Case Information

*1 OFFIGE OF TRE ATTORNEY GENERAL OF TEXAS AllSTIR Gerald C. M6nn

Attorney General

Honorable E. L. Shelton

County Auditor $dhnson County

ClebuBe , Texas NO. o-M52

Deas 61r: opinion Re: Elections - voters - residence Your request for opln?Zon has been receivgd and c&z- fully considered by thls depmtment: We quote from your req3eert as follows:

"C6n a per.son who has lived In one County all his lX?e 6t-d has property in IiQat eountg and in AprU 1941 moved out of the county and stayed until Februssg 19, 1942, yet paid his tsxes lnb1udlng his poll tax in that county vote 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 Johnsoii County including his poll tax, and returned to his home In Johnson County Febriiary 19, 1942, ~111 he be allowed to vote 'in the July primary?" As we view your question under the @tots related you desire to know whZither or not the party inquired about meets the residence requirements of the CiMstitution end--statutes in order to be a qualified voter'-in the July, 1942, primary in Johnson County, Texas. We assume and understand from your letter that the party duly and properly pald.his poll tax in Johnson C6Untg to vote at said eleatlon. Seation 2, provides our state Constitution, Article

in part as follows: "Every person subjeat to bone of the foregoing dis- quallflcatlons, who ehall have attained the age of. 21 *2 ” 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--one year 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 Vernon's Annot6ted Civil Statutes,--de- fines the term "residence" as 6ppIlc6ble to voting requirements and provides in part as follows: -.

"The 'residence1 of a Single mXCn 1s where he usually sleeps at night; that of-'6 msrrled men is where* his wife resides, or If he be permanently separ&ed from his wife, his residence is where he sleeps Xt night; povided that the realdiSnce of oiie who is an Inmate or officer of a pub- 110 asyNm or eleemosynsry instrtute, or who is embloyed as 8 clerk in one of the depsrtments of the government at the capitol of this State, or who Is 8 student of bi col- . . lege or universlCy, unleas such officer, clerk, inmate or student has become a-bona fide resident oltlzen the county where he is employed,-'or is such student, ‘shall be cofistrued to be where his hcme-tras before he became such itiate or ofTicer in such eleemosynarg ln%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 circumstances be used in different senses.

The following rule is set out in 19 Corpus Juris 407, Sea. 19, concerning the 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 substantiated by 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." *3 Honorable E. L. Shelton, page 3

We quote from conference opinion No. 2977, dated Janu- ary 10, 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 statiite referred 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 students be claaslfied 88 residents of the speolfic stat& In whloh the pesents had . legal residence at the tlme~they moved to the foreign coun- try? Does the length of time the pasent has lived in the foreign country have any bearing on the student's residence 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 determined largely by the Intention of the father of the children. The fact that they -Xre llvlng 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 determination of 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's residence quiXllficatlons."

You do not state In your letter whether the pai%y's rqsideiiae or stay In Travis County w&s intended to be temporary .or permanent and whether the party.intended to 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'o Johnson 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 otiier respects 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 *4 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 Jofinson County, Texas, six months next preceding the July, 1942, primary election.

The question will be governed to a large extent by the Intention of the psrty. This question often arises with em- pXoyees of the State residing in Austin. Many of these State ~employees have 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, intending to return there, and evidence such intentions by paying their poll taxes in such counties and other ways, snd vote in the counties of their legal residence.

We also enclose a copy of-opinion X0. O-3313 of this department passing on a question somewhat similar.

Very truly yours ATTORNEY CjENEFML OF !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