Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas_
Ocmber 22, 1985
JIM MATTOX
Attorney General
Suprm CourtBulldlno Eonorable Lloyd Crlm Opinion lo. St-367
P. 0. Box 11548 chairman
Auetln. TX. 7671% 2S4S Committeeon Labor ,md Re: Resldeucy status of a student
5121475-2501 EmploymentRelations whose parent is assigned out of
Tblax 91011)74-1387
lekopler 512147502ea
Texan House of Reprcsentativea state by the United States Public
P. 0. Box 2910 Eealth Service
Austin. Tutaa 78715!)
714 Jackson. Sulte 700
OaNae. TX. 7S2024508 Dear Representative Cries:
2141742-0944
You advise us I:hat a commissioned officer of the United States
4S24 Albert* Ave.. suits IS0 Public Bealtb Service has contacted you for :clarificatlon by this
El PIso, TX. 7ea52793 office of the Texas residency requirements for purposes of resident
SlYSM4S4 tuition at state institutions of higher education. The Public Health
Service officer has ‘been aasigued to duty lu Maryland since 1982. We .
,..+I Texes. SuIta 700
uuderetand that both before and after her entry into the Public Bealth
Ho”eml. l-Y.. 77w2-3111 Service, and until,,L982. the officer had resided for many years in
712n235SS6 Galveston, Texas. A state university has classified the officer's
daughter aa a nonre:3!ldentstudent for tuition purposes.
806 Broadway. Suite 312
L”bbc.ck, TX. 79401-3478
The Texan Educ:a.tioa Code makes a distinction between residents
ew-747.523S and nonresidents of the state in prescribing the rates of tuition for
students registerin: at the state's institutions of higher education.
Educ. Code 154.051. The code specifies that for tuition purposes
4306 N. Tenth. Suite S "residence" meana "dcmaicile." Id. 154.052(a). An individual who is a
MeAllen, TX. 78501.1685
512lSS24.547 dependent and vhose family is domiciled In another state is classified
as a nonresident student. Id. 554.052(c). The issue in question ie
whether Texas is thqzdomicilcf the Public Health Service officer who
MO Main .fla.?a. Suite 4M) was assigned to duty in Maryland in 1982 and involves fact questions
sari Antonio. TX. 78X5.2797
which we cannot c;~c:egorically answer in the opinion process. We
WX225-41Ql
conclude, however. that for tuition purposes a Public Bealth Service
officer does not lcse A domicile or acquire a nsv domicile solely by
An Equal OpportunitYI reason of the fact xbat the officer is involuntarily transferred to or
Alflrm4We A&on Employer atationed in line o:i duty lo a place outside of Tekaa.
Section 54.053 of the Education Code provides that each institu-
tion required to charge A nonresident tuition fee is subject to the
rules. regulations. and interpretations issued by the Coordinating
Board, Texas College and University System, for the administration of
the code's nonresident tuition provisiona. The Coordinating Board's
p. 1681
BouorAble Lloyd Crisa - Page! 2 (JM-367)
rules And regulations for &aterm.ining residence statul, pursuant to
Title 3 of the Ta.6 Education Code, provide the,folloving:
(d) Legal rec$dence of peraou in ailita~
service. A person in militmy eervice is presumed
to maintain during his or her entire' period of
active aswice th'a same legal residence which was
in effect At t'hlctime of entering military
service. A per son statioued in s et.te o*
military service is presmed not to est8blish a
leg81 residence ia that state becAuse his or her
presence is not voluntary but under military
orders. It is possible for A member of the
mi1it.v service to abandon the douicfle of
original entry into the service and to select
another, but to show establishr.ent of a neu
domicile during t'he tern of active service, there
muat be clear tutd unequivocal proof of such
intsrlt. An extended period of sewice alone is
not sufficient. The purchase of residential
property is not c~uclusivs evidence unless coupled
with other f8cts fndicating an intent to put down
roots in the cosunmity and to reside there after
termination of ml.l.itary service. Evidence which
will ks considsrc:d, in determining this requisite
Intent includes, but is not limited to a sub-
stantial investment In a residence and the
claiming of A hosestead exemption thereon, regis-
tration to vote. and voting in local elections,
regiatrAtiO0 of 811Automobile in Te%Ae and pAyment
of personal propwrty tares thereon, obtaining a
TWCSt3 driver's :Licenae. maintaining checking
8CCOUIlt.S , SAViUgll ACCOUUtLI. and safety deposit
boxes in Texas banks, existence of wills or other
legal docusents fndicating residence in Texas.
change of home-of-record And designation of Texas
as the plAce of ILeg. residence for income t8%
purposes on mili~xry personnel records, business
trensActions or a:ftivities not normally engAged in
by military per6conel. nembership in professional
or other state arganizations. and marriage to a
resident of Texas. Purchase of property during
terminal years of military service preceding
retir-t gsnsrally is given greater weight than
A similar purchase uade prior to such terminal
period.
19 T.A.C. 121.24(d).
p. 1682
WnorrblrLlqd Crirr - haa 3 (JM-367)
Dnlilu tha ti@t which ir uproaaly cruted by atatuta that
pormitr cortdu dlitAry perronnol and their dapsndAntr uho aro
ckreified es uonrrridmtr to pay roaidont tuition at Qxer
univoraitior , the procqlticn of la@ roaidencs Aud daricila of A
pore08 im mfliteq lo M k 0, M lta to d in the above ruler and
royletionr, h8r hem developedby tba court& kctioo 54.058(b) of
the Eduution Coda up~,aaaly Authoriroa ths p8ymant of teaident
tuition by officere end anliated peraonuel of the Arq, Army ReaeT(re,
Army National Gourd. Nr IlatiouAl Guard, Tex~a State Guerd, Nr Force,
Nr Force Reeerve. 1807~ H8vy Remera, Urina Corps. Xariua Corp.
Reaercte, CoAat Guerd, 01’ Cosat Guard Reserve, laaigned to duty in
TUAO, And their apouaea ,kndchildrm, without regard to the length of
tfme thAt thq hAve been waigned to duty or rsaided within the atAte.
It la vell lettled that the lxprsaa snumration of A particulAr thing
in A lt8tute is t8ntawur.t to Au exvrsas excluaio~ of 811 othera. E%
parte UcIver, 586 S.Y.2d 851, 856 (Tax. Grim. App. 1979); Peterson r
CAlvert. 473 S.U.2d 314:, 317 (Tar. Civ. App. - Austin 1971. writ
‘s Carp v. Tex~a ts,ate Doard of Nxaminerr in Optometry
S.U.2d 639 642 ( - Dallu 1966). lff’d 412 S.W.id %
(Tu. 1967;. ,,.‘zot& zL.1 Opinion V-150252). While AU
officer in thexited St&em Public Health Service la excluded from
the statutory right to pay resident tuition granted by section
54.058(b), ue believe that exclusion under tbAt statute does not
determine the question before us.
The TUAO statute definea “residence” AI “domicile,” but the
mAnner of determining dtndclle la not specified by statute, And we
muat rely on judicial construction. Except where specified by
statute. the courta how dsveloned the concept of “domicile” for
v8rioua~purposea. In Pewa 6 D.T: Ry. Co. v. Thompson.167 S.W. 801.
803 (Tex. 1914). the?&Aa Suprema Court defined domicile In the
folloviBg 1Angu.ge:
‘Residence’ meActs living in 8 p8rticul.r
lOC.lity, but ‘domicile’ means living in thAt
loc8Iity with the intentto m6ke it A fixed end
permanent home. Rcaidcncs simply reqnirsa bodily
preaencs aa an :LnhAbltant in A given place. while
dcmicils requlr~ea bodily presence in that plAce.
and 8160 an inl:ention to make it one’s domicile.
The TUAS Suprems Court II:LSOhas orated thet “volition, intention, and
Action Are 811 elamenta to be considered in determining . . . per-
manent residence or do&::tle.” Mlla v. Bartlett, 377 S.W.2d 636, 637
(Ta. 1964). Although it largely dependa on ths present intention of
the individuA1. domicile is not determined br intention Alone. See
Oweua V. stoPAils 64 S.V.:ld 360, 362 (Tax. CiV: App. - WACO 1933, vrit
ref’d). The concurring opinion In Stifel v. Dopkina, 477 F.2d 1116,
1127 (6th Cir. 1973). states that “[tlhs tvo fundamental
p. 1683
,
iionorablo Lloyd Criaa - Page eb (JM-367)
coualdarations in astabli&ing domicile for purposee of state
citlreuahip are residence ilr the etate and intention to remain there
permaneutly.”
As reflected by the Coordinating I)oard’a rulea and regulatioua
for datemining residence el:a.tu&. it hae loug been established by the
courta that persona in milita r ylexxice are presumed to maintain
durtng their entire period of active lervicc the sama legal residence
that was in effect at the tims of enterlue” dlitarv
``````~, service.
``~ ```` In
Gallagher v. Gallagher, 215 8.W. 516, 518 (Tex. Clv. App. - San
Antonio 1919, IIO vrit). the court stated:
Ordiuarily, it is a presumption of lav that
where a persou ac,tually lives is his domicile,
such presumption IB!~course being rebuttable; but
uo such presumpttim could arise In the case of a
soldier In active service, who has DO choice of
daoicile. but muimt ordinarily cling to his
domicile of origlm.: ?rdlnarlly. au act of r-al
to e certain locu:!lou; coupled with the intent to
make a permaueot residence there, right be
sufficient to fix a domicile, but that is because
the r-al is voluntarily made, vbich could not
occur in the case of a soldier in active service.
The Texas Suprame Court, III Commercial Credit Corporation v. Smith,
187 S.W.Zd 363, 366 (Tax. 1345). reiterated that presumption:
A soldier or sailor does uot acquire a uav
domicile merely frown being atatioued at a
particular place in liue of duty. His domicile
remaia`` the same ss that which he had when he
entered the service, unless he shows a change by
proof of clear anti unequivocal intention.
See also Stlfel v. Eopklua. I-, Kinsel v. Pickens. 25 F. Supp. 455.
,456. Tex. 1938) and T&S cases cited therein; Wilson v. Wilson,
189 S.W.2d 212 (Tu. Civ. &P. - Fort Worth 1945, no writ).
Attorney General Opin.ion S-95 (1953) discusses residency
requirements for resident ‘xition In Texas. In that opinloo, this
office stated:
In the absence of a claar intent to abandon his
domicile in the state from whence he came and to
establfsh a uaw dfnnicile in the state in vhich he
serve*, a person ill the military service does not
acquire a dom%cil#!in the latter state.
p. 1684
Eoaorable Lloyd Cries - Page 5 (JE-367)
See also Attorney General Opinion O-1459 (quotlug from Conference
Opinion No. 2971, dated Jamary 10. 1936, Attorney General’s Reports
1934-1936. at 114. directed to Dr. H.P. Benedict concerning residency
requufreuents for army 0ff:ksra for tuition purposes). Conference
Opinion No. 2977 expressed i.h.8opinion that unless an anay officer had
some reason to change his douicile, which would have to be coupled
with both facts and intentic~u..his domicile would be that of his legal
residence at the tiue he enmred the anay.
We are oat avare of amy case in which the court dealt expressly
vith the Issue of the doulc:lle of a Public Health Service officer
while serving on assigned duty outside the state of the officer’s
domicile on original entry lute the Public Esalth Service. It is our
opinion, however, that a court would find that the aaue presumption of
legal residence and domicile which applies to persona in military
service also applies to offj.cers of the Public Health Service.
Ordinarily, the United States Public Eealth Service is a civlllan
service in the Departuent of Eeelth and Euuan Services. It is.
however, part of the armed forces of the United States and a military
service when incorporated into the armed forces by executive order of
the President in time of war or an emergency proclaimed by the
President. 42 U.S.C. 1217. With respect to active service performed
by commissioned officers of ,the Public Eealth Service In time of war,
while on detail for duty wi1:b the Army, Navy, Air Force, Marine Corps,
or Coast Guard, or while thl! Service is part of the military forces of
the United States pursuant 1:``executive order of the President, Public .
Health Service officers arc entitled to many of the rights and
prlvllegee provided by fedwal law for caiaaioned officers of the
Army. 42 U.S.C. 1213(a). Public Health Service offlcers detailed for
duty with the Army. Air Force, Navy. or Coast Guard are subject to the
laws for the governmentof ldre service to which they are detailed. 42
U.S.C. 1215(a). The Preeida:nt prescribes regulations with respect to
the appointment, promotion, retirement. termination of commiaeion,
titles, pay, uniforms. alloanncea. and discipline of the commissioned
corps of the Public Bealtb Service. 42 U.S.C. 1216(a). Federal
statutes expressly consider active service of coaaaissioned officers of
the Public Health Service 1:o be active ailitary semice for specific
purposes. Active service of commissioned officers of the Public
Eealth Service is deemed to be active military service in the armed
forces of the United States; for the purposes of lavs administered by
the Veterans’ Administration and for purposes of all rights, privi-
leges, immmitiea , and b’enefits provided under the Soldiers’ b
Sailors’ Civil Relief Act of 1940. 42 U.S.C. 1213(d), (e). See
Wanner v. Glen Ellen Corporation, 373 F. Supp. 983 (Vt. 1974). For
purposes
_ _ of the program
. - of militaq medical benefits provided for
members of the uniformed services and their dependents, “uniformed
services” expressly means the armed forces and the CommissionedCorps
of the National Oceanic 6 Atmospheric Admlnlstration and of the Public
p. 1685
Eonorable Lloyd Cries - Pego 6 (JM-367)
Eeelth Service. 10 U.S.C. 11072(l). A member of the uniformad
eervlcea who ia on active ducjr io entitled to udiul and dental care
in eu9 fac+lity of any uuiformed service. 10 U.8.C. 11074(a).
The Eighth Cfrcuic Court of Appeela baa stated:
We are conviuced that the relevant couditious of
service in the Public Eealth Service are very
similar to those io the armed forces and demon-
strate an equally apeclel relationship and need
for discipline.
For example, t,he PBS is designated as one of
the ‘uniformad aerrricas’ along with the armed
forces and the Comiaaioned Corps of the
Environmental Scitmce Services Administration. 10
U.S.C. 51072 (1970). The PBS is organiaed along
military lines. each officer grade having a
statutorily stated ‘military rank equivalent. 42
U.S.C. 1207 (19i’CI). Regulations specify that
failure to follow out orders of auperlor officers
till result in iliaciplinary action. 42 C.F.R.
1f21.261-84.(19?3:. In addition, PFiS officers are -.
assigned to actiw duty statue and are subject to
recall to duty during any period of leave. 42
C.F.R. 5121.88 - 91, (1973). These similaritlaa to
military service ~.l.luatrate how the concern voiced
in [the] Peres [cclse] regarding the effect of tort
suits ondiscipllne and internal atkucture apply
with equal force 1x1 the Public Eealth Setvice.
Alaxander v. United States, 500 F.2d 1, 4 (8th Cir. 1974). See also,
Levin v. United States. 403 F. Supp. 99. 103 (Mass. 1975). In Levin v.
United States, vhich is a :suit against the government for service
connected injury to a Public: Eaalth Servfce officer, the federal court
stated:
No less than the Id.litary, this uniformed service.
specially creeted by the sovereign, ia out of the
normal stream of t:he c- law. The same unfair-
ness vould occur in applying ‘the lav of the
place’ to P.E.S, officers, who have no more
control over theL:r duty stations than military
men.
-Id. at 103.
For purposes of Texa#. resident tuition. no state or federal
statute expressly determinell the domicile of an officer of the Public
p. 1686
Eonorable Lloyd Criss - Page! 7 (JM-367)
Eealth Service who involuntarily is assigned by tha Public Ilealth
Service to duty outside of Texas. The court in Lavin v. United States
concluded that “there is ok reasonable way. in lav or in logic. to
distinguieh the position ol the Public Eaalth Service officer from
that of the military man for purposes of tort suits.” Id. It is our
opinion that a court also would not distinguish the posiclon of the
Public Eealth Service off1c:e.r from that of the military officer for
purposes of domicile and, if asked, would find that the positions of
both create a presumption t.b.at such persons , when transferred to and
involuutarily assigned to duty in a state, ere not presumed to have
established a legal residewe in the state where their presence Is
involuntary.
Such a presumption, however. may not be true in fact and la
rebuttable by clear and unequivocal proof that the person intended to
abandon the domicile of original entry into the service and to select
another domicile. See Aworney General Opiuion R-559 (1975).
Intention is an ensen= cooalderation in determining domicile, and
the solution to each partiel:ler cese must depend on all the facts end
circuuatancea which tend l:o support or to negate an intention to
establish or to abandon a domicile. Domicile clearly involves issues
of fact, and this office is not equipped to make such factual
determinations in its opintm process.
SUMHARP
A court wouli, probably not distinguish the
position of a Public Realth Service officer from
that of a military officer for purposes of
domicile but vould rather find that the positions
of both create a presumption that such persons,
when transferred to and involuntarily assigned to
duty in a state, are presumed not to establish a
legal residence in that state when their presence
there is lnvol.untary. The presumption is
rebuttable by fa;,ts that prove a clear and un-
Very
equivocal intention to establish a new domicile
during active servtce.
TOMGRlZR
s h JIM
ruly your
;,
HATTOX
Attorney General of Texas
First Assistant Attorney General
p. 1687
HonorableLloyd Criss - Paga 8 (JM-367)
DAVID 0. RIC8ARD8
Rxecut~ve Asaiatent Attorney General
ROBBRT&UT
Special Aasiatant Attorney C~eneral
.\
RICg GILPIN
Chairman. Opinion Comaittee
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COWnITTEE
Rick Gllpin. Chairman
Colln Carl
Susan Garrison
Ton9 Guillory
Jim ~oe~linger
Jennifer Bigga
Nancy Sutton
Sarah Woelk
p. 1688