Untitled Texas Attorney General Opinion ( 1957 )

Overruled by Carrington v. OF TE2lCAdS :, s.ct. 775 ‘%..umrllx 12. .lJkxAM ,, July 8, 1957,~ Hon. ‘W. W. Kilgore Opinion No q ,W-157,. County Attorney Viotoria County Be: Whether a member of the Air Victoria, ,Texas Force is eligible to vote; upon reJenlistment, in Victoria Dear MTm Kllgore: county. You have requested the opinion of this department on the following questiona “Whether OT not a person, who has been stationed at an air base in Victoria County, after being discharged from the service and subsequently reenlisted, with some period of time intervening between the discharge, and reenlistment, is qualified to establish a domicile for voting purposes in Victoria County?” . In your letter you state: YWhenwe have airmen here in Victoria County who are transferred by the AIT Force; they purchase a home here, leave their .fami- lies here, and claim Victoria as their residence, and they stay here sometimes two or three years and longer, they get a discharge from the Air Force and Te-enlist the next day and desireto vote in this County.tl , The first l1mitatioh on the WsoldieT vote” was a dis- qualification of all service men that appeared in the Constitu- tion of 1876, ,Brticle VI, Section 1. In 1932 the disqualifica- tion was libergl1sed to, allow Texas Hational Guard members, reservists, and retired service men to vote. Finally, in 1954, the constitutional limitation was further liberalized by provid- ing 10 Section 2 of ATticle VI: ‘1. 0 . Any member ‘of. the Armed Forces of the United States-or component branqhes thereor; oT in the Military Service of the United’States., may vote only iri the county in which he or she resided at the time of,enteTing,such service so long as he or she is a member of ‘the Armed Force’s. . a, .)I Hon. W, W. Kilgore, page 2 (WW-17) and deleting the ~disqualification from Section 1. There are two reasons, for the limitation as set forth in the interpre- tive commentary to Article VI,. Section 1, Vernon’s Annotated Constitution--i.e. ,.-Texas ia.not necessarily the-residence of free choice of men in the service and, allowing the military to vote in localities where military camps were situated might well lead to complete domination of local politics by the over- whelming number of military men to the prejudice of the civil- ian oitizens of the community. i, Section 2, Article VI does not enfranchise non-resi- dents 62 Texas., The quoted language ~merely preserves the rranchise of a’,Texas resident who .enters service, but limits his voting to the County in ‘which he was a resident when he entered service, “so long as he or she is a member of the Armed Forces.‘J ,,: What is meant by “the tlma of entering such servicee within the meaning of the 6onetitutionP Is it the time of the. subsequent enlistment or the tims of the original entry into service? If the subsequent period of service is a mere continu- ation of the PTIOT period, the time of re-enlistment is not the time of entering such service within the meaning of the Consti- tution, for the restriction lasts “so long as he or she is a member of the Armed Forces.” No doubt, in some-instances an airman may be completely separated from the service in a very real sense ~by discharge and later ra-enlist. In such cases it cannot be said that his re- enlistment or decision to re-enlist Constituted the second period of servica a continuation of ,the prior period of service and the time of entering such service within the meaning of the ionstitu- tion is, the time of his re-enlibtment. The mere ract that there has been a discharge and a ,time lapse between the date of dis- ~,.~ charge and the date of re-enlistments is not, however, control- ling on thfs~ question. The law ~looks to the substance and not to the mere form of the transaction. It can be judicially noted that frequently re-enlistment papers are actually signed prior i;tFsCharge and postdated at some later date to the discharge On some occasions the servics man retains the same privi- lege;, Tank, and status as well as the same organization assign- ment and job assignment in the subsequent enlistment as in the prior period of service. In such cases the discharge and re- enlistaent are mere legal fictions and the subsequent period of seTViCe is ilerely a continuation of the prior period. The date of Te-enlistment is not the “time or entry into such service” within the meaning of the Constitution, Residence in Victoria, Texas, at that time alone cannot be usqd as a basis of claiming voting residence in Texas during the subsequent period of serv- ice. Hon. W. W. Kilgore, page 3 (W-157) Therefore, we hold that an airman stationed at an air base located in Victoria County who receives a bona fide discharge and who completely severs his active duty relation wlth the Air Force and subsequently re-enlists with. some period of time Intervening between discharge and re-enlistment is qualified to establish a residence In Vlctorla County for voting purposes if the discharge and re-enlistment are not mere legal fictions so as td constitute the subsequent period ~of service a continuation of the prior period of service. You have also asked when the statutory requirement of one year’s residence In the State and nix months’ residence in the county in which one desires to vote would begin to run. Section 2, Article VI, does not In anywise prohlblt the estab- lishment of a residence by a service man during the perlod of his tenure ofservice, but merely states that he will vote In the county In which he ‘was a resident at the time of his entry into service, so long as he shall remain. ln~servlce. Accord- ingly, an airman may establish residence In Victoria County during his tenure of service, but may not actually vote In Vlc- torla County until after hisdischarge and separation ln the manner described above. If, as set out above> he Is authorized to vote in Victoria County subsequent to his discharge, then the statutory period of time set forth In Article 5.02 of the Election Code will begin to run from the date he actually es- tablished residence, regardless of whether that date was during the prior period of service or subseqaent thereto, so long as residence was established prior to the time of the subsequent enlistment. A non-resident of Vlctorla County who has been stationed In Vlctorfa County in connection with mlll- tary service arid who subsequently establishes resl- dence therein and is thereafter discharged aad re- enlists Is eligible to vote In Vlctorla County during his subsequent period of servloe, only ln the event that the discharge and re-enlistment were no4 contln- uous D In such elrentthe statutory residence requlre- ment begins to run from the perlod of time of the . Hon. W. W. Kilgore, page 4 (W-157) establishment of actual residence within Victoria County. Yours very truly, WILL WILSON Attorney ffeneral of Texas By s/ Wallace P. Flnfrock Jallace P. Flnfrock Assistant WPF:wb:bh APPROVED: OPINIONCOMMITTEE H. Grady Chandler, Chairman LOMY Zwiener Houghton Brownlee, Jr. REVIEWED FOR THE ATTORNEY GENERAL BY: Geo. P. Blackburn