Oser v. Smith Petition for Writ of Certiorari to the Distr. Court of Harris County, TX

    /t/e#

NO.

IN THE

hxptrnt (Efluri erf %  3iXrttfeb JState
O c to b er  T e r m , 1967

GEORGE OSER, Petitioner
v.

CARL S. SMITH,
HARRIS COUNTY VOTER REGISTRAR

PETITION FOR WRIT OF CERTIORARI 
TO THE DISTRICT COURT OF HARRIS 

COUNTY, TEXAS, 164th JUDICIAL DISTRICT

R a eb u rn  N orris 
201 Scanlan Building 
Houston, Texas

Al Sc h u l m a n
505 Scanlan Building 
Houston, Texas

J a m es  H ippa r d
1023 Americana Building 
Houston, Texas

R onald  C o h en
505 Scanlan Building 
Houston, Texas

Attorneys for Petitioner
Alpha Law Brief Co., M & M  Bldg., Houston, Texas 77002



INDEX
T a ble  o f  C o n t e n t s  Page

OPINION BELOW 2
JURISDICTION 2
QUESTION PRESENTED 2
CONSTITUTIONAL AND STATUTORY PRO­

VISIONS INVOLVED 3
STATEMENT OF THE CASE 3

A. Pertinent Pleadings and How the Federal
Questions were Raised .............................  3

B. The Facts ..................................................  4
C. Why the Case is Not M o o t....................... 8

REASONS FOR GRANTING THE WRIT 9
CONCLUSION 14

T able  o f  C ases
Page

Baker v. Carr, 369 U.S. 186 (1962) ..............  9
Bartkus v. Illinois, 359 U.S. 121, 155 (1959) 13
Hague v. C.I.O., 92 U.S. 531 ...........................  10
Hague v. C.I.O., 307 U.S. 496, 519 (1939) 10
Harper v. Virgina State Board of Elections, 383

U.S. 663, 670 (1966) ...................................  9
Katz v. United S tates,___ U.S____, 88 S.Ct.

507, 511 (1967) ............................................ 9
Katzenbach v. Morgan, 384 U.S. 643, 647

(1966) ............................................................  10
Monroe v. Pape, 365 U.S. 167 (1961) 13
Parker v. Busby, 170 S.W. 1042 (Tex. Civ. App.

1949) ............................................................... 11
Reynolds v. Sims, 377 U.S. 533, 554 (1964) 9, 12, 14
Snowden v. Hughes, 321 U.S. 1, 8 (1944) . . . 13, 14
United States v. Cruikshank, 92 U.S. 543, 552,

553 (1876) ......................................................  10
Walker v. Thetford, 418 S.W.2d 276, 287, 288

(June 1967), writ ref. n.r.e..............................  12
Wesberry v. Sanders, 376 U.S. 1, 17 (1964) 10



II

m isc e l la n eo u s  Page
Edmond Cahn, The Predicament of Democratic

Man, 1961, Dell Pub. Co.............................  14
“Education and Politics in Boomtown,” Mosko-

witz, Saturday Review, Feb. 17, 1968, p. 52 8

CONSTITUTION AND STATUTES

U. S. Constitution, Fourteenth Amendment 2, 3, 9, 13
U. S. Constitution, Due Process Clause ............  2, 9, 11
28 U.S.C., Sec. 1 2 5 7 (3 ) ...................................  2
42 U.S.C., Sec. 1983   14
Texas Revised Civil Statutes:

Art. 5. iOa ........................................................  4
Art. 5.11a 6
Art. 5 .1 2 a ........................................................  6, 11
Art. 5.17   4
Art. 5 .17a ........................................................  2, 6

I ndex  to  A ppe n d ix  in  P e t it io n  

Appendix A:
Instrument Cancelling Petitioner’s Voter Regis­
tration for 1967, Executed by Carl Smith,
Harris County Voter Registrar, November 22,
1967 ................................................................. la
Judgment of the 164th Judicial District Court,
January 3, 1968 ............................................ 3a

Appendix B:
U. S. Constitution, Amendment XIV 6a
Texas Revised Civil Statutes ................  6a

Article 5.10a 6a
Article 5 .1 1 a ................................................  7a
Article 5 .1 2 a ................................................  7a
Article 5 .1 7 ..................................................  8a
Article 5 .1 7 a ................................................  9a



NO

IN THE

mprtmt ffluitri of \ \ \ t  pmtefr States
O c to b er  T e r m , 1967

GEORGE OSER, Petitioner 
v.

CARL S. SMITH,
HARRIS COUNTY VOTER REGISTRAR

PETITION FOR WRIT OF CERTIORARI 
TO THE DISTRICT COURT OF HARRIS 

COUNTY, TEXAS, 164th JUDICIAL DISTRICT

To the Honorable, the Chief Justice and the Associate
Justices of the Supreme Court of the United States:
Petitioner, George Oser, prays that a writ of certiorari 

issue to review the judgment of the District Court of 
Harris County, Texas, 164th Judicial District, entered 
January 3, 1968 (A. 3a; Tr. 8) in Case No. 750,608, 
styled George Oser v. Carl S. Smith, Harris County Voter 
Registrar, Defendant, and George Polk and Sam Lucario, 
Challengers, wherein the 164th Judicial District Court of 
Harris County affirmed by judgment (A. 3a; Tr. 8, 9)



2

the Order of the Harris County Voter Registrar (A. la; 
Tr. 42) cancelling the Voter Registration of petitioner, 
despite petitioner’s claim that such judgment constitutes 
an unlawful deprivation of his right to vote.

OPINION BELOW
No opinion was rendered by the court. An order stating 

the court’s Findings of Fact and Conclusions of Law was 
entered December 20, 1967, and is unpublished. It ap­
pears in the olhcial transcript filed with the papers in this 
Petition (Tr. 60, 61).

JURISDICTION
Judgment of the 164th District Court of Harris County, 

Texas was entered, nunc pro tunc, on January 3, 1968 
(A. 3a; Tr. 8, 9). In petitioner’s action, according to 
Texas Revised Civil Statutes, Art. 5.17a (A. 9a) “the 
decision of the district court shall be final.” Because no 
case has interpreted the finality of the above language, 
petitioner, out of an abundance of caution, has perfected 
an appeal in this case to the Court of Civil Appeals of 
Texas. However, the challenger of Petitioner’s registration, 
by judicial admission in the Court below, took the position 
that no further appeal could be had from the District 
Court’s decision. (Tr. p. 50). This Court’s jurisdiction 
is invoked under 28 U.S.C., Section 1257(3).

QUESTION PRESENTED
Whether the Due Process Clause, as well as the Equal 

Protection Clause of the Fourteenth Amendment protects 
the right to vote in a state election of a citizen who has 
all the necessary qualifications for voting save a voter-



3

registration certificate, where the citizen made repeated 
timely applications to the voter registrar but the registrar 
failed and refused to issue the citizen a certificate?

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The constitutional provision involved is the Fourteenth 
Amendment to the Constitution of the United States. 
In addition, five sections of the Texas Election Code are 
involved. These provisions, in pertinent part, are set forth 
in Appendix B to the instant Petition (A. 6a).

STATEMENT OF THE CASE
A. P e r t in e n t  P leadings A nd H o w  T h e  F ederal  

Q u estio n  W as R aised .

Petitioner, George Oser, filed an appeal in the District 
Court to re-establish his right to vote, after the Harris 
County Voter Registrar entered an order cancelling his 
registration. Petitioner pled that he had made repeated 
timely applications for registration which were ignored by 
the voting officials. The registration finally issued him was 
held to be not timely and, therefore, cancelled at a hearing 
of the Registrar called to consider the status of petitioner’s 
registration. Petitioner asserted that because of the im­
portance of the constitutionally-protected right to vote, his 
continued good-faith efforts to register should be deemed 
to be a compliance with the state registration laws (Tr. 
14-17). The court holding against petitioner, petitioner 
gave notice in open court before final judgment that he 
would press the issue of denial of due process and of 
equal protection of the laws (Tr. 56), and he asserted 
that an interpretation of the Texas voter registration law



4

to deny petitioner’s right to vote necessarily brought such 
voter registration law into conflict with the requirements 
of due process (Tr. 56). After such notice the court 
concluded that the statutes were applicable to the case, 
found that petitioner had not been issued a timely certifi­
cate, and upheld the cancellation of the certificate (Tr. 
61).

B. T h e  F acts

The facts, which are not in dispute, are established by 
admissions in the pleadings contained in the Transcript 
(Tr.), by uncontroverted testimony admitted in evidence 
by the court and contained in the Statement of Facts 
(S.F.) and by Exhibits (E.).

Petitioner, George Oser, is a citizen of the United 
States and of Harris County, Texas. On October 15, 1966, 
petitioner, acting through his wife as agent, as permitted 
by Texas law, called the Office of the Tax Assessor, Carl 
S. Smith, the chief voter registrar for Harris County, and 
requested applications for voter registration certificates 
for the both of them. Petitioner’s wife telephoned on the 
assumption that having established six-month residence 
in the county, they would be entitled to register during 
the registration period that had begun October 1 (S.F. 
51). In fact, Articles 5.10a and 5.17, the provisions of 
the election code providing for the issuance of registrations 
and exemption from the poll tax for new residents, did 
direct that applications for registration be issued them at 
the time of the call (A. 6a, 8a). Article 5.17, providing 
poll tax exemptions, was applicable until its repeal, ef­
fective February 1, 1967. The overlapping statute, Article 
5.10a, which had been passed effective October 1, 1966



5

to establish new registration procedures in light of the 
demise of the poll tax, also directed that petitioner be 
registered at the time of their call (A. 6a). Although 
petitioner would not have been entitled to vote at the 
polls until he had been a county resident for six months 
and a state resident for twelve, he was entitled to register 
to vote under either of the two pertinent registration 
statutes, and because he was a citizen who met every 
necessary qualification in the election code, the statutes 
charged the tax assessor’s office with the duty to accept 
his application. Despite this, petitioner’s wife was told 
that they could not be registered and she was told to call 
back in January, 1967 (S.F. 21). Petitioner’s wife, as 
agent, called back in January, twice. In the first of those 
calls, petitioner’s request for a registration form was 
denied, and petitioner was told by the deputy registrar 
that petitioner and his wife would have to be residents 
of the state for twelve months before they could register. 
No law, old or new, contained a requirement such as this 
one. Petitioner’s wife called again in January to clarify 
her understanding and requested she be sent application 
forms to register. This time the deputy to whom she was 
referred told her that she was “wasting her time,” and 
no forms were sent to her (S.F. 67).

In July, 1967, following the publication of sample voter 
registration applications in local newspapers because of 
“the effect of new laws,” petitioners applied for voter 
registration certificates, armed with the knowledge that 
their one year of state residence had been established. 
This time their applications were accepted and certificates 
issued them (S.F. 59-61; E. 2). Petitioner’s certificate 
recited that he had become a resident on April 15, 1966 
(.before the beginning of the previous registration period,



6

October 1, 1966) and that he was entitled to vote at any 
election after April 15, 1967 (E. 2).

On or about October 26, 1967, a short while after 
petitioner filed as a candidate for the Houston School 
Board, he was contacted by the tax assessor’s office and 
told that something was amiss with his registration (S.F. 
22). The basis for a challenge to the certificate in his 
possession was Article 5.11a, which set an exclusive 
period for registration, and Article 5.12a, which held that 
new residents of the state who had established their resi­
dency after the beginning of the previous registration 
period could register for that voting year after the close 
of the registration period, which in petitioner’s case was 
January 31, 1967. Article 5.12a became law on June 12, 
1967, less than one month before petitioner applied for 
and received his registration certificate. The morning after 
petitioner received this message, he was contacted again 
by the registrar’s office, who told him this time that it 
was a mistake on their part and that petitioner’s name 
would not be taken off the voter rolls (S.F. 64).

Petitioner received over 53,000 votes in the school 
board election held on November 18, 1967, thereby 
qualifying for the run-off to be held shortly thereafter. 
On November 22, 1967, at a hearing called by Carl S. 
Smith, County Tax Assessor, petitioner’s registration cer­
tificate was held to be untimely issued, and his name was 
ordered stricken from the voter rolls (A. la ). Appeal 
was perfected by petitioner to the 164th Judicial District 
Court pursuant to Article 5.17a (A. 4a, 9a).

At the trial court petitioner asserted the liberal pro­
tections in Texas law protecting the right to vote (Tr. 
14-16, 43-45). He relied largely upon an Opinion of the



7

State Attorney General, to be accorded the highest weight 
in the absence of controlling case law, which held that 
a person who has made timely application for a voting 
certificate but who has failed to obtain one because of 
the failure of the county authorities to provide and issue 
one, may not be deprived of his right to vote (Tr. 21-29). 
Despite this the Court upheld the action of the county 
voter registrar and executed an order which recited: 
“Plaintiff did not properly register and did not diligently 
comply with the means available to him to register in 
accordance with the law prior to the 1967 election held 
by the School Board of the Houston Independent School 
District” (Tr. 33, 34). Final judgment, nunc pro tunc, 
was entered on the above order on January 3, 1968 
(A. 3a; Tr. 8, 9).

At the trial court the chief voting registrar testified 
repeatedly about mistakes in his office procedures and 
confusion about the election laws as the reason for the 
refusal of any timely applications by petitioner. His office 
operated under the belief, even months after Article 5.17’s 
repeal, that petitioner could register at any time up to 
thirty days before an election and vote after he had com­
pleted one year of residence (S.F. 42, 43). This partly 
explains why petitioner was not registered when he applied 
during the registration period. The registrar admitted con­
fusion regarding the changes in the election laws at the 
time when petitioner first applied (S.F. 48). He testified 
that his deputies would have been violating the procedure 
of their own office in not referring petitioner to someone 
higher in authority before making a refusal (S.F. 45). 
Moreover, when petitioner was finally issued a certificate 
in July, 1967, such issuance, according to the registrar 
was “for lack of being up on the law” (S.F. 42). The



registrar testified that he had issued at least forty regis­
trations in addition to petitioner’s to persons in a similar 
situation (S.F. 37).

It was undisputed that prior to the time of petitioner’s 
repeated applications, the state had exercised its power 
to make classifications and establish requirements to quali­
fy for the franchise, that there was no issue of bona fide 
residence involved or determined against petitioner, that 
petitioner was not contained in any category of persons 
disqualified to vote, and that there was no administrative 
benefit to the state in refusing his applications. Each time 
petitioner applied, there remained only for the registrar 
to issue an application, receive and process it.

C. W hy  T h e  C ase I s N ot M oot

Restoring petitioner’s 1967 right to vote would not be 
an empty gesture. The outcome of an election turned on 
his disputed qualifications as a voter, and decision in this 
case would alter the merits of an election contest filed in 
petitioner’s behalf. After petitioner forced an encumbent 
member of the Houston School Board into a run-off, the 
County Voting Registrar cancelled petitioner’s registra­
tion certificate. While petitioner was appearing before the 
Texas Supreme Court in an attempt to establish his quali­
fications as a voter by extraordinary proceeding, the 
School Board simply removed Oser’s name from the bal­
lot and the Court informally ruled that the question was 
moot because the election was already in progress. Peti­
tioner’s suit now pending calls for a new election for the 
four-year position.1

1. The events above were included in a longer report concerning 
the Houston School Board, “Education and Politics in Boomtown,” 
Moskowitz, Saturday Review, February 17. 1968, p. 52.



9

REASONS FOR GRANTING THE WRIT
This Court has stated, “Undeniably the Constitution of 

the United States protects the right of all qualified citizens 
to vote, in state as well as in federal elections.” Reynolds 
v. Sims, 377 U.S. 533, 554 (1964). Though the Court, 
in applying the Fourteenth Amendment to protect the 
franchise, has relied on “a searching re-examination of 
the Equal Protection Clause,” Harper v. Virginia State 
Board of Elections, 383 U.S. 663, 670 (1966), since the 
decision in Baker v. Carr, 369 U.S. 186 (1962), it must 
inescapably follow and this case is ripe for decision that 
State election practices also cannot conflict with the re­
quirements of the Due Process Clause. The traditional 
treatment of the franchise is similar to that of a person’s 
general right to privacy as this Court described it: “like 
the protection of his property and of his very life, left 
largely to the law of the individual States.” Katz v, United
States, ___ U.S____, 88 S.Ct. 507, 511 (1967). But
despite distinction between “federal rights” and “federally- 
protected rights” this Court has held, “Once the franchise 
is granted to the electorate, lines may not be drawn which 
are inconsistent with the Equal Protection Clause of the 
Fourteenth Amendment.” Harper v. Virginia State Board 
of Elections, above, 383 U.S. at 665. Such continued 
avowals as this one by the Court compel the conclusion 
that a citizen may not be disenfranchised by the unlawful 
application of state registration laws without suffering 
deprivation of the fundamental fairness that our people 
are taught to expect automatically.

Petitioner asserts that the Due Process Clause preserves 
the integrity of the franchise and does so without enlarging 
the category of privileges and immunities of United States



10

citizenship that has been established previously. Having 
met the qualifications defined by the State, petitioner must 
be able to exercise his right to vote free from capricious 
abridgment; this is essential to “the very idea of a gov­
ernment, republican in form,” the same way in which the 
Court described the right of citizens “to meet peaceably 
for consultation in respect to public affairs and to petition 
for a redress of grievances.” United States v. Cruikshank, 92 
U.S. 542, 552, 553 (1876). Yet as to these just-mentioned 
freedoms of speech and of assembly, according to Mr. 
Justice Stone, “it has never been held that either is a 
privilege or immunity peculiar to citizenship of the United 
States, to which alone the privileges and immunities clause 
refers.” Hague v. C.I.O., 307 U.S. 496, 519 (1939) 
(plurality opinion). The Due Process Clause must protect 
them and the clause is to be applied “whenever the right 
or immunity is one of personal liberty, not dependent for 
its existence upon the infringement of property rights.” 
Hague v. C.I.O., above, 92 U.S. at 531 (by Mr. Justice 
Stone).

This Court has begun to surround the franchise with 
protections afforded only the most fundamental personal 
rights. The issue of personal liberty involved in protecting 
the franchise is expressed by the Court when it says, “No 
right is more precious in a free country than that of 
having a voice in the election of those who make the 
laws under which, as good citizens, we must live.” Wes- 
berry v. Sanders, 316 U.S. 1, 17 (1964). Therefore, the 
states by law or practice “have no power to grant or 
withhold the franchise on conditions that are forbidden 
by the Fourteenth Amendment or any other provision of 
the Constitution.” Katzenbach v. Morgan, 384 U.S. 643 
647 (1966).



11

Petitioner’s attempts to register were thwarted, as the 
record shows, because of a profusion of procedural in­
adequacies violative of the requirements of due process. 
It was only natural for a citizen inquiring on three sep­
arate occasions whether he would be permitted to register 
to rely on the advice of the officials to whom his inquiries 
were directed. The Court’s Findings of Fact (Tr. 61), 
that petitioner “did not apply for registration as a voter 
during [the prescribed] period,” is in glaring discrepancy 
with the uncontradicted testimony that petitioner not only 
made continued attempts to register at the times when 
he should have been registered, but demonstrated his per­
sistence by applying again and being issued a registration, 
this time, however, after the effective date of Article 5.12a, 
which retrospectively closed the registrar’s doors to all 
those who had become residents before the beginning of 
the previous registration period, according to the inter­
pretation placed thereon by the District Court. Moreover, 
the findings in the court’s opinion and judgment (A. 3a; 
Tr. 8, 9, 61) that petitioner did not exercise reason­
able diligence or take reasonable advantage of the means 
available to enforce his right cannot stand before the 
evidence that petitioner, as a qualified voter, had done 
all that the law required at his own hands. The statutes 
which established the exclusive period for registration did 
not anticipate a case of an election official’s refusal to 
act.2 It would have been unnatural for petitioner to have 
pursued the matter with the election officials who told 
him he was “wasting his time.” (S.F. 67) Legal action,

2. Under Texas law the failure of an election official to issue a 
registration blank though resulting from an innocent misapprehension 
of the legal requirements is tantamount to an outright refusal to issue 
the blank. Parker v. Busby, 170 S.W. 1042 (Tex. Civ. App. 1949).



12

by mandamus or other extraordinary remedy, would not 
only have been unnatural, but would have been to add 
onerous conditions not required by the election laws.

In addition, that one of petitioner’s most fundamental 
rights was so casually abridged, because of the misappli­
cation of the election laws on the part of the state voting 
officials specifically charged with administering them, de­
prived petitioner of “the opportunity for equal participa­
tion by all voters in the election of [state officials] that 
is required [by the Equal Protection Clause].” Reynolds 
v. Sims, above, 377 U.S. at 566.

The registrar corrected his mistake by cancelling the 
registration of this petitioner, alone among the forty-five 
registrations which had been similarly issued. The Court’s 
affirmance of this action was, at the least, an unusual 
application of Texas law. A Court of Civil Appeals had 
recently concluded that the Texas case law unequivocably 
demanded an interpretation of registration laws and all 
other statutes regulating the right to vote which would 
avoid, within reasonable interpretation, depriving indi­
viduals of their franchises. The court found Texas within 
the general rule that “a vote is not rendered invalid by 
an irregularity in registration due to the act or default 
of registration officers.” (Quoting American Jurispru­
dence) Walker v. Thetford, 418 S.W.2d 276, 287, 288 
(June, 1967) (writ refused, no reversible error found by 
the State Supreme Court). The statement most directly 
in point, the Attorney General’s Opinion (Tr. 21-29), 
held that the vote should not be deprived when attempts 
to register had foundered on the voting officials’ ignorance 
of the laws. Such was the unequal treatment afforded 
petitioner.



13

In Snowden v. Hughes, 321 U.S, 1, 8 (1944), the 
Court indicated a need to allege deliberate discrimination 
to invoke the Equal Protection Clause, where the right 
to hold state office and the right to vote in state elections 
was held not to be a privilege of a citizen of the United 
States, as the Constitution defines such privileges. The 
Court put it as follows:

“The unlawful administration by state officers of a 
state statute fair on its face, resulting in its unequal 
application to those who are entitled to be treated 
alike, is not a denial of equal protection unless there 
is shown to be present in it an element of intentional 
or purposeful discrimination.” Snowden v. Hughes, 
above, 321 U.S. at p. 8.

The reapportionment decisions of this Court dealt with 
dilutions of the state franchise by striking down uncon­
stitutional statutes. To the extent therein that the Court 
held that the Equal Protection Clause assures an equal 
voice to all who hold the right to vote, the basis was laid 
for protecting the right from arbitrary abridgement in 
fact, without having to trace such abridgement to inten­
tional discrimination. Regardless of the intent of the offi­
cials in refusing to register petitioner, when taking Mr. 
Justice Black’s direction to examine the application of the 
laws “from the standpoint of the individual who is being 
prosecuted,” Bartkus v. Illinois, 359 U.S. 121, 155 (1959) 
(dissent), the franchise was withheld from petitioner when 
he was qualified to become a registered voter, and the 
disenfranchisement was not occasioned by his own fault 
or neglect. The decision in Monroe v. Pape, 365 U.S. 167 
(1961), effectively overruled the provisions of Snowden v. 
Hughes, above, concerning the Equal Protection Clause



14

insofar as it was no longer necessary to allege specific 
intent in a Section 1983 action. Title 42 U.S.C. Sec. 1983. 
If the remaining language of Snowden would direct that 
the legal voter who has properly applied for registration 
in a state election, but who has been deprived of the right 
by the failure of the registrar to act can, by reason of 
such failure, also be deprived by the state of the Con­
stitutionally-protected right to vote at the polls, then such 
language was overruled, sub silentio, by Reynolds v. Sims, 
above.

Due process of the laws requires not a search for the 
intention behind official conduct, but an analysis of its 
necessary consequence. A renowned observer of our demo­
cratic institutions has stated: “Due process is at once our 
acknowledgment of ignorance and our device to mitigate 
the damage that ignorance inflicts.” Edmond Cahn, The 
Predicament of Democratic Man, 1961, Dell Publishing 
Co., N.Y., p. 149. The conduct of the registrar would 
raise the doctrine of estoppel in pais in common law. Due 
process requires that the doctrine be converted here into 
a barrier surrounding petitioner’s Constitutionally-protect­
ed right, keeping it from capricious encroachment.

CONCLUSION
For the reasons assigned, petitioner prays that the Pe­

tition for Writ of Certiorari should be granted and that 
the writ issue to review the decision and judgment of the



15

164th Judicial District Court of Harris County, Texas, 
entered in Cause No. 750,608 on January 3, 1968.

Respectfully submitted,

R a eb u r n  N orris 
201 Scanlan Building 
Houston, Texas

A l Sc h u lm a n
505 Scanlan Building 
Houston, Texas

J a m es  H ippa r d
1023 Americana Building 
Houston, Texas

R onald  C o hen
505 Scanlan Building 
Houston, Texas

Attorneys for Petitioner
D a t e d : February 28, 1968



la

APPENDIX A

INSTRUMENT CANCELLING DR. GEORGE OSER’S 
VOTER REGISTRATION FOR 1967, EXECUTED BY 
CARL SMITH, HARRIS COUNTY VOTER REGIS­
TRAR, DATED NOVEMBER 22, 1967. FILED
AMONG THE PAPERS.

Since the Court of Civil Appeals has refused the writ 
of mandamus and apparently does not have jurisdiction;

And further since the Election Code puts the responsi­
bility squarely upon the shoulders of the Voter Registrar 
to make a decision;

And since time is of the essence that I make a decision 
so that any or all parties to the controversy may appeal 
to the District Court, as provided for in Article 5.17a, 
Section 2, of the Election Code;

And since there is adequate relief through such an 
appeal, I have decided to make a determination as to the 
legality of the registration of Dr. George T. Oser.

After listening to all of the evidence presented by all 
parties concerned;

And the further fact that Dr. Oser was advised several 
days prior to the printing of the ballots in the first election 
of the fact that his voter registration was in question and 
would probably be challenged;

I find that I have no alternative except to rule as 
follows:

The registration of Dr. George T. Oser is hereby 
canceled.



2a

Since Article 5.17a, Section 2, provides that either 
party to the controversy may appeal from my decision 
within 30 days, I would assume that Dr. Oser through 
his Attorney will do so.

Article 5.17a, Section 2, provides that the District 
Court is to hear any appeals from my decision. I am 
making my decision today in order that sufficient time 
will be provided the parties for an appeal prior to the 
printing of the ballots.

I am informed that ballots will not be printed until 
Monday, and I am also informed that the District Courts 
will be available all day Friday.

Chief Election Officer John Hill has ruled that any 
registrations after midnight, January 31, 1967, of persons 
who were residents of the State of Texas on the first day 
of the registration period are erroneous and that the Voter 
Registrar had no authority to register such persons.

Therefore Dr. George Oser’s Registration for 1967 is 
Cancelled,

CARL S. SMITH,
Harris County Voter Registrar

November 22, 1967



3a

JUDGMENT NUNC PRO TUNC OF THE 164th 
JUDICIAL DISTRICT COURT, DATED JANUARY 3, 
1968. ENTERED: Volume 519, Page 553, General
Minutes District & Domestic Relations Courts, in and for 
Harris County, Texas. ALSO NOTICE OF APPEAL 
GIVEN.

NO. 750,608

IN THE
DISTRICT COURT OF HARRIS COUNTY, TEXAS 

164th JUDICIAL DISTRICT

GEORGE OSER, Plaintiff
v.

CARL S. SMITH,
HARRIS COUNTY VOTER REGISTRAR, Defendant 

GEORGE POLK and SAM LUCARIO, Challengers

On this the 24th day of November, 1967, came on to 
be heard the above entitled and numbered cause, and 
came Plaintiff, George Oser, in person and by his counsel 
of record, Raeburn Norris, A1 Schulman and James L. 
Hippard, and announced ready with reference to plaintiff’s 
appeal from the decision of the Harris County Voter 
Registrar, Carl Smith, cancelling Plaintiff’s 1967 Voter 
Registration Certificate, the said Registrar also appearing 
in person and announced ready, and came said Chal­
lenger, George Polk, in person and by his counsel of 
record, Fred W. Moore, and stated in open court that 
he was not ready and that he had not had an opportunity



4a

to prepare the pleadings he desired and asked for a con­
tinuance, whereupon the Court directed said Challenger 
Polk to apply to the presiding district judge, the Honorable 
Lewis Dickson, for such continuance which was done, 
but Challengers’ request for continuance was denied, to 
which denial the Challenger excepted in open court, 
whereupon the Judge of this Court announced that he 
would proceed to trial inasmuch as an election was im­
minent, being called for December 5, 1967, and this 
Court directed all parties proceed to trial which was done 
and all said parties participated therein, except Sam 
Lucario who appeared only as a witness; and

After duly considering the pleadings, that is Plaintiffs 
appeal, the challenge filed by the said George Polk before 
the said Carl Smith, his decision and the evidence offered 
by all parties and the argument of counsel, this Court 
finds that George Oser, Plaintiff, did not properly register 
and did not diligently comply with the means available 
to him to register in accordance with the law prior to 
the 1967 election held by the School Board of the Houston 
Independent School District and that the decision of said 
Registrar, Carl Smith, was correct and that said appeal 
should be denied.

It is THEREFORE, ORDERED, ADJUDGED AND
DECREED that the appeal of George Oser, Plaintiff, is 
hereby denied and the decision of Carl Smith, Harris 
County Voter Registrar, Defendant, is hereby affirmed 
and Plaintiff’s 1967 Voter Registration Certificate is here­
by cancelled to which ruling of this Court plaintiff ex­
cepted and gave notice of appeal.



5a

Signed and entered nunc pro tunc this 3rd day of 
January, 1968.

JOHN R. COMPTON 
Judge

APPROVED:

Attorney for Challenger 
George Polk

APPROVED AS TO FORM ONLY:

Raeburn Norris 
A1 Schulman 
James L. Hippard
By AL SCHULMAN 
Attorneys for Plaintiff



6a

APPENDIX B

U. S. Constitution, Amendment XIV, Section I:

“Ail persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens 
of the United States and of the State wherein they 
reside. No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens 
of the United States; nor shall any State deprive any 
person of life, liberty, or property, without due 
process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws.”

Texas Revised Civil Statutes, art. 5.10a (effective Oct. 1,
1966)

Persons entitled to register
Every person who at the time of applying for 

registration is in other respects a qualified elector, 
or who will become a qualified elector within one 
year from the first day of March following the date 
of his application for registration, shall be entitled to 
register as a voter of the precinct in which he resides; 
provided, however, that no person shall be entitled 
to vote at any election unless he is a qualified elector 
on the date of the election. The registration certificate 
of a person who registers before he becomes a quali­
fied elector shall have stamped or written thereon the
following: “Not entitled to vote before_______
(date on which he will become a qualified elector 
to be inserted in the blank), and this notation shall 
also be placed opposite his name on the list of reg­
istered voters.



Texas Revised Civil Statutes, art. 5.11a (effective Oct. 1, 
1966)

Annual registration; period for registration; period 
for which registration is effective

Voters shall register annually. The first period for 
registration under this law shall begin in each county 
immediately upon the effective date of this Section 
and shall end on the thirty-first day of January fol­
lowing; provided, however, that if this Section takes 
effect after January 1, 1967, as the result of a court 
decision, the registration period shall continue 
through the thirtieth day following the effective date. 
In each year thereafter, the period for registration 
shall be from the first day of October through the 
thirty-first day of January following. The first regis­
tration hereunder shall entitle the registrant, if other­
wise qualified, to vote at elections held between the 
first day of February following the registration period 
and the last day of February of the following year. 
Each annual registration thereafter shall entitle the 
registrant, if otherwise qualified, to vote at elections 
held during the period of one year beginning on the 
first day of March following the registration period.

Texas Revised Civil Statutes, art. 5.12a (effective June 
12, 1967)

Registration by . . . new residents
Subdivision 2. New Residents. Any person who 

was not a resident of the state on the first day of 
the regular registration period but who becomes a 
resident before the beginning date of a voting year 
may register for that voting year at any time after 
he becomes a resident and up to thirty days before 
the end of the voting year, if at the time of applying 
for registration he is a qualified elector or will be­
come a qualified elector before the end of the voting 
year.



8 a

Texas Revised Civil Statutes, art. 5.17 (repealed effective 
Feb. 1, 1967)

Certificates of exemption based on nonage and non­
residence

As a condition to voting, any person who is in 
other respects a qualified voter and who is exempt 
from the payment of a poll tax by reason of the fact 
that he had not yet reached the age of twenty-one 
(21) years or was not a resident of this State on 
the first day of January preceding its levy, must have 
obtained from the tax collector of the county of his 
residence a certificate of exemption from the pay­
ment of a poll tax not later than thirty (30) days 
before any election at which he wishes to vote; pro­
vided, however, that a person who obtains an exemp­
tion certificate at any time before the first day of 
February for use during the ensuing voting year may 
vote at any election held after the beginning of the 
voting year if he is otherwise eligible to vote at the 
time of the election. No such person who has failed 
or refused to obtain such certificate of exemption 
shall be allowed to vote.

An exempt person who applies for a certificate as 
prescribed by this Section between the dates of Octo­
ber 1st and January 1st following shall be issued a 
certificate for use during the remainder of the current 
voting year (the voting year being from February 1st 
through January 31st) if he is then a qualified elector 
or will become a qualified elector before the expira­
tion of that voting year, and shall also be issued a 
certificate for use during the ensuing voting year if 
he will be entitled to vote without payment of a poll 
tax during the ensuing year. On applications received 
between the dates of January 2nd and January 31st 
following, the tax collector shall issue the applicant



9a

an exemption certificate for use during the ensuing 
voting year if he will be a qualified elector entitled 
to vote without payment of a poll tax at any time 
during the ensuing year. On applications received 
between the dates of February 1st and September 
30th following, the tax collector shall issue the appli­
cant an exemption certificate for use during the 
current voting year if he is then a qualified elector 
or will become a qualified elector before the end 
of that voting year.

Texas Revised Civil Statutes, art. 5.17a (effective Oct. 1, 
1966)

Subdivision 2. Challenge of registered voter. Any 
registered voter shall have the right to challenge the 
registration of any other registered voter in his county 
by filing with the registrar of voters a sworn state­
ment setting out the grounds for such challenge. 
The registrar shall give notice to the person whose 
registration has been challenged, and a hearing shall 
be held and a ruling made thereon. Either party 
to the controversy may appeal from the decision of 
the registrar to a district court of the county of 
registration within thirty days after the registrar’s 
decision, and the decision of the district court shall 
be final. A challenged voter may continue to vote 
until a final decision is made canceling his registra­
tion.