Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

February 4,2004

The Honorable Rodney Ellis Opinion No. GA-0141 ’

Chair, Government Organization Comrnittee

Texas State Senate Re: Residency requirements for voting in an

P. 0. Box 12068 election in Texas (RQ-0 157-GA)

Austin, Texas 78711

Dear Senator Ellis:

You ask three questions regarding voter eligibility and residency requirements for voting in

Texas, particularly with respect to students enrolled in schools of higher education.

I. Backmound

In your letter requesting an official opinion from this office, you state that your request is

prompted by statements made by the Criminal District Attorney of Waller County, who you say has

“declared that students at Prairie View A&M University may not meet residency requirements

sufficient to vote in local elections.“’ Citing Symm v. United States, 439 U.S. 1105 (1979), you note

that the United States Supreme Court rejected an appeal by a former Waller County Tax Assessor-

Collector, who was also the voter registrar, thus affirming the decision of a three-judge panel that

enjoined the Tax Assessor-Collector from refusing to register college dormitory residents enrolled

at Prairie View A&M University. The current Tax Assessor-Collector of Waller County, who is also

the voter registrar, has publicly declared that she will seek guidance from and follow the directives

of the Office of the Secretary of State, who is the state’s chief election officer, on these matters,

rather than rely on advice from the local prosecutor. See Terry Kliewer, Prairie View Voting Issue

to be Appealed, HOUSTON CHRONICLE,Dec. 24,2003, at 19A. You ask for an opinion from this

office about eligibility for voting in Texas, residency requirements for voter registration, and the

authority of local prosecutors to prevent local voter registrars from registering voters.

‘Letter from Honorable Rodney Ellis, Chair, Government Organization Committee, Texas State Senate, to

Honorable Greg Abbott, Texas Attorney General at 1 (Dec. 30, 2003) (on file with Opinion Committee) [hereinafter

Request Letter].

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II. Analysis

A. Legal Requirements for Eligibility to Vote

You first ask: “What are the legal requirements to vote in an election in Texas?”

Request Letter, supra note 1, at 2.

The Texas Constitution provides that every person who is both a citizen of the United States

and a resident of Texas shall be deemed a qualified voter, provided, however, that the person is

registered to vote and does not fall within any of a specific set of disqualifications. See TEX. CONST.

art. VI, 5 2(a). Persons so disqualified are those under 18 years of age; those who have been

determined mentally incompetent by a court, subject to such exceptions as the legislature may enact;

and those convicted of any felony, again subject to such exceptions as the legislature may enact. See

id. art. VI, 9 l(a). Additionally, the legislature is directed to “enact laws to exclude from the right

of suffrage persons who have been convicted of bribery, perjury, forgery, or other high crimes.” Id.

art. VI, 8 l(b). The legislature expressly is directed to “make such other regulations as may be

necessary to detect and punish fraud and preserve the purity of the ballot box,” as well as to “provide

by law for the registration of all voters.” Id. art. VI, 6 4.

Statutory eligibility requirements have been codified in the Election Code, which provides

that:

Except as otherwise provided by law, to be eligible to vote in

an election in this state, a person must:

(1) be a qualified voter as defined by Section

11.002 on the day the person offers to vote;

(2) be a resident of the territory covered by the

election for the office or measure on which the person

desires to vote; and

(3) satisfy all other requirements for voting

prescribed by law for the particular election.

TEX. ELEC. CODE ANN. 8 11 .OOl (Vernon 2003). Section 11.002 defines “qualified voter”:

In this code, “qualified voter” means a person who:

(1) is 18 years of age or older;

(2) is a United States citizen;

(3) has not been determined mentally incompetent by a final

judgment of a court;

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(4) has not been finally convicted of a felony or, if so

convicted, has:

(A) fully discharged the person’s sentence,

including any term of incarceration, parole, or

supervision, or completed a period of probation

ordered by any court; or

(B) been pardoned or otherwise released from

the resulting disability to vote;

(5) is a resident of this state; and

(6) is a registered voter.

Id. 8 11.002.

In order to be a resident of the state, one must satisfy the statutory definition of “residence.”

Section 1 ,015 of the Election Code defines “residence”:

(a) In this code, “residence” means domicile, that is, one’s

home and fixed place of habitation to which one intends to return

after any temporary absence.

(b) Residence shall be determined in accordance with the

common-law rules, as enunciated by the courts of this state, except as

otherwise provided by this code.

(c) A person does not lose the person’s residence by leaving

the person’s home to go to another place for temporary purposes only.

(d) A person does not acquire a residence in a place to which

the person has come for temporary purposes only and without the

intention of making that place the person’s home.

(e) A person who is an inn-rate in a penal institution or who is

an involuntary inmate in a hospital or eleemosynary institution does

not, while an inmate, acquire residence at the place where the

institution is located.

Id. 8 1.015.

In order to register to vote, one must file an application with the voter registrar of the county

in which the applicant desires to vote. Id. 5 13.002. In order to file, one must satisfy the statutory

eligibility requirements for registration, which track the definition of “qualified voter” found in

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section 11.002 with the additional requirement that the person “be a resident of the county in which

application for registration is made.” Id. 8 13.001(a)(5). Thus, a person who complies with and

satisfies the requirements of sections 1 .015,11 .OO1,11.002,13 .OO1, and 13.002 of the Election Code

is an “eligible voter.” See id. $0 1.015, ll.OOl-.002, 13.001-.002 (Vernon 2003 & Supp. 2004).

B. Residency Requirements for Voter Registration and United States v. Texas

In your second question you ask: “What is the law with regard to residency in the

State of Texas as it relates to voter registration ?” Request Letter, supra note 1, at 2.

As noted above, in order to register to vote, one must be a “resident” of the county in which

one desires to vote. Residence for purposes both of registration and voting is defined to mean

“domicile,” i. e., “one’s home and fixed place of habitation to which one intends to return after any

temporary absence.” TEX. ELEC. CODE ANN. 8 1.015(a) (Vernon 2003). Residence must be

determined in accordance with the common-law rules, as enunciated by the courts of this state,

unless the code provides otherwise. See id. 9 1.015(b). A person does not lose residence by leaving

his home to go to another place for temporary purposes only; nor does a person acquire a residence

in a place to which he has come for temporary purposes only and without the intention of making

that place his home. See id. 9 1 .015(c)-(d).

In the leading Texas Supreme Court case ofMills v. Bartlett, 377 S.W.2d 636 (Tex. 1964),

the court declared that the meaning of the term “residence” for voting purposes

depends upon the circumstances surrounding the person involved and

largely depends upon the present intention of the individual.

Volition, intention and action are all elements to be considered in

determining where a person resides and such elements are equally

pertinent in denoting the permanent residence or domicile. . . .

Neither bodily presence alone nor intention alone will suffice to

create the residence, but when the two coincide at that moment the

residence is fixed and determined. There is no specific length of time

for the bodily presence to continue.

Id. at 637 (citations omitted). See Slusher v. Streater, 896 S.W.2d 239,243 (Tex. App.-Houston [ 1st

Dist.] 1995, no writ); Alvarez v. Espinoza, 844 S.W.2d 238,247 (Tex. App.-San Antonio 1992,writ

dism’d w.0.j.); Guerra v. Pena, 406 S.W.2d 769,776 (Tex. Civ. App.-San Antonio 1966, no writ);

McBeth v. Streib, 96 S.W.2d 992 (Tex. Civ. App.-San Antonio 1936, no writ); see also Tex. Att’y

Gen. Op. Nos. JC-0520 (2002), JM-611 (1986), JM-23 1 (1984).

Prior to Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973), students in Texas were presumed

by statute to have a domicile at the residence of their parents, not where they were enrolled at

institutions of higher education. WhatZey struck down the statutory presumption in former article

5.08(k) of the Election Code providing that “‘a student in a school, college, or university’ shall not

be considered to have acquired a voting residence at the place where he lives while attending school

‘unless he intends to remain there and to make that place his home indefinitely after he ceases to be

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a student. “’ WhatZey, 482 F.2d at 123 1 (quoting former article 5.08(k) of the Election Code, see Act

of May 19, 1967, 60th Leg., R. S., ch. 723, 8 21, sec. 40 (art. 5.08), 1967 Tex. Gen. Laws 1858,

1879-80, repeaZedbyActofMay 13,1985,69thLeg.,R. S., ch. 211,§ 1, sec. 1.015,1985 Tex. Gen.

Laws 802,807) (substantive recodification of Texas Election Code, repealing former article 5.08 and

enacting section 1,015). The court noted that the statutory presumption illegally treated student

voters differently than non-student voters:

By its terms it creates a presumption that students are not

domiciliaries of the places they live while attending school. Of

course, the presumption is rebuttable; but unless a student carries the

burden of persuading the voter registrar that he is in fact a domiciliary

of the place where he resides for the better part of each year, he is not

permitted to vote there and is consequently denied an opportunity to

participate in elections which may have considerably more impact on

his life than do those in the area where he resided before becoming a

student. Other prospective voters, on the other hand, are not subject

to this presumption of nonresidency or to the attendant burden of

overcoming it.

What& 482 F.2d at 1233 (footnotes omitted). The court declared that the presumption violated the

Equal Protection Clause of the 14th Amendment and struck down the provision.

Under current law, the determination regarding “residence” thus involves both physical

presence and current intention of the applicant; if a student, like any other applicant, satisfies the

requirements of section 1.015, that student is a “resident” of the county in which he seeks to register.

The intention of the voter registration applicant is crucial to a proper determination of residence, and

every person is strongly presumed to have “the right and privilege of fixing his residence according

to his own desires.” McBeth, 96 S.W.2d at 995. For example, let us assume that two students,

Student A and Student B, live in the same college dormitory. Student A, who is living in the

dormitory and is therefore physically present for purposes of voter registration yet intends his

residence to remain the same as that of his parents, can permissibly register to vote in the county of

his parent’s residence. See, e.g., Alvarez, 844 S.W.2d at 247 (by temporarily moving to Austin to

attend school at the University of Texas at Austin, challenged voter did not lose his Frio County

residence or acquire residence for voting purposes in Travis County). On the other hand, Student

B, who is living in the same dormitory as Student A yet who intends that the dormitory be his

residence for purposes of voter registration, can permissibly register to vote in the county where his

dormitory is located. See, e.g., Whatley, 482 F.2d 1230 (student who was physically present in

Denton County and intended to claim Denton County as his residence for purposes of voter

registration lost residence in the county where his parents resided and acquired residence in Denton

County). And the mere fact that an applicant claims a post office box as an address or that many

applicants claim the same post office box as an address is not dispositive regarding the determination

of residence. Indeed, depending upon the facts in each case, it might not even be relevant. See, e.g.,

Speights v. Willis, 88 S.W.3d 817 (Tex. App.-Beaumont 2002, no pet.) (voters who were physically

present and intended county to be residence for purposes of voter registration, yet who claimed post

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office box numbers as addresses, satisfied statutory voter registration application requirements and,

thereby, residence requirement).

Without outlining all of the various fact situations that the courts have addressed in

determining whether a voter is a “resident,” we can say that all applicants for registration, including

students, must be subject equally to whatever presumptions or restrictions are imposed by law. See

Dunn v. Blumstein, 405 U.S. 330 (1972). To illustrate the sorts of factors and practices that cannot

be employed to determine “residence,” we examine the federal three-judge panel’s injunction in

United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978), affd, Symm v. United States, 439 U.S.

1105 (1979) (hereinafter Texas), a case involving the very county that is the focus of your concern

- Waller County. Though in a brief submitted to this office the Criminal District Attorney of Waller

County seems to assert that the case only prohibited the use of a certain questionnaire in determining

“residence” for purposes of voter registration,* the injunction issued in the case makes it clear beyond

cavil that the court concluded that a variety of practices undertaken by the voter registrar violated

the United States Constitution.

In Texas, a federal three-judge panel enjoined the Waller County Tax Assessor-Collector,

who was the voter registrar, from refusing to register to vote students enrolled at Prairie View A&M

University. Specifically, the panel enjoined the registrar from engaging in a variety of practices that

the panel deemed violated the 26th Amendment to the United States Constitution, which provides

that no right of citizens who are 18 years old or older to vote shall be denied or abridged on account

of age.3 See U.S. CONST. amend. XXVI, 8 1.

The panel ordered that, inter alia, college students of Waller County must be registered and

allowed to vote on the same basis and by application of the same standards and procedures as non-

students, without reference to whether such students had dormitory addresses, whether or not they

resided in Waller County prior to attending school, and whether or not they planned to leave Waller

County upon graduation. See United States v. Texas, Civil Action No. 76-H-1681, Injunction

Decree, 7 1 (S.D. Tex. 1978) (on file with Opinion Committee). The panel acknowledged that the

registrar had the authority under the Election Code to make a factual determination as to whether

each applicant to vote was a bona fide resident of Waller County; however, in making this factual

determination, the panel declared that the registrar could not find that a person was a non-resident

of Waller County for any of the following reasons:

A. That such person resides in a dormitory at Prairie View A&M University;

B. That such person owns no property in Waller County;

C. That such person is a student at Prairie View University;

2Brief from Honorable Oliver S. Kitzman, Criminal District Attorney, Waller County, to Nancy Fuller, Chair,

Opinion Committee, Office of the Attorney General at 2-6 (Jan. 23,2004) (on file with the Opinion Committee).

3The complete text of the injunctive order of the panel is set forth in Appendix A of this opinion.

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D. That such applicant has no employment or promise of employment in

Waller County;

E. That such applicant previously lived outside Waller County, or may live

outside Waller County after his graduation;

F. That such person visits the home of his parents, or some other place during

holidays and school vacations.

Id. atT2.

The panel required that, if the registrar made a finding that a person was not a bona fide

resident of Waller County, the determination must be made on the basis of tangible evidence,

consisting of facts or factors other than the six factors listed above. See id. In addition, in the event

that the registrar made a determination that any person who claims to be a resident of Waller County,

and who had a Prairie View A&M University address, was not a bona fide resident of Waller

County, the registrar must make a written record of the precise, exact tangible evidence upon which

he relied in making his determination of non-residency. See id. All records of the type described

in the previous sentence were required to be kept in legible form and in a single file in the Waller

County Registrar’s office, where such records could be inspected by the plaintiff in the cause or any

other person having a legitimate interest in the examination of such records. Such records were

required to be maintained for a period of five years after originally made. See id.

Additionally, students of Waller County were not to be subjected to the presumption

contained in former article 5.08(k) of the Election Code or to any other presumption with regard to

their voting residence. See id. 7 3. The registrar was ordered immediately to cease using the

residence standard for students, which had been implemented by means of a questionnaire, to

terminate the use of the questionnaire, and to henceforth register students on the basis of the

information contained in the state-approved registration form, as was done elsewhere in Texas,

unless the registrar had tangible, recordable evidence (consistent with Paragraph 2 of the decree) that

such applicant was not a bona fide resident of Waller County. See id. 7 4. And the registrar was

enjoined from subjecting Prairie View A&M students to any particular or discriminatory procedure

not applied to non-students on a regular basis, such as, for example, causing students to visit his

office and submitting students orally to the questioning previously contained in the questionnaire

discussed in the court’s Memorandum Opinion. See id.

We stress that the United States Supreme Court affirmed the three-judge panel’s judgment

in Symm v. United States, 439 U.S. 1105 (1979). Thus, clearly, in light of Whatley and Texas,

students in Texas may no longer be subjected, whether by statute or by practice, to any presumption

with respect to “residence” not also applied to all other voters in Texas.

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c. Administrative Procedure Governing Applications for Registration to Vote and

the Authority of the District Attorney

With your third question, you ask about the authority of the local prosecutor to

prevent someone from registering to vote or to prevent the voter registrar from acting on that

application:

Does the [Criminal] District Attorney have the jurisdiction or

authority to prevent local election officials from refusing to allow a

person to register to vote in the county? In other words, can the

[Criminal] District Attorney preemptively prevent someone from

registering to vote in an election or must the [Criminal] District

Attorney bring an action against the individual after an election has

taken place contesting unlawful voter registration?

Request Letter, supra note 1, at 2.

1. Local Prosecutor’s Authority Regarding Voter Registration Decisions

The voter registrar is authorized by the Election Code to conduct an

administrative procedure to determine and possibly challenge the eligibility of an applicant for

registration to vote, subject to judicial review. See TEX. ELEC.CODEANN. $5 13.001-.146 (Vernon

2003 & Supp. 2004), 17.001-.008 (Vernon 2003). The Election Code also establishes an

administrative procedure cancelling, by the registrar’s initiative or that of another registered voter,

a voter registration application that already has been approved, if the voter is no longer eligible. Id.

$9 16.001-.095 (Vernon 2003 & Supp. 2004). Adverse decisions rendered under chapter 16 are also

subject to judicial review. Id. $5 17.001-.008 (Vernon 2003). These provisions grant no role to a

local prosecutor. Thus, we have found no statute granting local prosecutors the preemptive authority

to prevent a person from filing an application to register to vote or the voter registrar from acting on

that application. Local prosecutors do, however, have express authority to prosecute a person who

knowingly makes a false statement on an application for voter registration.

2. Local Prosecutor ‘s Authority to Prosecute Certain Criminal Offenses

Involving Voter Fraud

Section 13.007 of the Election Code provides:

(a) A person commits an offense if the person knowingly

makes a false statement or requests, commands, or attempts to induce

another person to make a false statement on a registration application.

(b) An offense under this section is a Class B misdemeanor.

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(c) For purposes of this code, an offense under this section is

considered to be perjury, but may be prosecuted only under this

section.

Id. 0 13.007.4 An application for voter registration must contain substantially more than just a

declaration of residence. Subsection (c) of section 13.002 sets forth the information that must be

included on an application for voter registration:

(c) A registration application must include:

(1) the applicant’s first name, middle name, if any, last name,

and former name, if any;

(2) the month, day, and year of the applicant’s birth;

(3) a statement that the applicant is a United States citizen;

(4) a statement that the applicant is a resident of the county;

(5) a statement that the applicant has not been determined

mentally incompetent by a final judgment of a court;

(6) a statement that the applicant has not been finally

convicted of a felony or that the applicant is a felon eligible for

registration under Section 13 .OO1;

(7) the applicant’s residence address or, if the residence has

no address, the address at which the applicant receives mail and a

concise description of the location of the applicant’s residence;

(8) the following information:

(A) the applicant’s Texas driver’s license

number or the number of a personal identification

card issued by the Department of Public Safety;

(B) if the applicant has not been issued a

number described by Paragraph (A), the last four

digits of the applicant’s social security number; or

4The offense of perjury is set forth in chapter 37 of the Penal Code. See TEX. PEN. CODEANN. $6 37.01-. 13

(Vernon 2003 & Supp. 2004).

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(C) a statement by the applicant that the

applicant has not been issued a number described by

Paragraph (A) or (B);

(9) if the application is made by an agent, a statement of the

agent’s relationship to the applicant; and

(10) the city and county in which the applicant formerly

resided.

Id. 8 13.002(c) (V emon Supp. 2004). Thus, knowingly providing any false information in answer

to the above ten items of information violates section 13.007 of the Election Code.

Prosecution under section 13.007, by its terms, is not limited only to those instances in which

a person already has cast a vote. Rather, the section creates an offense that may be prosecuted at any

time its elements are met, whether before or after an election, subject of course to applicable statutes

of limitations. We emphasize that it is not a criminal offense in this state if an applicant for voter

registration believes, however mistakenly, that the applicant is a resident of the county in which the

applicant seeks to vote. But see id. 8 64.012 (voting or attempting to vote in an election when voter

knows that the voter is ineligible to vote is criminal offense). However, knowingly making a false

statement on an application for voter registration is a criminal offense.

Additionally, we note that chapter 273 of the Election Code confers general authority on both

local prosecutors and the attorney general to investigate alleged criminal conduct “in connection

with,’ an election. Section 273.001 provides in pertinent part that:

If two or more registered voters of the territory covered by an

election present affidavits alleging criminal conduct in connection

with the election to the county or district attorney having jurisdiction

in that territory, the county or district attorney shall investigate the

allegations. If the election covers territory in more than one county,

the voters may present the affidavits to the attorney general, and the

attorney general shall investigate the allegations.

Id. 8 273.001 (a). Moreover, the local prosecutor and the attorney general have authority to conduct

such an investigation in the absence of affidavits:

A district or county attorney having jurisdiction or the

attorney general may conduct an investigation on the officer’s own

initiative to determine if criminal conduct occurred in connection

with an election.

Id. 8 273.001 (b). In this specific instance, the Criminal District Attorney of Waller County “has all

the powers, duties, and privileges in Waller County that are conferred by law on county and district

attorneys in the various counties and districts.” TEX. GOV’T CODE ANN. 8 44.337 (Vernon Supp.

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2004). Thus, the Criminal District Attorney of Waller County is conferred authority by Election

Code chapter 273 to investigate, on his own initiative, whether criminal conduct occurred “in

connection with an election.” TEX. ELEC. CODE ANN. 8 273.001(b) (Vernon Supp. 2004).

Therefore, in answer to your third question, we conclude that local prosecutors are conferred

no authority to prevent someone from registering to vote or to prevent voter registrars from acting

on voter registration applications. We further conclude that local prosecutors may seek to investigate

and prosecute possible offenses under section 13.007 of the Election Code any time that credible

evidence of such fraud is brought to their attention or complaints are filed with their offices; local

prosecutors are conferred general authority to investigate whether criminal conduct has occurred “in

connection with an election” under chapter 273 of the Election Code. Id.

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SUMMARY

A person who complies with and satisfies the requirements of

sections 1.015, 11.001, 11.002, 13.001, and 13.002 of the Texas

Election Code is an “eligible voter”. See TEX. ELEC.CODE ANN. $5

1.015, 11 .OOl-.002, 13.001-.002 (Vernon 2003 & Supp. 2004).

The meaning of “residence” for purposes of voting and voter

registration is governed by section 1.O15 of the Texas Election Code.

“Residence” is defined to mean “domicile,” i.e., one’s home and

fixed place of habitation to which one intends to return after any

temporary absence. Id. 8 1.015(a) (Vernon 2003). Residence must

be determined in accordance with the common-law rules, as

enunciated by the courts of this state, unless the code provides

otherwise. See id. 0 1.015(b). A person does not lose his residence

by leaving his home to go to another place for temporary purposes

only; nor does a person acquire a residence in a place to which he has

come for temporary purposes only and without the intention of

making that place his home. See id. 4 1.015(c). Both bodily presence

and current intention on the part of the applicant or voter are

necessary to establish residence.

The intention of the voter registration applicant is crucial to

a proper determination of residence, and every person is strongly

presumed to have “the right and privilege of fixing his residence

according to his own desires.” McBeth v. Streib, 96 S.W.2d 992,995

(Tex. Civ. App.-San Antonio 1936, no writ). For example, one

student who is living in a dormitory, and is therefore physically

present for purposes of voter registration, yet who intends his

residence to remain the same as that of his parents, can permissibly

register to vote in the county of his parent’s residence. On the other

hand, another student living in the same dormitory who intends that

the dormitory be his residence for purposes of voter registration, can

permissibly register to vote in the county where the dormitory is

located. And the mere fact that an applicant claims a post office box

as an address or that many applicants claim the same post office box

as an address is not dispositive regarding the determination of

residence.

Chapter 13 of the Texas Election Code sets forth a detailed

administrative procedure to be conducted by the voter registrar

governing the submission and approval of voter registration

applications. Chapter 16 of the Texas Election Code sets forth a

detailed administrative procedure to be conducted by the voter

registrar governing the cancellation, whether through the initiative of

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the registrar or any registered voter, of voter registration applications

already approved. Chapter 17 of the Texas Election Code provides

for judicial review of any administrative decision made under those

chapters. No section of any of these chapters affords an official role

to local prosecutors. Therefore, local prosecutors have no authority

to prevent any voter registrar from performing the registrar’s duties

as provided by law. However, local prosecutors are authorized to

investigate and prosecute whenever credible evidence is brought to

their attention, or a complaint is filed regarding alleged violations of

section 13.007 of the Texas Election Code, which makes it a criminal

offense to submit false or fraudulent information on a voter

registration application.

BARRY R MCBEE

First Assistant Attorney General

DON R. WILLETT

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Jim Moellinger

Assistant &omey General

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Appendix A

The injunction decree issued in United States v. State of Texas ordered the following:

1. College students of Waller County shall be registered and allowed to vote on the same

basis and by application of the same standards and procedures as non-students, without

reference to whether such students have dormitory addresses, whether or not they resided

in Waller County prior to attending school, and whether or not they plan to leave Waller

County upon graduation.

2. The Court recognizes that LeRoy Symm has the right under the Texas Election Code to

make a factual determination as to whether or not each applicant to vote is a bona fide

resident of Waller County; however, in making this factual determination, LeRoy Simm

shall not find that a person is a non-resident of Waller County for any of the following

reasons:

A. That such person resides in a dormitory at Prairie View A&M University;

B. That such person owns no property in Waller County;

C. That such person is a student at Prairie View University;

D. That such applicant has no employment or promise of employment in Waller

County;

E. That such applicant previously lived outside Waller County, or may live outside

Waller County after his graduation.

F. That such person visits the home of his parents, or some other place during

holidays and school vacations.

In this connection, if LeRoy Symm, in the performance of his duties, determines that he is to

make a finding that a person is a non-resident, or not a bona fide resident of Waller County, such

determination shall be made on the basis of tangible evidence, consisting of facts or factors other

than the six factors listed above. In addition, in the event LeRoy Symm makes a determination

that any person who claims to be a resident of Waller County, and who has a Prairie View

University address, is not a bona fide resident of Waller County, Mr. Symm shall make a written

record of the precise, exact tangible evidence upon which he relied in making his determination

of non-residency. All records of the type described in the previous sentence shall be kept in

legible form and in a single file in the Waller County Registrar’s office where such records can

be inspected by the plaintiff in this cause or any other person having a legitimate interest in the

examination of such records. Such records shall be maintained for a period of five (5) years after

originally made.

No additional inquiry or information shall be required solely because the application form

promulgated by the Secretary of State of Texas contains different permanent and mailing

addresses or states that the applicant is registered in another Texas county.

The Honorable Rodney Ellis - Page 15 (GA-0141)

3. Students of Waller County shall not be subjected to the presumption contained in [art.]

5.08(k) of the Texas Election Code, or to any other presumption with regard to their

voting residence.

4. The Tax Assessor, LeRoy Symm, shall immediately cease the utilization of the residence

standard for students which has been implemented by means of a questionnaire, shall

terminate the use of the questionnaire, and shall henceforth register students on the basis

of the information contained in the state-approved registration form, as is done elsewhere

in Texas, unless LeRoy Symm has tangible, recordable evidence (consistent with

Paragraph 2 above of this injunctive decree) that such applicant is not a bona fide resident

of Waller County. Defendant is enjoined from subjecting Prairie View students to any

particular or discriminatory procedure not applied to non-students on a regular basis, such

as for example, causing students to visit his office and submit students orally to the

questioning previously contained in the questionnaire discussed in this Court’s

Memorandum Opinion.

5. The defendant Tax Assessor of Waller County shall schedule registration and other

election procedures pursuant to a time table which will allow students who are bona fide

residents of Waller County to register and vote in the elections scheduled for May 6,

1978, and in subsequent elections. Adequate resources and personnel shall be employed

by the defendant Tax Assessor, so as to avoid causing student applicants any significant

or unusual inconvenience.

6. Defendant Symm may require that all applicable information requested on the application

form promulgated by the Secretary of State of Texas be supplied by the applicant, and

may refuse registration unless and until all such information is provided. In the event the

application form is incomplete and registration is denied on such basis, defendant Symm

shall promptly return such incomplete application to the applicant with notice of the

reason registration is denied.

7. The entry of this order shall not preclude the State of Texas from altering its voter

registration standards so long as said standards are applied on a uniform basis and do not

discriminate on the basis of race or age. Any such alteration of uniform standards shall

be applied in Waller County and elsewhere without further order of this Court.

8. No relief will be granted with respect to defendants, Mark White, and his successor,

Steven C. Oaks, John L. Hill, the State of Texas, and Waller County. It is further

ORDERED, ADJUDGED, and DECREED that LeRoy Symm recover nothing of or from

Steven C. Oaks, Secretary of State of the State of Texas, on his cross-claim, and that the

State of Texas, acting by and through John L. Hill, its Attorney General, have judgment

against LeRoy Symm on its cross-claim ordering that LeRoy Symrn obey Rule

004.30.05.313 of the Rules of the Secretary of State, and that he cease using the written

questionnaire with reference to the registration of voters in Waller County.