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.~'. ...::. .~_ .. '_ :' '~....',.