### THE ATTORNEY GENERAL OF TEXAS

September 17, 1990

Mr. A.W. Pogue Opinion No. JM-1223 Commissioner State Board of Insurance Re: Definition of "residentl' 1110 SanJacinto forpurposes ofarticle 21.28-D Austin, Texas 78701-1998 of the Texas Insurance Code (RQ-2007)

Dear Commissioner Pogue:

Your questions, as set out in the brief accompanying your request letter, are:

1. For purposes of the Life,Accident, Health andHospital Service Insurance Guaranty Association Act, TEX. INS. CODE ANN. art. 21.28-D, what does the term 'resident' mean?

2. Forpurposes of the Life,Accident, Health andHospital Service Insurance Guaranty Association Act, TEX. INS. CODE ANN. art. 21:28-D (Vernon 1981 and Vernon SUPP. 1990),must aresident be a legal resident of Texas to qualify forbenefits?

Insurance Code article 21.28-D creates and provides for the operation of the Life,Accident, Health, and Hospital Service Insurance Guaranty Association (the l*association*t) for the purpose of protecting policyholders, insureds, beneficiaries, payees and assignees of certain kinds of insurance policies, annuity contracts, etc., "against failure inthe performance of contractual obligation due to the impairment of the insurer." Ins. Code art. 21.28-D, § 2. Association funding isprovided through assessments of "member insurers" -- those insurance companies towhich the act applies that are authorized to transact business in the state. Id. §§ 5 (definitions), 9 (assessments). The protection afforded by the association to those persons covered by it includes guaranteeing, assuming, or reinsuring policies of insolvent insurers covered by the act and

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making, or causing to be made, payment of contractual obligations of such insurers. Id, 5 8.
Section 3 of article 21.28-D, in subsection (l)(b), provides that, with respect to the policies and contracts covered under subsection (l)(a), the act applies as follows:

(i) to those persons who, regardless of where they reside, except for nonresident certificate holders under group policies or contracts, are thebeneficiaries, assignees,
or payees of the persons covered under Paragraph (ii)or (iii);and
(ii) to those persons who are owners of
or certificate holders under those policies
or contracts and who are residents of this state at the time such insurer becomes an impaired insurer asdefined inthis Act; or (iii) to those persons who are not residents of this state at that time but who meet all of the following conditions:
(A) the policies or contracts are issued by insurers domiciled in this state;
(B) at the time the policies or contracts were issued, the persons were residents. of this State;
(C) the insurers did nothold a license
or certificate of authority inthe states in which the persons reside at the time a delinquency proceeding asdefined by Article 21.28 of this code iscommenced against those insurers;
(D) the other states have associations similar to the association created by this Act: and
(E) the persons are not eligible for coverage by those associations in the other state. (Emphases added.)
Subsection (l)(b)distinguishes, in subparts (ii) and (iii)between two classes of persons covered by the act: those who were residents of this state at the time the

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insurer became an impaired insurer,1 and those who were not residents at such time but resided inTexas when the policy
or contract was issued. Persons inthe latter class are covered only ifcertain other criteria aremet.

You note that article 21.28-D does not define the term "resident" as it isused inthe article. You ask us inyour first question, in effect, definitiona toprovide such a statutory

We think that article 21.28-D provides ample authority for the association, the commissioner, and the State Board of Insurance topromulgate rules establishing the scope of the terms "reside" and "residence,11as used in article 21.28-D, forpurposes of carrying out itsduties under the article. See Ins. Code art. 21.28-D, 55 lo(l)(a), lO(3)(0 (association shall promulgate "plan of operation," subject to approval of the commissioner, containing provisions "necessary orproper forthe execution of the powers and duties of the association'), 10(l)(b) (ifassociation does not submit suitable plan of operation, commissioner may adopt rules "necessary or advisable" to effectuate provisions of act), 20 ("State Board of Insurance is authorized and directed to issue such reasonable rules and regulations asmay be necessary to carry out the various purposes and provisions of thisAct, and in augmentation thereof"): see. e.q., 37T.A.C. 5 15.1(2), (3) (Department of Public Safety rule defining "resident" as "person whose domicile is inthe State ofTexas" forpurposes of driver's license requirements ofV.T.C.S. article 6687b).

It isnot the function of this office, under the constitutional and statutory provisions governing the opinion process, to write the lawor topromulgate rules for an agency's administration of the laws it ischarged to carry out. Adopting legislation isamatter for the legislature. Where the legislature has properly delegated to an administrative agency the quasi-legislative power to adopt rules

1. &g Ins. Code art. 21.28-D, 5 5(8), defining "impaired insurer."

2. You request letter, on page 1, characterizes your request as for "anopinion which setsout the definition of 'resident' for the purpose of TEX. INS. CODE ANN. art. 21.28-D."

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forthe administration of the law the agency ischarged to carry out, promulgation of those rules, within the parameters of applicable law, isproperly amatter for that agency. We cannot provide a comprehensive definition of Vesidence" which will apply inall possible situations that may arise. Nevertheless, we offer the following discussion toassist you in carrying out the purposes of article 21.28-D.

You note in your brief, citing Prince v. Inman, 280 S.W.2d 779 (Tex. Civ. App. - Beaumont 1955, nowrit) and DeLeon v. Harlinaen Consol. Indev. School Dist., 552 S.W.2d 922 (Tex.Civ. App. -Corpus Christi 1977, nowrit), that the definition of the term "residence" varies depending on the context of its usage and that its meaning in a particular statutory context depends on the legislative purpose behind the statute.

You point out that several authorities have distinguished between the terms Vesidence" and "domicile," indicating that "residence" means that aperson is present and "living" in aparticular locality, while UVdomicile" includes the additional element of intent to make that location a "fixed" and "permanentl@ home. Snvder v. Pitts, 241 S.W.2d 136 (Tex. 1951)3; See Skubal v. Skubal, 584 S.W.2d 45 (Tex.Civ. App. - SanAntonio 1979,writ dism'd) (andauthorities cited therein). In construing the meaning of thewords "permanent residence" inan insurance policy, the court inSwitzerland Gen. Ins. Co.v. Gulf Ins. Co., 2ii S.W.2d 161 (Tex. Civ.ADD. - stated that aperson Dallas 1948. writ dism'd) "may&have asmany residences ashe ' may choose, but canhave but one domicile."
Nevertheless, itappears thatwhere the legislature has defined 'Oresidence,V@ ithas generally equated the term with domicile. The Election Code defines "residence," for purposes of that code, to mean "domicile, that is, one's

3. Interestingly, the court in Snvder, s!4Ix2, held that since thepurpose of thevenue provision under consideration inthat casewas only toprevent inconvenience to parties not regularly present in the county where suit was brought, the term "domicile," as used in the provision, meant only lVresidence"-- in-.e., requirement of the element of intent tomake the locan apermanent home was not necessary to serve the purpose of the statute.

-.,

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home and fixedplace ofhabitation to which he intends to return after any temporary absence." Elec. Code 5 1.015. Indefining with the l'residencell for purposes ofprovisions dealing interception and use of certain article 18.20, communications, section 1(13), of the Code of Criminal Procedure, though not using the term "domicile,*' uses language substantially equivalent to that in the Election Code definition. Education Code section 54.052 also defines residence, for purposes ofdetermining tuition rates at institutions ofhigher education, asdomicile. We note that theArizona Supreme Court in St. Joseoh's Hosv. & Medical Center v.Maricova County 688 P.2d 986, 991 (Ariz. 1984) stated that, though the te&ns residence and domicile are not synonymous at common law, that jurisdiction at least had "generally treated the statutory usage of the term 'residence' as carrying the same connotations as the term 'domicile.'" See also 37 T.A.C. 5 15.1(Z), (3) (the Department of Public Safety rule equating residence with domicile for purposes ofdriver's license requirements); Attorney General Opinion JM-1212 (1990) (discussion of the meaning of the term Vesidence" inprovisions of Government Code section 496.054 regarding prisoner work program facilities).
Using a definition of "resident" for purposes of article 21.28-D which would permit aperson, inthewords of the Switzerland Gen. Ins. Co. opinion, referenced above, to "have asmany residences ashemay choose" would, we think, clearly lead tountenable results. Section 3 in subsection (l)(b)(ii) provides that anowner or certificate holder of a covered policy iscovered ifhe isa resident at the time the insurer becomes impaired. See also id. § 3(2)(d). We donot think that the Texas legislature or that ofany other state having adopted similar provisions would have intended that aperson could have **residences11 inall of such states forpurposes of the provisions. We think that the scheme of article 21.28-D, and particularly of section 3,contemplates that aperson may notbe considered to be a Vesident@' of
more than one state at a time forpurposes of the article.

You suggest inyour brief sion of that in light of the provisection 4 of article 21.28-D that it "shall be liberally construed to effect" itspurposes, the term "resident" asused inthe article should be read tobear "its simplest meaning: a person living and physically present within theborders of the State of Texas." We are unsure of the import you attach to the requirement of "physical presence" in your definition. We do not think that any definition of "residence" for purposes of article 21.28-D, P

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whether equating the termwith domicile or otherwise, could require uninterrupted physical presence. See. eo . Code 5 1.015 (language regarding 'temporary absence"'inElec. the code's definition of 'residencen as ndomicile,'l above). As a brief quoted submitted in connection with your request by an insurance company points out, taken literally, the definition of Vesident" you proffer would exclude a person domiciled inTexas but travelling out of state on the relevant date from the protection of the article, a result which we cannot imagine the legislature would have intended and which, moreover, would probably unconstitutionally restrict the fundamental right of interstate travel. e.s., ShaDiro v. ThOmosOn, 394U.S. 618 (1969). See.

We note that the insurance company's brief offers a definition of "residence" quoted from Snvder, suora:

1. A fixed place of abode within the possession [feeor leasehold estate] of the [person claiming residence]

2. occupied or intended to be occupied consistently over a time substantial period of

3. which ispermanent rather than temporary.

See Snvder at 140 (parenthetical language added by briefer).

While we do not quibble with the Snvder court's definition, which was in factof the term V*domicile*' asused inavenue provision, we do not agreewith the suggestion in the parenthetical language, added in the insurance company's brief to the quoted Snvder definition, that aresident must have a possessory interest in the claimed residence tantamount to a "feeor leasehold estate." We find in the language of article nothing 21.28-D or history which in the legislative

suggests that the legislature intended to impose such arequirement on persons whomight be entitled to protection under the article. Nor dowe seehow such a requirement would serve the purposes of the article. While evidence that aperson rented orowned ahome at relevant times under the article might be usefully considered in making findings as towhether the person was a resident at such times, such factors should not inthemselves be taken as conclusive on that issue. See. e.o Pittsv. Black, 608 F.Supp. 696 (DCNY 1984) (homelessmay ciaim as residence for voting purposes "homebase" towhich they regularly return, ?

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### us.. a public park or shelter): Cramer Graham, 264 S.W.2d 135 (Tex.Civ.App. - SanAntonio I,;;,writ ref'd) (personswere residents forvoting purposes though they "occupied habitations consisting of trailer houses, walled-up tents, cabins and shacks . . .onpublic property").

We note finally inregard toyour first question that
we agree with the argument in your brief that whether a person holds a Texas driver's license is in itself an inadequate indicator ofwhether that person isa "resident" forpurposes of article 21.28-D. Subsections (d) through (0 of section 3 of article 668713, V.T.C.S., exempts "non-residents" fromthe requirement of obtaining a Texas driver's license. As noted above, the Department of Public Safety, by rule, defines "resident" forpurposes of article 6687b asa "personwhose domicile is inthe State of Texas." 37T.A.C. § 15.1(2). Butwhether aperson obtains-or fails to obtain adriver's license under article 66871, is, we think, simply anunreliable indicator in itself of whether he is in fact a "resident:Iforpurposes of article 21.28-D. The person might have claimed Texas residence and obtained a driver's license under article 6687b though hewas not in fact aresident, orhe might have failed, through inadver- /-‘ tence or otherwise, to obtain a license though hewas in

fact aresident and thus required as a driver under that article to obtain a license.

The same may be said with regard to, for example, whether andwhere the person inquestion isa registered voter, whether hehas registered his automobile in this state or elsewhere, orwhether inother contexts such as court proceedings, hehas indicated Texas oranother place ashis residence. Factual evidence inregard to the above matters may assist the association -- should a full factual investigation as to the issue of residence be called for in
aparticular case -- inmaking itsdetermination. But none of these factors should in itself be taken as conclusive on the issue of "residence" forpurposes of article 21.28-D. SeeAttorney General Opinion JM-611 (1986) (residence of persons who winter inTexas forpurposes ofvoting, vehicle registration, etc.).

We turn now toyour second question: whether a person must be a "legal" resident of Texas -- that is, a United States citizen oran alien legally residing inthis country under federal immigration laws -- inorder to be a Texas resident forpurposes of article 21.28-D. You conclude in your brief that he need notbe, and that therefore it isnot

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necessary for the association
or immigration status to determine the citizenship
mining his of a person for purposes of deter-

"residence" under the article. We agree.

We think it iswell established that aprovision of state law requiring residence does not preclude an alien, whose presence in the state is otherwise of a residential character, from receiving benefits under the provision, even though the person may nothave under federal immigration laws, the legal right, to be in this country. See Attorney General Opinions JM-1021 (1989) (resident illegal aliens not excluded from coverage under Indigent Health Care and Treatment Act): JM-962 (1988) (TexasCommission for the Blind may not deny services tovisually handicapped children
orvocational rehabilitation services to adults because of immigration status); see also St.Joseoh's HOSD. & Medical Center v.MaricoDa gualify as countv County, suora (undocumented aliens may residents under statutes mandatina that county-reimburse- private hospital for emergency care to indigents); Commercial Standard Fire & Marine Co. v. Galindo, 484 S.W.2d 635 (Tex.Civ. App -El Paso 1972, writ ref'd n.r.e.) (personresiding inthis state whose entry may be contrary to the immigration laws isnot barred, by that reason alone, from receiving workers compensation benefits).

We find no indication inthe residence requirements of article 21.28-D or in the legislative history of those provisions that the legislature intended citizenship or legal immigration status tobe prerequisites to "residence" forpurposes 'ofthose provisions. Whether it could have constitutionally imposed such requirements had itwished to do so is,moreover, highly questionable. See e,lvlerv. Doe, 457U.S. 202 (1982) (Texasstatute withholding funds for public education of children not "legally admitted" into the United States violates equal protection clause of U.S. Constitution).

SUMMARY

The Life, Accident, Health, and Service Insurance Hospital Guaranty Association, in its "plan of operation," or the commissioner
or State Board of Insurance, by rule, have authority todefine, within legal parameters, the terms "reside" and Vesident@@ as they are used in Insurance Code article 21.28-D.

The provisions Of section 3 of that article requiring that certain persons have

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been residents of Texas at relevant dates under the article inorder tobe entitled to protection under the article do not require that those persons have at such times been United States citizens or aliens legally residing inthe United States under federal immigration laws.

Very truly y s, 

# J *a

M, JIM MATTOX Attorney General of Texas

NARY KELLER First Assistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY Special Assistant Attorney General P RKNEA HICKS

Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byWilliam Walker Assistant Attorney General

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