Untitled Texas Attorney General Opinion

. . .

Hon. Jack Roberts- Page 2 'V-129
_'

statutesdo not requirethat a voter &hallhave resided
six months within a precinctof a countyto be eligible
to.vote,but that the six months requirementis corn-'
pliedwith if the voter has residedsuch time within
the county.
We quote from.OpinionNo. 2ll6 of this De-
partment,dated July 16, 1919, as follows:
.
*If a voter has in fact moved into
a new precinctwithinthe same county,in
good faith to reside in such precinctand
to acquke a residencetherein,such voter
is entitledto-voteat any generalelec-
tion held subsequentto his acquiringhis
_ qew nsidence as aforesaid," .~
In rlew of the foregoing,you are respectful-
1 adklsedthat It is the opinionof this Department
t& t a personmayvote in a specialelectionsuch as a
local optionelection,who has moved into the precinct
immediatelybeforethe election,on his own~atatement
.- that he is-a legal residentof the precinct,provided
he has his poll tax receiptor certificateof exemption,
if roqulredby'law,and 'isotherwisea qualified~voter;
and providedfurtherthat the facts and circu~~tanods
are such aswould make him a legal residentof~that ~~.
particular'precinct; one of which-ishis intentionat
the time ha moved into such precinct.*Lingervao.
- Dalfour,l/+9S.W.'803;Harveyvs,'Cain,197.S.W,765..
~&ever, 'thereis an exception $0 this g&r-
.ti'..e'whenthe personwho is offeringto vote lives’
in a city of 10,000 inhabitantsor:'more.Then he must
complytith Articles2966 and 2967, V&S., which ares
aa follows: .:.~
_ ~; 8
=&z-t.2966. Bemovalto anotherward*
'If a citizenin a city of ten thousand
&r&habitants,after receivinghis poll tax
receiptor certificate~of exemption removes
to anotherward in the same city beiorethe
next election,he may vote at any general
electionin the ward of his new residence‘by
presentinghis poll tax'receiptor certifi-
cate of exemptionto the precinctelection
judges,or by mahingaffidavitthat it has.
 Hon.'JackRoberts- rage 3 _' v-129
.

been loat or misplaced;which affidavit
sh+ll be left with the judgesand for-
wardedwith tha electionreturns. But
in all such caws if the removal uaa to
the ward of his neu residencein the aame
city before the certifiedllat of voters
wna t$ellwed to the clnot judgea,he.
aball appear beforetre tax collectornot
loss +m fire dqs beSoreayh llectlon
er primaryllectlonand ohtaln a Comwt~d
r8ceiptor certificate* and his name &AU
k added to the liot 0) voters for the
-Iact of his new xwaidance;and ha
&all uot wte In that event unlua hi8
us ~z1the carblfledllat of
... Gtzl. pi?
.’

wrt. 2947. EemoYal~fOanotierfxnmty
6r preciaot.
”

.If a cltirenaftor,rece*vin& hls
P@JJ-tu ncalpt or cert~flcateof ox-
omptloa,cImw08 to aa- ctnlntyof to
I ~hwpncinctlntha aane county ha
qy veto at an eloctlaSln the pr&ct
ofUmnmrmsidaneaLnauoh’athwcauey
or proalht by pqesontlng hfs pall tax
maeipt 0T oestifiaatte ef exeqtion er
hl8 affidavitof its lors to tha pnotict’
Mgea of election,and state in auchif- '
il davit whore he paid such poll.tax or.
. receivedsuch certificateof exemption,
aud by naking oath that ha ia the ident%-
cal peraen describedIn euoh.pall-taxro-
eaipt ar Cortlfloatoof oxemptlon, md
tht b then re&&4w 5a the precinct .c:
wbua% he offers tovotoandba8rwl(d _
for the last alx matbe IA the district
I or aounty ia which he aff+rate tote end
twelvema~ths iqa~the~8Qtts. BUS no such
pe.raasW&lbmpemittm~toootofDa .
thewwd~bituatr~rasu
lllq eter
o f& is
r wk la s
aa taxc s
nc o ip t
or cart.Ulcato,AOt lose thml feur &p
prior to rush electionor primaryrlrc-.
tion er mede rffitivitaf ita,lossand
eating iA muh affldarttlchue ho peld :
ruch poll tax or ncei~ed mmh oa'$lfl~te,
 , .

Edn. Jack Boberts- Page 4
:
. .

of.memption; and the collector&all there-
:
upon add his name-to the list of qualified
voters of the precinctof his new residence;
and, uiiLesssuch voter has done this and his
name appearsin the,certifled list of voters
: ._ of the precinctof his new residence;he-
shall not vote.' ':_
_'
-TourQuestion.ho.2 is as.follows:, ,,_ ,.
1.2. Ii case.of'servicemen or women.
entitledto vote,withoutpoll tax, are they-
requiredto make any showingas to whether.
they live.in the precinct?"
. .
This~question we think,. is answeredin Opin-
ion.Ho. O-7034 of this fiepartmentdated January17, 1946,
...'&n the'answersto questions7 and 8 therein; a co
_ - uh+h is herewithenclosed. In this opinionthia%zf
-partmentruled that such personswere entitledto vote
withoutbeing includedon the certifiedlists of voters
:preparedby'the tax assessorand collector;that the
Y, udgas could.require them to show by their ownoaths .:.
:' ..and if.in a city or town of.10,000or more .$nhabltants,
: by the oath of one well known resident)that they were
qualSf%edto 'vote: and that the election'
officialscould
.. ~0%:requirr more. ...: "
.. . ..
: %8 as follows:
Tour &estion ?0..,.3 :
" l3d If a personactA.ly'~reaide*~ 'in ... y
.a'
precinct.one night.preceding'
the electton
.bymerely sta ing in it overnlght,.anddoer'
not move'his Eouseholdgoods, etc.) and then :
returnsto -hisusual residencein ,someother _'
$reainct,is .hesubjeotto prosecutionfo.r'.'
voting.inthe el;ection?"
Iike vr6 are faced with a que&ion of fact.
'iou6tate that the person actuallyresidesin a pre-
'cinctone night, yet at the sametime you say he did
not mow hia householdgoods, etc.. The facts ou 'their
face are hot consistentwith modng to a new residence
'.. wI.h a bona fide Intent of making it his perrnaA~At
.' reeidenci. 2
A6 atoted by JueticiHorvellin the aaae of
Ii&de vs. Cantu, reportedin 143 9. W. (2) 126, ue'
find the .follorring: ..
.. _, .'
.
.

Hono Jack Roberts - Page 5 V-129

'*Thetestimonyof a witnessas to his
intentionis, of course,not.necesaarily
controlling. It is, however,an element
which may be consideredby the authority
authorizedto determinefact issues- the
jury or the trial judge.
"In our opinionthe correctrule Is
stated in Strattonvs. hall, Tex. Civ..App.,
90 S.W. (2) 865, 866, by the El Paso Court
of Civil Appeals,wherein It was held that
althoughthe declarationof a voter as to
his intentionis not controlling, %z isbT
element.whichmay be considered.
Words, the questionof the residenceof a
marriedperson for voting purposesunder
Article 2958, is one which'muatbe deter-
mined by referenceto the actualfacts and
. circumstances; one of which will.behis in-
tentions.'*
; The&ore, since yourquestion'ls~one
of fact,
thiaDepmtmeat aannot pasauponthe same.
QuestionNo. 4 of your requestis,as follaua:
..‘
'40 &,there a differentregulation -
for voters of rural and city precincts,aa.
to their qualifyingto vote in a precinct
Idto which they have moved? Are bdth re- *a
quirsdto make affidavitthat they have re-
moved-tothe precinct.where they offer to
vote? Is there a time limit for,eitheror
both, precedingthe election? What is it?"
.:.,
In answer to this questfonand in view of the.
forego&g authorities,it is the opinionof this Depart-
ment that there is not a differentregulationfor voters
of rural and city precincts,as to their qualifyingto
vote in a precinct into which they have moved unless the
city in which they are voting'ia.oae which has a popula-
tion of more than 10,000 inhabitants.
In either instancethe voter muat tie an af-
fidavitthat he has removedto the precinctwhere he of-
fers to.vote if required to dc so by the electionjudges
In the case of Yett vao"Cook,reported ha 281
3% 839# Chief Justice Curetoasaid:
 Hon.'JackBoberts- Page 6 . . -V-129
‘.
..

Wae purity of-theballotin Texas has .
been safeguardedby many constitutional and
atatutory~proviaiona. Const.art. 14 0 '2;.
article6, ga 4, 5, 2; article7$ 8 3. See,
generally,also, devisedStatutes1925,
83&3~,2~!3to 3173$ and Pen. Code 1925, art.
e
,. : .-"Amongother provisionshavingfor
: : .
-theirpurposethe purity. of the ballot are
those relatingto the paymentof poll taxes
and evidencethereoffor use at elections.
Tax collecioraare compelledto prepareand
furnishpoll tsx lists to electionboards
;for.distributioa to the precinctelection
. . :officers. These lists conatitute~part of
. the'electionsupplies,and the numberof.
ballotsto.be furnishedeach votingprecinct
la ascertainedby referencethereto* Revised
; ..
Statutes1925, arts0 2975,.2984. In the-case
: of municipalelectionsthe eleationboard.is'
: : .,~,:. .:.
muaposed orthe mayor and othera,-uhose 'duty
.
.;;eisto obtain electionsupplias,including
ll lists referredto and furnishthem.
:.-
.. . .

.
.-

.
to 6E"lction offiaerso-BevisedStatutea1925,
2%. .
arta 2997$ 2996, 2992r 2993o Supplemental
liats.ofthe voterswho have paid their poll
tsxee muat be furnIahed*notleaa~thaqfour .

.
days prior to any * *.* general-election.' . ..
.BeviaedStatutes1925, hart.. 2975. If all
lists an not furnishedthe residingjudges.: .:
.ofthe various electionprecR cts *at.leaat
three days before electioa,qit is their. '. '.'**
duty to send for &d procurethem,,. Beviaed.. '.':
Statutes1925 art0 2993,' Theae.polllists;: : '.
.areused on the .dayof'elactionas a means
.ofidentifyingthose I&O appear for the' ,-.
. purposeof voting. Describingthe actual .:m
methodof voting, article.3005declaree*.that,
when the voter uresents~himself to vote. he

.. .
. .

Hon. Jack Roberts - Page 7 V-129

?It‘canserve no good purposeto make
referenceto the many statuteswhich show
that the poll lists are one of the things
which carmotbe dispensedwith if a lawful
electionis to be held, Since the statutes
oonternplate that the poll lists shallbe
used as an active and efficientaid towards
securingthe purity of the ballot,they
necessarilymean that completepoll lists
shall be used; that is to cay, the lists
shouldcontainthe mames of every voter who
may pay his poll tax prior to the close of
January..U~st each year. We think it quite
orldmt that the poll lists in a city like
Auotin could not properly be preparedand
disttibutedand the etatuteain other ipl-
portant.respekts be ixmtpliedwith between
th hour of midnightJanuary 3lstandtha
hour of the qwnfng when an election-weu.ld
.
..

a&nstruiag the various atatutes'bear-
lng en the subject in the light of the Con- .
8titutionshows tonelusivelythat the pro-
visionsrelatingto poll tax listsare man-.' ,_
.datory..a~. .* (Underscoringours1
....
.' It i$ clearly seen from the foregoingtuthor-
.ltiditbat it Ss.mandatorythat thetax asseshrdtnd
collectorof the county fixrUsh a poll t&x list to the '
Board,beforethe'firstday of April of everyyear. If
in a countywnich'.contains azity of more than 10,000
.lnhabitants the tax'collectorshall also furnishto
. .
said Board nqt,lessthan four days‘priortoany Primary
or'GeneralElection supplementallists in the form.
hereinprescribed,of all poll taxpaying votersuhe'
have, since paylng.theispoll taq removedto each vat-
lng precinctin each such city.or town in the county
from anothercounty or in other prtcincts,in tho same
'In turn the Board shall furnisheach presiding
~$~'~f a precinctthe certifiedlists and,supplemen-
_’
tal Mats of'votcrs. of his precinct-attho time when ,it
 Hon. Jack Boberts- Page 8

furnishesother electionsupplies.
If said.listor supplementallist Is not fur-
nished said Board, it is then incusbentupon said Board
to demand the same since it is absolutelynecessaryend
mandatory that the election udgea have said lists
throo dayc before said election in order to ascertain
who are qualifiedvoters;and if they do not receive
same, they shouldmake demandfor.them, It is only in
this respectthat there is a differencein regulations
for voters of rural and city precincts.
It necessarilyfollowsfrom uhat has been
.aaidthat,if a personmoves from one precinct.toan-
other.precinctin the same countyand in a city or town
of more than 10,000 inhabitants,.subsequentto.the time
,tbat the supplementallists have been made out by the
tax collectorand,deliveredto the.Board,he could be
deniedthe right.to vote. Whereas,If he removedto’ .
aaotherprecinct$n the ‘samecountyeven after the poli
list had ‘beenmade by the tax amessor and collector
and ‘deliveredto sa%d @xrd but not being in a town or
‘-cityof inorethan lO,OOO.inhabitants,he could.not be .
denlodthe right--to vote regardlessof when he moved to
his new precinct,if he was otherwisequalifiedto vote.-
Ye.~sre.fami.lW”uiththe principlethat the’
Cou+s of Texas:throughout the years have.liberallcon-
strued, the.statutoryregulationsaffectingtherig ht of
a voter freelyto cast.his vote in the exprosalonof
his choiceat an electionsnd, .inthe abscnce’ofstat-
ury command,will not disfranchisehizap, yet, since.it -
Is msMat0r.ythat thensupplement&llists.befurnished
‘tothe election .judgsa, in cities’of.morethan 10,000
inhabitants if a personmoyes to such city after the
stapplementa$ .polllist has been delivered,or moves
from one precinctto anotherprecinktla such aittc:he
electionjudge-couldrefuse him a ballotbecause
name would not appear oA.saidlist as requiredby law*
‘Thifirst part of QuestionNo.’5 of your re-.
quest that is: When a person casts an’absenteevote,
what,1s the duty of the County.
Glerk as to ascez%ain’izxg
the legal residenceof such voter?s.,we think, is an-
~sweredin Opinfon:No.O-7069of this Depsrtment,dated
February23, 1946,a copy of which is herewithenclosed.
The &I% part of QuestionNo, S is as follows:
_:...

hon. Jack Roberts- Page 9 V-129

*What is the duty of tho electionof- . .
ficial.8of a precinctwhen a person offers
to vote and presentsan affidavitthat he
has removedhis residenceto that prqainat’M
Articles206 to 280, V.P.C.,are other provi-.
slons havingfor their purposethe purity of the ballot
and which ret out some of the dutiesOS tho slection
- particularlyArticles216 and 217 to ether
%%rti~les 3002 3004 3005 and 3006 V C 3 These
‘tiicles provideh;w theieelection judge: &y:a&ortain
who is a qualifiedvoter,what the voter must .doin
‘orderto ba eligibleto vote, and the remedy of the
voter If challengedas such. Article3007, V.C.S.,is
the pprticulsrstatutewhich.governsif the election
ls bolng held ia a town of 10,000or more inhabitants
where the voter’sright to vote is challenged.’
It is apparentfrom &at has alreadybeqn
said and in-view of the aforementioned statutes.that
.if the person is OtherwiSequalifiedto vote it is
theirthe duty of the election udges to rot&e such
fact8 Srom the voter under oati!which hs (soemstiooes-
. sary to a&surethe judgesthat the person has aatually
becomea :bona fide residentof safd preoinqet;
ofmoh *han.lO.'OOO in-
ascertaining.ths’fa&sas
person’s‘natmemust appear’inthe
persdn Se .required. to have .a
of.exemption;othsrrrfse. the
olectioa udge,shouldrefuse.toissue srich,person-a
bpllot..L additionto this, Article 3007, supratis
also applicab1.e
a It “goeswithout saying. that the ‘law
imposing.allthe other duties upon the affiaialshold-
ipg ale&ions
..
must aSso be abserved. . .:.
‘SUMKARY.. ..’
Is. An otherwIsequalifiedv0te.r ,iho.“.
‘,hasmoved into a precinctbeforean olec-
tion may vote in a local’option election
on .hisown statementas to precinctred-
.dence.ffhe has been a residentof suoh
oounty for 6‘monthaimmediatelyprocoding
‘sucholeationupon presentationof.hie poll
: tax receipt.or certifloateof exemption,.lf.
requlrod;htioversif voting lm a .cityof
10,900.inhabitsntsor more a votw musts In
. . ;..

Hon.~JackRoberts - Page 10. .vy129..
.
..

additionto the fore'oing,complywith "
Articles2966'aud29%7; V.C.S. .:~~
2. As .towhethera voter is subject
to prosecutionwho residesin a preainct
one night and does not move his household
goods,etc0) presentsa fact question, A
declarationof a voter is not controlling
as to intentionalthoughit is an element
which may be considered. (90 S.W. 2d 865;
ll+3S.W. 2d 126)
3. There is not a differentregula-
'tionfor voters of rural and city precincts,
as to their qualifying.to vote in a pre-
oinct into which,theyhave moved unless the
city in .tiichthey are voting is,one:which
has a populationof more than 10,000in-,
habitants* In either,instance the voter
must make an affidavitthat he has removed
to the precinctwhere he offers to vote,
if requiredto do so by the electionjudges,
There is.no time*limitfor either~, preced-
ing the;election.,butif in a town of more.
than 10,000inhabitantsthe voter, if rc-
questedby the jud e; must aom Xy with. ._
Article3007, V.C.8 *, in additEon to the .1
other requiimwnta set out in the statutes*
'l+.-If a personis otherwisequalified'~ _’, ”
to foto, it is the duty of the electiqn .'
jridgeto retire suah facts from the rot&?
. Under oath which he deems necessaryto a's- .’
8ure the judge that the person has.actually.
beoome'abona fide..Fesidentof said preoinct. :r'

APPROVED.APRIL8, 1947 AFm,GENEXAL OF TEXAS

Bruce Allen
Assistant;
BAa.djm:erc
Enclosures
:. '._.~. I
,. :.
:
,::,.
~' .;'9
'~I.~'.
...::.
.~_
.. '_ :' '~....',.