Untitled Texas Attorney General Opinion ( 1987 )

March 18, 1987
Frank E. Vandiver, PhD opinion No. Jn-647
President
Texas A&MUniversity System Re: Whether certain applicants for
319 System Building admission to Texas universities
College Station, Texas 77843 are residents of Texas for pur-
poses of payment of tuition
Dear Dr. Vandiver:
You ask about the residency status of a student whose father is
employed by the Department of State as a foreign service officer. The
determination of whether a particular individual is a Texas resident
is a question of fact which we cannot address in the opinion process.
See Attorney General Opinion X4-367 (1985). We can. however, clarify
ZZeral legal issues relevant to your question.
Because tuition rates at Texas colleges and universities are
higher for nonresidents than for Texas residents, Educ. Code 554.051,
it is necessary for colleges and universities to determine whether
students are residents or nonresidents. See Educ. Code P54.052
(statutes regarding determination of residencystatus). The student
in question is his father's dependent for federal income tax purposes.
Therefore, section 54.052(c) of the Education Code governs the
determination of whether the student is a resident or a nonresident:
An individual who is under 18 years of age or
is a dependent and who is living away from his
family and whose family resides in another state
or has not resided In Texas for the 12-month
period preceding the date of registration shall be
classified as a nonresident student.
See also Educ. Code 054.052(a)(3) ("dependent" means an individual who
is claimed as dependent by his parent or guardian for federal income
tar purposes). "Residence" for purposes of section 54.052 means
"domicile." Sec. 54.052(a) (1). To determine whether the student in
question is entitled to pay resident tuition, then, the university
must ascertain the domicile of his father.
The key elements of the legal concept of "domicile" are actual
residence in a place and an intent to make that place a permanent
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Dr. Frank E. Vandiver - Page 2 (JM-647)
home. Snyder v. Pitts, 241 S.W.Zd 136. 139 (Tex. 1951). Ordinarily,
there is a presumption that the place where a person lives is his
domicile. Gallagher v. Gallagher, 214 S.W. 516, 518 (Tex. Civ. App. -
San Antonio 1919, no writ). It is possible, however. to reside in one
place and have a domicile elsewhere. Once a person establishes a
Texas domicile he may live outside Texas without destroying his Texas
domicile as long as he has the intent to retain his Texas domicile.
Stone v. Phillips, 176 S.W.Zd 932 (Tex. 1944); see also Peacock v,
Bradshaw, 194 S.W.2d 551. 555 (Tex. 1946). In most cases someone who
lives outside Texas must show evidence of his intent to retain his
Texas domicile in order to overcome the presumption that the place a
person actually lives is his domicile.
A rule promulgated by the Coordinating Board. Texas College and
University System. incorporates the presumption that the place where a
person actually lives is his domicile:
If the parents of a minor move to another state or
foreign country, or reside outside the state or in
a foreign country at the tims of enrolling in an
institution of higher education, but claim legal
residence in Texas, conclusive evidence must be
presented that the father is still claiming legal
residence in the State of Texas aad that he has
the present intent to return to the state. A
certificate from the employer of the parents that
the move outside the state was tsmporarp and that
there are definite plans to return the parents to
Texas by a determinable future date may be con-
sidered in this connection.
19’T.A.C. 521.21(g) (1979); see Educ. Code 954.053 (Coordinating Board
issues rules regarding nonresident tuition). That rule restates the
costnon-law presumption discussed above and properly places the burden
of establishing a Texas domicile on a person who lives outside Texas
but claims to be a Texas domiciliary.
As indicated, the presumption that the place where a person lives
is his domicile applies in most cases. The courts have, however, made
an exception to that rule and have held that the presumption is not
applicable to persons in the military. gather, there is a presumption
that a person in the military maintains the domicile he had at the
time he entered the military throughout his entire period of active
service. Gallagher v. Gallagher, 214 S.W. 516 (Tex. Civ. App. - San
Antonio 1919, no writ); see also Attorney General Opinion JM-367
(1985). The court in Gallagher explained the rationale underlying
that presumption as follows:
p. 2939
Dr. Frank E. Vandiver - Page 3 (JM-647)
Ordinarily, it is a presumption of law that
where a person actually lives is his domicile,
such presumption of course being rebuttable; but
no such presumption could arise in the case of a
soldier in active service, who has no choice of
domicile, but must ordinarily cling to his
domicile of origin. Ordinarily, an act of removal
to a certain location, coupled with the intent to
make a permanent residence there, might be
sufficient to fix a domicile, but that is because
the removal is voluntarily made, which could not
occur in the case of a soldier in active service.
It follows that the removal of the latter to a
place and his residence there for years would not
offer any probative evidence to corroborate
evidence as to an intention to make the place his
home, but it would be necessary to obtain other
corroborative facts of that intention.
214 S.W. at 518. The Coordinating Board has properly included in its
rules the court-created presumption that a person in the military
keeps the domicile he had at the time he entered the military. 19
T.A.C. 121.24(d) (1979).
In Attorney General Opinion JM-367 (1985). we concluded that a
court would find that the presumption of domicile that applies to
persons In military service also applies to officers of the Public
Realth Service. We reached this conclusion because several federal
statutes consider service with the Public Health Service to be active
military service and because several judicial decisions have held that
service with the Public Health Service is the equivalent of military
service. It has been suggested that courts might extend the presump-
tion of domicile that applies to persons in the military service to
persons in the foreign service. We find no basis, however, for
concluding that the courts would apply that presumption to persons in
the foreign service. We find uo statutes under which members of the
foreign service are considered to be part of the military. See, e.g.,
22 U.S.C. 53927 (1980) (chief of mission in a foreign country is
responsible for all United States employees in that country except for
those under military command). We must conclude therefore that the
courts would apply to a person In the foreign service the presumption
that a person’s domicile is the place where he lives. That presump-
tion is, of course, a rebuttable one, and we do think that it would be
proper to consider in determining the issue of domicile that a person
representing the United States in the foreign service is likely to
have the Intent of maintaining a domicile somewhere in the United
States.
p. 2940
Dr. Frank E. Vandiver - Page 4 (JM-647)
The student you Inquire about offered some evidence that his
father is a Texas domiciliary. Apparently the university concluded
that he had not offered sufficient evidence to overcome the presump-
tion that his domicile is outside of Texas. We cannot resolve fact
questions in the opinions process. Unless we can hold that, as a
matter of law, the evidence showed that the father was a Texas
domiciliary -- and in this Instance we cannot - we may not object
to the university's conclusion that the father is not a Texas
domiciliary.
SUMMARY
The foreign service is sufficiently distinct
from the military that a court would probably not
apply to a person In the foreign service a presuxp-
tion such as that applied to military personnel,
i.e., the presumption that a person in the military
keeps the domicile he had when he entered military
service.
JIM MATTOX
Attorney General of Texas
JACK HIGXTOWER
First Assistant Attorney General
MAmiCELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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