The general rule is that the domicile of the husband is the domicile of the wife. In Speer's law of Marital Rights, page 25, the rule is stated as follows: "Oee. It is the general rule that the domicil of the husband is the domicil of the wife. Her domicil is drawn to and follows his, and he has the right to select it; and when selected by him it is her duty to follow, and her refusal without sufficient excuse amounts to desertion. This power of the husband to select the domicil is not, however, an arbitrary one, but due regard is to be had to the wife's health, comfort, reputation, etc. The fact, that the wife may be absent from the home due to her confinement in an income asylum will not affect the husband's power during such confinement to change the family residence. A change of domicil under such circumstances, if done in good faith, will undoubtedly be binding upon all parties."

The words "domicile" and "residence" are many times used synonymously, and many times as meaning a different status. It is difficult to always ascertain what was the legislative intent in passing statutes where the question of residence and/or domicile is involved.

Section 4(7) of House 2111 611, passed by the Legislature in 1941, provides specifically that all employees of the Department of Public Welfare shall have been residents of the State of Texas for a period of at least four years next preceding their appointment.

In Schwartz v. West, 84 S. W. 252, the court had before it the question of where the residence was of a wife who

*3 Honnorable John H. Winters - rage 3 had been confined in a state institution for a long number of years. The record in said case reveals that when she was adjudged of unsound wind and committed to the institution, she and her husband were residents of and living in Bosque County where they owned their home. After she was committed to the institution the husband sold the home in Bosque County and moved to Hamil ton County, where he died. In administering the estate of the insane wife the question of her residence was primarily involved. In its opinion the court held that the husband had the right to change the donielle and residence of his insane wife, and held that the wife's residence was changed, as a matter of law, from Bosque to Hamil ton County, and in so holding, used the following language:

Peee. We are of the opinion that the county court of Hamil ton county had jurisdiction over the person and estate of Wrs. Luedthke, although she at the time was an adjudged lunatic, confined in the asylum at San Antonio. It appears from the facts that at the time she was adjudged a lunatic she and her husband resided in Bosque County, but he afterwards removed to Hamil ton County, where the land in controversy is situated. In the absence of separation, the residence of the husband in the residence of the wife, and we think that the more fact that Mrs. Luedthke was confined in the asylum at San Antonio did not make that county her place of residence. ^[2]

In our Opinion So. 0-5074, a copy of which you have, you submitted to us several hypothetical state of facts, and ask for our opinion as to whether the parties would be eligible for employment in your department in virtue of this four-year limitation statute. Questions 5 and 6 in said opinion read as follows: "5. Could the Public Valfaro Department consider that a miner, whose parents are legal residents of the state of Texas, bas fulfilled the residence requirement when the miner has been absent from the state continuously attending school or working for the four year period with only infrequent visits with her parents, residence being claimed solely on the basis that she acquired the residence of her parents.

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Bonorahle John H. Winters - page 4 "6. If the winor had never aetualy lived in this state with her parents prior to going to achool or aceopting employment outside the state, would this rake any difference in the decision?*

In holding that the winor deooribed in said two quos. tione vas a roxident of Texas, within the contemplation of the atatute involved, we used the following languager "Ve restate the faste involved in your fifth question. A minor wheae peronte aro legal reaidonte of Texas, olaine reaidente in Texes aniely on the hasis that she aequired the reaidence of her parents. This minor has been abeent from the state continumaly atianding achool or working for the four year period with only infrequent visits with her paronts. Generally a pergon who is under the power and authority of another poseoases no right to choose a donieile. Thus the donieile of a minor child is always that of the father, and nooseasarily changes with any ohange of the father's domiolle. Cases cited 15 Tex. Juris. p. 718. (R.C.I. p. 847 810). And a atudent who goes to a univoralty, achool or colloge 18 deomed to have retained his former donieile uniege he showa an intontion to make a change to the place in which the institution 10 loeated. See 9 R.C.I.p.582,815. In view of the foregoing we aro of the opinion that the minor in question has fulfilled the residaneo requirements. 2ith reference to your last question, it is our opinion that as a minor's domieile is that of the father's a minor has oomplied with the reaidente statuto, supra, though the minor has nover actually lived with the parents in Texes before going to achool or working outaide the state, if the parents have been donieiled in this state for four years next preceding tho aprointment."

It is our opinion that the same rule as we applied to tho minor in question should he and would he applied to tho narried woman about whom you inquire. Fince the hushand's reaidence

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Honorable John H. Winters page 8

becomea the rosidonce of the wifn; as was definitely held in the case of sohwarta v. Yeat. supra, and since tho husband has heen a rosident of Texas for more than four years aince his marriage, his wifo has also beon a rosident for the same length of time. In our opinion she is therefore eligible for employment in your departmont.

Very truly yours

UYB-NR