Untitled Texas Attorney General Opinion ( 1943 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
gouorrble P. U. Minter
county Attorney
JU Iiogg County
SsbbroWllle, Texas
nal Code respectively
shall hunt outside
vlth a gun without
Game, Flsb and Oyster
dollarr) fifteen cent8 of vblch
talned by said, officer aa his fee
a non-resident citizen or alien
shall be went?-five ($25.00) dol-
3.00) dollars of such amouat shell be
retained by the officer issuing ruch license as his
fee Sor oollectlng, lssulng, am! uaklng, report on
license so Issued and for remlttlng the remaining
twenty-two ($,22.00) dollarr to the Game, Fish and
Oyster Commisrlon.
"Aay perron hunting with a ‘gun out of the coun-
ty of his residence without a license authorizing
him to hunt out of the county of his residence, or
~orablo Pa W. Mater, page 2
any parron uho Sails or reSuae8 oa demd by any
ofslorr to lhou luoh oSSloer his bunting llcenaa
~pequlrrd oi him by this lrtlole still be derwd
guilty OS a miadrmeaaor urd upon oonvlotlon rhall
be fined In my sum not leaa than tea ($10.00) dol-
lars, nor moco thn one hundrod ()lOO.OO) dollaraj
provided, that the prorlsioaa oS thla art1818 ro-
qulrlag hunting license lhallwnot apply to persona
under a8r8ataea yeara 0s age.
‘Any non-raaldent OS this State or any alien
vho lh~ll hunt vlld game aad bird8 In thla Stats
without first arourlng a llcaaaa to hunt Sroa~ the
Coamlaaloaer or his deputy or tha oounty clerk shall
“,;l;a%;dwaot leaa than tea aor more than one hundred
.
As to vbom are oonaldered altlzeaa and non-residents
tier this ohapter OS the Penal Code, VQ quote from AHlole 920
,I s011ova:
“For the purpose OS thla chapter, any person,
except an allea, who has been a bona Side resident
or thla State Sor a period OS tine exoardlng six
months, oontlnuoualy and immediately bef ora apply-
ing for a hunting license, ahall be considered a
cltlren or thla State.
“An alien la any peraoa who 1s not a natural
born oitlaea OS the Waited Stat08 OS Amerloa, and
who has not daolarad his Intention to becoma a eltl-
aan OS the Walted States OS America.
“A non-resident shall be any peraoa vho la a
oltlzra OS any other Stats, or who has not coatlau-
oualy or Immediately prarloua to the time OS apply-
ing Sor a hunting lloense, been a bona-tide resident oS
the State OS Texas, for a period of time mor8 than six
months.’
Your query Is vhetber a person would be required to ob-
Mn a aon-realdent hunting lloenae under the Sollowing facts
rhioh appear ln your letter as Sollova:
gonorable P. Y. Mater, psge 3
II . . . .
n*- (a)
The Defoadant la 42 years of
age) (ij 8; ia; In Alabama WA1 ha
born and rearad
vaa 11 #oars of ago, rhea his preata remor-
hndetiaon Couaty, Texas, where he vas reared to young
manhood; (0) HIa father died only about 4 or 5 pears
after moving to Anderson County, Tafaa, and Defend-
ant’s oldrr brother then being la the Armed Poroea
of the 0. 8. A., the prlnoipal burden therefore of
taking oars of his vldoved mother and six younger
brothers and alatera, as well as the farm, Sell upon
the Defendant! (d) Because he could not auoceas-
Sully do so on the Sara, Defeadant eagaged ln Oll-
field work vhea be was about 20 years of age, and
he has lntarralttently but prlnclpally been engaged
in such mark until the present time; (e) While his
CllSleld vork has been for rarloua Employers, It has
been prlnolpally la Texas, vlth the exceptions here-
inafter stated; (I) He merrled about 1927, and
lbeut 1928, ha purchased a form In Anderson County,
Texas, vhlob he continued to own until he sold same
about 1940; (g) El8 first uork In Louisiana was In
#3, for about 2 months, vhen
p he rsturned to Texas;
His vork for varloua Em loyara vas then In Texas
until about May or June, 19 1, uban tha mama raaulr-
ed him to go back to LoulalaM with his fwslly until
about February, 1942, being approxlawtely 9 months,
when he 8galn returned to Texasi (1) Kovever, ln
1937, he purchased a horns in Houston, Harris Coun-
ty, Tex.88, ubera he and his Samlly rcalded for aome-
time, after vblob thay removed to hia farm In An-
dorson County, Texas, because of the blab tort of
llriag la Eouatoa, but he continued to ova said
home la Houston until only about 2 months ago, when
he sold saw1 (j) Bo r e g lr ter h sdislutomobllo both
In Teus and Loulslun la 1941, and he also regls-
terrd sama in both States for 1942, but he only rcg-
lstered saw so far In Louisiana iR1943; (k) %
registered under the Seleative Service Act in Wharton
County, Texas; (1) In January, 1943, while realdlag
la gl Campo, Wharton County, 26199, he was employed
by his preaeat Employer, the Phillips Petroleum Com-
pany, Sor the first tlmaj (m) tha Phllllpe Petrole’um
Co. required hlm to go to Loulalaaa In Jaauary, 1943,
oa his rork, but the Defendaat olalms that lt vas cn
the express proposition that he was to be there Only
mnorablb P. Y. Cantor, wge 4
temporarily, altar ublah they would return him to
Texas, and the Dofoadant has furalahed us vlth a
lettor of Jaauary 6th.. 1943, Srom aald Phllllps
Petroleum Company addressed to him at Xl Cam
Texas, indicating such trots to be true; (aY&elr
oblldroa voro In school in El Crmpo during the first
part OS tbo school-year of 1942 C 1943, but veat to
Loulalana where he uas e8ployad in Jaauacy, 1943;
(0) They remalnod In Louisiana until tbb Slri;,p;at
of M8y, 1943, when they roturnrd to Texas;
fondant has alalwd Tbua as his r~aldenoe llnoe
before January, 1943, rhan he Wat to Louisiana as
above lndlcatrd~ (aad (a), He has never owed a
how or lnr other ram1 estate in Louisiana, and
moor sold his boma in Houston, Harris County, Texas,
until about two month ago.
“6. (a) Tba Defendant hats been residing vlih
his family In Wrando City, Uebb County, Texas, for
about llx reeks or two moatha&gl~b) z i;;$::t a
Resident Hunting License lo.
%exaa, oa September l)tb., 1943; ok tba theory &at
he Was a resident of Texas, under the facts above
stated, although he had only returned to Texas vlth
his family the aarly part of Hay, 1943; sad (c) The
Looal Game Warden Sllad a aomplalrrt against him as
Indicated la Par. 4 above, on the theory that he was
a Ron-resident of Texas under Art. 920, P. C., and
therefore not entitled to hunt under a Resident Hunt-
I.&Q woenae baoauae he had aot bodily rralded ia the
Stat. for 6 montha nrxt preceding the proourlag ot
such Resldeat Euntlng U~easr.
”. . . . I
The problrm prbaented by your request la to deternina
Qhat the Leglalaturs IQ.tendad vhea It used the olauae that for
a persoa to be a oltlcea under this Chaaptrr ha must be a bona
Side resident of this State for a period of time exoeedlag llx
Wntbs oontlnuoualy and tiedlately botore applying for a hunt-
lng llceaae. A lolutloa to this question vi11 In turn aasver
your rrauaat.
As stated ln your letter, there has been no judicial
Or departwntal oonatruotloa of those sectloas of the Penal Code.
MOdo not think, hotmvar, that referbaoe to other statutes and
gonorable P. Y. Mater, page 5
Ojoqisioaa of our lava and the ooaatruotlon plaoed thareoa by
our sourts as to the wmlag of a bona Sldr rraldent vi11 be
oS much aid la reaohing a aolutlon to tha Query presented ln
ais reauest9 We say this after noting the prlaolpls lmo ua c ed
l,, gh@ oaaa of Ex Parte Blumer, 29 Tex. 736, vhere tha Supreme
Court of Texas stated that tha deSlaltlona and soopa of what
constitute altlcen and raaldeat dopead upoa ths lndlvldual and
sepratb statutesj that la, the meanings of these words must
ba lsoertalned not Srom a general deSlaltloa usually glvaa them
but rather from tha latent, purpose and l&a the Leglalature
bad In rind ln enaotlag eaoh partloular lav. This expression
oS the Supreme Court has been followed by subsequent deolsloas.
Bafora attempting to lso er ta la
what the Legislature
want by the olauae “a bona Side resldeat of this State for a
ppiod of time exceed-g six months , continuously and lpnaedlate-
1y before applying for a hunting lloenae” as used In Artlole 920,
supra, Ye deea It Important to noie that often the words ‘real-
dent” and ‘81t1aea” and “residenob” and “domlolle” are used In
0~ statutes interchangeably aad hava been lometlasa oonatrued
to have lubatantlally the same meaning. Dodd v. Dodd, 15 S.W.
(26) 6861 Browa v. Boulder, 18 Tex. 433; Plttsburg Water Beater
compsny 0. Sulllvaa, 115 Tex. 417, 282 3. WI 576, Slaoe the
Lsglrlature does use the terms referred to lnterohangeably, it
would in our oplnlon be proper to observe the exact meaning us-
ually lttaohed to each OS those vords and thereby determine in
vhat manner the ~auae heretofore mentioned In Article 920 was
lntcnded to be uaed.
The court la the oaae of Peoos R. Co, v. Thpmpson,
106 Tex. 460, 167 9. If. 801, very ably dlatingulahed between
residence aad domlolle by the Sollovlng languages
“lResldeaoe* meana living in a partlaular lo-
cality, but ~domlolle~ mesas living in that looal-
lty vith the Intent to make It a fixed and permanent
home. Resld8aoe Sia!ply reau3.re.a bodily presence as
an Inhabitant in a given place, while domlolle re-
aulrea bodily presence la that place and also aa in-
teatloa to make It ones dgmlolle.”
A Person therefore may be a resident of oae plaoe and have bla
doUclle In another plaoe. A parson la usually ooasldersd to
ba 9 oltlsen of the plaoe of his domlolle.
It 18 our oplalon thAt the Laglelaturo ueed the leag-
eege under dleoueeloa la the eezwe th a t l pereoa must hete oe-
tebllehed In thle Stat8 l daiolle fo r a period o f tla t exoeed-
m Ed moatbe ooatlauouel~ rod Lanedletrly b efo l rpplying
e for
, batlag lloeaer to br ooaeldered 8 oltlrra of thle State under
~8 ohapt-. He auet have reelded in Texae rlth the lateatloa
of ?rmlning and eatabllrhirrg hle h-8 for the pmeorlbed period
art-* Wehere reaohed thleooaoluelon by flret ooaelderlng
the derInItloa of a non-reeldeat under Artlole 920. A a~-:;eI-
&at la Slret deeorlbed l e a oltlcea of enother etate.
,,ldent th8t vhea the LegIelatWr u8ed “~ltleea” In thlr SOD-
teeee, It meant A pereoa vho had hle domiolle la eaother etate,
?w l ptreoa oeaaot be a oltlztn o? laothtr ltett lad et the
,e~ time be a oltieea of Ttxae. Thle Artlolt further dteorlbte
, eon-rteldtat a8 l pereoa vho he8 not beta l bona fide rteldtat
of thle Stats for a period of time trottdlog llx moathe ooatin-
uo~ely and lmmedlately before applying for l huatIag llotaee.
me ye hevt prtvlouely etattd, e reeldtat 18 l ptreoa who 18
bodily present at e otrtala looetloa. I? the Leglelaturt did
tot deem the ltateaoe wader dleoueeIoa to man more then thle,
it vould not hevt used the word8 “boae fldt.” That term would
be l urplueege, and ln oonetrulag a etatutt euoh ea lattrprete-
t;on ehould be erolded l? possible. In feot, It lpptere quite
evident the Ltgleleturt hed romething more ln mind then merely
tht eotuel ~rtetaoe of a pereoa a8 ehova by the addltloael term
‘bone fide, end vt believe they meant b7 l boaa Side rteldent
e peraoa vho bed tetebllehed a domlollt. Thue under our Iattr-
prttetlm, l non-resident le a oltleta of laother lta ttor a per-
eon who bee not tetabllehtd hle domlolle ln Ttxee for a period
of tint o? more than lIx moathe continuously aad lmmedlettly be-
fore lpplylng for b hunting lloeaet. In other worde, a ptreoa
wet have had hle donlolle la Ttxae for the required period of
time or he 18 olaeeed a8 a “non-reeldeat’ b7 the ltatutte.
Thle coaetructloa llkevlet harmoaleee vlth other por-
tlone of Artlole 920. A oltlcta of a Stete 18 ueuelly oae vho
her a domlollt ia the State. Thus vhen thI8 Artlole definer a
altlzta 88 any pereoa, exoept an ellen, rho bee beta a bona fide
rrrldtat of thle State for a period of time txotedlng llx monthe
eolrtlauouely and ixueedlattl~ before lpplylag for a lloeaet, It
me merely txttadlag the gtaerel rtquleltte of l oltlrta by rt-
Wring the tetablle~tat of luoh domlollt for more then eix
monthe, Ueuell~ It 18 o? no onnstqutnot hov lhort the retldtnoe
W beve beta to teteblIeh l domlollt, for It 18 the faot of the
goaoreblo P. U. Mater, pegt 7
P,g;&nOt ooupled vlth the lattmtloa thet tetabllehee the doml-
rile* Bovtvtr, to quelI?J under the Gem Statutes am a oititea
er ~elbea~: huatrr, one Is roqulrod to reeldt la Texas vlth
the Intentloo of aeklng him home la this State for more than
rix mohtheI We are of the oplaloa there Is a reason fop requir-
l,,g this extra time before oat Is ooneldtred a oItlcta under
ok aeee Statutes in that May out-of-etato hunters might eater
tbig state during the huntlag etaeoa, dtolmo that they lattad-
rd to eetablleh l domlolle ln Texas , obtain a reeldtat huatlw
littame, do their huatlng and then return to their roepeotlre
d&UiOileS ia other etatee. TO prtvtat Such preotice, the Leg-
~eleturt lav fit to require a person to tetablleh him doaloile
for more than tb months to oomt ultbln the purrlev of being a
oltlztn end securing a resident huntlag llceaet. Such Is, vt
bel;tvt, to be the intent and purpose of the statute toaeldertd.
After a person bee tetablIehed a domIollt, It Is not
~toteeery that he lotuelly continue to be 8 resident to keep
him domicile. It ham been maid thtt t 9treoa for most pur-
pores can htvt but one domIollt, but oaa hare several pleaser
or rteldtace. In other vorde, ester a domlollt her once been
ecqulrtd so long em the Iatitatloa to keep it be ooaeteat, a
ptrroa mey be 8 rteidtat of another rtate yet melatela him or;-
gins1 domIoIlt. See 15 Ttx. Jur., pager 708 to 711. Thus,
under the Game Stetutte, after a pereoa her ooatlauouely end
immtdlnttly lived ln Texas for over elx months vlth the latea-
tiou et all timer of meking this State him domfolle, he bee te-
tebllehtd hImeel? a s l Oltleta of Ttxee lad vould be entitled
to ltouro 8 reeldtat hunting lloeaee. After a pereoa her ee-
tebllehtd much l doeilclle, It Is not aecteeery for him to maln-
tela it by ooatinulng to be a reeldent of Texas. Et mey movt
lnto eaothtr state tnU become a resident of that state but so
long em he dote aot abandon him latentloa to rotala him domlollt
In Ttxee, but to return to Texas when the oooaelon for him ttm-
porery lbeeace ?ros Texas no lo ng e lxlete,
r he romeins a oltl-
Lea of Texas add under Artlole 920 18 entitled to hunt la thle
State ulth a resident hunting llctaee.
Whether a person vho her oaot tetabllehed him domlcllt
In Ttxe8 for more than mix months ham lost him statue am a olti-
Len of TexAe by moving to tiothor state cad rteWaIng them for
ptrlod of time 18 l question of Sect to be dettreiiaed
l
J
la
the Sect8 end olroumetaaore aonaeottd vlth him removal,
?rom
goaorebh 0. Y. Minter, page 8
vblch this depertmeat hem for meay pera l ttad?aetl~ r@?ugtd to
pee upon OF dtolJe. HOVev8r~ (It believe vbet ham beaa eeld
gboV0 ~111 oaeble you to detemlar the question lubmltttd lo-
oordin(r to tbr faote In the pertlouler oaeo vhleh paire oocegloa
for Jo* Wu*J*
Aeelrtant
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