Case Information
*1 . . 'V-129
Hon. Jack Roberts - Page 2 _'
statutes do not require that a voter &hall have resided six months within a precinct of a county to be eligible to.vote, but that the six months requirement is corn-' plied with if the voter has resided such time within the county.
We quote from.Opinion No. 2ll6 of this De- partment, dated July 16, 1919, as follows:
*If a voter has in fact moved into a new precinct within the same county, in good faith to reside in such precinct and to acquke a residence therein, such voter is entitled to-vote at any general elec- tion held subsequent to his acquiring his _ qew nsidence as aforesaid," .~
In rlew of the foregoing, you are respectful- 1 adklsed that It is the opinion of this Department & t t a person mayvote in a special election such as a local option election, who has moved into the precinct immediately before the election, on his own~atatement . - that he is-a legal resident of the precinct, provided
he has his poll tax receipt or certificate of exemption, if roqulred by'law, and 'is otherwise a qualified~voter; and provided further that the facts and circu~~tanods are such aswould make him a legal resident of~that ~~ . particular'precinct; one of which-is his intention at the time ha moved into such precinct. *Linger vao.
- Dalfour, l/+9 S.W.'803; Harvey vs,'Cain, 197.S.W, 765..
~&ever, 'there is an exception $0 this g&r- .ti'..e'when the person who is offering to vote lives’
in a city of 10,000 inhabitants or:'more. Then he must comply tith Articles 2966 and 2967, V&S., which ares .:.~ aa follows: ~; 8 _
=&z-t. 2966. Bemoval to another ward* 'If a citizen in a city of ten thousand &r&habitants, after receiving his poll tax receipt or certificate~of exemption removes to another ward in the same city beiore the next election, he may vote at any general election in the ward of his new residence‘by presenting his poll tax'receipt or certifi- cate of exemption to the precinct election judges, or by mahingaffidavit that it has. *2 _' v-129
Hon.'Jack Roberts - rage 3 been loat or misplaced; which affidavit sh+ll be left with the judges and for- warded with tha election returns. But in all such caws if the removal uaa to the ward of his neu residence in the aame city before the certified llat of voters wna t$ellwed to the clnot judgea, he.
aball appear before t r e tax collector not fire dqs beSore ayh l lectlon loss +m er primary l lectlon and ohtaln a Comwt~d r8ceipt or 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 ~z1 the carblfled llat of . . . Gtzl. pi?
.’ wrt. 2947. EemoYal~fO anotier fxnmty
6r preciaot. ” .If a cltiren aftor,rece*vin& hls -tu ncalpt or cert~flcate of ox- P@JJ omptloa, cImw08 to aa- ctnlnty of to I ~hwpncinctlntha aane county ha
qy veto at an eloctlaS ln the pr&ct ofUmnmrmsidaneaLnauoh’athwcauey or proalht by pqesontlng hfs pall tax maeipt 0T oestifiaatte ef exeqtion er hl8 affidavit of its lors to tha pnotict’
Mgea of election, and state in auchif- ' davit whore he paid such poll.tax or. il . received such certificate of exemption,
aud by naking oath that ha ia the ident%- cal peraen described In euoh.pall-tax ro- eaipt ar Cortlfloato of oxemptlon, md .c: tht b then re&&4w 5a the precinct wbua% he offers tovotoandba8rwl(d _ for the last alx matbe IA the district I or aounty ia which he aff+ra te tote end
twelve ma~ths iqa~the~8Qtts. BUS no such pe.raasW&lbmpemittm~toootofDa
thewwd~bituatr~rasu l llqeter of &is rwklasacs a tax nc oipt or cart.Ulcato, AOt lose thml feur &p prior to rush election or primary rlrc-.
tion er mede rffitivit af ita,loss and eating iA muh affldartt lchue ho peld ruch poll tax or ncei~ed mmh oa'$lfl~te, *3 , .
Edn. Jack Boberts - Page 4
:
. . of.memption; and the collector &all there- upon add his name- to the list of qualified : voters of the precinct of his new residence;
and, uiiLess such voter has done this and his name appears in the,certifled list of voters of the precinct of his new residence; he- : ._ ':_ shall not vote.' _'
-Tour Question .ho. 2 is as.follows:, ,,_ ,. 1.2. Ii case .of 'service men or women.
entitled to vote, without poll tax, are they- required to make any showing as to whether .
they live. in the precinct?" . . This~ question we think,. is answered in Opin- ion. Ho. O-7034 of this fiepartment dated January 17, 1946, . . .' &n the' answers to questions 7 and 8 therein; a co _ - uh+h is herewith enclosed. In this opinion thia%zf
-partment ruled that such persons were entitled to vote without being included on the certified lists of voters : prepared by' the tax assessor and collector; that the Y, udgas could. require them to show by their ownoaths .:. :' .. and if. in a city or town of .10,000 or more .$nhabltants,
: by the oath of one well known resident) that they were qualSf%ed to 'vote: and that the election' officials could . . .: " . ~0% :requirr more. . . . . . Tour &estion ?0..,.3 %8 as follows: :
: " l 3d If a person actA.ly'~reaide*~ 'in . . . y .a' precinct. one night. preceding' the electton .by merely sta ing in it overnlght,.and doer' not move' his E ousehold goods, etc. ) and then returns to -his usual residence in ,some other _' $reainct, is .he subjeot to prosecution fo.r '.' voting.in the el;ection?"
Iike vr6 are faced with a que&ion of fact. 'iou 6tate that the person actually resides in a pre- 'cinct one night, yet at the same time you say he did not mow hia household goods, etc.. The facts ou 'their face are hot consistent with modng to a new residence '.. wI.h a bona fide Intent of making it his perrnaA~At .' reeidenci. 2
A6 atoted by JueticiHorvell in the aaae of Ii&de vs. Cantu, reported in 143 9. W. (2) 126, ue' find the .follorring:
. . . _, .' *4 Hono Jack Roberts - Page 5 V-129
'*The testimony of a witness as to his intention is, of course, not.necesaarily controlling. It is, however, an element which may be considered by the authority authorized to determine fact issues - the jury or the trial judge.
"In our opinion the correct rule Is stated in Stratton vs. hall, Tex. Civ.. App., 90 S.W. (2) 865, 866, by the El Paso Court of Civil Appeals, wherein It was held that although the declaration of a voter as to his intention is not controlling, %z isbT element.which may be considered.
Words, the question of the residence of a married person for voting purposes under Article 2958, is one which'muat be deter- mined by reference to the actual facts and circumstances; one of which will.be his in- tentions.'*
; The&ore, since yourquestion'ls~one of fact, thiaDepmtmeat aannot pasauponthe same.
Question No. 4 of your request is,as follaua: ..‘ '40 &,there a different regulation - for voters of rural and city precincts, aa.
to their qualifying to vote in a precinct Idto which they have moved? Are bdth re- *a quirsd to make affidavit that they have re- moved-to the precinct.where they offer to vote? Is there a time limit for,either or both, preceding the election? What is it?" .:.,
In answer to this questfon and in view of the. forego&g authorities, it is the opinion of this Depart- ment that there is not a different regulation for voters of rural and city precincts, as to their qualifying to 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 instance the voter muat tie an af- fidavit that he has removed to the precinct where he of- fers to.vote if required to dc so by the election judges
In the case of Yett vao"Cook, reported ha 281 3% 839# Chief Justice Curetoa said: *5 . . -V-129
Hon.'Jack Boberts - Page 6 . . ‘.
Wae purity of-the ballot in Texas has . been safeguarded by many constitutional and atatutory~proviaiona. Const. art. 14 0 '2;.
article 6, ga 4, 5, 2; article 7$ 8 3. See, generally, also, devised Statutes 1925, 83&3~,2~!3 to 3173$ and Pen. Code 1925, art.
e .- "Among other provisions having for ,. : . : : -their purpose the purity. of the ballot are those relating to the payment of poll taxes and evidence thereof for use at elections.
Tax colleciora are compelled to prepare and furnish poll tsx lists to election boards ;for.distributioa to the precinct election : officers. These lists conatitute~part of . . the'election supplies, and the number of. . ballots to.be furnished each voting precinct
la ascertained by reference thereto* Revised Statutes 1925, arts0 2975,. 2984. In the-case ; . . of municipal elections the eleation board.is' : muaposed orthe mayor and othera,-uhose 'duty : .,~,:. .:. .;;eis to obtain election supplias, including . ll lists referred to and furnish them. to 6 E" l ction offiaerso -Bevised Statutea 1925, . . . . .-
:.- . . arta 2997$ 2996, 2992r 2993o Supplemental 2%. . liats.of the voters who have paid their poll
tsxee muat be furnIahed *not leaa~thaq four . days prior to any * *.* general -election.' . . . . .Beviaed Statutes 1925, hart.. 2975. If all . :
lists an not furnished the residing judges.: .of the various election prec cts *at.leaat R
three days before electioa,q it is their. '. '.'** duty to send for &d procure them,,. Beviaed.. '.': Statutes 1925 art0 2993,' Theae.poll lists;: : '. .are used on the .day of'elaction as a means .of identifying those I&O appear for the' ,-. purpose of voting. Describing the actual .:m methodof voting, article.3005 declaree*.that, when the voter uresents ~himself to vote. he *6 . . V-129
Hon. Jack Roberts - Page 7 ?It‘can serve no good purpose to make statutes which show reference to the many that the poll lists are one of the things which carmot be dispensed with if a lawful election is to be held, Since the statutes oonternplate that the poll lists shall be used as an active and efficient aid towards securing the purity of the ballot, they necessarily mean that complete poll lists shall be used; that is to cay, the lists should contain the 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 could not properly be prepared and Auotin disttibuted and the etatutea in other ipl- portant.respekts be ixmtplied with between th hour of midnight January 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- . 8titution shows tonelusively that the pro- visions relating to poll tax lists are man-.' ,_ .datory. .a ~. .* (Underscoring ours1 .. . . .' It i$ clearly seen from the foregoing tuthor- .ltidi tbat it Ss.mandatory that thetax asseshrdtnd collector of the county fixrUsh a poll t&x list to the ' Board, before the'first day of April of every year. If in a county wnich'.contains azity of more than 10,000 .lnhabitants the tax' collector shall also furnish to said Board nqt,less than four days‘prior toany Primary or'General Election supplemental lists in the form. herein prescribed, of all poll taxpaying voters uhe' have, since paylng.theis poll taq removed to each vat- lng precinct in each such city.or town in the county from another county or in other prtcincts,in tho same
'In turn the Board shall furnish each presiding a precinct the certified lists and,supplemen- ~$~'~f tal Mats of'votcrs. of his precinct-at tho time when ,it _’
Hon. Jack Boberts - Page 8
furnishes other election supplies.
If said.list or supplemental list Is not fur- nished said Board, it is then incusbent upon said Board to demand the same since it is absolutely necessary end mandatory that the election udgea have said lists throo dayc before said elect i on in order to ascertain who are qualified voters; and if they do not receive same, they should make demand for. them, It is only in this respect that there is a difference in regulations for voters of rural and city precincts.
It necessarily follows from uhat has been .aaid that, if a person moves from one precinct .to an- other. precinct in the same county and in a city or town of more than 10,000 inhabitants,. subsequent to. the time ,tbat the supplemental lists have been made out by the
tax collector and, delivered to the.Board, he could be denied the right. to vote. Whereas, If he removed to’ . aaother precinct $n the ‘same county even after the poli list had ‘been made by the tax amessor and collector and ‘delivered to sa%d @xrd but not being in a town or ‘-city of inore than lO,OOO.inhabitants, he could. not be .
denlod the right--to vote regardless of when he moved to his new precinct, if he was otherwise qualified to vote.-
Ye.~sre .fami.lW”uith the principle that the’ Cou+s of Texas:throughout the years have.liberall strued, the. statutory regulations affecting the rig t of con-
h a voter freely to cast. his vote in the exprosalon of his choice at an election snd, .in the abscnce’of stat- ury command, will not disfranchise hizap, yet, since. it - Is msMat0r.y that then supplement&l lists .be furnished ‘to the election .judgsa, in cities’of.more than 10,000 inhabitants if a person moyes to such city after the stapplementa$ .poll list has been delivered, or moves from one precinct to another precinkt la such ait tc:he election judge -could refuse him a ballot because name would not appear oA.said list as required by law*
‘Thi first part of Question No.’ 5 of your re-. quest that is: When a person casts an’absentee vote, what, 1s the duty of the County. Glerk as to ascez%ain’izxg the legal residence of such voter?s., we think, is an- ~swered in Opinfon:No. O-7069 of this Depsrtment, dated February 23, 1946,a copy of which is herewith enclosed.
The &I% part of Question No, S is as follows: *8 _:...
hon. Jack Roberts - Page 9 V-129
*What is the duty of tho election of- . . ficial.8 of a precinct when a person offers to vote and presents an affidavit that he has removed his residence to that prqainat’M
Articles 206 to 280, V.P.C., are other provi-. slons having for their purpose the purity of the ballot and which ret out some of the duties OS tho slection
- particularly Articles 216 and 217 to ether %%rti~les 3002 3004 3005 and 3006 V C 3 These ‘tiicles provide h;w theieelection judge: &y:a&ortain who is a qualified voter, what the voter must .do in ‘order to ba eligible to vote, and the remedy of the voter If challenged as such. Article 3007, V.C.S., is the pprticulsr statute which. governs if the election ls bolng held ia a town of 10,000 or more inhabitants where the voter’s right to vote is challenged.’
It is apparent from &at has already beqn said and in- view of the aforementioned statutes. that .if the person is OtherwiSe qualified to vote it is their the duty of the election udges to rot&e such fact8 Srom the voter under i! oat which hs (soems tiooes- . sary to a&sure the judges that the person has aatually
become a bona fide resident of safd preoinqet;
:
ofmoh *han.lO.'OOO in- ascertaining .ths’fa&s as person’s ‘natme must appear’in the persdn Se .required. to have .a of. exemption; othsrrrfse. the olectioa udge,should refuse.to issue srich,person-a bpllot.. L addition to this, Article 3007, suprat is also applicab1.e a It “goes without saying. that the ‘law imposing.all the other duties upon the affiaials hold- ipg ale&ions must aSso be abserved. .:.
‘SUMKARY.. ..’ Is. An otherwIse qualified v0te.r ,iho.“.
‘,has moved into a precinct before an olec-
tion may vote in a local’ option election on .his own statement as to precinct red- .dence.ff he has been a resident of suoh oounty for 6‘monthaimmediately procoding ‘such oleation upon presentation of.hie poll tax receipt. or certifloate of exemption, .lf. requlrod; htiovers if voting lm a .city of 10,900 .inhabitsnts or more a votw musts In *9 . . ;.. .vy129..
Hon.~Jack Roberts - Page 10. . . addition to the fore'oing, comply with " Articles 2966'aud 29 7; V.C.S. % .:~~
2. As .to whether a voter is subject to prosecution who resides in a preainct one night and does not move his household goods, etc 0 ) presents a fact question, A declaration of a voter is not controlling as to intention although it is an element which may be considered. (90 S.W. 2d 865; ll+3 S.W. 2d 126)
3. There is not a different regula- 'tion for voters of rural and city precincts, as to their qualifying.to vote in a pre- oinct into which,they have moved unless the city in .tiich they are voting is,one:which has a population of more than 10,000 in-, habitants* In either,instance the voter must make an affidavit that he has removed to the precinct where he offers to vote, if required to do so by the election judges, There is.no time*limit for either~, preced- ing the;election., butif in a town of more.
than 10,000 inhabitants the voter, if rc- quested by the jud e; must aom Xy with. ._ Article 3007, V.C. 8 *, in addit on to the .1 E other requiimwnta set out in the statutes*
'l+.- If a person is otherwise qualified'~ , to foto, it is the duty of the electiqn .' _’ ” jridge to retire suah facts from the rot&? Under oath which he deems necessary to a's- .’ 8ure the judge that the person has.actually.
beoome 'a bona fide Fesident of said preoinct. :r' . . AFm,GENEXAL OF TEXAS APPROVED .APRIL 8, 1947
Bruce Allen Assistant; BAa.djm:erc
Enclosures '. _.~. I :. :. ,. ,::,. ~' ; '9 '~ I.~'. ...::. .~ _ ',. '_ :' '~ . . . . . . .