Untitled Texas Attorney General Opinion ( 1966 )

HE~TTQRNEY GENERAL
-XAS
Honorable Doug Crouch
District Attorney
Tarrant County
Fort Worth, Texas Opinion No. c-712
Re: In the interpretation of the
meaning of the term "nonresi-
dent", as same is used in Art.
6687b, Vernon's civil Statutes,
Sec. 3, paragraph 3, is there
a presumption, rebuttable or
otherwise, that a member of the
armed forces of the United
States, who has been required
by his military duties to re-
side in the State of Texas for
a period of more than 90 days, i-
is no longer a "nonresident"?
Dear Mr. Crouch:
In your recent letter requesting the opinion of this
office concerning the above captioned inquiry, you state the
following:
"In recent months there has arisen in Tarrant County,
a question of law which affects all of the police, prosecution
and judicial agencies. The question involves the roper con-
struction to be placed on the re uisites of Art. 6%87b pertain-
ing to the necessity of an indiv9dual who d-or ve-
hicle to be licensed br the State of Texas. More sneclffcallv.
the question involves the interpretation of the exemption pro-*
visions of Par, 3, Set, 3, Art. 6687b as applied to persons
who are members of the local military establishment, Carswell
Air Force Base in Fort Worth, Texas,.
"It seems that a custom has developed by which a
person who is a member of the military establishment is con-
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Honorable Doug Crouch, page 2 (C-712)
sidered to be a,resident of the State of Texas after he
has resided in this state for a period of 90 days, and that
after such time, he is not exempt from the licensing re-
quirements of the State of Texas even though he may hold a
valid operator's license issued by his home state. The rule
of thumb has apparently been enforced without regard to whe-
ther the soldier is married or single or whether he resides
on a military reservation or elsewhere."
You thereafter ask the following question:
"In the interpretation of the meaning of the term
'nonresident", as the term is used in Art. 6687b, V.A.
T.S., Sec. 3, Par.,Q, is there a presumption, rebumle
or otherwise, that a member of the Armed Forces of the
United States who has been required by his military
duties to reside in the State of Texas for a period of
more than 90 days, is no longer a 'nonresident'?"
We have concluded that a negative answer must be
given to the question posed.
Paragraph 3, Section 3 of the Article 6687b, Vernonls
Civil Statutes, makes the following exemption:
"A nonresident who is at least sixteen (16) years of
age and who has in his immediate possession a valid
operator's license issued to him in his home State may
operate,!amotor vehicle in this State only as an operator
e . . .
Section 1 (p) of the statute merely defines the term
"nonresident" as used therein as "Every person who is not a re-
sident of this State." The statute fails to give any defini-
tion of the meaning of "Resident,"
In determining the meaning of such terms as used in
the particular statute, we must examine the context in which
they are employed in that the terms have no fixed, exact mean-
ing in the law. They may have a variety of meanings, depending
upon the context in which they are employed as well a~st'hesub-
ject matter and purposes involved. 25 Am.Jur.2d 7, Domlcil, Sec.
4; Switzerland Gen. Ins. Co. v. Gulf Ins, Co., 213 S.W.2d 161
il$X,E'.'.App-IgYtl,error dism.); ~Hughes v. Illinois Public
., 2 Ill,2d 374, 1.18 !ltiE,2d 14 (1954), and authorities
titea .
In view of the context in which the terms "resident"
and "non-resident" are employed in the vehfele licensing statute 9
-343.52
Honorable Doug Crouch, page 3 (C-712)
we have concluded that the terms should be construed in their
natural and usual sense, referring to the concept of a "domicil"
as distinguished from a "mere temporary residence." A "non-
resident" is referring to one whose domicil is in his "home"
state, and a "resident" is one whose domicil is in Texas, as
distinguished from having a mere temporary residence in Texas.
The statute expressly states that the "nonresident" has an
"operator's license issued to him in his home state." Hence,
the term "resident" is used synonymously m mcil". 25
Am.Jur.2d P-10, Domicil, Sets. 6 and 7.
Under the facts submitted, we find no statutory autho-
rity to support the existence of any legal presumption that a
serviceman required to reside in the state for a period of ninety
days or more is no longer a "nonresident" within the meaning of
the statute. Therefore, the question is controlled by the gen-
eral law and common law decisions app1icable thereto.
Virtually all of the authorities, not only $n Texas
but elsewhere, hold that the law is settled that a,person in
the military service is presumed to retain his domicil in the
state from which he was"lnducted. The presumption is rebuttable
and continues only unti$ such tlme'as he effectively abandons it
and establishes a new domicil elsewhere. 21 A.L.R. 2d 1163, 1180,
Sec. 13; 25 Am.Jur.2d 29-30, Domicil, Sec. 39; Jones v. Jones,
176 S.W.2d 784 (Tex.Civ.App. 1943); Wilson v. W3%on, ltrm.2d
212 (Tex.Civ.App. 1945); pippin v.~Pipp$n, 193 S W 2d 236 (Tex.
Civ.App. 1946); Lewis v. Lewis, m S .W e2d 277 (Tex.Civ.App. 1949);
Klingler v. Klingler, 254 S W.2d 817 (Tex.Civ.App. 1953); Postle
v. 08 e, .W *2d 633 (Tex.Civ.App. 1955).
The general rule dealing with the question of resi-
dence in the sense of domicil is summarized in 21 Tex.Jur.2d
60-74, Domicil, and at Sec. 9, pg. 69, the law with respect
to service personnel is stated as follows:
"Although the fact that one is a soldier or
sailor does not deprive him of the right to change
his residence or domicil and acquire a new one, he
does not acquire a new one merely by virtue of being
stationed at a particular place in the line of duty.
His domicil remains the same as that which he had
when he entered the service, unless he shows a change
by proof of clear and unequivocal intention. F'urther-
more, the ordinary presumption that the place where a
person actually lives is his domicil does not arise
in the case of a ioldier in active service. This spe-
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,.,*
Honorable Doug Crouch, page 4 (C-712)
cial rule is based on the fact that a soldier's
removal to another state is not voluntary, and his
physical presence is likewise not necessarily volun-
tary, for he moves in pursuance to military orders."
It is abundantly clear from the above cited texts
and authorities that no hard and fast rule can be formulated
with respect to the serviceman's domicil or residence status.
Each case must be decided upon the peculiar facts presented
with reference to objective evidence to support the service-
man's intention. Normally, his mere residence, together with
family, on a military installation is insufficient to show a
domicil within the State.
It is therefore our opinion that:
1. The term "resident" as used in Article 6687b,
V.C.S., means "domicil" and the term "nonresident" as used in
the statute refers to one who has his "domicil" elsewhere than
in the State of Texas;
2. MO legal presumption, rebuttable or otherwise,
exists in Texas that a member of the armed forces of,the Wnited
States, required by his military duties to live in Texas for a
period of more than ninety days, is no longer a nonresident, as
that term is used in Section 3, paragraph 3 of Article 6687b;
3. There is a rebuttable presumption that such a
person in the military service retained his domicil in the
State from which he was inducted until such time R.S he is
shown by clear snd WEquivoCal proof to have effectively aban-
doned it and established a domicfl elsewhere,
SUMMARY
The term "resident" as used in Article 6687b, V.C,S.,
means "domicil" and the term "nonresident" as used in the statute
refers to one who has his "domicil" elsewhere than in the State
of Texas;
No legal presumption, rebuttable or otherwise, exists
in Texas that a member of the armed forces of the United States,
required by his military duties to live in Texas for a period
of more than ninety days, is no longer a nonresident as that
term is used in Section 3> paragraph 3 of Article 66&b;
There is a rebuttable presumption that such a person
in the military service retained his domicil in the State from
which he was inducted until such time as he is shown by clear
and unequivocal proof to have effectively abandoned it and
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Honorable Doug Crouch, page 5 (C-712)
established a domicil elsewhere.
Yours very truly,
Waggoner Carr
Attorney General
By:
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Philllp Crawford
w. 0. Schultz
Ralph Rash
Gordon Cass
REVIEWED FOR THE ATTORNEY GENERAL
By: T. B. Wright
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