Case Information
*1 The Attormy General of Texas Nsvember 14. 1984 JIM MAlTOX
Attorney General opinion No. ~~-231 Honorable Ray Parabee
Supreme Couti Bullding Chairman P. 0. Box 12549 Re: Whether an employee resident State Affairs Comml’ttee *usm. TX. 78711.2549 of a state school is a legal 512l4752501 Texas State Senate Telex 910/87C13S7 resident the surrounding P. 0. Box 12068. Calpitol Station T&copier 512i4750266 independent school district Austin, Texas 78711 Dear Senator Farabee: 714 Jackson. Suite 700 Dallas. TX. 75M2.4M6 214174269U You have informed us that an employee residing on the campus of a school seeks election to the board of trustees of the indepen-
state 4824 Albwla Ave.. Suite 160 El Paso. TX. 799052793 [91515333464] dent school district school administered by tt,e Texas Youth Commission pursuant to chapter 61 of Is a star:e correctional in which the state school facility for delinquent located. The state children
the Ruman Resource19 Code. The state school is not an independent school district having geographical boundaries; it is a state-created .dol Terra suits 700 and state-administered facility having no elected board of trustees. “ourton. TX. 77002.3111 All employee residents of the state school are employees of the state 7lY22MSS9 of Texas. Tbe geographical the independent school district completely enclose the state school. The employee 606 Broadway. Suite 312 question has resided on the campus of the state school for more than Lubbock. TX. 79401.2479 six months, has voted in previous independent school district SW747.5239 district, elections, s sc~~ol;as children attending the independent school 4309 N. Tenth. Suite B McAllm. TX. 7S501.1SS5 You ask us the following questions: 512,SS2-4547
1. Uader the facts as outlined above, does the 200 Main Plaza, Suits 400 San Antonio, TX. 762052797 [51212254191] applicant Election Code for a ‘district the resld’ency requirements of article for a place on the district or political 1.05 of the ballot meet sub-
division, ’ so that he may appear one the ballot as a candidate for the board of trustees the inaependznt school district?
2. If the applicant does not satisfy requirements of article 1.05 of the Election Code, is he still qualified to vote in the elections independent school district pursuant article KC, section 2 of the Texas Constitution? 3. If the applicant is not permitted to be a candidat? or to vote in the school n. 1036 *2 Honorable Ray Farebee - Page Z! (JU-231)
district elections by virtue of his status as a state employee reaidtng on the campus of a state this. prohibition constitute a facility, does denial of equal Ilrotection or a deprivation liberty under thd! Fourteenth Amendment of the United States Constitution?
We conclude, first, that the state employee applicant does meet the requirement of ar!:icle 1.05 of the Election Code, and that his name may appear on the b,LLlot as a candidate for a position on the board of trustees school district. A state employee cannot conclusively be presumed to be a nonresident of a political subdivision by vj,rtue of his status as a state employee residing in a state enclave. 1.05, V.T.C.S.. of the Election Code provides in part as
Article follows: 1. No person sball be eligible to
Subdivision be a candidate for, or to be elected or appointed to, any public trlective office this state unless he is a citizen the United States eligible holsd such office under Constitution and laws of this state . . . and unless he will hav’e resided in this state for a neriod of 12 monthe next nrecedlnn the annlicable ** iate specified below, and for an; p ublic office which is less than statewide, shall have resided for six months ntgt preceding such date in the district, county, precinct, municipality. or other political subdivision for which the office is to be filled. (EmphasK added).
The residency requirement for any candidate for any public elective office in Texas is 12 months in the state preceding the last day his name may be placed on the ballot and 6 months in the state preceding such date In the distrkt or political subdivision.
Court of Civil Appeals has held that a school district was a “district or political subdivision” within the meaning of article 1.05 of the Election Code. See Brown v. Patterson, 609’S.W.2d 287 (Tex. Clv. App.
- Dallas 1980, T writ). ?ou indicate that the applicant, as an employee ot the state, has c#l?sided on the campus of the state school for more than six months.
What constitutes “reslinsnce” is defined in article 5.08.(a) the Election Code: “domicj.le; i.e., one’s home and fixed place of habitation to which he intends toxurn after any temporary absence.” The Election Code does not: define “residence” for the purpose of running for public office, but the term has been construed to mean the same for the purposes of voting as for the purposes of running for political office. Cf. Prince v. Inman. 280 S.W.2d 779 (Tex. Civ. App. ---
c *3 (JM-231) Ronorable Ray Farsbee - PaSe 3 For the purpose of voting, article
- Beaumont 1955, no vrit).
5.08.(i) states that
[t]he residence of one who is an officer or employee of the g;overnment of this state or of the United States shall be construed to be vhere his . . . unless he has become a bona home was before fide resident of the place where he is government servic:fr. . . .
Determining the question of residency is a question intent and It ,Ls not within the authority of this office factual circumstances.
nor within the discretion of the official receiving the application See Parker v. Brown. 425 S.W.2d determine those factual qnastions.
379, 381 (Tex. Civ. App. - Tyler 1968, writ) (question of residence is to be judicially determined); see also Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1'364) (residence Is determined by factual circumstances).
In any event, article 5.08 when read with article 1.05 cannot operate to disenfranchise: a state employee who lives within geographical school district merely because his place of resid'ence located on a public enclave.
right to vote and to run for a political office are basic fundamental rights guaranteed by tha First Amendment to the United States Dunn V. Blumstein, 405 U.S. 330 (1972); Evans v. Constitution.
Cornman. 398 U.S. 419 (1975); ,ington v. Rash, 380 U.S. 89 (1965).
Any statutory provisions which restrict the right to hold public office should be construei. strictly against ineligibility. See Chapa v. Whittle, 536 S.W.2d 681, 683 (Tex. Civ. App. - Corpus Christi 1976 no writ).
The factual situation as presented is governed by the principles of Carrington v. Rash, supta, and Evans v. Co-n, supra. In Carrington, the United Swtes Supreme Court held that article VI.
section 2 the Texas Constitution was violative the equal protection clause of the Fourteenth Amendment because the provision established a conclusive presumption against servicemen from acquiring residency for voting purposes. However, the Court did conclude that "Texas ha[d] a right to require that all military personnel enrolled to vote be bona fide resitients of the community." 380 U.S. at 93-94.
At that time the state of Texas provided no means by which a soldier could establish a bona fide residency in the county where he was stationed.
Similarly, in Evans '5 Cornman. 398 U.S. 419 (1970). the United States Supreme Court considered the issue of whether persons living on a federal enclave could acquire for voting purposes. In m. &. the Permanent Board of Registry of Montgomery County. Maryland, ruled that perwns living on the grounds of the National Institutes of Health [hereinafter NIH]. a federal enclave located *4 Honorable Ray Parabee - Page s!, (Jn-231)
withla the geographical the state, did not meet the residency requirement of the! Maryland Constitution. Accordingly, NIA residents were denied the right to vote In Maryland elections. down the provision of the Maryland Constitution as
Court in striking violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution, held that the state could assert no overriding interest to restrict the right to NIH enclave residents; and, that NIB residents wer I! residents of Maryland and were “just as interested in and connected with electorial decisions . . . as [are] their neighbors who lived off the enclave.” Id. at 426. -
We conclude that Carrington and Evans prohibit election officials from applying article 1.05 x circumscribe the right of a state employee to acquire residency to run for public office by virtue of the fact that he resides OIL a state enclave, particularly, as here, when the state enclave l.c~cated within the geographical boundaries ,of the political subdivision in which he seeks office. The purpose of article 1.05 is to provide better representation by assuring that the voter will be better acquainted with the qualifications and views of the candidate and the candidate will be acquainted vith and responsive to the needs and desires of the voter. See Brown v. Patterson, supra.
By construing article 1.05 jn favor of theresidency of the applicant, the statutory purpose ~111 rot be frustrated.
Since your second and third questions are ~predicated on a negative answer to your firt,t question, it ia not necessary to address them.
SUMMARY Article 1.05 o:i the Election Code does not bar a state employe,? from establishing within an indepentlent school district by virtue of fact that he resides on a state facility located within the: geographic boundaries of the school district. The applicant, having met the res,idency requirement may obtain a place on the ballot: for the position of trustee of the independent school district. I Very truly y J
L JIM MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General
p. 1039 *5 (JM-231)
Eonorable Ray Parabee - Pagr 5
DAVID R. RICBABDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood