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 San Jacinto for purposes of article 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 

and Hospital Service Insurance Guaranty 

Association Act, TEX. INS. CODE ANN. art. 

21.28-D, what does the term 'resident' 

mean? 

2. For purposes of the Life, Accident, Health 

and Hospital Service Insurance Guaranty 

Association Act, TEX. INS. CODE ANN. art. 

21:28-D (Vernon 1981 and Vernon SUPP. 

1990), must a resident be a legal resident 

of Texas to qualify for benefits? 

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 in the performance of contractual obligation due to 

the impairment of the insurer." Ins. Code art. 21.28-D, 

§ 2. Association funding is provided through assessments of 

"member insurers" -- those insurance companies to which 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 

p. 6476 
Mr. A. W. Pogue - Page 2 (JM-1223) 

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 the beneficiaries, 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 as defined in this 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 not hold a license 

or certificate of authority in the states in 

which the persons reside at the time a 

delinquency proceeding as defined by Article 

21.28 of this code is commenced 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 

p. 6477 
Mr. A. W. Pogue - Page 3 (JM-1223) 

insurer became an impaired insurer,1 and those who were not 

residents at such time but resided in Texas when the policy 

or contract was issued. Persons in the latter class are 

covered only if certain other criteria are met. 

You note that article 21.28-D does not define the term 

"resident" as it is used in the article. You ask us in your 

first question, in effect, 

definitiona 

to provide such a statutory 

We think that article 21.28-D provides ample authority 

for the association, the commissioner, and the State Board 

of Insurance to promulgate rules establishing the scope of 

the terms "reside" and "residence,11 as used in article 

21.28-D, for purposes of carrying out its duties 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 or proper for the execution of the powers and 

duties of the association'), 10(l)(b) (if association 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 as may be necessary to carry out the various 

purposes and provisions of this Act, and in augmentation 

thereof"): see. e.q., 37 T.A.C. 5 15.1(2), (3) (Department 

of Public Safety rule defining "resident" as "person whose 

domicile is in the State of Texas" for purposes of driver's 

license requirements of V.T.C.S. article 6687b). 

It is not the function of this office, under the constitutional and statutory provisions governing the opinion 

process, to write the law or to promulgate rules for an 

agency's administration of the laws it is charged to carry 

out. Adopting legislation is a matter 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 "an opinion which setsout the definition of 

'resident' for the purpose of TEX. INS. CODE ANN. art. 

21.28-D." 

p. 6478 
Mr. A. W. Pogue - Page 4 (JM-1223) 

? 

for the administration of the law the agency is charged to 

carry out, promulgation of those rules, within the 

parameters of applicable law, is properly a matter for that 

agency. We cannot provide a comprehensive definition of 

Vesidence" which will apply in all possible situations that 

may arise. Nevertheless, we offer the following discussion 

to assist 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, no writ) and 

DeLeon v. Harlinaen Consol. Indev. School Dist., 552 S.W.2d 

922 (Tex. Civ. App. - Corpus Christi 1977, no writ), 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 a person is present 

and "living" in a particular 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. - San Antonio 1979, writ dism'd) 

(and authorities cited therein). In construing the meaning 

of the words "permanent residence" in an insurance policy, 

the court in Switzerland Gen. Ins. Co. v. Gulf Ins. Co., 2ii 

S.W.2d 161 (Tex. Civ. ADD. - 

stated that a person 

Dallas 1948. writ dism'd) 

"may&have as many residences as he may ' 

choose, but can have but one domicile." 

Nevertheless, it appears that where the legislature has 

defined 'Oresidence,V@ it has 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 the purpose of the venue provision under consideration in that case was only to prevent 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 to make the locan a permanent home was not 

necessary to serve the purpose of the statute. 

-., 

p. 6479 
Mr. A. W. Pogue - Page 5 (JM-1223) 

home and fixed place of habitation to which he intends to 

return after any temporary absence." Elec. Code 5 1.015. 

In defining 

with the 

l'residencell for purposes of provisions 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 of determining tuition rates at 

institutions of higher education, as domicile. We note that 

the Arizona 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 of driver's license requirements); 

Attorney General Opinion JM-1212 (1990) (discussion of the 

meaning of the term Vesidence" in provisions 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 a person, in the words of 

the Switzerland Gen. Ins. Co. opinion, referenced above, to 

"have as many residences as he may choose" would, we think, 

clearly lead to untenable results. Section 3 in subsection 

(l)(b)(ii) provides that an owner or certificate holder of a 

covered policy is covered if he is a resident at the time 

the insurer becomes impaired. See also id. § 3(2)(d). We 

do not think that the Texas legislature or that of any other 

state having adopted similar provisions would have intended 

that a person could have **residences11 in all of such states 

for purposes of the provisions. We think that the scheme of 

article 21.28-D, and particularly of section 3, contemplates 

that a person may not be considered to be a Vesident@' of 

more than one state at a time for purposes of the article. 

You suggest in your brief 

sion of 

that in light of the provisection 4 of article 21.28-D that it "shall be 

liberally construed to effect" its purposes, the term "resident" as used in the article should be read to bear "its 

simplest meaning: a person living and physically present 

within the borders 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 

p. 6480 
Mr. A. W. Pogue - Page 6 (JM-1223) 

7 

whether equating the term with domicile or otherwise, could 

require uninterrupted physical presence. See. e . o 

Code 5 1.015 (language regarding 'temporary absence"'in 

Elec. 

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 in Texas 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, 394 U.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 [fee or leasehold estate] of the 

[person claiming residence] 

2. occupied or intended to be occupied 

consistently over a 

time 

substantial period of 

3. which is permanent 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 fact of the term V*domicile*' as used 

in a venue provision, we do not agree with the suggestion in 

the parenthetical language, added in the insurance company's 

brief to the quoted Snvder definition, that a resident must 

have a possessory interest in the claimed residence 

tantamount to a "fee or 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 a requirement on persons who might be entitled 

to protection under the article. Nor do we see how such a 

requirement would serve the purposes of the article. While 

evidence that a person rented or owned a home at relevant 

times under the article might be usefully considered in 

making findings as to whether the person was a resident at 

such times, such factors should not in themselves be taken 

as conclusive on that issue. See. e.o Pitts v. Bl ack, 608 

F.Supp. 696 (DCNY 1984) (homeless may ciaim as residence for 

voting purposes "home base" to which they regularly return, 

? 

p. 6481 
,- 

Mr. A. W. Pogue - Page 7 (JM-1223) 

us.. a public park or shelter): Cramer Graham, 264 

S.W.2d 135 (Tex. Civ. App. - San Antonio I,;;, writ ref'd) 

(persons were residents for voting purposes though they "occupied habitations consisting of trailer houses, walled-up 

tents, cabins and shacks . . . on public property"). 

We note finally in regard to your 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 of whether that person is a "resident" 

for purposes of article 21.28-D. Subsections (d) through 

(0 of section 3 of article 668713, V.T.C.S., exempts 

"non-residents" from the requirement of obtaining a Texas 

driver's license. As noted above, the Department of Public 

Safety, by rule, defines "resident" for purposes of article 

6687b as a "person whose domicile is in the State of Texas." 

37 T.A.C. § 15.1(2). But whether a person obtains-or fails 

to obtain a driver's license under article 66871, is, we 

think, simply an unreliable indicator in itself of whether 

he is in fact a "resident :I for purposes of article 21.28-D. 

The person might have claimed Texas residence and obtained a 

driver's license under article 6687b though he was not in 

fact a resident, or he might have failed, through inadver- 

/-‘ tence or otherwise, to obtain a license though he was in 

fact a resident and thus required as a driver under that 

article to obtain a license. 

The same may be said with regard to, for example, 

whether and where the person in question is a registered 

voter, whether he has registered his automobile in this 

state or elsewhere, or whether in other contexts such as 

court proceedings, he has indicated Texas or another place 

as his residence. Factual evidence in regard to the above 

matters may assist the association -- should a full factual 

investigation as to the issue of residence be called for in 

a particular case -- in making its determination. But none 

of these factors should in itself be taken as conclusive on 

the issue of "residence" for purposes of article 21.28-D. 

See Attorney General Opinion JM-611 (1986) (residence of 

persons who winter in Texas for purposes of voting, vehicle 

registration, etc.). 

We turn now to your second question: whether a person 

must be a "legal" resident of Texas -- that is, a United 

States citizen or an alien legally residing in this country 

under federal immigration laws -- in order to be a Texas 

resident for purposes of article 21.28-D. You conclude in 

your brief that he need not be, and that therefore it is not 

P. 6482 
Mr. A. W. Pogue - Page 8 (JM-1223) 

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 is well established that a provision 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 not have 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) (Texas Commission for the 

Blind may not deny services to visually handicapped children 

or vocational 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.) (person residing in this state whose entry may 

be contrary to the immigration laws is not barred, by that 

reason alone, from receiving workers compensation benefits). 

We find no indication in the residence requirements of 

article 21.28-D or in the legislative history of those 

provisions that the legislature intended citizenship or 

legal immigration status to be prerequisites to "residence" 

for purposes 'of those provisions. Whether it could have 

constitutionally imposed such requirements had it wished to 

do so is, moreover, highly questionable. See e,lvler v. Doe, 

457 U.S. 202 (1982) (Texas statute 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 to define, 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 

v. 6483 
, 

. 

Mr. A. W. Pogue - Page 9 (JM-1223) 

been residents of Texas at relevant dates 

under the article in order to be entitled to 

protection under the article do not require 

that those persons have at such times been 

United States citizens or aliens legally 

residing in the United States under federal 

immigration laws. 

Very truly y s, J M, *a 

JIM MATTOX 

Attorney General of Texas 

NARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLKY 

Special Assistant Attorney General 

P 

RKNEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

p. 6484