),Whether or not the inmates of Elmwood Sanitarium are'"pauperssupported by the'county"' within the meaning of Section 1 of Article VI of the Constitutionof .Texas and Article 29% of the Revised Civil Statutes, 1925, s&a% to dldqualifs them as electors. Hon. Marvin H. Brown, Jr., page 2 (b) If the residents of Elmwood Sanitarium, or any of them, are not disqualified as electors., is . their tubercular condition sufficient to constltiute "pertinent disability' within the meaning of Article 2959 and 2960 of the Revised Civil Statutes, 1925. Section 1 of Article VI of the Constitutioh of Texas, reads In part as follows: 'Section 1. The following classes or persons shall not be allowed to vote In this state; to.wit: cCl*' 'Third: All paupers supported by any county. n* l *I Article 2954 of the Revised Civil Statutes, 1925, reads In part as.-follows: "The following classes of persons f3hd.i not be allowed to vote in this State; '3. All paup&& supported.by.the county." A pauper Is one who'is Indigent or very poor, and the term Is usually understood~to Imply one so +ndlgent as to be dependent,on the public for support. 32 Tex. Juris. p. 611, Kirk vs. Brazes County,.~73 Tex. 56, 11 S.W. 143; 3 Bouvler's Law Dictionary 2539; fin re Barnes, l&l Atl. 718, 119 Pa. Super. 533; Spokane County vs. Arvln, 13 Pac.2d 1089, 1090, 169 Wash., 349; Town of Ellingtqn v?. Industrial Com- mission, 273 lF.W. 530, 225 Wis. 169;!Risner~vs.'State ex rel Martin, 9 N.E. '(26) 151,'153, 55 Ohio~App.'151; CLoyd vs. Vermillion Co., 196 N~.E. 802, 360'~Ill. 610. As stated In 32 &: &-is. up. 811: "The term certainly cannot be applied to a person who has always been able to support himself and those dependent ppon..blm." Moreover, there Is a substantial doubt under the authorities as to whether one falls within'the deflnitloq~of,a pauper when he receives aid from private as.distirig~lshedfrom public sources - relatives and Priendfi.~ " Article 2351, Revised Civil Statutes, 1925, reads in part as follows; 'Each'coni+ssione~s court shall: *+ + + Hon. Marvin H. Brown, Jr., page.3 *ll. Provide for.the support ofpaupers l l *, residents of their county, who~are unable t,osupport themselves. By the term resldent.as used herein, is meant a person who has been a bona fide inhabitant of the county not less,than,six months and of the State notless than:~.one,.year.. '12. I%0vlde for the ourlal of,paupers.? Article 4438 of.the Revised Civil Statutes, 1925, which wasfirst enacted~ln 1876, the yesr of our present Constitution',reads as follow,s: "If there Is .a'r,egularestablisned public hospi- tal In the'countg,'the commissioners court shall pro- vige for sending the indige~ntsick of the county to such hospital. If more than one such hospital exists in the c,ounty., ..the$ndige,ntpatient shall have the right to'selectwhich done of.them he shall be sent to." A concise statement of the duties and responsi- bilities of'the county'wlth'respect to paupers was given by the court in Wlllacy CountJ v.~Valley Baptist Hospital, (C.C.A. 1930), 29 S.W. /2).~456; "The powers and dut;iesof theecounty commis- sloner.s~!. courts.,:and~Xhe~ob.llgatlbns of the counties to paupers,.are fixed ,bg,statute,and cannot be en- larged upon by unnecessary.lmpllc~ation. These powers and duties, In so far as ~appllcablehere, are defined in and restricted by the provisions of articles 2351 and 4438, Rev..St.1925. In,~artlcle2351.it is pro- vided that each commlssloners'.court shall (subdivision 11) 'provide for.,the~support of.paupersi l *residents of their county,.who are unable to support 'themselves,' and (subdivision 12) !for"tbe~burial of paupers.' In article 4438 it ls.prQvided-that 'If there is a regular established.publlc hospital in the.county,the comrnis- sloners coins%shall prbvidb'for ~send,ingthe indigent site’ * l to such-hotinital;''In the latter provision the duty and authority of the commissioners’ court to send the Indigent slck,to .hoSpitalS is limited to 'pub- lic' hospitals wlthinthe'county; which provision, by necessary impllcatlon,,excludes any duty or authority to send'such personsto pr~va~e,~.hospitals, or to public hospitals wlthoutthe~county. JUr. at p0612: Moreovef, as~,.st~ted'in"32'Tex. . Hon. Marvin Ii.Brown, Jr., page 4 "The term 'support', as here used, means more than supplying food, clothing and llving.quarters; it means all that is necessary to bodily health and comfort, Including proper care and treatment during sickness. This, It hasbeen said, 'is a supreme obligation of humanity, independent of any statutory mandate.'" See also Monghon vs. Van Zandt County, 3 App.C.C. i 198. Consequently, we find that it is the duty and responsibility of the county to care for paupers or lndl- gents whether they be sick or well, and the question of whether or qot patients In the Hlmwood Sanitarium are entitled to vote depends upon whether or not they are "paupers supported by the county" within the meaning of the Constitution and statutes. In this connection we take the liberty to quote from your letter as follows: "It is, of course, true that all of these patients are Indigents, but they are not inmates of the County Home. There is such a County Home In Tarrant County, the inmates of which, we believe, come within classification number three of Article 2954, and, in addition, the Inmates of Elmwood Sanitarium are technically not 'supported by the county', inasmuch as said Institution Is ~operated jointly by the county and city, as heretofore pointed out." Since it is the duty and responsibility of the county to care for its paupers whether they are sick or well and since it is the further duty of the commissioners' court to send the Indigent sick to a public hospital in the county, we do not believe that the mere fact that these paupers are In the Hlmwood Sanitarium, a public hospital, rather than the Tsrrant County Home is material to the question of whether or not they are "paupers supported by the county.* Nor do we believe the mere fact that the Elmwood Sanitarium is an institution operated jointly by the @ity and county, sufficient to take the inmates thereof'out.of the classification of "paupers~supported by the county." Whatever may have been the policy of the framers of our Constitution and the Legislature in placing this qualifl- cation upon the right to vote, that policy is just as effectively undermined so long'as these paupers are wholly objects of the public charity whether the county must pay entirely for their upkeep or only partially as in the case at hand. In ang,event the ends to be subserved are the same. As we understand the facts the indigent in the Elmwood Sani- tarium look wholly to the government, county and municipal, Hon. Marvin H. Brown, Jr., page 5 for their maintenance and consequently, we must hold that such,lnmates~are supported ~by the county. In this connec- tion the case of Kirk v. Brasos County, T3 Tex.36,11 S.W. 143,.Is of interest. Inthat case inconstruing a con- tract between a county and a 'poorfarmsuperintendent, the Supreme.Court sugges.tedthat-paupers may only par- tially be aided and yet be.Wsupported by the county:" Oftcourse the-status:of any particular inmate as a pauper is tq'be determined by the peculiar facts and clr- cumstances of each case. However, fromyour statement of facts we have assumedthatthey are indigents; supported wholly,by the public, and.we.hold in ansver to your first question that such indigents are paupers supported by the county within the meaning of.Section 1, of Article VI of the Constitution of Texas~'andArticle 2954'61 the Revised Civil Statutes, -1925,,-soas to disqualify them aspelectors. fflven the -case~of one:of such inmates who-is not supported wholly bythe publl'c:or‘doesnot otherwise come within the deflnitl,on.ofa pauper.set forth in'this~opinion, your second question involves an Interpretation of'Articles 2959 and 2960 of the Revised Civil Statutes, which reads as follows: shall be collected from "Art. 2959. A pOll:~.air every.person between the ages of twenty-one and sixty years who reslded'$nthis State eon the first day,of January preceding ~lts levy-Indians not taxed, persons 'insane~,blind; deaf ordumb, and those who have 1os.ta .hsnd-,or,foot,-orpermanently disabled, excepted. It shall be.paLd at any time between the first day of October and the first day of February followin~g;and the person when he pays It, shall be antitled.to his poll tax receipt, even if his other taxes_.sre unpaid." "Art. 2960. Every.person who is more~than sixty years old.or~who is.bUnd or deaf 'ordumb, cr Is permanently disabled, or has lost .one . hand or foot, _ shall be entitled to vote without oelng required to pay ~a poll tax, ifshe hasobtained his certificate of exemption.from the county tax collector'vhen the same is require* by the nrovisions of this title." We belLeve:the-question -of whether or not any such inmates are "permanently disabled" so as to relieve them from the necessity of paying a poll tax is also a question of fact. And we further believe the proper test for an exemption on grounds of permanent disability to be . Hon. Marvin H. Brown, Jr., page 6 whether or not the claimant is capable, or within a reason- able time will be capable, of earning a livelihood, capable of engaglng in a gainful occupation. McCormick v..Jester, 115 S.W. 278; Hillert, et al. v. Schweppe 234 S.W. 152; Huff v. Duffield, 251 S.W. 298. The word 'permanent" while not meaning perpetual signifies "continuing" as opposed to "temporary." Of course the status of each claimant must rest upon its own facts and no rule ofthumb can be laid down which will suffice to measure all cases. In U.S. vs. Rentfro (C.C.A. 10th Clr.) 60 Fed.(2d) 488,489; Falbo vs. U.S. (C.C.C&.9th Clr.) 64 Fed.(2d) 948 and U.S. vs.Blshop (C.C.A. 6th Cir.) 90 Fed.(2d) 65,66,67, incipient tubercu- losis was held curable, and not of itself to constitute permanent disability. On the other hand in Mississippi and New York, tuberculosds - at least in its later stages-has been held to constitute a permanent disability ~within the meaning-.ofa clause in an Insurance policy. Equitable Life Assurance Society vs. Serlo, 155 Miss.515, 124 So.485; Oinell vs. Prudential Insurance Company of America, 196 N.Y. Sup.337, 119 Misc.Rep. 467, 200 N.Y. Sup. 261,262, 205 App.Div.494. Consequently, in answer to your second questton, you are respectfully advised and It Is the opinion of this department that tuberculosis does not,per se entitle a claimant to an exemption from the poll tax on the ground of permanent disability. We must refrain from suggesting any blanket exemption for residents of the Elmwood Sani- tarium and respectfully suggest that a physician will be better able than this department to determine the status of any particular case. Yours very truly ATTORNEY OWERAL OF TEXAS APPROVED JAN. 16,1g40 By (Signed) .WALTEROR. KOCH .Assistant s/ W.F.MOORE FIRST ASSISTANT By (Signed) JAMES D..SMULLEN A'ITORNEYQENERAL JDS:jm APPROVED OPINION COMMITTEE AMM BY B.W.B. Chairman