Untitled Texas Attorney General Opinion ( 1942 )

OFFIGE OF TRE ATTORNEY GENERAL OF TEXAS
AllSTIR
Gerald C. M6nn
Attorney General
Honorable E. L. Shelton
County Auditor
$dhnson County
ClebuBe , Texas
Deas 61r: opinion NO. o-M52
Re: Elections - voters - residence
Your request for opln?Zonhas been receivgd and c&z-
fully consideredby thls depmtment: We quote from your req3eert
as follows:
"C6n a per.sonwho has lived In one County all his
lX?e 6t-dhas property in IiQateountg and in AprU 1941
moved out of the county and stayed until Februssg 19,
1942, yet paid his tsxes lnb1udlnghis poll tax in that
county vote in the Julp primary?
"TO_-
illustrate: -.
"A man left Johnson County in April 1941 and moved
to Travis County, but paid his taxes a8 above indicated,
in JohnsoiiCounty including his poll tax, and returned
to his home In Johnson County Febriiary19, 1942, ~111 he
be allowed to vote 'inthe July primary?"
As we view your question under the @tots related you
desire to know whZitheror not the party inquired about meets the
residence requirementsof the CiMstitutionend--statutes in order
to be a qualified voter'-inthe July, 1942, primary in Johnson
County, Texas. We assume and understandfrom your letter that
the party duly and properly pald.his poll tax in Johnson C6Untg
to vote at said eleatlon.
our state Constitution, Article 6, Seation 2, provides
in part as follows:
"Every person subjeat to bone of the foregoing dis-
quallflcatlons,who ehall have attained the age of.21
. ”
Honorable E. L. Shelton, page 2' ;$-'~
years and who shall be a cititen of the United States
and who shall have resided in this state--oneyear next
preaeding the election and the last six months within
the district or county in which such psrson offers to
vote, ahaL1 be deemed 6 qualified elector. . .I'
Article 2955, Vernon's Annotated Civil Statutes, con-
tains the exact wording ae set out above in the Constitution.
ArtTcle 2958, Vernon's Annot6ted Civil Statutes,--de-
fines the term "residence"as 6ppIlc6bleto voting requirements
and provides in part as follows: -.
"The 'residence1of a Single mXCn1s where he usually
sleeps at night; that of-'6msrrled men is where*his wife
resides, or If he be permanentlysepar&ed from his wife,
his residence is where he sleeps Xt night; povided that
the realdiSnceof oiiewho is an Inmate or officer of a pub-
110 asyNm or eleemosynsryinstrtute,or who is embloyed
as 8 clerk in one of the depsrtmentsof the government at
the capitol of this State, or who Is 8 student of bicol- ..
lege or universlCy,unleas such officer, clerk, inmate or
student has become a-bona fide resident oltlzen in the
county where he is employed,-'oris such student, ‘shallbe
cofistruedto be where his hcme-trasbefore he became such
itiate or ofTicer in such eleemosynargln%ltution or asg-
lum or was empZoyed as such clerk or becams such student;
. . . -. -.
The term "resl&ent",like "cltlzen" -iXnd"domicile",la
not sXways capable of precise definition,but may in different
circumstancesbe used in different senses.
The following rule is set out in 19 Corpus Juris 407,
Sea. 19, concerningthe effect of 6bsence on one’8 home or domi-
cile: _- _a
r-
"If a person leaves his home or domicile for 6 tem-
porsry purpose with an intention to return, there Is no
change of domioile."
This rule Is further substantiatedby the a6se of"
Sabriego,et ux, v.-Whlte, 30 Tex. 585, in which the court msde
the following statement: _.
"The original domicile is not changed even by a long
absence If there 1s any Intention of returning."
Honorable E. L. Shelton, page 3
We quote from conference opinion No. 2977, dated Janu-
ary 10, 1936, Attorney Genera&Reports 1934-1936, p. 11, direoted
to Dr. H. Y. Benedict, as follows: -.
"What is the residence status, under the terms of the
statiitereferred to,(tuytion fee statute) of students who
are mYnor children of American citizens who live In Mexico
or some other foreign country? May thoae students be clas-
sified 6s reStdentS of the foreign country In whleh their
parents are living or should these studentsbe claaslfied
88 residents of the speolfic stat& In whloh the pesents had .
legal residence at the tlme~theymoved to the foreign coun-
try? Does the length of time the pasent has lived in the
foreign country have any bearing on the student'sresidence
classification? --
"The residence status underthe terms of the statute
referred to of students who are mT,nor children of American
citizens who live in MexTco or aome other foreign country
is a fact question determinedlargely by the Intention of
the father of the children. The fact that they -Xrellvlng
In Mexico, in our opinion, would not prevent them from be-
ing classified as residents of Texas if when they moved to
Mexico their intention was to return and they Zid not eban-
don their intention after the move. The determinationof
this question is largely a matter of feet governed by the -_
intention of the father of the children. The length of time
the parent haa lived in the foreign country does not have
any beesing on the student'sresidence quiXllficatlons."
You do not state In your letter whether the pai%y's
rqsideiiaeor stay In Travis County w&s intended to be temporary
.orpermanent and whether the party.intendedto return to John-
son County. However, your letter dlaoloses that such stay in
Travis Count was temporary and that said party did return to
Johnson Coun%y, Texas. _-
-If said party Intended his removsl to Travis County
merely temporary and Intended to rettin t'oJohnson County, it
is our opinion that he wea et all,t&es m6Xerlel hereto a legal
resident of Johnson County and assuming him to be a qus3lfied
voter in all otiierrespects he would be entitled to vote In the
July, 1942, primary. __
If on the other hand he moved to Travis County with
the intention of est6bliahlng a bona flde residence there with
Honorable E. L. Shelton, page 4
no Intention of returning to Johnson County he would not be en-
titled to vote in the July, 1942, primary in Johnson County, be-
caus5 he would not have been a resident of JofinsonCounty, Texas,
six months next preceding the July, 1942, primary election.
The question will be governed to a large extent by the
Intentionof the psrty. This question often arises with em-
pXoyees of the State residing in Austin. Many of these State
~employeeshave become bona fide reXdents of Austin, paying their
poll taxes there, Intending to remain, and therefore vote in :
Austin. Others, although renting quarters In Austin, Travis GOLD-
ty, are in truth and In fact residents of other counties in Texsa,
intendingto return there, and evidence such intentionsby paying
their poll taxes in such counties and in other ways, snd vote in
the counties of their legal residence.
We also enclose a copy of-opinionX0. O-3313 of this
departmentpassing on a question somewhat similar.
Very truly yours
ATTORNEY CjENEFMLOF !PEXAS
/a/ Wm. J. Fanning
__
BY
Wm. J. Fanning
Assistant
WJF:GG:fb
Enclosllre
APF'ROVED
APR. 23, 1942
/s/ Zollie C. Steakley (Acting)
ATTORNEYGEl'IERAtOFTEXAS
Approved, Opinfon Committee
By:BWB, Chairman