Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
GROVER SELLERS Arrcmw~Y ocNcrr*
:.onorable Wed V, Edrridlth
3ounty Kaufman County Attorney, Texas dUfE811,
No. Q-7022 Do the provisions of nr5lole VI, sea. 2a,,Con- atitution OS Texaa,,,erempt- ing pereona named t$sti,in from payment as a oon~lti,m perate a motor the public hi&- oonticted oi driving while in- ‘\, toxica~ed? iiay\~~~wttness and mileage ~, \, .\,fa’as in misdemeanor orimlinal r-. \
/ ,loases be paid to .reeidents “,,(,-.l,;,ythe oounty? _-. ,;, ‘J
D&S&: \- ’ ‘\ ‘j,
‘1 ~.In y& letter of January 5, 1946, you rsoueat the opinion-/of this Irepartment on several different questions. a‘or~oonvsnienoe in replying, ws will restate your questi_ons and answer eaoh in turn. Is a veteran who ooms !vitbin tb provisions
of seotlon 2a of ~rtiole VI of the Constitution of Texas, *2 Lonorable Fred V. Lierldlth - Pan0 #2 to Yote without thr payment of a poll
and thus ha8 the right tax, In any eleotion held undrr authoritjf OS the laws oi this State, nsvarthrleer llablo for tbr payxmt oi suoh poll tax, JO that It will beoomr a dsllnqurnt tax againat him unless it is paid January 3lst?
The Constitution StatUt68 Of Texas provide for the 1OVy and OOileOtiOn Of pOii taxes. Oonatitution, Artlole VI, 2; Art1010 VII, 880. 3, Artiole VIIX, 2300. 11 Vernon’s Re- vised Civil Statutes or 1926, Artiolea 7046, 2959, 1030. Artiole 2959 provides that the poll tax shall be paid between the first day of Ootobor and the first day of February.
hrtiolr VI, Seo. 2, of the Constitution provides that any voter who is oubjeot pay a poLl tax under the lawa or the Atate or Texas ehall have paid said tax before orrering to vote at any eleotion In this State and hold a reoelpt showing that said poll tax was paid before the first day oi February next prsoeding suoh eleotlon or make aifldavit that suoh reoelpt has bean lost or mi818id.
Artlole VI, Seo. 2a of the Constitution (adopted Aug.
25, 1945,)provldee:
Vothing in this Constitution be eon- atrued to require any person, who at the time of holding or an eleotion hereinafter rerrrred to is, or who, within eighteen months immediately prior to the tlnn or holding any suah eleotion warn, a mem- ber or the amed fames or the United Statea or of the Amed Boron Reserve of the United States, or any branoh or oomponent part Of auoh anned fOrOOa or Armed Foroe Reserve, or the United Stats8 Earftlme Servioe or the United States Li8rohant Karlno, and who is otherwise a qualified voter under the laws and Con- stitution af this state, to pay a poll tax or to hold a reoeipt for any poll tax aasessed against him, as a oondition preoedent to his right to Vote in any eleotlon held under the authority of the laws ot this stats, during the tine the United States Is engaged in fighting a war, within one year after the olO8e of the oalendar year in whioh said war is terminated.
Iionorable Fred V. t’lerldith - Page #‘3
WProvlded, however, that the foregoing prs- vlalons or this ssotion do not oonfar the right vote upoa any person who Is a smaber of ths rsg- ular establishmsnt ot the United States Amy, Navy, or ldarinr Csrps~ snd provided rurthar, that all psr- sons In ths amned ioross or the United States, ths oomponent branohos thersof, not members regular esta~blishment of ths Unlted States &my, Navy, or Sarina Qorps, are hereby daolarsd not to be dlatpa~lrled from voting by reason of any pro- vision of sub-ssatlon *Fifth* Of Seotion 1, OS this Artiole.”
In our Opinion No. O-6821, addressed to Honorable George E. Sheppard, we saldl
this amendaant does not exempt anyone from the a nt of the poll tax levied by other seations oi t e Constitution “. ‘+ the statutes enaotsd in pursuanoe thereof. This ansndsmnt pro- vides onlv that the named cmrsons shall not be re- them as a oondltlon reoedent to their right to vote in the eleotions ape0 fn;lr;r;-;7.- --
Ii 18 thererare our opinion that those veterans ooming within suoh ocnstitutifmal provision, although they are per- mitted to vats without payment of a poll tax,, are-.nevsrthelsss liable for the paymsnt thereof, and the same beoomes a delln- quent tax against them ii not paid oa or before January 31st.
2. Does this oonstitutlonal amendment apply to a poll tax levied by a oity?
It will noted that the bsnsrlts of the amendment extend to “any eleotlon held uhdsr the authority of the laws of this state.” A oity eleotion is ah eleotion held under the authority of the laws of this state.
AS to the levy of a poll tax by a oity, Supreme court of Texas said, in the case of’ Powell v. City or Baird, 133 T. 409, 128 S. I;. Zd. 7861
Eonorable Fred V. Lerldith - Paw $I4 nit is our opinion that a poll tax ia leviad
Iunder a State law, within th. lWUiiIl2 Or %QtiOn 2 Artiioh v-x 0r our stat8 camtitution, ii aomo stats law dirrotly authorizer ruoh l8vy. In tbl8 lastnnoo Art1ol.e 1030, R.C.S., as unended, uupra, dirsotly authorlzrr altier to 10vy and oolleot poll It follows that suoh poll taxes, when 80 taxer, levied, am levied by dlreot authority of a State law, and are, therziore, levlsd under a State law.
:;'ebater*s iiew Internatlanal DiatlonaryI 65 C. J.
12021 Savage v. Umphriea, Tax. Clv. App. 118 S. W.
093; Linger v, Baliour, Ter. Clv. App., I.49 3. W.
?Qj$.Bonham v. Buohs, Ter. Civ. App., 226 S. Yi.
1112. AI used inthe above oonetltutlonal pro- vIalon, the word *under* $.a Owtainlg used a8 a prepositioil, iAdiO6tiAg eubjeotion, gufbaooe, oaltrol. It Is ueed in a semae of *by authority Of.‘”
&d in the oaae of Texas Power and Light Co., v. BLYIWA- wood Pub110 Sorvloe Co., the oourt said: (111 S. w. 26 1226) 0r *It is now settled law that the la-age 0r
the Constitution determinrs the qunllflcatlons the a1eotorat.e. Neithsr statutee nor the pro- visions or a oitp oharter, whloh in home rule oltler must omrorm with the Ccnstitutlon and the general laws of the state, QI~ impose additional quallfloa- tions aa a~ pmJr8qUiBit8 t0 the right Of itz OitiNAs to vote, whloh are not authorized the Constitution.
ZoCutoheon v. ;YozenoxMt, 118 Tex. 440, 294 S. W.
l.iOSl Mndover v. Tobln, Tex. Cit. App., 261 9. X.
234; Csmron v. Connally, 117 Tex. 159, 299 S. iY.
221; Ltahl v. Xiller, Tex. Civ. App., 63 S. X. 24 578.”
It is our opinion that this zmendnmt applies to a poll tax lrvled by a oity.
3. Xhat should the sleotion judges require of the soldier or veteran who desires to vote, Ol8imiimin43 the benefit of the oonstitutional amendment above set out7 dust he re- qdre 04 afrldavit?
iionorable Fred V. Nerldlth - Page $5 In suoh oases the usual or right to vote proor
(gossession oi a poll tax reoelpt or an exsmption oertiri- Therefors ths follu~ing ertiOle8 from aate) iS hOking. Vernon's Oivll Statutes of 1925, relating to the oc~duot of elsotions 1s material:
"Art. 3006. 2999 Examination of ohallenged voter "XhOn a person OifOdAg Vote shall be ob- jeoted to by an eleotion judge or a supervisor ohslleAger, the gresiding judge shall Ox8mlne him upon a~ oath touohhg the poiats oi suoh objection, hie right to and, ii auoh psr8on falls to establish vote to the SatiSraOtiOA of majority af the judges, he Shall AOt Vote. If his Vote be rSOeived, the word, *sworn,* shall be written upon ths poll list opposite the naaie of the voter." "Art. Vote ohalleoged "IO any elsotlon, State, oounty or municipal, being held In any oity or towA of ten thousand in- habitants or more acoordlng to the preoeding Federal CsnsUs, When the right OS any eleotor to vote 18 ohalleaged, the Sollanl~g prooeedings shall be had: "1. The judges of sleation retuss to aooept suoh vote of such elsotor unless Fa addition to his own oath he proves the oath one well known resident or the ward that he is a qualified voter at suoh elsation and in suoh ward.
"2. GheA suoh vote is aooeptedthe word *ohallmged' shall be written on the ballot, aAd the jud&es shall oauss the clerk of eleotlon to make a minute of the n&me oi the eleator aAd the party tCiStiryiAg under aath as to his quallfica- tiOAS, and suoh memoranda shall be kept by the aounty clerk of the county ror six months after suoh election is held, subject to order of the dlstrlot judge."
Iionorabls Fred V. Gerldlth- Page j5 3001 Delivery OS ballot
“Art. "Xhen the judges are satisiied as to the right of the oltizen to vote, the judge shall stamp In legible oharaoters with a stamp of wood or rubber taz reoelpt oertitloate the poll or exemption with the words: 'Voted . . . . . . day OS . . . . .) D. A. 19 . . . .' Or writs the same words in ink tind then return said rsoslpt or oertifloate to the voter, and shall at ths ssms time deliver to him one ofiioial ballot OA the blaank side OS whfoh the presiding judgs shall have prevfoualy wrlttea his sicgnature. The voter then immediately replr 1;o s voting booth or a plaoe prs9arsd for voting by the eleotlon oSflOer8, and there prspar8 his ballot in the nanner provided by law."
UAder$hesa statutss it Is our opinion that, when an elector 01&i&s the right ta vote under the provisions OS -4rrtiole KS, 380. 2u, 0s the Ccmstitutlon, it is the duty or the eleation judges to satisfy themselves OS his right to vote before permitting him to oast his ballot. That they s so satisiy thsmselves by szamining him uAder oath or by his arrldavlt, as the case Roy be; but they must do so IS the voter is OhelleAged. Clark '1. Stubbs, 1'523. W. 663.
Your fourth question is enswered by our Opinion No.
04052, a oopy of whioh is enolosed.
5.. Xre witnesses duly subpoenaed in misdemeanor oases tried in the county OS their rssldenoe entitled to olaim witnsss rees and milsqge for thrlr atteAdaAce upon the oourt during the trial OS suah oases?
Xrttole 1036 OS our Code oS Criminal Proosdure pro- videe in part:
"(1) uny witness who may havo bsen sub?oaAa2d, or sAal1 have bean rsaognized or attaohed aAd giveA bond Sor his appearanoe before any Court, or beioro any grand jury, out oS~ the aounty of his residsAc8, to testify in a felony case regardless of disposition of said aasa, and who appears in aompl:anco with the obli~atfons 0s such reaogAizaAoe or bocd, shall be ellowed Three (3) Cents per mile goFng to and return- ing from Court or grand jury, by the nearest prao- tics1 aonveyanoe, T;ro Lollars (22) per day for aaon day he may neoessarlly absent from home as a witMa iA suah case; . . ."
Honorable y’red V. Xeridith - Page $7
&oh foes and mileage are to be paid by the State. .atioles 1078, 1079 and 1080, C. C. P., proridrr
“Art. 1078 (1188) (ll38) Fees oi witnesses Witnessoti In orimlnal oases shall be allowed one dollar aud fifty ocPts a day r o r l qoh day they are In attendanoe upon the oourt, and air oents for eaoh mile they may travel In going to or returning rrom the plaoe 0r trial.”
“Art. 1079. (1189) ( Xl.39 ) TaXed against defendant Wpon oonviotion, the ooets aooruing from the attendanoe of witnesses be taxed against defendant, upon the atiidavit or suoh ~Itneati, or soffie oredible pamon, stating the number of days that such witness has attended upon the oourt In the ease, and the number of miles he has traveled In going to and returning from the plaoe of trial. The affidavit shall be filed with the papers In the oaee.”
“ht. (1190) (1140) No fee8 allowed “No tees shall be allowed to a person as witness fees unless r~oh person has born subpoenaed, attaohed or reoognized as a witness In the ease.”
Artiole 1055, C. 0. P ., as amended, provides: “Art. 1655. air 00sts paid orfloors The oounty shall not ba iiablo to thr OffIOer and witness having costs In a misdemeanor oa8e where defendant pays his fine and ooet6. The oounty ehall be liable ror 0nd.e 0r the reee 0r the orrioera 0r the sourt, when the defendant rails to pay his fine and lays his fine out In the oounty Jail or dis- aharges the same mans of working euoh iins out on the oounty roads or on any oounty projeot. And to pay suah halr or costs, the county Clerk shall Issue his warrant on the County Treaeurer In faror of suah oftioer &aid out of the Road Bridge Fund or other funds not otherwise appropriated. As mended Aots 1937, 45th Lag., p. 1323, oh. 488, Sec. 1; Aots 1339, 46th Leg., p* 143, Sea. 1." *8 Xonorable Fred V. Xorldith - Page $8
ilo find no Texas deoielon direotly In paint on thr question here presented. But In IAY Y* State, 83 Cr. a. 222, 202 S. ‘U. 729, Cost of Criminal Appeals deoided a simflar quest ion. We quote iron the opinion In that oaae:
“Appellant Inrista that, Inaamuoh as the or- fioer was a salaried polloman, he was not entitled to oharge witness rae~, and refer3 UB to eeotion 1137b, Vernon* o Grim Stats. 1916, an aot of the 0r 1913. Tkit wit- applier rtatute Legi3latur3 ness tees In felony 08883, the ooets to be paid by the etate. rt provide8 that no witness fee shall be paid to peaor ottioera, nor to any wit- ness In habeas oorpua oases or sumoned on motion to ohange VMWJ , and provides rurther that no fee shall be approved by the oourt In any oase where the oharge Inoludeo a nisdeaeanor oaae until the ease is rinauy disposed or, Cnzd in ease 0r a 00110 viotion for rtiadetceanor no feee’ahall be paid by the state; and it also provides that witnesses attending than one ease at the same court in more time shall reoeive tees In only one oase; and pro- vided further that In no event the state shall pay per diem In eny one oaae prore than $5 to any witness in any an3 0888 at any c&o term 6r oourt. It will notiosd that fees are to be paid by the these atate, not ~by the defendant. The aam rule does not apply in ordinary niadevsanor oases. It Is understood to be the rule with to ohmg- reference ihg rees that none will be permitted exoept where authariz3d by statutei t&it Ia, It i6 a prerequieite before fees may bo ohargad that the L3gIslature pass suitable legielation authorizing the oharging and paying of suoh reer, whether by the etats or r;Ith reference to misdemeanors, defendant. there IS no Interdiotion of the ohargihg or witneslr fees so tar as offioers are oonoerned. They meem to oome within the general olase of Hbtneasea, and are entitled to the dam fess as other witneeses In ruisdemeaanor oases. A witness in a aisden;oanor oaae can be paid no fees other than those provided, but Is ehtltled to oharge suoh fees as the statute enaot 8. There being no dirferenoe with referenoe *9 1Xonorable Fred V. Xeridith - Page #Q
to misdemeanor oases as to the oharaoter of wit- nesses, whether ofrioera or not, the ofrioer would oome within oategory, as we understand the general the law, as witness. His o~fioial charaoter, so far as that proposition Is oonoerned, would nake no dirrerenoa. There are no traveling expenses In the oaae to oomplioats~ therefor we have the question as to whether or not an officer in mis- demeanor oases can oharge fees as a witness for hi3 attendahoe upon the oourt. ?ie are ol the opinion that he oan, and that the oourt did not err In allowing the Sees charged by the offloer.”
i:ie are therefore of the opinion that suoh witness fees and mileage are payable In-oounty witnesses, duly subpoenaed, in misdemeanor oases, But neither the State nor the oounty are therefor, and they can be paid to the liable only when charged as oosts and oolleoted Iron the ~if&133~ defendant, upon oonviotion.
?:a are enolosing oopies of our Opinions Nos. O-6521, O-6828, O-6052, O-6456 and 0-6955.
Yours very truly ATTORNZY GENERAL OF TEXAS VJ. R. Allen Assistant XU: zd