Auwmm' I,.- 

JORN ETEN sElcPPP~lKlD 

~X-ro~m-scX .a=NncYAI* June 28, 1956 

Hon. Tom Reavley 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 1 and 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 them at their present place of military service. The 

questions presented fin your request are ‘as follows:’ 

1. Can the wife of a member of the armed 

forces maintaining ~legal residence in Texas acquire such legal residence by virtue of her .“~’ : 

marriage, never having actually been a resident of 

this State, nor of the county wherein the servfceman maintains hi6 legal residence? 

2. if the answer to the above question is in ‘. 1 

the negative, can the wife of the member of the armed 

forces who maintains 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 a county of Texas)? 

3. If the l nsw6r to question number 1 is in the 

affirmative, then is lt correct to assume that she 

must have been married to the service member for at ._ 

least 12 months before she can vote? 

4. If the anewer to question number 1 is in 

the affirmative, would the wife of the member of.the ,, 

armed forc el cquIr6 s legal residence in Texas by 

virtue of the marriage, even if she Were not residing with the servtce member at his place of military 

duty? 
, - 

“. 

Hon. Tom Reavley, Page 2 (S-207) 

The amendment of November 2, 1954, removed the voting disqualification previously imposed on members of the regular military eSt6bliShmtntS and added a provision reading as 

follows: 

“Any member of the Armed Forces of the United 

States or component branches thereof, or in the 

military service of the United States, may vote 

only in the county in which he or she resided at 

the time of entering such service so 

she is a member of the Armed Forces.” 

long as he or 

In Attorney GSnSral’S Opinion S-148 (19%) it was 

stated: 

“The constitutional amendment does not change 

th6 rules for determining what place is the legal 

residence of the voter, nor does it mean that in 

all circumstances a person in ihilftary service will 

be entitled to claim a voting residence in the 

county of which he was a resident at the time he 

entered 66rViC6. Place of’residence is still to be 

determined in the same way as 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 

a person to abandon his old residence and acquire a 

new residence during time of service.” 

It is seen that the restriction on voting by military 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 to magnify 

the importance of the questions by increasing the number of 

instances in which 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 

a married woman for voting purposes is where her husband resides. Harvtll v. Morris, 143 S.W.2d 809 (Tex.Civ.App. 1940). 

According to the common law 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; 9 8 

t,%s %*ihfs 

There are certain exceprule, a6 wher& the;6 has been an abandonment 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 who has the right to select 

his domicil6, there must be an intention to make a certain 

place his permanent home coupl6d with actual physical residence at that place before it b6COmSS his domicile. Snvder v. 

Pitts, supra; Ma or v. Lo 

-the domici -+nd 6 s 

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

the person may thereafter 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 b6COm66 fix6d,intention alone not 

being SUffiCiSnt. 

The courts of this State have held that the actual 

physical presence of a married woman is not essential to the 

establishment of h6r domicile, which is fixed by operation of 

law. In Henderson v. Ford, 46 Tax. 627(1877), it was held 

that upon the marriage in Alabama of a Texas resident with a 

woman who was a resident of Alabama, with the intention to 

make Texas 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 come to Texas 

until two years therSaft6r: 

“By the marriage, as has been said, Mrs. Bohanon 

acquired a domicile 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, 51 Tax. 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. We have not found any square 

point in Texas, but dictum in Harwell v. 

Morris, supra,~ supports the same rule. In that case a woman who 

was a resident of Randall County married a, man who had formerl~y 

lived in Oldh&m County but who at the time of marriage was 

living at Amarillo, in Potter County, ,where h6 was employed by 

the United States Government. The husband and wife established living quarters at Amarillo and had continuously ‘. 
Hon. Tom Reavley, Page 4 (S-207) 

lived there since the marriage. Both the husband and the wife 

voted at an election 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 to Oldham 

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 shown that Gene Halliburton still 

claimed Oldham County as his residence or that 1 t was 

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 him and his wife of a residence in 

Amarillo in the manner in which they did would have 

: forfeited their residence in Oldham County. They still 

would have had the right to maintain their residence 

there if they desired to do so.” 

Thus it appears that ~the wifers 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 common law 

rule, it has b66n held that the wife acquires the domicile of 

the husband without h6r having actual1 

domicile. See 17 Am.Jur.,Domicile, % 3 ti . 

lived 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 18 Am.Jur 

s 61. In Dorsey v. Br Ill. 250, 52 N:k.E:z;t@%e, 

it was held that a married woman, by operation of law, .rnsy ha:e 

a domicile in a place.*ihere she has never been, but that she 

did-not become a r6SidSnt~ for Votin!3 Durnoses until she was 

actually physickly present at that-piack. Also see Snyder v. 

Callahan. 129 Atl. 41~0 (N.J.Circ.Ct. 1925). In Willrerssn v. 

236Ala. 104. 181 So. 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, 150 Kan. 368, 92 P.2d 819, 832 

(1939), held that a woman who married and moved to Washington, 

D.C., where her husband was in the employ of the United States 
Hon. Tom Reavley, Page 5 (S-207) 

Government (and who apparently 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 when he 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, we are of the 

opinion that under the law in Texas the domicile of the wife 

fixes th6 place where she may vote, and that her physical 

presence is not essential to establish her right to vote there, 

Your questions assume that a married man*s legal 

residence may continue to be the same as it was bSfOr6 marriage 

although his wife has never actually lived at that place. 

This assumption is correct, but for clarification of this point 

some attention should be given to Article 5.08 of Vernonrs 

Election Cods, which provides that the residence of a married 

man is 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 no more 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 he has 

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 a married 

woman is where her husband resides. Lacey v. Clemants, 36 Tax. 661; Henderson v. Ford, 46 Tex. 627; 

Haymond v. Haymond, 74 Tax. 14;12 S.W. 90; Russellrs 

Heirs v. Randolph, 11 Tax. 

“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 DUlC was not changed by the 

of Art.-2958 R’C S 1925 bow Article 

5.08, Vernonrs Rl6ctiOn’C~d~~~‘uhiich provides that. the 
Hon. Tom Reavley, Page 6 (S-207) 

residence of a married man is where his wife resides. That act was passed in 1905, long before 

suffrage was extended to women in Texas and.had 

reference only to the residence of the husband, 

who, at that time, was the only member of the 

community who wae entitled to vote, and it was 

designed only to provide a criterion by which the 

husbandts residence could be definitely established in case of doubt as to his--not the wifets 

--residence. It was never intended by the law 

makers to change the long established rule that 

the residence of the family is established by the 

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 a loss of residence (e.g., absence 

in military service), the fact that his wife also has her place 

of abode with him or at some other 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, we shall 

now answer your questions. 

1. Your first question is answered in the affirmative. 

In the eyes of Texas law, the wife of a member of the armed 

forces who maintains his legal residence (domicile) in Texas 

acquires the same legal residence by virtue of the marriage 

without’.her~:having actually lived in this State or in the 

county of her husbandts domicile; and upon 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 

a resident of a State which recognized her right to select her 

domicile or voting residence, she might still ,be considered a 

resident of that State under its laws and entitled to vote 

there. Of course, if she votes in some other State she could 

not also vote in Texas. 

2. If at the time of marriage the wife was a resident of Texas but of a different county from her husband, upon marriage she loses her former residence and she cannot 

thereafter vote in that county. She can vote only in the 

county and voting precinct where her husband maintains his 

legal residence. 
Hon. Tom Reavley, Page 7 (S-207) 

3. Your third question is answered in the affirmative. 

To be a qualified elector, a person must have resided in Texas 

for one year. Tax. Const. Art. VI, Sec. 2. The wife 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 by virtue of the marriage, even though she was not aiving with the serviceman at l&is place of military duty. In 

the absence of an abandonment or a separation with the intention of no longer maintaining marital relations, the fact that 

the wife was not living at the place where the husband was 

stationed would be immaterial. 

The wife of a member of the armed forces who 

maintains his legal residence in Texas acquires the 

same legal residence by virtue of the marriage without Herr having 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 to vote in this State if otherwise qualified. 

If at the time of marriage the wife was a resident of Texas but of a different county than her . 

husband, upon marriage she loses her former residence 

and she cannot thereafter~vote in that county. She 

can vote only in the county and voting precinct where 

her husband maintains his legal residence. 

APPROVED: Yours very truly, 

J. C. Davis, Jr. JOHN BEN SHEPPERD 

Reviewer Attorney General 

W.V. Geppert 

Reviewer 

L.W. Gray 

Special Reviewer 

Davis Grant 

First Assistant 

John Ben Sheppard 

Attorney General 

B’*a?- 

Assistk 

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