Untitled Texas Attorney General Opinion

January 30, 1964

KotioMble'JackIi.Holland ~OplalonNo. C-212 Cijtirity Attorney. %iiti&+30n~-~C0hnty He: Whether thePedera1 C&sire Athens ,Texas . Is the exclusl*e-,Iialilti for" ..determlning.licipulaeion"‘of city nith,respect'to.‘I'~~di~ ment for..obtalnlngexeaiptl6n certiflca$es,,under..thepr'o- visions of the Election Ride baa amended by the 9th Legls- Dear-Sir: 'lature. : Your request fbr an opinion of thie office reads as follous: ..;On'Decemberxl;--1962, by your ~pitiida ~o:~.~-14~1,~~you~adtriaed me that a resident ~6f"theeCityof.At+en.s,,T+as.nhois over 60 years.of,age Iq.;pquiFd;.$oobtain"iTPoll, Tax-bxemption'aertlflcate '~ in order to be. entitled to vote. This opinion was based on the fact that the City Council of the .'6r~.~of':dthenB,~-had;'by,~soLutioa,deter- hiined:tha%ltspopulation3iasmore'than- 1~,~00'.~peopl~~?the~by maklng'effeotive ~Artlbl~e-'~il6~~~.:~the~Sexas ;BlectlonCode, ,desplte'ths'.'rac%that .the:lastSederal oenaus.placed~2;h&.populatlon.of,&heCity ofAthens at lk.m’4&an 1O;OOO persons. ‘"I.note;that:~Artlcle 5.16:~ the :Texas Electlon:Codp~~haebeen 'amendedand a new Article &Old-has been added, both by the 58th :Leglslaturei2 iiotefurther that the new Article .l;Ola(~c)~ provides 'thatthe Federal oenaus shall~.be;thebasis for deter- mining population under the provisions of the Election Code. The population figtires ~'forthe Clty.of Athens are the same as they were when my original opinion was requested.

-1021-Hon. Jack H. Holland, page 2 (C-212 )

"I would appreciateyour opinion as to whether the new Article l.Ola of the Election Code now applies to the facts upon which the orlginal.oplnlonwas based, thereby doing away wlth'the requirement that a resident of Athens .iMer60 years of age the'.City..of obt&ln a Poll Tax exemption certificate before he will be qualified to vote." By the provisions of Article 5.16 of Vernonls'Texas Electlon'Code,every voter exempt from payment of the poll tax. bn thegroundof overage who resides in a city of 10,000 or more lfihabltantsIs required to obtain an annual exemption certificate by the 31st day of January In order to vote at elections held dufirigthe ensuing year. At the time Opinion No. WW-1491 was 'weltten(December 11, 1962), neither Article 5.16 of the Election 'Code'norany other statute or constitutionalprovision prescribed 'the'~:method by which the population of a city was to be ascertained ftirthe purpose of determiningwhether Article 5.16 was applicable to the voters residing therein. The only constltutlonalprovlalon touchingupon this requirementIs found in Article VI, Section 4, which authorizesthe Legislature to make such regulationsas may be necessaryto detect and punish fraud and preserve the purity of the ballot box, and states that "the Legislaturemay provide by law for the registrationof all.voters In all cities containing a populationof ten thousand Inhabitants or more." Texas Power'& 111 S.W.2d 1225 (Tex. 208 S.W.2d 412 147 Tex. 70;212 S.W.2d

In this state of the law, Opln&on No. WW-1491 held that cities of more than 10,000 Inhabitants have a constltutlonally- vested Interest In the qualificationsof persons who vote In their city elections,and that where the City Council of the City of Athens, a home-rule city, had determined by use of a reasonable mode of procedure that the city's population was In excess of 10,000 Inhabitants,the provisions of Article 5.16 of the Election Code were applicable to voters residing in that city. Cases cited In supportof the holding Include City of Tyler v. Tyler Building & Loan AssIn, 98 Tex. 69, 81 S.W. 2 (1904) Wllllams v. Castleman, 12 T 193 247 S.W. 263 (1922); city of'Houston v. City f Magna% Park 115 Tex. 101 276 S W btQ ( 925) Town of Freeport V. Sellers, 144 Tex. 389, 140 S.W.Gd.813 (1i45);;and Farmersvlllev. Texas-LouisianaPower Co., 33 S.W.2d ,.,x.clv. APP. 19301. In 1963 the Legislatureamended the Election Code

-1022-Hon. Jack H. Holland, page 3 (C-212)

tijiiddArticle l.Ola, containing the following provision as paragraph (c) thereof: "(.c).TheUnited States decennial census of date Immediately precedlng,theaction -1n:questlon shall be the~'baslsfor determiningpopulation under-any rovlaloh of this Code." Acts 58th:%eg:, lg63,,ch. E24, sec. 2;~. 1017. !Rilaact.took effect on August.23,.1963. In this c&nedtlon;it ;may be Mted.;that the 58th Legislaturealso passed.a.lar'<Acts .''.58thLeg;, 1963, ch; 447, p. 1151, codified as Art:29d; ViC.S;) providlng~that-the~flrstday of January of the year ImmedlatelJi following'ther~calendar year during which a federa.Fenstia%s tak&n' shall be the date on which the State and its political subdlCldlons and agencies shall recognize and act upon the population counts - as determined by the census. If the Legislaturehad the authority I% lPakethe federal-decennialcensus the basis for determining @opul&lon under Article 5;16 of the Election Code, to the exclusion of,ariyother method;:%t .becomee,evldent that these statutory pro- visions are non controllingand~that.OplnlonNo. WW-1491 has become obsolete by vlrtue,of this change. -, The cases cited in Opinion No; WW-1491,:listed above, involved the right oP a city or's county to exercise some power granted to-~t,by.the,.Coaetltution or by statate,',.cbndltloned upon Its having a ~speclfled.populatlon but with,no method pre- scribed by which the populationwas to be.aacertalned. The cases held that there was In the grant.of'poweran Implied grant of authority to ascertain’ the facts ~(i.e..,- the.number of Inhabitants) upon which the rlght:dependcd. If.the power la granted by the Constitution,the .%egislature ;canndtrcurtall~rthe~lmplled power so as to reqialre~%a+populatlon.bede$ermltied ,bythe federal census. City of Houatou~~.~C%tyof,Map;nollaPark, supra. Here, the constitutionalgrant of power under which Article 5.16.-of<the .Electloti Code was enacted Is conferred on the Legislature,and not on the cities affected thereby. If the power of the Leglslatuz%to:~enactArticle 5.16 springs from the provision In Article VI,:Section'4 which authorizes the Legislature to provide for registration of voters in cities of 10,000 or more Inhabitants, then w+are..of *theopinion that this express power also carries with 'ft the implied authority to designate the method by which population Is to be ascertained. ~If the power to enact Article 5.16 springs from the general constitutionaldirection to make regulations for preserving the purity of the ballot box, then clearly the provision making the federal census the basis for determining population does not Infringe any Implied constitutionalpower of cities affected by the statute, not only because the express power Is granted to the

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Hon. Jack H. ‘Holland,- page 4,(-C-212)

Legislaturebut also because the Constitutiondoes not Impose any populationrequirementsas an Incident to this power. Since the Legislaturehas now designated the basis upon which populationIs to be ascertained for the purpose of determiningwhether exemption certificatesare required under the provisionsof Article 5.16, we are of the opinion-that ascertainmentof populationby any other method can no longer be.used for this purpose. Consequently,we hold that Oplnioti' Nij.IW-l&l has now become obsolete as.8 result of this change lri- th&..law.According to the 1960 federal census, the City'of-.' Athens ha8 a populationof less than 10,000. Therefore;overage exempt voters residing In the City of Athens are not required to obtain exemptioncertificatesa&a condition for voting.

.Withthe,enactment of Artlole 1.01a of the.ElectlonXode In 1963, making the .precedlngfederal census the basis for ~determlnlng.populatlonunder any pro- vision of the Code,~the population of a city for the purpose of determining whether the exemption certificate .-requirements of Article'5.16 of the .Codeapply to its exempt overage voters *:mustbe..determlned by that method. The population count as ascertained by the .clt~~sgoverning body .under some.other. procedure can no longer .be.uaed:aathe basis of-determining iappllcablll~of.thls requirement. Attorney-GenerallsOpinion No..WW-1491 has..been.supereeded by.this -statutory change. : Youra,,verytruly, WAGGONER CAM Attorney General

By .tiwa+ = Assistant MKw:sj

-1024-Hon. Jack H. Holland, page 5 (C- 212)

APPROVED: OPINION COMMI!C!I'EE Wi VI Geppert, Chairman C; Li Snow Vi F. Taylor Rdbert Stiith W. 0. Shultz APPROVED~FOR THE A!lTORNEYGENERAL BY: Stanton Stone

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