Mills v. Bartlett , 1964 Tex. App. LEXIS 1957 ( 1964 )

SELLERS, Justice.

This suit is brought by J. Alton Mills in the District Court of Van Zandt County, Texas, against the Democratic Executive Committee of Van Zandt County, its chairman, L. F. Sanders, each individual member thereof, and Robert Franklin Bartlett, praying for a restraining order to restrain the Executive Committee from placing the name of appellee, Robert Franklin Bartlett, on the Democratic ballot as a candidate for County Attorney and/or Criminal District Attorney for Van Zandt County, Texas, to be held on May 2, 1964, for the alleged reason that Robert Franklin Bartlett could not meet the residence requirements of Article 1.05 of the Election Code, as amended by Acts 1963 of the 58th Legislature, page 1017, Chapter 424, V.A.T.S., for candidates for public office at the Democratic Primary, May 2, 1964. From an order denying the injunctive relief, appellant appealed.

The provisions of Article 1.05 of the Election Code provide that, before a candidate can have his name placed upon the official ballot for the office of County Attorney and/or Criminal District Attorney of Van Zandt County, the candidate must have resided in Van Zandt County for at least six months preceding the date of the primary election.

Appellant J. Alton Mills and Appellee Robert Franklin Bartlett are both candidates for the office of County or District Attorney of Van Zandt County in the Democratic Primary election to he held on May 2, 1964.

The only witness to testify in the hearing in the trial court was the Appellee, Robert Franklin Bartlett. By agreement of the parties, however, his testimony was corroborated by the County Attorney of that county, who is one Mr. Grisham and who is now the present County Attorney. Upon trial before the court, without a jury, the application for the injunction was denied, and the appellant has duly prosecuted his appeal to this court.

The majority of this court is of the opinion that there are facts in the record which authorize and support the trial court’s findings that Robert Franklin Bartlett was a resident of Van Zandt County from October, 1963, and for that reason was entitled to have his name placed upon the official ballot.

Bartlett, as the undisputed facts show, for several years has been a student at Baylor University, his parents residing in Marshall, Texas. Bartlett obtained his college degree in November, 1963, took the bar examination, and passed the same. He is now 27 years of age, single, and is at the present time Assistant County Attorney of Van Zandt County.

Under the present election code, in order for Bartlett to be a candidate for the office of County Attorney of Van Zandt County, he must have resided there for six months prior to the primary election in 1964. It is the contention of J. Alton Mills, the appellant in this court, that Bartlett could not qualify because he did not become a resident of Van Zandt County until some time around the 16th of December. In other words, there is a month or six weeks lacking in the residential requirement according to the appellant. With this, the court does hot agree.

Under Article S.08 of the Election Code, a student in a university does not acquire legal residence there unless he does something other than attend that particular college; therefore, it is not contended here that Bartlett was a resident of Waco where he attended college. While in college, and after he had taken the bar examination and was in the process of securing his degree from Baylor University, and after learning that there was a vacancy for an Assistant County Attorney in Van Zandt County, Bartlett went to Van Zandt County in person and contacted the County Attorney and before leaving Van Zandt County made a trade with the County Attorney to become Assistant County Attorney of that county and joined with him in the private practice of law immediately upon receiving his license. At this same time, and while in Van Zandt County, he discussed with the County Attorney the need to make Van Zandt County his residence on that date in order that he might qualify for a position on the ballot for the office of County Attorney in 1964, because Mr. Grisham had told him that, in view of his health, he would not be a candidate. This took place in October, 1963, in ample time for him to have six months residence in that county. He expressed his intention at that time of making Van Zandt County his residence from that very date.

This expressed intention, together with the act of coming to Van Zandt County and entering into a contract to work there and commence his career in the practice of law, intending to return only temporarily to. Waco to finish his college course, constitutes, some evidence of probative force upon the question of whether he established his residence in Van Zandt County. Since intent and actual presence in a county is all that is required to establish one’s residence, the court thinks the facts in this case are ample to support the trial court’s judgment.

Certainly it is stronger than the facts in the case of Linger v. Balfour, Tex.Civ.App., 149 S.W. 795, wherein the court held that an unmarried university student during a vacation went to a particular town and declared his intention of becoming a resident thereof, and went from the university to that place to vote, sufficiently shows that he resided therein.

In Corpus Juris Secundum, Vol. 77, Residence, p. 297, we find this holding:

“While bodily presence is regarded as one of the elements of residence, the length of the period of bodily presence, however short, is of no consequence, provided the concurring intent is established by other evidence, for the question of residence, in its legal signification, is not necessarily dependent on the length of time spent in a particular place, for any time, however short, when coupled with an intent, will be sufficient. When the necessary intent is not established by other evidence, then the period of bodily presence may become an important factor in determining whether the requisite intent does or does not exist.”

The term “residence” is an elastic one, and difficult of precise definition. The sense in which it should be used is controlled by reference to the object. Its meaning is dependent upon the circumstances then surrounding the person, upon the character of the work to be performed, upon whether he has a family or a home in another place, and largely upon his present intention. Owens v. Stovall, Tex.Civ.App., 64 S.W.2d 360.

The testimony of a witness as to his intention is, of course, not necessarily controlling. It is, however, an element which may be considered by the authority authorized to determine fact issues — the jury or the trial judge. McBride v. Cantu, Tex.Civ. App., 143 S.W.2d 126.

When we view the evidence on appeal from judgment in a case tried without a jury, the Court of Civil Appeals must view evidence in the light most favorable to the trial court’s findings and sustain them if there is evidence of probative force, reasonably tending to support them in record. Bray v. Peden, Tex.Civ.App., 213 S.W.2d 469. If the evidence is sufficient, and we believe that it is, to raise a fact issue, on whether Bartlett established his residence in Van Zandt County in October, then his temporary absence from the district would not disqualify him if his intention was to return. Jordan v. Overstreet, Tex.Civ.App., 352 S.W.2d 296. In the case of McBeth v. Streib, Tex.Civ.App., 96 S.W.2d 992, the following principles of law are announced:

“In any event, it is well settled, we think, that the question of one’s residence in this state is distinctly one of intention and of fact. * * *

“The presumption, of course, obtains here, as generally in this state, that every man has the right and privilege of fixing his residence according to his own desires. This applies to single men as well as married men, though it is a matter of common knowledge that single men do change their places of residence more frequently than married men. That fact, however, does not change or take away their definite legal rights, if, as, and when they comply with the law and acquire same under a change of residence or otherwise.”

Under the above and foregoing authorities, it is the opinion of the court that the trial court’s judgment should be affirmed.

On account of the emergency, due to the near approach of the time for printing the ballots for the May primary, the parties hereto will be denied the right to file a motion for rehearing.