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JORN ETEN sElcPPP~lKlD ~X-ro~m-scX

.a=NncYAI* June 28, 1956

Hon. TomReavley Opinion No. S-207 secretary of state Capitol Station RI: Voting rights 

### of wives 

### of Austin, Texas persons in military service.
Dear Mr. 

### Reavley:

You state in your request 

### for an opinion that since the,adoption of the constitutional amendment

### of November 2, 1954, amending 

### Section6 1and 2

### of Article VI of the Consti-” tution, many

### members of the armed forces desiring to exerciee their right to vote by absentee ballot have requested information regarding the etabue of their wiveswho are livfng with themat their present place 

### of military service. The questions presented fin your request are 

### ‘as follows:’

1. Can the wife of 

### amember of the armed forces maintaining ~legal residence in Texas acquire such legal residence byvirtue of her .“~’ : marriage, never 

### having actually been a resident 

### of this State, 

### nor of the county wherein the servfcemanmaintains hi6 legal residence? 

### 2. if the

### answer to the above question is in ‘

. 1 the negative, 

### can the wife of the memberof the armed forces whomaintains a legal residence in Texas cast her absentee ballot in the county wherein she maintained legal residence prior to her marriage (assuming 

### that she formerly resided in acounty of Texas)?
3. If the lnsw6r to question number 1is in the affirmative, then is lt correct to assume that she must have been married to the service memberfor at ._ least 12months 

### before she canvote?

4. If the

### anewer to question number 1is in the affirmative, would the wife of the memberof.the ,, armed

## forces

l cquIr6 legal residence in Texas by virtue of the marriage, even if she Were not residing with the 

### servtce memberat his place of military **duty?**, - “

.

Hon. TomReavley, Page 2 (S-207)

The amendment

### of November 2, 1954, removed the voting disqualification previously imposed onmembers of the regular military eSt6bliShmtntS and added aprovision reading as 

### follows: “Any

### member of theArmed Forces 

### of the United States or component branches thereof, or in the military service 

### of the United States, mayvote only in the county inwhich he or she resided 

### at the time of entering such service so she is 

### amember

### of the Armed Forces.” long as he or

In Attorney GSnSral’S Opinion S-148 (19%) it was stated: “The constitutional amendmentdoes not change th6 rules for determining what place is the legal residence of the voter, 

### nor does it meanthat in all circumstances a person in ihilftary service will be entitled to claim avoting residence in the county of which hewas a resident at the time he entered 66rViC6. Place of’residence is still 

### to be determined in the samewayas it has always been. Absence from the county or State for the purpose of performing military service does not of itself cause a loss of residence, but it is possible for aperson to abandon his old residence and acquire a newresidence during time of service.”
It is seen that the restriction onvoting bymilitary personnel to the county of residence at the time of entering service has no direct bearing on the answers to your questions. Its only effect, so far as these questions are concerned, is tomagnify the importance of the questions by increasing the number of instances inwhich they are relevant.

Residence 

### for voting purposes means legal residence or domitiii6, as distinguished from actual residence or actual place 

### of abode. Snyder v. Pitts,lSO Tax. 407,241 S.W.2d 136 (1951). It has also been held that the 

### place of residence of amarried womanfor voting purposes is where her husband resides. Harvtll v. Morris, 143 S.W.2d 809 (Tex.Civ.App. 1940).

According to the commonlaw rule, which prevails in Texas, the husband has the right to select the family domicile, and the family domiCil6 is th6 domicile of both the husband and the Wife. McGehee v. Boedeker, 200 S.W.2d 697 (Tex.Civ.App.Hon. Tom**RSaVlSy,** Page 3 

### (S-207)

1947); Pestle v. Postle 280 S.W.2d 

### 633 (Tex.Civ.Ap 

### 1955)**;** Stone v. PhilliD 1422 216 176~S.W.2d 932 (19&,; 

### 23 J Husbazi and WTa; 98 t,%s %*ihfs There are certain exceprule, **a6** wher& the;6 has been anabandonment or separation with the intention 

### of no longer maintaining marital relations, but it is assumed in this opinion that the husband and wife intend to continue the marriage.

With respect to a person whohas the right to select his domicil6, there must be an intention to makea certain place his permanent homecoupl6d with actual physical residence at that place 

### before it b6COmSShis domicile. Snvder v. Pitts, supra; Maor v. Lo -the domici 6 s

-+nd 155S.W.2d 617 (Tex.Civ.App.1941).

the person maythereafter have his place of abode at **a** diiferent place under certain circumstances (e.g., ‘whil6 in military SSrViCS) without lOsing this dOmicil6, but there must have b66n an actual r66idSnCS at the place of domicile before it b6COm66fix6d,intention alone not being SUffiCiSnt.

The courts of this State have held that the actual physical presence of amarried womanis not essential to the establishment of h6r domicile, which is fixed by operation of law. In Henderson v. Ford, 

### 46Tax. 627(1877), it was held that upon the marriage in Alabama of aTexas resident with a womanwhowas a resident of Alabama, with the intention to makeTexas their permanent residence, the wife immediately acquired a domicile in Texas although her husband did not return to Texas for several months and she did not cometo Texas until twoyears therSaft6r:

“By the marriage, as has been said, Mrs. Bohanon acquired adomicile in Texas. H6r temporary absence, with the consent 

### of her husband, evidently did not dSpriV6 her **of** the rights to which she.was thereby entitl6d.”
A similar holding’was made in Clements,v. Lacy, 51Tax. 150 

### (1879).

~ThSS6 voting rights. also applies to holding on this
-. cases involved homestead rights rather than The drux of your questions is whether this rule voting rights. Wehave not **found** any square point in Texas, but dictum in Harwell v. Morris, supra,~ supports the samerule. In that case awomanwho was a resident of Randall County married a,manwhohad formerl~y lived in Oldh&mCounty but whoat the time of marriage was living at Amarillo, in Potter County, ,whereh6was employed by the United States Government. The husband andwife established living quarters at Amarillo and had continuously ‘

.Hon. TomReavley, Page 4 (S-207)

lived there since the marriage. Both the husband and the wife voted at anelection in Oldham County, and their VOt6s were challenged in an election contest. At the trial the husband testified that h&had no fixed intention to return toOldham County; The Court of Civil Appeals held that neither the husband nor the wife was a resident of Oldham County at the time of-the SlSCtion, but said:

“If it had been shownthat GeneHalliburton still claimed Oldham County as his residence or that 1twas his intention to return there after his employment with the Soil Conservation Service had ceased, then neither his absence on the business of the United States nor the SStablishmSnt by himand his wife of a residence in Amarillo in the manner inwhich they did would have : forfeited their residence inOldham County. They still would have had the right to maintain their residence there if they desired to do so.”
Thus it appears that ~thewifers re.sidence for voting purposes,as well as the huebandrs, would have been in Oldham County if that had continued to be the legal residsnce of her husband, even though she was **not** a resident of that county at the time 

### of the s marriage and had not lived there since the marriage.

In other Jurisdictions which follow the commonlaw rule, it has b66n held that the wife acquires the domicile of the husband without h6r having actual1 domicile. See 

### 17Am.Jur.,Domicile, %

### 3

. tilived at the place of However, there are also decisions to the effect **that** residenC6 for voting purposes and domicile are not 8 g:Ly?;i See 

### 18Am.Jur 

### s61. In Dorsey v. Br Ill. 250, 52N:k.E:z;t@%e, it washeld that a married woman, by operation of law, .rnsyha:e a domicile in aplace.*ihere she has never been, but that she did-not become a r6SidSnt~ for Votin!3 Durnoses until shewas actually physickly present at that-piack. Also see Snyder v. Callahan. 129Atl. 41~0(N.J.Circ.Ct. 1925). In Willrerssn v. 236Ala. 104. 181So. 

### 296(1938), the court said that the %icile of the husband becomes the domicile of the wife upon marriage, but.‘.that’;if: the husband has merely a temporary abode in the county where they live, being a resident and qualified voter of another county, and the husband and wife establish

. no family residence facto & animo prior to the date of the

election, the wife.~~stil~a legal voter in her home town. But Campbell v. Ramsey, 150Kan. 

### 368, 92P.2d 819, 

### 832 (1939), held that **a** womanwhomarried and moved to Washington, D.C., where her husband was in the employ 

### of the United StatesHon. TomReavley, Page 5 (S-207)

Government (and whoapparently had lived there ever since the marriage) could not vote in the place of her residence before 

### her marriage. The court said that the legal residence of the wife was that of her husband, and his residence for the purpose of voting was the place which he regarded as his place of rSSfdSnc6 whenhe entered the service of the United States.
While the question is not free from doubt, either from the standpoint 

### of precedent or from the standpoint of the purpose of the length-of-residence requirement, weare of the opinion that under the law in Texas the domicile of thewife fixes th6 place where she mayvote, and that her physical presence is not essential to establish her right to vote there,

Your questions assume that amarried man*s legal residence maycontinue to be the sameas it was bSfOr6 marriage although his wife has never actually lived at that place. This assumption is correct, but for clarification of this point someattention should be given to Article 5.08 of Vernonrs Election Cods, which provides that the residence of amarried manis where his **Wife** resides. This statute does not mean that the place of actual abode of the wife is determinativ6 of the husbandt s rSsidSnC6. It means nomore than that the place ,SSlSCted and 6stablished~by the husband as the family domicile 1 for the wife is also his domicile. 

### In other words, the domi~- tile 6r;.lKgal: tdsidenct:;of:: the.:hu$bind. and..the:.wffe are,the same,‘and:the~~o~tro~1ing~:factor’:in:.de~6~inirig:.the:.ddmic~16 of the husband, where actual residence or claimed legal residence of the husband is at a different place, is the place hehas SSlSCted and established as the domicile for the wife. Major wh.24 809,816 (Tex.Cfv.App. 19&O), the court said:

1% S.W.2d 617 (Tex.Civ.App.1941). In Harwell v; Morris,

,I It has been the law of this State since an eariy’diy that the.place of residence of amarried womanis where her husband resides. Lacey v. Clemants, 36Tax. 661; Henderson v. Ford, 

### 46Tex. 627; Haymondv. Haymond, 

### 74Tax. 

### 14;12 S.W. 90; Russellrs Heirs v. Randolph, 11Tax.
“It has never b66n the law in Texas that th6 r6sidenCS of the husband is drawn to that of the wife

happen, for a time, to be at diffSr6nt itatfOnS.7 Th6 DUlCwas not changed by the of Art.-2958 R’C S 1925bow Article 5.08, Vernonrs Rl6ctiOn’C~d~~~‘uhiich provides that. the

### Hon. TomReavley, Page

### 6 (S-207)

residence of amarried manis where his wife resides. That act waspassed in 

### 1905, long before suffrage was extended to womenin Texas and.had reference only to the residence of the husband, 

### who, at that time, wasthe only memberof the community whowaeentitled tovote, and it was designed only to provide acriterion bywhich the husbandts residence could be definitely established in case of doubt as 

### to his--not the wifets --residence. It wasnever intended by the 

### law makers to change the long established rule that the residence of the family is established bythe will or conduct of the husband.” Also see Op. No. 1935 Report &Opinions of the Attorney General of Texas, 1916-1918, p. 

### 288. Where the absence of the husband from his fixed place of legal residence is 

### under circumstances which do**not** 

### cause aloss of residence (e.g., absence in military service), the fact that his 

### wife also has her place ofabode with himor 

### at someother place during his absence does not cause a,loss of legal S.W.2d 663 (Tex.Cfv.A p. 126 (Tex.Civ.App.1940 ; P Civ.App. 1948).

In the light of the foregoing discussion, weshall nowanswer your questions.

1. Your first question is answered in the affirmative. In the eyes of Texas law, the wife of amember of the armed forces whomaintains his legal residence (domicile) in Texas acquires the samelegal residence byvirtue of the marriage without’.her~:having actually lived in this State or in the county of her husbandts domicile; andupon fulfilling the length-of-residence requirements she could vote in this State if otherwise qualified. However, her status under Texas 

### lawwould not determine her status under the law 

### of some other stiltkz. For example, if at the time of marriage the wife was aresident of aState which recognized her right to select her domicile or voting residence, shemight still ,be considered a resident of that 

### State under its laws and entitled tovote there. Of course, if shevotes in someother State she could not also vote in Texas.

2. If at the time of marriage the wife was aresident of Texas but of a

### different county from her husband, uponmarriage she loses her former residence and she 

### cannot thereafter vote in that county. Shecan vote only in the county andvoting precinct 

### where her husband maintains his legal residence.

### Hon. TomReavley, Page 7 (S-207)



### 3. Your third question is answered in the affirmative. To be 

### aqualified elector, **a** person must have resided in Texas for oneyear. Tax. Const. Art. VI, Sec. 2. Thewife acquires a legal residence in Texas immediately upon martiage, but she cannot vote until she has held that status for one year.

4, Your fourth question 

### is answered in the 

### affimative. The servicemanss wife would acquire legal rSSidSnC6 in Texas byvirtue of the

### marriage, even though she was not aiving with the serviceman at l&isplace of military duty. In 

### the absence of anabandonment or a 

### separation with the intention of no longer maintaining marital relations, the fact that the wife wasnot living at the place where the husband was stationed would be immaterial.

Thewife of amemberof the armed forces 

### who maintains his legal residence in Texas acquires the samelegal residence byvirtue of the marriage without Herrhaving actually lived in this State. or in the county of her husbandts legal residence. 

### Upon fulfilling the length-of-residence requirements she would be entitled tovote in this State if otherwise qualified. If at the time of marriage the wife was a resi

### dent of Texas but of adifferent county than her

. husband, uponmarriage she loses her former residence and she cannot thereafter~vote in that county. She can vote only in the county andvoting precinct where her husband maintains his legal residence. APPROVED: Yours very truly,
J. C. Davis, Jr. JOHNBENSHEPPERD Reviewer Attorney General
W.V. Geppert Reviewer L.W. Gray Special Reviewer Davis Grant First Assistant John BenSheppard Attorney General B’*a?- Assistk

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