Carrington v. Rash, A-10104

• Decision Date: 07 April 1965
• Docket Number: No. A-10104,A-10104
• Citation: 389 S.W.2d 945
• Parties: Sergeant Herbert N. CARRINGTON, Relator, v. Alan V. RASH et al., Respondents.
• Court: Texas Supreme Court

Page 945

389 S.W.2d 945

Sergeant Herbert N. CARRINGTON, Relator, v. Alan V. RASH et al., Respondents.

No. A-10104.

Supreme Court of Texas.

April 7, 1965.

Peticolas, Luscombe & Stephens, Wayne Windle, Jr., with above firm, El Paso, for relator.

Tad R. Smith, El Paso, Waggoner Carr, Atty. Gen., Austin, Mary Kate Parker Wall, Asst. Atty. Gen., for respondents.

STEAKLEY, Justice.

Relator, Sergeant Herbert N. Carrington, a member of the armed forces of the United States, filed his petition for writ of mandamus in this Court on April 15, 1964. The Respondents were the officials of the Republican Party of El Paso County. Relator sought the writ for the purpose of gaining recognition of his right to vote in the Republican Party Primary election of May 2, 1964. Relator entered the military service as a resident of Alabama, and under the provisions of Article VI, § 2, of the Texas Constitution, Vernon's Ann.St., could not acquire a voting residence in Texas so long as he was a member of the armed forces. On the basis of this provision of the Texas Constitution, this Court by its judgment dated April 29, 1964, denied Relator's petition for mandamus.

The Supreme Court of the United States on March 1, 1965, held that the abovementioned provision of the Texas Constitution deprived Relator of a right secured by the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution, and ordered that the judgment of this Court be reversed with costs, and that the cause be remanded to this Court for further proceedings, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675.

(1) Our judgment of April 29, 1964. denying Relator's petition for mandamus is set aside. The Republican Party primary election in which Relator desired to vote, and for which purpose he filed the petition for writ of mandamus, was held on May 2, 1964. This cause is now moot and the petition for writ of mandamus is dismissed.

(2) The right of Relator to vote in future elections under the circumstances of this cause is, of course, guaranteed by the judgment and mandate of the Supreme Court of the United States and will be upheld by the courts of this State.

SMITH, Justice (dissenting).

I do not agree that this cause is moot.

On April 29, 1964, we held that Article VI, § 2, ¹ of the Texas Constitution deprived the Relator, a nonresident of Texas at the time of entering the regular military service of the United States, of the right to acquire a voting residence in Texas so long as he remained in the military service. 378 S.W.2d 304. In so holding, we rejected petitioner's contention that this Article and Section of the Texas Constitution deprived the Relator of a right secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The United States Supreme Court granted Certiorari, 379 U.S. 812, 85 S.Ct. 33, 13 L.Ed.2d 26, and on March 1, 1965, that Court sustained petitioner's position. 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675.

The fact that the election in which the Relator desired to participate has long since been held does not preclude this Court from now declaring the law in accordance with the judgment of the United States Supreme Court. On the other hand, it is now our duty to affirmatively hold the Article and Section invalid.

This is an original petition for writ of mandamus filed by Relator, Herbert N. Carrington, to compel Respondents to determine whether or not Relator is a qualified elector for the purpose of voting in the Republican party primary to be held on May 2, 1964, without taking into consideration the fact that he is a member of the United States Army and entered the military service while residing in Alabama. Respondents in this proceeding are Honorable Waggoner Carr, Attorney General of Texas; Honorable Alan V. Rash, Chairman of the Republican party Executive Committee of El Paso County, Texas, and Honorable Margaret Hockenberry, the 'presiding judge' who will conduct the Republican party primary election in Precinct No. 16 of El Paso County, Texas.

Relator is a Sergeant in the United States Army. He entered the service in 1946, when he was a resident of Jefferson County, Alabama, and has been continuously in the military service since that time. It is undisputed that Relator is at present a resident of El Paso County, Texas, where he and his family have resided since February, 1962. He has designated El Paso, Texas, as his permanent home for all purposes on his military records, has paid ad valorem taxes and will pay such taxes in the future to the City of El Paso and to the County of El Paso, and has shown on his federal income tax return that he resides in El Paso, Texas.

On December 17, 1963, Relator paid the poll tax levied for the year 1963 to the County Tex Collector of El Paso County, Texas. Thereafter, on March 18, 1964, Relator wrote a letter to Respondent Rash, asking whether or not Relator would be allowed to vote in the Republican party primary election to be held on May 2, 1964. Respondent Rash, in his capacity as Chairman of the Republican party Executive Committee of El Paso County, and on behalf of Respondent Hockenberry, as 'presiding judge' of Precinct No. 16, answered by letter that:

'Mrs. Margaret Hockenberry and I hereby refuse, and will continue to refuse to recognize Sergeant Carrington as a qualified voter. We have taken this position because he is in the United States Army and he resided outside the State of Texas at the time he entered military service.'

Prior to Relator's correspondence with the Respondents, Rash and Hockenberry, the Respondent Attorney General, in an opinion, had interpreted the above amendment and its statutory counterparts. In interpreting these provisions, the Attorney General's opinion stated in part:

'* * * It goes without saying that the Texas Constitution cannot regulate voting rights of persons at any place other than within the State of Texas, and can not affect the voting rights of residents of other States while stationed in Texas. This provision relates only to residents of this State; but it does relate both to persons who were residents of Texas before entering service and to persons who became residents of Texas after entering service. If the only place at which a person may vote in this State is the County in which he resided at the time of entering service and if at that time he did not reside in any County in Texas, it follows that he cannot vote in this State. Accordingly, it was said in an opinion S-148 that no person who entered service as a resident of another State may acquire a voting residence in Texas while he is in service.'

Based on this opinion, Respondents Rash and Hockenberry refused to recognize Relator as a qualified voter.

Relator first contends that the Attorney General's interpretation of the above-quoted Constitutional provision is incorrect. It is Relator's position that the provision was not intended to apply to members of the Armed Forces who were not residents of the State of Texas at the time they entered the military service, but who are now residents of Texas. Instead, Relator contends that the Constitutional amendment was intended to apply only to servicemen who resided in Texas when they entered the service.

Relator next argues that if the Constitutional amendment in question does apply to persons who resided in Texas and those who resided elsewhere at the time of entering service, then the amendment constitutes an unlawful...