Untitled Texas Attorney General Opinion ( 1956 )

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June 28, 1956
Hon. Tom Reavley Opinion No. S-207
secretary of state
Capitol Station RI: Voting rights of wives of
Austin, Texas persons in military service.
Dear Mr. Reavley:
You state in your request for an opinion that since
the,adoption of the constitutional amendment of November 2,
1954, amending Section6 1 and 2 of Article VI of the Consti-”
tution, many members of the armed forces desiring to exerciee
their right to vote by absentee ballot have requested infor-
mation regarding the etabue of their wiveswho are livfng
with them at their present place of military service. The
questions presented fin your request are ‘
as follows:’
1. Can the wife of a member of the armed
forces maintaining ~legal residence in Texas ac-
quire such legal residence by virtue of her .“~’ :
marriage, never having actually been a resident of
this State, nor of the county wherein the servfce-
man maintains hi6 legal residence?
2. if the answer to the above question is in ‘. 1
the negative, can the wife of the member of the armed
forces who maintains a legal residence in Texas cast
her absentee ballot in the county wherein she main-
tained legal residence prior to her marriage (assum-
ing that she formerly resided in a county of Texas)?
3. If the lnsw6r to question number 1 is in the
affirmative, then is lt correct to assume that she
must have been married to the service member for at ._
least 12 months before she can vote?
4. If the anewer to question number 1 is in
the affirmative, would the wife of the member of.the ,,
armed fo r c es lcquIr6 legal residence in Texas by
virtue of the marriage, even if she Were not resid-
ing with the servtce member at his place of military
duty?
, -
“.
Hon. Tom Reavley, Page 2 (S-207)
The amendment of November 2, 1954, removed the vot-
ing disqualification previously imposed on members of the regu-
lar military eSt6bliShmtntS and added a provision reading as
follows:
“Any member of the Armed Forces of the United
States or component branches thereof, or in the
military service of the United States, may vote
only in the county in which he or she resided at
the time of entering such service so long as he or
she is a member of the Armed Forces.”
In Attorney GSnSral’S Opinion S-148 (19%) it was
stated:
“The constitutional amendment does not change
th6 rules for determining what place is the legal
residence of the voter, nor does it mean that in
all circumstances a person in ihilftary service will
be entitled to claim a voting residence in the
county of which he was a resident at the time he
entered 66rViC6. Place of’residence is still to be
determined in the same way as it has always been.
Absence from the county or State for the purpose
of performing military service does not of itself
cause a loss of residence, but it is possible for
a person to abandon his old residence and acquire a
new residence during time of service.”
It is seen that the restriction on voting by military personnel
to the county of residence at the time of entering service has
no direct bearing on the answers to your questions. Its only
effect, so far as these questions are concerned, is to magnify
the importance of the questions by increasing the number of
instances in which they are relevant.
Residence for voting purposes means legal residence
or domitiii6, as distinguished from actual residence or actual
place of abode. Snyder v. Pitts,lSO Tax. 407,241 S.W.2d 136
(1951). It has also been held that the place of residence of
a married woman for voting purposes is where her husband re-
sides. Harvtll v. Morris, 143 S.W.2d 809 (Tex.Civ.App. 1940).
According to the common law rule, which prevails in
Texas, the husband has the right to select the family domicile,
and the family domiCil6 is th6 domicile of both the husband
and the Wife. McGehee v. Boedeker, 200 S.W.2d 697 (Tex.Civ.App.
Hon. Tom RSaVlSy, Page 3 (S-207)
1947); Pestle v. Postle 280 S.W.2d 633 (Tex.Civ.Ap 1955) ;
Stone v. PhilliD 1422 216 176 ~S.W.2d 932 (19&,; 23
J Husbazi and WTa; 9 8 There are certain excep-
t,%s %*ihfs rule, a6 wher& the;6 has been an abandonment or
separation with the intention of no longer maintaining mari-
tal relations, but it is assumed in this opinion that the
husband and wife intend to continue the marriage.
With respect to a person who has the right to select
his domicil6, there must be an intention to make a certain
place his permanent home coupl6d with actual physical resi-
dence at that place before it b6COmSS his domicile. Snvder v.
Pitts, supra; Ma or v. Lo 155 S.W.2d 617 (Tex.Civ.App.1941).
-the -+nd
domici 6 s the person may thereafter have
his place of abode at a diiferent place under certain circum-
stances (e.g., ‘whil6 in military SSrViCS) without lOsing this
dOmicil6, but there must have b66n an actual r66idSnCS at the
place of domicile before it b6COm66 fix6d,intention alone not
being SUffiCiSnt.
The courts of this State have held that the actual
physical presence of a married woman is not essential to the
establishment of h6r domicile, which is fixed by operation of
law. In Henderson v. Ford, 46 Tax. 627(1877), it was held
that upon the marriage in Alabama of a Texas resident with a
woman who was a resident of Alabama, with the intention to
make Texas their permanent residence, the wife immediately
acquired a domicile in Texas although her husband did not re-
turn to Texas for several months and she did not come to Texas
until two years therSaft6r:
“By the marriage, as has been said, Mrs. Bohanon
acquired a domicile in Texas. H6r temporary absence,
with the consent of her husband, evidently did not
dSpriV6 her of the rights to which she .was thereby
entitl6d.”
A similar holding’was made in Clements,v. Lacy, 51 Tax. 150
(1879).
~ThSS6 cases involved homestead rights rather than
voting rights. The drux of your questions is whether this rule
also applies to voting rights. We have not found any square
holding
-. on this point in Texas, but dictum in Harwell v.
Morris, supra,~ supports the same rule. In that case a woman who
was a resident of Randall County married a, man who had formerl~y
lived in Oldh&m County but who at the time of marriage was
living at Amarillo, in Potter County, ,where h6 was employed by
the United States Government. The husband and wife estab-
lished living quarters at Amarillo and had continuously ‘.
Hon. Tom Reavley, Page 4 (S-207)
lived there since the marriage. Both the husband and the wife
voted at an election in Oldham County, and their VOt6s were
challenged in an election contest. At the trial the husband
testified that h& had no fixed intention to return to Oldham
County; The Court of Civil Appeals held that neither the hus-
band nor the wife was a resident of Oldham County at the time
of-the SlSCtion, but said:
“If it had been shown that Gene Halliburton still
claimed Oldham County as his residence or that 1 t was
his intention to return there after his employment with
the Soil Conservation Service had ceased, then neither
his absence on the business of the United States nor
the SStablishmSnt by him and his wife of a residence in
Amarillo in the manner in which they did would have
: forfeited their residence in Oldham County. They still
would have had the right to maintain their residence
there if they desired to do so.”
Thus it appears that ~the wifers re.sidence for voting purposes,as
well as the huebandrs, would have been in Oldham County if that
had continued to be the legal residsnce of her husband, even
though she was not a resident of that county at the time of the s
marriage and had not lived there since the marriage.
In other Jurisdictions which follow the common law
rule, it has b66n held that the wife acquires the domicile of
the husband without h6r having actual1 lived at the place of
domicile. See 17 Am.Jur.,Domicile, % 3ti. However, there are al-
so decisions to the effect that residenC6 for voting purposes
and domicile are not 8 See 18 Am.Jur
s 61. In Dorsey v. Br g:Ly?;i Ill. 250, 52 N:k.E:z;t@%e,
it was held that a married woman, by operation of law, .rnsy ha:e
a domicile in a place.*ihere she has never been, but that she
did-not become a r6SidSnt~ for Votin!3 Durnoses until she was
actually physickly present at that-piack. Also see Snyder v.
Callahan. 129 A. 41~0 (N.J.Circ.Ct. 1925). In Willrerssn v.
236Ala. 104. 181 So. 296 (1938), the court said that the
%icile of the husband becomes the domicile of the wife upon
marriage, but.‘.that’;if: the husband has merely a temporary abode
in the county where they live, being a resident and qualified
voter of another county, and the husband and wife establish
. no family residence facto & animo prior to the date of the
election, the wife.``stil~a legal voter in her home
town. But Campbell v. Ramsey, 150 Kan. 368, 92 P.2d 819, 832
(1939), held that a woman who married and moved to Washington,
D.C., where her husband was in the employ of the United States
Hon. Tom Reavley, Page 5 (S-207)
Government (and who apparently had lived there ever since
the marriage) could not vote in the place of her residence
before her marriage. The court said that the legal residence
of the wife was that of her husband, and his residence for the
purpose of voting was the place which he regarded as his
place of rSSfdSnc6 when he entered the service of the United
States.
While the question is not free from doubt, either
from the standpoint of precedent or from the standpoint of the
purpose of the length-of-residence requirement, we are of the
opinion that under the law in Texas the domicile of the wife
fixes th6 place where she may vote, and that her physical
presence is not essential to establish her right to vote there,
Your questions assume that a married man*s legal
residence may continue to be the same as it was bSfOr6 marriage
although his wife has never actually lived at that place.
This assumption is correct, but for clarification of this point
some attention should be given to Article 5.08 of Vernonrs
Election Cods, which provides that the residence of a married
man is where his Wife resides. This statute does not mean
that the place of actual abode of the wife is determinativ6 of
the husbandt s rSsidSnC6. It means no more than that the place
,SSlSCted and 6stablished~by the husband as the family domicile 1
for the wife is also his domicile. In other words, the domi~-
tile 6r;.lKgal: tdsidenct:;of:: the.:hu$bind. and..the:.wffe are, the
same, ‘and: the ``o~tro~1ing~:factor’:in:.de~6~inirig:.the:.ddmic~16 of
the husband, where actual residence or claimed legal residence
of the husband is at a different place, is the place he has
SSlSCted and established as the domicile for the wife. Major
1% S.W.2d 617 (Tex.Civ.App.1941). In Harwell v; Morris,
wh.24 809,816 (Tex.Cfv.App. 19&O), the court said:
,I It has been the law of this State since
an eariy’diy that the.place of residence of a married
woman is where her husband resides. Lacey v. Clem-
ants, 36 Tax. 661; Henderson v. Ford, 46 Tex. 627;
Haymond v. Haymond, 74 Tax. 14;12 S.W. 90; Russellrs
Heirs v. Randolph, 11 Tax.
“It has never b66n the law in Texas that th6
r6sidenCS of the husband is drawn to that of the wife
happen, for a time, to be at diffSr6nt
itatfOnS.7 Th6 DUlC was not changed by the
of Art.-2958 R’C S 1925 bow Article
5.08, Vernonrs Rl6ctiOn’C~d``~‘uhiich provides that. the
Hon. Tom Reavley, Page 6 (S-207)
residence of a married man is where his wife re-
sides. That act was passed in 1905, long before
suffrage was extended to women in Texas and.had
reference only to the residence of the husband,
who, at that time, was the only member of the
community who wae entitled to vote, and it was
designed only to provide a criterion by which the
husbandts residence could be definitely estab-
lished in case of doubt as to his--not the wifets
--residence. It was never intended by the law
makers to change the long established rule that
the residence of the family is established by the
will or conduct of the husband.”
Also see Op. No. 1935 Report & Opinions of the Attorney Gener-
al of Texas, 1916-1918, p. 288. Where the absence of the
husband from his fixed place of legal residence is under circum-
stances which do not cause a loss of residence (e.g., absence
in military service), the fact that his wife also has her place
of abode with him or at some other place during his absence
does not cause a, loss of legal
S.W.2d 663 (Tex.Cfv.A p.
126 (Tex.Civ.App.1940 P;
Civ.App. 1948).
In the light of the foregoing discussion, we shall
now answer your questions.
1. Your first question is answered in the affirmative.
In the eyes of Texas law, the wife of a member of the armed
forces who maintains his legal residence (domicile) in Texas
acquires the same legal residence by virtue of the marriage
without’.her~:having actually lived in this State or in the
county of her husbandts domicile; and upon fulfilling the
length-of-residence requirements she could vote in this
State if otherwise qualified. However, her status under Texas
lawwould not determine her status under the law of some other
stiltkz. For example, if at the time of marriage the wife was
a resident of a State which recognized her right to select her
domicile or voting residence, she might still ,be considered a
resident of that State under its laws and entitled to vote
there. Of course, if she votes in some other State she could
not also vote in Texas.
2. If at the time of marriage the wife was a resi-
dent of Texas but of a different county from her husband, up-
on marriage she loses her former residence and she cannot
thereafter vote in that county. She can vote only in the
county and voting precinct where her husband maintains his
legal residence.
Hon. Tom Reavley, Page 7 (S-207)
3. Your third question is answered in the affirmative.
To be a qualified elector, a person must have resided in Texas
for one year. Tax. Const. Art. VI, Sec. 2. The wife acquires
a legal residence in Texas immediately upon martiage, but she
cannot vote until she has held that status for one year.
4, Your fourth question is answered in the affima-
tive. The servicemanss wife would acquire legal rSSidSnC6 in
Texas by virtue of the marriage, even though she was not aiv-
ing with the serviceman at l&is place of military duty. In
the absence of an abandonment or a separation with the inten-
tion of no longer maintaining marital relations, the fact that
the wife was not living at the place where the husband was
stationed would be immaterial.
The wife of a member of the armed forces who
maintains his legal residence in Texas acquires the
same legal residence by virtue of the marriage with-
out Herr having actually lived in this State. or in
the county of her husbandts legal residence. Upon
fulfilling the length-of-residence requirements she
would be entitled to vote in this State if other-
wise qualified.
If at the time of marriage the wife was a resi-
dent of Texas but of a different county than her .
husband, upon marriage she loses her former residence
and she cannot thereafter~vote in that county. She
can vote only in the county and voting precinct where
her husband maintains his legal residence.
APPROVED: Yours very truly,
J. C. Davis, Jr. JOHN BEN SHEPPERD
Reviewer Attorney General
W.V. Geppert
Reviewer
L.W. Gray B’*a?-
Special Reviewer Assistk
Davis Grant
First Assistant
John Ben Sheppard
Attorney General
MRWrcm:vb